author: Dillard, Judge.

text:
    A11A1077.
    TOLBERT v. THE STATE.
    (720 SE2d 244)
   Dillard, Judge.

Following a trial by jury, David L. Tolbert was convicted of armed robbery, kidnapping with bodily injury, aggravated assault, aggravated battery, aggravated sodomy, and possession of a firearm during the commission of a felony. Tolbert challenges these convictions, arguing that the trial court erred in (1) denying his motion for discharge and acquittal pursuant to OCGA § 17-7-171, (2) applying an incorrect standard of review to his motion for new trial, (3) denying a motion for directed verdict as to the kidnapping-with-bodily-injury charge, (4) denying a motion for mistrial after a witness referenced the co-defendant’s pretrial incarceration, (5) permitting the prosecution to speculate as to the whereabouts of the firearm during closing argument, and (6) excluding testimony that forensic evidence was misreported at a prior trial. For the reasons noted infra, we affirm Tolbert’s convictions.

Viewed in the light most favorable to the jury’s verdict, the record shows that in the early morning hours of July 18, 2007, Tolbert and his co-defendant, Michael Willis, subjected two victims to a terrifying home invasion—for what turned out to be a fake lottery ticket.

Shortly before midnight on July 17, Brenda Rogers heard a noise outside the home and Kelvin Robinson decided to investigate. Upon exiting the home, Robinson was suddenly jumped by Willis, who had apparently been hiding behind Robinson’s truck. Willis struck Robinson in the head with a gun and demanded money. Robinson responded that he did not have any money, but Willis insisted that he had been told otherwise.

During the ensuing struggle, a green Ford Explorer made its way up the road. Tolbert then jumped from the vehicle and twice struck Robinson on the back of the head with a knife. Both Tolbert and Willis had guns, and one of them again struck Robinson in the head with a firearm before pulling him into the house.

Meanwhile, unaware of what had just transpired outside, Rogers was in the kitchen when she noticed through her peripheral vision that a strange man (Tolbert) was inside the house. And when she asked where Robinson was, Tolbert grabbed Rogers by the throat and said he would show her. Tolbert then proceeded to drag Rogers through the house to the living room, demanding to know where to find “the money,” but Rogers did not know what Tolbert meant.

When they reached the living room, Rogers saw that Willis was holding Robinson at gunpoint, his bleeding head resting between his legs. Willis also used his knee to repeatedly strike Robinson in the face and ribs, proclaiming that he wanted to “put a cap in [Robinson’s] ass” and that he “wasn’t going to leave witnesses.” As this continued, Tolbert pushed Rogers into a chair, took out a pair of latex gloves from a duffle bag, and then used his knife to tear apart sheets from Robinson’s bed, the remnants of which Tolbert used to bind Robinson’s hands and feet.

Willis, on the other hand, turned his attention to Rogers and demanded that she remove her panties and spread her legs. Fearing for her life, Rogers complied and begged the men not to kill her. Tolbert then approached Rogers, pulled her out of the chair by her throat, and made her lead him through the house in search of money. Rogers supplied Tolbert with a key to a safe kept in the bathroom, and she was then led back into the living room. Tolbert then retrieved Robinson and made him hop through the home to another room.

While Tolbert and Robinson were out of the room, Willis forced Rogers at gunpoint to perform oral sex on him. This assault ended when Tolbert returned and said that it was time to go, but Willis made Rogers follow them to the door. Once there, Willis pulled up Rogers’s shirt and placed his mouth on her breasts before leaving the home. Rogers immediately shut and locked the door, watched Tolbert and Willis leave in the green Ford Explorer, and then freed Robinson, whose face was severely beaten and covered in blood.

Robinson and Rogers were unable to unlock the door to the home to escape because Tolbert had taken the keys. As a result, Rogers was forced to crawl through a window to call the police from a nearby home owned by Robinson’s sister. Rogers scratched and bruised her legs while crawling through the window, and both she and Robinson spent the night at a hospital after law enforcement arrived. Rogers was examined by a sexual-assault nurse examiner, and Robinson was treated for a broken nose, cracked ribs, and multiple lacerations to his face and head. While their victims were left with injuries, Tolbert and Willis made off with Robinson’s cell phone, approximately $130 in cash, and a prank lottery ticket.

Because neither Robinson nor Rogers recognized the perpetrators, the police were left to piece together Tolbert and Willis’s identities. The ensuing investigation revealed that prior to the robbery, Robinson kept the fake lottery ticket inside his truck. He would use the ticket, which he claimed to be a winner worth $10,000, to play practical jokes on his friends. And when questioned by law enforcement soon after the incident, Robinson recalled that a family friend, Kristian Kizziah, had been fooled by the ticket the day before the robbery.

The investigators thereafter discovered that Kizziah was a paramour of Willis. And at trial, Kizziah testified that she was shown the prank lottery ticket when she drove Robinson around town on July 16 and that she believed the ticket to be genuine. Later that night, she mentioned the ticket to Willis, and he asked to borrow her cell phone. Willis made a call, returned, asked Kizziah a few more questions regarding the ticket’s appearance, and then stated that Tolbert was going to come over and that Kizziah should show them where Robinson lived. Kizziah then rode along with Tolbert and Willis in Tolbert’s green Ford Explorer and, unsure of Willis’s intentions, pointed out Robinson’s home.

Tolbert and Willis then returned to Kizziah’s home the next day with a duffle bag that contained latex gloves and masks. At that point, Kizziah finally surmised the duo’s nefarious intentions but did not call the police. Before the two men departed, Kizziah noticed a gun in Tolbert’s waistband, and Willis borrowed a realistic-looking toy gun from her nephew. Kizziah was contacted by police the next day, but not before Willis called her to complain that the lottery ticket was fake and that they had beaten Robinson “for nothing.”

For her part, Kizziah fully cooperated with law enforcement and explained that on the night of the robbery, Willis wore blue-jean shorts and a white shirt, and Tolbert wore a blue hat, camouflage pants, and a shirt with white writing. This description corroborated that given to the police by the victims. And after Tolbert and Willis were apprehended, Rogers identified both in a photo line-up, and Robinson was able to identify Tolbert.

Thereafter, Tolbert and Willis were indicted on one count of armed robbery, two counts of kidnapping with bodily injury, two counts of aggravated assault, three counts of aggravated battery, one count of aggravated sodomy, and one count of possession of a firearm during the commission of a crime. Following a joint trial, the jury convicted both on all counts. Tolbert was granted leave by the trial court to file an out-of-time motion for new trial, which the trial court ultimately denied. This appeal by Tolbert follows.

At the outset, we note that after a defendant has been convicted, “we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence.” And we “do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” With these guiding principles in mind, we will now address each of Tolbert’s enumerations of error in turn.

1. Tolbert first contends that the trial court erred in denying his motion for discharge and acquittal pursuant to OCGA § 17-7-171 by finding that his demand for a statutory speedy trial was struck. Tolbert makes two arguments in this regard: (1) that because there was never a written order striking the demand, the State failed to try him within the time required by OCGA § 17-7-171; and (2) that the grounds for striking the demand were erroneous. Although we find the trial court’s handling of Tolbert’s speedy trial demand disconcerting, we nevertheless affirm its denial of his motion for discharge and acquittal.

Pursuant to OCGA § 17-7-171, “[a]ny person accused of a capital offense may enter a demand for a speedy trial at the term of court at which the indictment is found or at the next succeeding regular term thereafter; or, by special permission of the court, the defendant may at any subsequent term thereafter demand a speedy trial.” Thereafter, “[i]f more than two regular terms of court are convened and adjourned after the term at which the demand for speedy trial is filed and the defendant is not given a trial, then the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment,” so long as (1) juries were impaneled and qualified to try the defendant during both terms and (2) the defendant was “present in court announcing ready for trial and requesting a trial on the indictment.”

And here, the record shows that Tolbert was indicted on August 21, 2007, and that he filed a motion for a statutory speedy trial pursuant to OCGA § 17-7-171 on October 26, 2007. This was followed by a motion to sever his trial from that of Willis in November 2007. At a hearing before Judge Nunn, Willis’s counsel sought a continuance from the December trial calendar, and Tol-bert’s trial counsel mentioned that he was experiencing some health-related problems and that he might or might not be available for trial in December. Nevertheless, counsel was adamant that Tolbert did not wish to withdraw his speedy-trial demand. The hearing ended without a ruling on any matter and with Tolbert’s counsel informing the court that he would know the following day whether he would be available for trial in December.

What occurred thereafter is not entirely clear from the record, which is riddled with references to untranscribed rulings, events, and hearings (which apparently caused a great deal of confusion even for the trial court as it parsed through the procedural history of this case from time to time). What is known is that Tolbert and Willis were scheduled for trial in January 2008, but counsel for Willis was permitted to withdraw from representation at the last minute, and the trial court and State again declined to sever the defendants’ trials. Thus, the case was removed from the January trial calendar and continued, so as to allow Willis to obtain new counsel. In February 2008, Tolbert filed a motion to dismiss, citing his speedy-trial demand. But when the parties appeared for a hearing on the motion before Judge McConnell, the State volunteered that Tolbert’s speedy-trial demand had been struck by Judge Nunn due to his defense counsel’s illness. The next day, the parties again appeared before Judge McConnell, and Tolbert’s counsel admitted that Judge Nunn had indeed struck Tolbert’s speedy-trial demand. Specifically, Tolbert’s counsel expressed the following:

On behalf of my client, there is a problem. And that problem is[ ] that there is no longer officially a Speedy Trial Demand. And[ ] if [Willis] never acts and the State never blinks about the severance issue, my client never goes to trial. So, in other words, we’re in a total stalemate at this point and Your Honor, . . . I’m not trying to be inappropriate[.] I’m trying to express to the [c]ourt what our dilemma is because [ ] my client asked me a very simple question yesterday, which I didn’t have a chance to answer. He asked me, [“I]s the Speed[y] Trial Demand we filed in November or October still in effect[?”] Answer, [“]No.[”l And the reason is, because Judge — and you may not know this Judge, but I wanted to put it on the record[.] Judge Nunn ruled that, because I was ill in December, which was the first term of court available for Mr. Tolbert and Mr. Willis, that he was going to continue the case but he was gonna take away my Speedy Trial Demand. And as a result of that, I talked to the district attorney and he said, [“DJon’t worry about that[.] [W]e’re just gonna act as if it is, even though that it’s not there[.”] [A]nd true to his word we were ready to try thirty days later in January. And that’s when the record is now back to what happened yesterday, on the record, where Your Honor explained what happened in January. But, I’m very alarmed with the prospect now that the co-defendant, basically, can call [Tolbert’s] fate indefinitely.

Tolbert himself then spoke up to explain that he had been unaware that his speedy-trial demand had been struck.

Again, due to gaps in the record, what happened next is not entirely clear; but in March 2008, Judge Lumsden granted a request by Tolbert to file an out-of-time trial demand. And despite some confusion with regard to when the request was filed, it is clear from the record that Tolbert sought permission to file an out-of-time speedy trial demand and that his request was granted. Tolbert, however, never actually filed an out-of-time speedy trial demand after the court granted his request.

Thereafter, until the State ultimately obtained a conviction in November 2009 (following a change in Tolbert’s counsel and two separate mistrials brought on by the State in August 2008 and December 2008), Tolbert continued to assert his right to a statutory speedy trial through various motions to dismiss, always referencing the demand he filed in October 2007, but these motions were denied. And following his conviction, on motion for new trial, Tolbert argued that the State failed to establish that he had ever waived his right to a statutory speedy trial and that the trial demand had expired in June 2008.

The trial court denied Tolbert’s motion for new trial, which it treated as “a properly raised Motion for Discharge and Acquittal.” In doing so, the court found that Tolbert made a proper speedy-trial demand in October 2007 pursuant to OCGA § 17-7-171 but that, despite Tolbert’s arguments to the contrary, the demand had been struck. The court further found that Tolbert failed to file an out-of-time speedy trial demand, even though he had been granted permission to do so. Accordingly, the court found no violation of Tolbert’s statutory speedy trial right.

Given the foregoing, we conclude that the trial court did not err in denying Tolbert’s motion for discharge and acquittal. Although we are troubled by the manner in which the trial court struck Tolbert’s speedy-trial demand (especially off the record), and while we are likewise troubled by the apparent lack of notice to Tolbert (either due to the trial court, or his counsel at that time, or both), the actions of Tolbert’s counsel at that time confirm that the demand was indeed struck. And despite the trial court’s subsequent grant of permission to file an out-of-time speedy trial demand (presumably as a curative measure), Tolbert inexplicably failed to do so. In acknowledging this, we pause to note that although Tolbert alleged in his motion for new trial that “[pjrevious counsel failed to properly enforce the speedy trial demand,” he does not assert a claim of ineffective assistance of trial counsel on appeal.

As we see it, Tolbert had at least two options with regard to his speedy-trial demand: (1) challenge the trial court’s decision to strike his original speedy-trial demand and/or (2) request permission to file an out-of-time demand. Tolbert, through his counsel, only chose the latter option. By acquiescing in the trial court’s action of striking his October 2007 statutory speedy-trial demand (as evinced by counsel’s commentary at the February 2008 hearing, noted supra), Tolbert abandoned any arguments with regard to it, and his failure to file an out-of-time demand after having been granted permission to do so constituted a waiver. Therefore, the trial court properly denied Tolbert’s motions to dismiss and his motion for discharge and acquittal.

2. Tolbert next argues that the trial court applied an incorrect standard of review to his motion for new trial. We disagree.

Specifically, Tolbert contends that the trial court applied an improper standard of review when it denied his motion for new trial by noting in its order that “the credibility of the witnesses is for the jury to decide.” However, the transcript for the motion-for-new-trial hearing shows that Tolbert argued that “the eye witnesses were not credible as a matter of law” for a variety of reasons. To this argument, the trial judge responded that “witness credibility is a jury issue and is not gonna really be the basis for the grant of the Motion for New Trial, unless they were just way in left field,” which the trial judge apparently did not believe was the case. Thus, contrary to Tolbert’s argument, the judge’s statements on the record establish that she did not apply an erroneous standard of review; she instead acknowledged that she would not usurp the jury’s role as factfinder unless it was strongly against the weight of the evidence.

3. Tolbert also argues that the trial court erred in denying his motion for a directed verdict on the counts of kidnapping with bodily injury, arguing that the element of asportation was not proven. Specifically, Tolbert contends that the movement of Robinson and Rogers was incident to the armed robbery and insufficient to satisfy the element of asportation. We disagree.

Under Georgia law, a person commits the crime of kidnapping when he “abducts or steals away [i.e., asports] another person without lawful authority or warrant and holds such other person against his or her will.” At the time of Tolbert’s crime in 2007, “the law permitted the necessary element of asportation to be proven by any evidence that the victim was moved, however slight.” In Garza v. State, however, almost exactly one year before Tolbert’s conviction, ‘‘our Supreme Court adopted a new four-part test to aid in the determination of whether the movement at issue constitutes aspor-tation. . . ,” This test looks to

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of the separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

In adopting this test, the Supreme Court in Garza explained that its purpose in doing so was to assess

whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address — i.e., movement serving to substantially isolate the victim from protection and rescue — or merely a criminologically insignificant circumstance attendant to some other crime.

Here, we conclude that Tolbert’s act of grabbing Rogers by the throat and pulling her from the kitchen into the living room was sufficient evidence of asportation to support his conviction. Additionally, Tolbert and Willis’s act of dragging Robinson inside the home to resume his beating was sufficient evidence of asportation to support Tolbert’s conviction. In both instances, although the duration of the movement was brief, each act allowed Tolbert and Willis to control their victims without interference, further isolating them from rescue and increasing the risk of harm. Indeed, when Robinson was brought inside the home, he was tied to a chair and subjected to further physical abuse. As for Rogers, after she was brought into the living room, Willis eventually demanded that she undress and forced her to perform oral sex on him. Therefore, the movements were not “merely a criminologically insignificant circumstance attendant to some other crime,” but were instead representative of the “evil” that the kidnapping statute was designed to address.

4. Additionally, Tolbert argues that the trial court erred in denying his motion for mistrial when Robinson referred to Willis’s pretrial incarceration. We disagree.

At the outset, we note that “[t]he decision to deny a mistrial is within the trial court’s discretion, and we will not reverse it unless the grant of a mistrial is necessary to preserve the right to a fair trial.” And “[i]n reviewing the trial court’s decision, this court may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety.”

Here, Tolbert moved for a mistrial when, during Willis’s cross-examination of Robinson, counsel asked Willis to stand and for Robinson to describe Willis’s height. To this question, Robinson responded, “Well now, people grow over two and a half years, especially when you’re incarcerated.” Willis’s counsel immediately objected, the jury was removed from the courtroom, Willis moved for a mistrial, and Tolbert joined Willis’s objection and motion. Thereafter, the trial court decided that it would provide a curative instruction to the jury with regard to Willis but that it would not include Tolbert in this instruction. Tolbert objected to this ruling, but the trial court explained that “because the question was specifically directed at Mr. Willis, that there’s no real inference to Mr. Tolbert.”

On appeal, Tolbert argues that Robinson’s use of the word “you” is a plural pronoun and that the trial court’s curative instruction negatively implicated Tolbert when it ordered the jury to disregard the statement as to Willis only. We disagree, and find no abuse of discretion by the trial court in denying Tolbert’s motion for mistrial or curative instruction. It is clear from the transcript that Robinson’s testimony was in response to a question by Willis’s counsel regarding Willis’s height and that it did not implicate Tolbert. Accordingly, the trial court did not abuse its discretion in declining to include Tolbert in its curative instruction.

5. Next, Tolbert argues that the trial court erred when it permitted the State to speculate during closing argument that there was no gun in evidence because the defendants disposed of the weapon. We disagree.

The record shows that during closing argument, both Tolbert and Willis’s counsels highlighted flaws in the State’s evidence. Particularly, Willis’s counsel argued, “No gun recovered. No fake guns recovered. No evidence that a gun was even used or here or anything like that, even though they purport to have a weapon of some sort, somewhere in evidence.” On rebuttal, the State’s prosecutor responded to the attacks on the evidence and, with regard to the issue of a gun, replied, “No gun. . . . Well, why no gun? Well, because the Defendants got rid of it. We don’t have the gun.” Both defendants immediately objected, and Tolbert argued that there was “[njothing in evidence supporting that statement.” The trial court, however, overruled the objection, finding that it was a “reasonable inference” and that “the jury may rely on their recollection about what the testimony was.”

On appeal, Tolbert argues that the State’s argument was prejudicial and inflammatory, requiring a curative instruction or mistrial pursuant to OCGA § 17-8-75. But although counsel “should not be permitted in argument to state facts which are not in evidence, it is permissible to draw deductions from the evidence; and the fact that the deductions may be illogical, unreasonable, or even absurd, is matter for reply by adverse counsel, and not for rebuke by the court.” Here, the State’s argument was clearly in rebuttal to arguments made by the defendants, and it sought to raise a possible explanation for the fact that no gun was entered into evidence. Accordingly, it was not improper to suggest a conclusion the jurors themselves could have reached on their own.

6. Finally, Tolbert argues that the trial court wrongly excluded testimony by an investigating officer that forensic evidence was misreported at one of the two prior trials that resulted in a mistrial. We disagree.

The record reflects that at Tolbert’s first trial in August 2008, a law-enforcement officer who investigated the crime scene apparently testified that he had not created a report following his investigation. This trial eventually ended in a mistrial attributable to the State. At Tolbert and Willis’s second trial in December 2008, this investigator again took the stand; however, all parties were surprised when he testified to having created a report. At the defendants’ request, the judge granted a mistrial because the investigator’s testimony contradicted his prior testimony, and the investigator produced a report to which the parties had not been privy. The trial court also suggested that the sheriffs office conduct an internal investigation into the matter due to discrepancies regarding when the investigator claimed to have created the report.

Ultimately, the investigator was released from his service with the sheriffs office, and at the November 2009 trial, the State decided that it would not call the investigator as a witness. Both Tolbert and Willis expressed some desire to place the investigator on the stand and, because the State was unaware of the investigator’s whereabouts or contact information, the court offered to help the defendants find the investigator and to issue a subpoena if necessary. At trial, Tolbert informed the trial court that he intended to call the investigator as a witness but said that he had been unable to contact the officer; however, there was no indication that either defendant ever accepted the court’s offer of assistance in acquiring the investigator’s testimony.

Thereafter, the State called as a witness the sergeant in charge of criminal investigations. When counsel for Willis cross-examined the sergeant, he began to inquire about procedural errors that were made during the course of the criminal investigation. The sergeant admitted that he was aware of “some errors in the crime scene processing.” Counsel then proceeded to ask if the sergeant was referring to “[a] lack of procedural errors, a lack of following of procedure” by the crime-scene investigator who had previously testified, and the sergeant responded in the affirmative. Counsel then asked, “During the course of this case being investigated, having hearings and coming to trial, did you gain knowledge that there were reports inappropriately attached to your Investigative Report[?]” The State objected to this question.

The parties thereafter engaged in a bench conference and argued over whether asking the sergeant about what he had learned through the crime-scene investigator’s prior testimony was hearsay. The State contended that because the investigator was not present to testify, the sergeant’s response to the question would be hearsay. The court instructed the defendants that they were not to “get into the specifics of what [the investigator] did, [and] when, that was a violation of [crime-scene] procedure” with the sergeant and that they would need to call the investigator to pursue that line of questioning. The court did, however, believe that it would be proper to question the sergeant as to whether he was aware that crime-scene procedures were not followed as they should have been. The court then opined that “the question is, can [the sergeant] testify that he is aware that [the investigator] was untruthful on the stand or that he committed perjury or what have you.”

The court then recessed to review the transcript of the investigator’s prior testimony and offered for the record that after the entry of the mistrial in December 2008, the sheriffs department “apparently notified the District Attorney’s Office that they did not believe the report had been created at the time [the investigator] testified to” but that “ [a]t no time did [the investigator] actually admit that. . . [the report] was not created when he said it was created.” Thus, the court ultimately ruled that there was no evidence presented in the current trial dependent upon the investigator’s credibility and that “there has been no suggestion that he has manufactured evidence that implicates these Defendants, [or] that he has destroyed evidence that would exonerate these Defendants.” Accordingly, the trial court determined that there was “nothing in this that bears directly on the question . . . [of] the guilt or innocence of the accused.” The court, therefore, sustained the State’s objection to questioning whether the investigator perjured himself and instructed the defendants that if they wished to call the investigator, it could not be for the sole purpose of discrediting him, and that the issue was one of relevance.

Decided November 16, 2011

Reconsideration denied November 30, 2011

Armed robbery, etc. Houston Superior Court. Before Judge Lumsden.

On appeal, Tolbert argues that the trial court erred in sustaining the State’s objection because Willis’s counsel “was seeking information about [the sergeant’s] knowledge of the investigative procedures” and that “any irregularities in the crime scene procedures and the reporting thereof were fair game.” But the record reflects that the trial court did not preclude either Willis or Tolbert from this line of questioning. Indeed, the trial court even instructed the defendants that

[o]ther than [that] the procedures were not followed, which [the sergeant has] already said,. . . and if he has direct knowledge of something [the investigator] did or didn’t do, or he asked [the investigator] to do and it wasn’t done or whatever, I’ll let you go there, but with regard to allegations of perjury [by the investigator], I don’t see how that comes in at this point.

Accordingly, Tolbert mischaracterizes the trial court’s ruling and thus cannot blame it for any deficiencies in the sergeant’s cross-examination. We further note that the trial court did not abuse its discretion in ruling that any inquiry into the investigator’s prior testimony was irrelevant.

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

Judgment affirmed.

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

Russell K. Walker, for appellant.

T. Rabb Wilkerson III, District Attorney, George H. Hartwig III, Daryl E. Manns, Assistant District Attorneys, for appellee.

         Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       Robinson testified at trial that since the attack, he has trouble walking and coughing, and that he still experiences pain as a result of the severe beating he endured.

       Kizziah testified that although she had not been charged as a party to the crime, she had been informed by the State that she could still be charged as such.

       The victims also distinguished Willis from Tolbert through physical descriptions—Willis was short and heavyset while Tolbert was tall and skinny.

       Robinson testified that he was unable to identify Willis because he mostly remained behind Robinson, beating him about the face.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-40 (a).

       OCGA § 16-5-21 (a).

       OCGA § 16-5-24 (a).

       OCGA § 16-6-2 (a) (2).

       OCGA § 16-11-106 (a).

       Tolbert was convicted as a party to the crime of aggravated sodomy pursuant to OCGA § 16-2-20. Additionally, for purposes of sentencing, the count of kidnapping with bodily injury as to Robinson merged with two counts of aggravated battery against Robinson.

       Powell, 310 Ga. App. at 144.

        Id. (footnote omitted).

       The trial court also denied any claim to a violation of Tolbert’s constitutional right to a speedy trial, but we do not address this issue because Tolbert does not challenge that aspect of the trial court’s ruling on appeal. See Campbell v. State, 294 Ga. App. 166, 166 & n.1 (669 SE2d 190) (2008) (addressing appellant’s challenge to denial of statutory speedy trial only because the denial of constitutional speedy trial was not at issue on appeal).

       OCGA § 17-7-171 (a); see also Crawford v. State, 252 Ga. App. 722, 723 (1) (556 SE2d 888) (2001) (“Although armed robbery is not a capital offense punishable by death, OCGA § 17-7-171 and not OCGA § 17-7-170 is the statute that applies to that offense.” (citation omitted)).

       OCGA § 17-7-171 (b).

       Pursuant to OCGA § 15-6-3 (21), the Superior Court of Houston County operates under four three-month terms of court: January-March, April-June, July-September, and October-December. Thus, Tolbert filed his motion in the next succeeding regular term after the issuance of the indictment against him, and he thereafter had two additional terms in which to be tried (the January term and the April term). See OCGA § 17-7-171 (a), (b).

       We briefly note that the record reflects somewhat sporadic involvement by three judges in the Houston Judicial Circuit—Judges Nunn, McConnell, and Lumsden. To avoid any confusion in setting forth the procedural history required to address this enumeration of error, we will refer to the judges by name.

       We note that if Tolbert intended for this motion to serve as a motion for discharge and acquittal, it would have been prematurely filed. See OCGA § 17-7-171 (b).

       It is wholly undisputed that the speedy-trial demand was struck off the record and was done without a written order. The State’s reference to the demand being struck is, therefore, the first instance in which this ruling is mentioned in the record.

       According to the order, Tolbert made the request “on or about February 22, 2008.” The record reveals that a motion was signed by counsel on February 22, 2008, but was not filed until March 12, 2008, the same day that Judge Lumsden granted Tolbert’s motion, which asked the court “to exercise its discretion to grant him an out of time speedy trial demand under the provisions of [OCGA §] 17-7-170 et seq.”

       Tolbert further asserted that his right to a constitutional speedy trial had been violated but, again, the trial court’s ruling on this issue has not been raised in this appeal.

       We note that because the exchange between Tolbert’s counsel and Judge Nunn occurred off the record, we cannot determine whether a continuance was granted at counsel’s request or whether Judge Nunn continued the case sua sponte. See Rice v. State, 264 Ga. 846, 847 n.2 (452 SE2d 492) (1995) (“[A] continuance . . . entered sua sponte by the trial court will not operate as a waiver on the part of the defendant.”). Compare id. at 847 (“[A]ny continuance granted at the defendant’s request will operate as a waiver of a speedy trial demand under OCGA § 17-7-171[.]”), with id. at 849 (Carley, J., concurring specially) (“[I]f a defendant in a capital case makes a demand for speedy trial and, subsequently, is granted a continuance which expires during the same term at which his demand was made, he can nevertheless insist that he be tried at either of the two regular terms of court following the term in which the demand was made. In such a situation, the grant of defendant’s request for a continuance would not waive his right to seek discharge and acquittal if he were not tried at the two regular terms of court which were ‘convened and adjourned after the term’ during which he made his demand for speedy trial[.]”), and Davis v. State, 221 Ga. App. 168, 170 (1) (471 SE2d 14) (1996) (noting the concerns addressed in Justice Carley’s concurrence in Rice).

        See In the Interest of Z. K., 285 Ga. App. 150, 150-51 & n.2 (645 SE2d 637) (2007) (physical precedent only) (collecting citations in support of proposition that the waiver of a statutory right, rather than constitutional, must be knowing, intelligent, and voluntary), disapproved of on other grounds by In the Interest of J. M. B., 296 Ga. App. 786, 789 (676 SE2d 9) (2009).

        See Smith v. State, 261 Ga. 298, 300 (2) (404 SE2d 115) (1991) (“While a trial court can grant a defendant special permission to file an out-of-time demand for speedy trial, a trial court cannot actually make that demand for defendants.”).

        Compare Crawford v. Thompson, 278 Ga. 517, 519, 520 (603 SE2d 259) (2004) (holding that defendant was entitled to habeas relief because his trial counsel was ineffective by failing to comply with the strict requirements of OCGA § 17-7-171 and that the defendant was thereby prejudiced, and further holding that defendant was also prejudiced by appellate counsel’s failure to raise ineffective assistance of counsel argument on appeal).

        See Burdett v. State, 285 Ga. App. 571, 573 (2) (646 SE2d 748) (2007) (holding, despite argument by defendant that he was unaware that his counsel withdrew a demand for speedy trial, that “[i]t is a basic tenet of our judicial system that a trial court is entitled to rely on pleadings filed by an attorney on behalf of his client, and to presume that the client is aware of and consents to such pleadings”).

        See Mize v. State, 262 Ga. 489, 490-91 (2) (422 SE2d 180) (1992) (holding that defendant waived statutory right to speedy trial when, following dismissal of first demand, defendant “did not seek the trial court’s permission to file a new demand for trial”); see also Oni v. State, 268 Ga. App. 840, 841-42 (602 SE2d 859) (2004) (“A defendant.. . may waive his statutory right to automatic discharge and acquittal by some action on his part or on the part of his counsel.”). Cf. Bromley v. State, 259 Ga. 377, 379-80 (4) (380 SE2d 694) (1989) (holding that when defendant was offered but refused curative instructions after the trial court denied his motion for mistrial, he could not thereafter complain); Matiatos v. State, 301 Ga. App. 573, 574 (1) (688 SE2d 385) (2009) (holding that when trial counsel accepted trial court’s curative instruction without objection and without renewing motion for mistrial, he waived any claim of error on appeal).

       We leave for another day the question of what arguments a defendant would preserve by explicitly objecting to the treatment of a prior speedy-trial demand while simultaneously requesting permission to file an out-of-time demand.

        Compare Alvelo v. State, 288 Ga. 437, 439 (704 SE2d 787) (2011) (vacating and remanding to trial court when it appeared that “it explicitly declined to consider the credibility of witnesses” and thus “failed to apply the proper standard in assessing the weight of the evidence” in defendant’s motion for new trial).

        See OCGA § 5-5-21 (“The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.”); see also Infinite Energy, Inc. v. Ga. Public Serv. Comm’n, 257 Ga. App. 757, 759 (1) (572 SE2d 91) (2002) (“The trial judge is presumed to know the law and presumed to faithfully and lawfully perform the duties devolving upon it by law. This [C]ourt will not presume the trial court committed error where that fact does not affirmatively appear.” (footnote and punctuation omitted)).

       OCGA § 16-5-40 (a); see also OCGA § 16-5-40 (d) (4) (“A person convicted of the offense of kidnapping shall be punished by . . . [l]ife imprisonment or death if the person kidnapped received bodily injury.”).

        Hall v. State, 308 Ga. App. 858, 861 (709 SE2d 348) (2011) (footnote omitted).

       284 Ga. 696 (670 SE2d 73) (2008).

        Hall, 308 Ga. App. at 861.

        Garza, 284 Ga. at 702 (1) (citation and footnote omitted).

        Id. (citation and punctuation omitted).

        See Hammond v. State, 289 Ga. 142, 145 (710 SE2d 124) (2011) (holding that there was sufficient evidence of asportation when victim was moved from room to room inside home); Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28) (2009) (same).

        See Curtis v. State, 310 Ga. App. 782, 786 (1) (714 SE2d 666) (2011) (holding that there was sufficient evidence of asportation when defendant dragged the victim inside the home to reinitiate the victim’s beating); Hall, 308 Ga. App. at 861-62 (holding that there was sufficient evidence of asportation when defendant attempted to force victim into a bathroom stall and prevented others from rendering assistance).

        See generally Curtis, 310 Ga. App. at 786 (1); Hall, 308 Ga. App. at 862 (1).

        Garza, 284 Ga. at 702 (1) (citation and punctuation omitted).

       We note that Tolbert requested that the trial court not instruct the jury on false imprisonment as a lesser-included offense of kidnapping. Compare Curtis, 310 Ga. App. at 787 (2) (ultimately reversing kidnapping conviction because there existed evidence from which the jury could have convicted defendant of lesser-included offense and trial court failed to so instruct); Hall, 308 Ga. App. at 863 (2) (same).

        McCain v. State, 292 Ga. App. 886, 887 (665 SE2d 912) (2008) (footnote and punctuation omitted); see also Jones v. State, 279 Ga. App. 139, 140 (2) (630 SE2d 643) (2006) (“We review a trial court’s denial of a motion for a mistrial based on the injection of improper character evidence for manifest abuse of the court’s discretion.” (citations and punctuation omitted)).

        Jones v. State, 251 Ga. App. 285, 287 (2) (a) (554 SE2d 238) (2001) (footnote omitted).

        Cf. Moore v. State, 310 Ga. App. 106, 108 (1) (712 SE2d 126) (2011) (holding that trial court did not abuse its discretion in denying mistrial when law enforcement officers testified to having a general familiarity with the defendant); Jones, 251 Ga. App. at 287 (2) (a) (holding that curative instruction was appropriate remedy when witness inadvertently referred to defendant’s prior incarceration).

        See OCGA § 17-8-75 (“Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.”).

        Murphy v. State, 203 Ga. App. 152, 154 (2) (416 SE2d 376) (1992) (citation and punctuation omitted); see also Messick v. State, 276 Ga. 528, 529 (2) (580 SE2d 213) (2003) (“Although it is improper for an attorney during closing arguments to introduce facts that are not in evidence, counsel may draw reasonable inferences or deductions from the evidence.” (footnote omitted)).

        See Johnson v. State, 150 Ga. App. 405, 407-08 (3) (258 SE2d 22) (1979) (holding that State’s argument was not improper when it “remarked upon a fact that was obvious to the jury” and that “[slimilar comments had been stated in the negative by the defense in his closing argument,” making the State’s remarks “a form of rebuttal”).

        See Murphy, 203 Ga. App. at 154 (2) (holding that State’s suggestion that appellant drove a rental car “merely sought to raise possible explanations of the fact that the burglary car was not appellant’s car, other than the conclusion that appellant could not have been the burglar if the car used by the burglar was not appellant’s car”).

        See Perry v. State, 232 Ga. App. 484, 487 (2) (c) (500 SE2d 923) (1998) (suggestion by State that defendants had committed crimes in the past and “were not' amateurs” was “logically inferred from the evidence and within permissible bounds”). Compare Bryant v. State, 164 Ga. App. 543, 544 (3) (298 SE2d 272) (1982) (holding that State “strongly implied the existence of facts which were both prejudicial and not warranted by the evidence, viz, that the defendant intended to kill the FBI informant if he learned the informant’s name and that, prior to his arrest for the offense for which he was on trial, the police had knowledge that he was a certain type of thief”).

       The appellate record includes only three excerpts of witness testimony from this August 2008 trial, none of which reflect the testimony of this investigator and none of which reflect the reasons behind or the entry of the mistrial. Although this Court attempted to obtain same from the Superior Court of Houston County, we were unable to do so in a timely fashion.

        See, e.g., Puckett v. State, 310 Ga. App. 153, 154-55 (1) (712 SE2d 579) (2011) (“The trial court has broad discretion to exclude evidence on grounds of relevancy, and if the proffered evidence is too tenuous to prove the desired matter and is possibly more prejudicial than probative, the trial court does not abuse its discretion in excluding the evidence.” (footnote and punctuation omitted)).


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A11A1229.
    WILLIAMS v. CAPITOL CORPORATE CLEANING, INC.
    (720 SE2d 228)
   Doyle, Judge.

Letha Williams brought a personal injury action against Capitol Corporate Cleaning, Inc. (“Capitol”), alleging that Capitol was negligent in performing cleaning services at Williams’s workplace, where she was injured after a slip and fall. Following a jury trial resulting in a verdict in favor of Capitol, Williams appeals from the trial court’s denial of her motion for new trial. She contends that the trial court erred by (1) improperly instructing the jury, (2) entering a judgment that was unsupported by the evidence, and (3) allowing Capitol to present a closing argument after it waived argument. For the reasons that follow, we affirm.

Williams’s complaint alleged that while she was an employee at the corporate offices of a hotel group, she walked through a computer tape storage library and slipped on a foreign substance on the floor, causing injuries to her hands, knees, and back. She reported the injury to her supervisor, sought treatment at a hospital, and ultimately required three knee surgeries. According to the complaint and Williams’s testimony at trial, Capitol, an independent contractor hired to perform routine cleaning at the facility, had created the slick spot in the floor with an aerosol furniture polish. During cross-examination of Williams, Capitol’s attorney challenged her about pre-existing pain and swelling in her injured knee. Capitol emphasized this during closing argument and also argued about the speculative nature of the evidence as to the cause of the slick spot.

Following a jury verdict in favor of Capitol, Williams filed a motion for new trial, which was denied, giving rise to this appeal.

1. Williams contends that the trial court erred in its charge to the jury. We discern no reversible error based on the arguments urged on appeal.

(a) Williams first argues that the trial court erred by charging the jury as to the law on premises liability, i.e., owner/occupier liability because her claim alleged simple negligence on the part of the cleaning service — not the owner or occupier of the premises. Williams correctly points out that the trial court gave the charge over her initial objection and that the charge was likely to confuse the jury. Nevertheless, after Williams subsequently objected to the charge as given, the trial court sustained the objection and offered to re-instruct the jury to disregard that erroneous instruction. In response, Williams’s trial counsel stated, “Okay. That’s fine.” The curative instruction was given and the record reflects no other objection or motion for mistrial thereafter. Under these circumstances, this enumeration presents nothing to review.

(b) Williams also challenges the following instruction given by the trial court: “Where the defendant is an independent contractor hired to perform certain janitorial services, the defendant has no independent duty to inspect the premises for safety of invitees on the premises.” As it did in the trial court, Capitol argues that this instruction was an accurate statement of law as stated in Greene v. Piedmont Janitorial Svcs. Williams, in turn, argues that reliance on Greene is misplaced because it was a premises liability case. On the contrary, Greene addressed a scenario analogous to this one, in which a plaintiff sued the janitorial service at her workplace, alleging that it negligently “applied an excessive amount of cleaning products to the floor.” In light of the contractor’s lack of a duty akin to that of an owner/occupier under OCGA § 51-3-1, this Court affirmed a directed verdict as to the theory of liability predicated on the janitorial service’s failure to inspect the premises.

Here, the same rule applied, and Capitol, as an independent contractor, did not have an independent duty as an owner/occupier to inspect the premises for the safety of the employer’s invitees. As in Greene, Williams’s theory of recovery was predicated on her allegation that Capitol negligently applied or spilled furniture polish on the floor in a way that caused her to slip and fall. The alleged liability did not arise from a failure to perform a duty to inspect, but rather from Capitol’s alleged negligence in cleaning the premises. Thus, the challenged jury instruction was applicable to this case and an accurate statement of law. Accordingly, we discern no reversible error.

(c) Williams next challenges the following instruction given by the trial court:

Damages are given for compensation for an injury done. And generally the injury is a measure where the damages are of character to be estimated in money. If the injury is small or mitigating circumstances are strong, only nominal damages are given. What would be a proper amount of nominal damages is a question for you to decide under all the facts and circumstances of this case.

Williams contends that the instruction was irrelevant and duplica-tive.

We note as an initial matter that Williams fails to identify in the record any duplicate instruction on nominal damages, and we have found none. Nevertheless, “[m]ere repetition of a principle of law will not authorize a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law.” We find no undue emphasis here.

Further, there was evidence that Williams had prior problems with her injured knee. Thus, the charge was relevant to the extent that the jury could have found that her subsequent slip and fall caused only nominal difficulty with her knee — with most of the difficulty being caused by the pre-existing condition. Finally, we note that the instruction given essentially tracks the language of the pattern charge on nominal damages. Under these circumstances, we discern no reversible error.

(d) Williams also contends, in a purely conclusory argument citing no authority, that the following instruction was erroneous as irrelevant and duplicative:

In the event you should find in favor of the plaintiff on the issue of liability, that alone would not mean that the plaintiff is entitled to recover a verdict in his favor. In a negligen[ce] action the plaintiff is not, as a matter of law, entitled to recover some amount of money merely because the defendant is negligent despite the fact that the plaintiff may have testified that she incurred some damages. Whether plaintiff has in fact incurred any damage and the extent of the damage is a question to be determined by the jury alone.

This instruction is a correct statement of law, it was applicable, there was no undue emphasis, and Williams fails to demonstrate how the charge warrants reversal.

(e) Williams also contends that the trial court erred by giving the following instruction: “When a party offers himself as a witness in his own behalf, his testimony should be construed more strongly against him if it is vague or uncertain.” This charge was requested by Capitol, withdrawn, but nevertheless given by the trial court. This appears to be an unintentional oversight by the trial court, and the charge, although with arguable legal basis, was not appropriate in this case. Nevertheless, we discern no reversible error here because “[a]n inapplicable jury instruction is not grounds for reversal where it does not appear that the inapplicable part was calculated to mislead the jury, erroneously affected the verdict or was prejudicial to the rights of the complaining party.” Even as characterized by Williams, her testimony was largely clear and straightforward, not vague or uncertain, and the relevant facts were essentially undisputed. Thus, her testimony was not susceptible to adverse construction factually, and the instruction did not demand a finding against Williams. It was a matter for the jury to weigh the evidence, evaluate causation, and allocate liability. Based on the record in this case, the challenged jury instruction did not affect that process such that a reversal is required.

(f) Williams next challenges the trial court’s failure to give a jury charge on a defendant’s burden to prove the defense of alternate causation. However, the general charge on the burden of proof was given, and Williams did not submit a written request to charge on the defendant’s burden to prove alternate theories of causation. “[I]f the plaintiff was not satisfied with the general charge on the subject of the burden of proof, it was incumbent upon [her] to make [a] timely written request to charge on the shifting of the burden, if [she] desired such [a] charge.” Therefore, this enumeration presents no basis for reversal.

2. Williams also contends that the trial court erred by denying her motion for new trial because Capitol presented no evidence in opposition to her claims. This argument is belied by the record, which contains testimony elicited by Capitol on cross-examination of Williams, regarding problems with her knee prior to the slip and fall at issue here. Further, Williams had the burden of proof at trial, and the jury was entitled to draw its own conclusions and inferences based on the evidence presented.

[W]e must remain mindful of the jury’s role in the process to resolve any and all conflicts in the evidence. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. The situation is best summed up by the language of Justice Bleckley . . . : “Truth is often dim, but is truth nevertheless. Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts.” From this perspective, it is preferable not to have a single trial judge stand in the shoes of the several men and women of various backgrounds who make up a jury and determine what inferences they may draw from the evidence. It is for this reason that trial judges should [usurp the jury’s role] only where the evidence is truly clear, palpable and undisputed.

Decided November 15, 2011

Reconsideration denied November 30, 2011

Greer, Klosik, Daugherty & Swank, John F. Daugherty, Laura H. Mirmelli, for appellant.

Fain, Major & Brennan, James W. Hardee, for appellee.

This is not such a case.

3. Finally, Williams argues that the trial court erred by allowing Capitol the opportunity to present a closing argument because Capitol allegedly waived its argument. The record shows, however, that there was apparently a brief miscommunication about whether Williams herself was waiving argument, and upon her clarification, the trial court allowed both Williams and Capitol to present closing arguments in regular order. During what was a momentary misunderstanding, Capitol neither sought nor gained a tactical advantage, and we discern no abuse of discretion in the trial court’s handling of the closing arguments.

Judgment affirmed.

Miller, JR J, and Ellington, J., concur.

       See Brooks v. State, 190 Ga. App. 430, 432 (2) (379 SE2d 228) (1989) (following a clarification to a jury instruction, “[a] litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same”). See also Smith v. Curtis, 226 Ga. App. 470, 471 (1) (486 SE2d 699) (1997); Morrill v. State, 216 Ga. App. 468, 474 (9) (454 SE2d 796) (1995) (“When an appellant could have tendered a timely motion for mistrial or requested additional limiting or curative instruction but declined to do so, we generally will not grant more appellate relief than that actually prayed for at trial.”); Central of Ga. R. Co. v. Sellers, 129 Ga. App. 811, 816 (6) (201 SE2d 485) (1973) (physical precedent only).

       220 Ga. App. 743, 744-745 (2) (470 SE2d 270) (1996).

       See id. at 743.

       See id. at 744-745 (2).

       See Wadkins v. Smallwood, 243 Ga. App. 134, 139 (5) (530 SE2d 498) (2000) (“A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence , . . .”) (punctuation omitted).

       (Punctuation omitted.) American Multi-Cinema v. Walker, 270 Ga. App. 314, 318 (3) (b) (605 SE2d 850) (2004).

       See Suggested Pattern Jury Instructions, Vol. I: Civil Cases, § 66.010 (5th ed. 2007).

       See, e.g., Johnson v. Cooper, 234 Ga. App. 753, 756 (1) (507 SE2d 559) (1998) (“Even though the plaintiff proved an injury, the jury was authorized to find that the injury was unrelated to the collision.”), disapproved on other grounds, Herr v. Withers, 237 Ga. App. 420, 421 (515 SE2d 174) (1999); Hansen v. White, 190 Ga. App. 596, 597 (1) (379 SE2d 536) (1989) (Even if “the evidence demanded a finding that the defendant was negligent and that this negligence was the proximate cause of the automobile collision, the evidence authorized but did not demand a finding that plaintiff had suffered any serious injury attributable to the collision. The jury is the judge of the veracity of parties and witnesses. . . .”) (punctuation omitted).

       See, e.g., Brown v. Wingard, 122 Ga. App. 544 (3) (177 SE2d 797) (1970) (“When a plaintiff offers herself as a witness in her own behalf, her testimony will be construed most strongly against her, if it is vague and uncertain.”).

       (Punctuation omitted.) Roberts v. Stennett, 201 Ga. App. 155, 156 (2) (410 SE2d 356) (1991).

       Compare Maurer v. Chyatte, 173 Ga. App. 343, 345 (3) (326 SE2d 543) (1985) (physical precedent only) (reversing because “the contested charge . . . focused entirely on appellant’s testimony and instructed the jury that it should return a verdict against her solely because the most unfavorable version of appellant’s own testimony did not warrant a finding in her favor”) (emphasis in original). Unlike in Maurer, the instruction at issue here did not contain language stating that a testifying party “is not entitled to a finding in their favor if that version of their testimony. . . most unfavorable to them shows the verdict should be against them.” (Emphasis omitted.) Id. at 343 (3).

       See OCGA § 24-4-1 (“If a negation or negative affirmation is essential to a party’s case or defense, the proof of such negation or negative affirmation lies on the party so affirming it.”); Steele v. Atlanta Maternal-Fetal Medicine, 271 Ga. App. 622, 624-625 (1), n. 3 (610 SE2d 546) (2005), overruled on other grounds by Smith v. Finch, 285 Ga. 709, 712 (681 SE2d 147) (2009); Moresi v. Evans, 257 Ga. App. 670, 677 (3) (572 SE2d 327) (2002) (affirming because “the jury was adequately informed that the defendants bore the burden of proving any alternative theories of causation that they presented”).

        Hyde v. Chappell, 194 Ga. 536, 541 (1) (22 SE2d 313) (1942). See also Barnes v. Barnes, 224 Ga. 92, 96 (2) (160 SE2d 391) (1968); Middleton v. Waters, 205 Ga. 847, 852 (2) (55 SE2d 359) (1949).

       (Citations and punctuation omitted.) Svc. Merchandise v. Jackson, 221 Ga. App. 897, 898-899 (1) (473 SE2d 209) (1996).

       See, e.g., Alexandrov v. Alexandrov, 289 Ga. 126, 127 (2) (709 SE2d 778) (2011) (applying abuse of discretion standard to trial court’s administration of closing arguments).


text:
    A11A1416.
    HALL v. THE STATE.
    (720 SE2d 181)
   Dillard, Judge.

Following a jury trial, Kinard Hall was convicted of armed robbery, three counts of aggravated assault with a deadly weapon, burglary, and possession of a firearm during the commission of a crime. Hall’s sole argument on appeal is that the trial court erred in failing to merge one of his aggravated-assault convictions into his armed-robbery conviction. For the reasons set forth infra, we agree.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on the afternoon in question, Hall and his co-defendant, Dante Williams, went to the apartment of the victims, Alisha Paul and Percy Burdine. As Paul opened the door, Hall and Williams, both armed, forced their way into the apartment. The men ordered Paul to sit on the sofa, and Williams, brandishing a shotgun, remained with her. Hall, brandishing a handgun, then proceeded to the master bathroom, where he placed his weapon directly into Burdine’s face and demanded to know “[w]here the shit at?” Understanding Hall to be referring to valuable musical equipment that had previously been stored in the apartment, Burdine informed him that it was no longer there.

At some point, Hall became temporarily distracted and directed his attention toward the front door, at which time Burdine jumped through the bedroom window to escape. Hall and Williams then ran from the apartment. On the way out the door, Hall took the victims’ Xbox game console.

Hearing the commotion, Paul’s brother, who lived in the apartment directly across the hall, opened the door to see what was happening. One of the gunmen ordered him to “[g]et back inside,” and then Hall fired a gunshot through the door. Hall fired at least one other shot as the men ran from the apartment complex onto a wooded path leading to a second housing development, where they were observed leaving in a white vehicle.

During the ensuing investigation, Paul, Burdine, and Paul’s brother identified Hall as one of the perpetrators. A separate witness described to law-enforcement officials the white vehicle in which the gunmen escaped. Hall and Williams were subsequently found driving a similar white vehicle containing clothing that matched the description of that given by the victims and other witnesses as being worn by the gunmen during the commission of the crime.

Hall and Williams were thereafter jointly tried and convicted of the crimes, which included armed robbery and a separate count of aggravated assault with a deadly weapon against each victim, namely, Paul, Burdine, and Paul’s brother. Hall filed a motion to modify his sentence, in which he argued, in part, that his conviction for the aggravated assault of Paul should have merged into his armed-robbery conviction.

The doctrine of merger precludes the State from imposing duplicate punishment on a criminal defendant whose multiple convictions are predicated upon the same conduct. In order to determine whether two crimes merge, we apply the “required evidence” test to assess “whether each [offense] requires proof of a fact which the other does not.”

As discussed supra, Count 1 alleged that Hall committed the offense of armed robbery in that, with the intent to commit theft, he took an Xbox game console from the immediate presence of Alisha Paul “by use of an offensive weapon, ... to wit: a handgun[.]” Count 3 alleged that Hall committed the offense of aggravated assault with a deadly weapon in that he assaulted “the person of Alisha Paul. . . by threatening [her] with [a] handgun.”

Our Supreme Court has previously held that the act of “using an offensive weapon” for the purposes of committing an armed robbery is the legal equivalent of assault—i.e., placing a victim “in reasonable apprehension of immediately receiving a violent injury”—for the purposes of committing an aggravated assault. And, when examining the crimes of armed robbery and aggravated assault with a deadly weapon in the context of the merger analysis, our Supreme Court concluded that, although an armed robbery requires proof of a fact—i.e., the taking of property—that an aggravated assault does not, the inverse is not true; the crime of aggravated assault with a deadly weapon does not require proof of any fact that armed robbery does not.

It follows, then, that Hall’s aggravated-assault conviction on Count 3 should have merged into his armed-robbery conviction on Count l. The State’s argument that Hall’s taking of the Xbox console was an “afterthought” in no way changes this result. Indeed, it is not determinative under the merger analysis as set forth supra that the desired object of Hall’s armed robbery was something other than that which he actually took. Instead, what dictates merger is the fact that both crimes for which Hall was convicted were predicated upon the same conduct—namely, Hall’s use of the handgun to overpower and intimidate Paul for the purpose of robbing the victims of their belongings. Accordingly, we vacate Hall’s aggravated-assault conviction and remand this case to the trial court for resentencing.

Decided October 27, 2011

Reconsideration denied November 30, 2011.

Sharon L. Hopkins, for appellant.

Garry T. Moss, District Attorney, Patricia G. Hull, Cliff Head, Assistant District Attorneys, for appellee.

Judgment affirmed in part and vacated in part, and case remanded with instruction.

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

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       Prior to the date of the crimes, Hall dated Paul’s mother and lived in the apartment with Paul and Burdine.

       The transcript of the motion for new trial hearing was not included in the appellate record. Nonetheless, the merger analysis is a legal one based upon the facts and evidence presented at trial, for which the hearing transcript is unnecessary.

        See OCGA § 16-1-7 (a); Drinkard v. Walker, 281 Ga. 211, 212-13 (636 SE2d 530) (2006).

        Drinkard, 281 Ga. at 215; see also id. (“[T]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not”) (punctuation and footnote omitted); Lucky v. State, 286 Ga. 478, 481 (2) (689 SE2d 825) (2010) (same).

        See OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .”).

        See OCGA § 16-5-21 (a) (2) (“A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]”). A person commits an assault when he or she “[clommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (2).

        See Lucky, 286 Ga. at 482 (2) (“[T]he ‘assault’ requirement of aggravated assault is the equivalent of the armed robbery requirement that the taking be ‘by use of an offensive weapon’ since ‘use of an offensive weapon’ takes place when the weapon is used as an instrument of actual or constructive force—that is, actual violence exerted on the victim or force exerted upon the victim by operating on the victim’s fears of injury to the person, property, or character of the victim.” (citations omitted)); see also OCGA § 16-5-20 (a) (2); OCGA § 16-5-21 (a) (2); OCGA § 16-8-41 (a); Long v. State, 287 Ga. 886, 888-89 (2) (700 SE2d 399) (2010).

        See Long, 287 Ga. at 889 (2) (“[Tjhere is no element of aggravated assault with a deadly weapon that is not contained in armed robbery[.]”).

        See generally Long, 287 Ga. at 888-90 (2) (merging appellant’s .aggravated-assault convictions into his armed robbery convictions); Garland v. State, 311 Ga. App. 7, 12 (3) (714 SE2d 707) (2011) (same); Murray v. State, 307 Ga. App. 621, 627-28 (3) (705 SE2d 726) (2011) (same).

        See generally Drinkard, 281 Ga. at 212-13.

        See generally id.-, OCGA § 16-1-7 (a).


text:
    A11A1488.
    GRIFFIN INDUSTRIES, INC. v. GEORGIA DEPARTMENT OF AGRICULTURE et al.
    (720 SE2d 212)
   Doyle, Judge.

Griffin Industries, Inc. (“Griffin”), filed suit against the Georgia Department of Agriculture and the Commissioner of the Department of Agriculture (collectively, “the Department”), seeking an order compelling the Department to comply with Griffin’s request for records under the Georgia Open Records Act (“GORA”). The parties filed cross-motions for summary judgment, and the trial court granted summary judgment to the Department. Griffin appeals, arguing that the trial court erred by concluding that the Department provided reasonable access to public records requested by Griffin and that there were genuine issues of material fact that preclude summary judgment. We affirm, for the reasons that follow.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the evidence shows that on December 29, 2004, Griffin served the Department with a GORA request seeking access to certain categories of records, inter alia, electronic documents, including e-mail correspondence related to Griffin “since January 1, 2003.” On January 25, 2005, the Department made available certain records it deemed responsive to Griffin’s GORA request, including copies of three e-mails from the relevant time period. After Griffin contacted the Department about the insufficiency of its response, the Department’s general counsel responded: “Concerning your request that the e-mails be retained and not deleted, I cannot agree. I suggest if you want our e-mails, you should send an Open Records Act request identifying what you want[,] and then we can tell you if we can do it and at what cost, if any, to you.” On February 18, 2005, Griffin renewed its GORA request, requesting that the Department notify all relevant employees about the request and “specifically requesting] that all e-mail correspondence since January 1, 2003, that is responsive to [Griffin’s] GORA request, be made available by electronic means.” In its February 23, 2005 written response, the Department agreed to search for identifiable records, but advised that

the Department does not archive any of the e-mails of the employees of the Department. The Department possesses backups from January 2, 2005[,] for emergency rebuilding purposes[,] which are not reasonably available for searching. The Department is willing to make available this information so that it may [be] searched . . . [after review by the Department and payment by Griffin for] all costs of services associated with the search, transport, and other direct administrative services. ...”

Thereafter, following a conversation between Griffin’s counsel and the chief information officer for the Department, Griffin requested “that all back-up tapes of computer data that existed as of the time of my GORA request on December 28, 2004, and all such back-up data currently in existence, not be deleted or overwritten.” In response, on March 1, 2005, the Department advised Griffin’s counsel that some of the backup tapes had already been overwritten, but agreed to use a new full set of backup tapes to avoid any future overwriting contingent upon payment by Griffin of $1,540 to replace the backup tapes.

Dissatisfied with the Department’s response, Griffin filed a petition against the Department pursuant to OCGA § 50-18-73 (a) on March 4, 2005, seeking to compel the Department’s compliance with Griffin’s GORA request and attorney fees and litigation expenses. Griffin also sought an interlocutory injunction or restraining order “to prevent the Department from destroying the requested information pending final resolution of this matter.” Some time after the petition was filed, the Department provided an estimate ranging from $37,780 to $2,837,705, which the Department would require Griffin to pay in order for the Department to obtain e-mails that were placed on 31 backup tapes, which the Department had preserved.

Thereafter, following a hearing noticed as a “Case Management Conference” that would address “small motions,” the trial court entered an order granting full relief to Griffin. The order specifically directed the Department to “preserve, safeguard[,] and not destroy all electronic data files and correspondence” and to

put the data on any and all backup tapes back into the same document form or format that it was in prior to being backed up, review those documents for privilege[,] or applicable exemptions as provided for by [GORA,] . . . and then produce to [Griffin] all those documents that are not either privileged or exempt.

The Department appealed the order, and this Court reversed, holding that the order was void because “the court improperly granted full relief to Griffin without proper notice of an evidentiary hearing on all relevant issues.”

After the case was remanded to the superior court, the parties filed cross-motions for summary judgment, relying on various affidavits and deposition testimony. Thereafter, the trial court granted summary judgment to the Department, and this appeal followed.

Griffin argues that the trial court erred by granting summary judgment to the Department because there are genuine issues of material fact and because the trial court erred by concluding that the Department provided reasonable access to the records requested. We disagree.

The purpose of GORA “ ‘is to encourage public access to government information and to foster confidence in government through openness to the public.’ ” The Act provides:

All public records of an agency as defined in subsection (a) [] of this Code section, except those which by order of a court of this state or by law are prohibited or specifically exempted from being open to inspection by the general public, shall be open for a personal inspection by any citizen of this state at a reasonable time and place-, and those in charge of such records shall not refuse this privilege to any citizen.

Thus, “compliance with the Act is not discretionary, but mandatory.” Pursuant to subsection (g), “[a]t the request of the person, firm, corporation, or other entity requesting such records, records maintained by computer shall be made available where practicable by electronic means, including Internet access, subject to reasonable security restrictions preventing access to nonrequested or nonavailable records.”

OCGA § 50-18-73 (a) provides a judicial enforcement remedy, and OCGA § 50-18-73 (b) provides for a mandatory award of “reasonable attorney’s fees and other litigation costs reasonably incurred” in favor of the complaining party if the superior court “determines that either party acted without substantial justification either in not complying with this chapter or in instituting the litigation . . . unless [the superior court] finds that special circumstances exist. ...”

The Act provides, however, that “[n]o public officer or agency shall be required to prepare reports, summaries, or compilations not in existence at the time of the request.” And the Supreme Court of Georgia has held that GORA

places no duty on an officer or agency to create a record, but concerns itself only with the records which a public body actually creates. . . . Unless a writing or information stored on a computer is prepared and maintained or received in the course of an agency’s operations, it is not a public record, and its disclosure would not be governed by [GORA], . . . The legislature did not intend for a custodian of public records to comb through his files in search of documents sought by a public citizen. A public officer or agency has no duty to create a new document by searching for and compiling information from its existing records. In other words, a compilation of information must already exist in public records before access to it will be ordered.

Therefore,

all that is required of a public records custodian is that he provide reasonable access to the files that are sought. Thus, ... a custodian of public records complies with [a] [G]ORA request when he grants reasonable access to the files in his custody. Were [the Supreme Court] to hold otherwise, a public records custodian would subject himself to [a] [G]ORA suit every time he located and produced documents because a citizen could always speculate about the existence of additional documents. The legislature could not have intended for [a] [G]ORA request to be used to trap an unsuspecting public official in this way.

In this case, the trial court made specific findings of fact and conclusions of law in its final order, including that “[t]he Department of Agriculture has been responsive and provided access to its records that were readily available, and has acted in good faith reliance in giving [Griffin] reasonable access to the records requested.” The order cites the deposition testimony of David Lee Rierson, the chief information officer for the Department from December 2005 until December 2006, for the following findings:

If specific e-mails were no longer on the active system, there is the possibility that they may have been deleted off the system and put onto backup tapes. The Department did not have the capability to retrieve e-mails from the backup system even if the e-mail being sought was known to be on the backup tape without going through and pulling all the data and restoring the entire e-mail database into the server. . . . The Department does not possess either the capability or standby systems including necessary hardware, and software, or the manpower to perform the action of converting all the information copied onto ... 31 emergency disaster recovery back[ ]up tapes into readable documents and e-mails. . . . Writing information off of one of the [backup tapes] is a very, very slow process, sometimes taking hours to mount the tape into the drive and then additional hours to inventory it to see what’s on it. . . . The requested information, if in existence at all, has been transferred to back[ ]up tapes and to compile any type of information would be a laborious and cumbersome process.

Given the evidence that the Department did not maintain the purported e-mails on its system and would have to extract them from backup tapes using a laborious compilation process, the information sought by Griffin “was not an existing public record, and nondisclosure thereof did not violate the Act.” Nevertheless, the Department agreed to preserve the 31 backup tapes and to compile any purported e-mails contained thereon upon payment by Griffin. Under these circumstances, the trial court properly concluded that the Department provided Griffin with reasonable access to the information sought and did not err by granting summary judgment to the Department.

Decided November 10, 2011

Reconsideration denied November 30, 2011

Wood, Hernacki & Evans, Katherine V. Hernacki, for appellant.

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, Timothy J. Ritzka, John E. Hennelly, Assistant Attorneys General, for appellees.

Judgment affirmed.

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

       OCGA § 50-18-70 et seq.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Specifically, Griffin sought access to the following documents in the open records request:
      1. All Documents relating to air emissions, malodor issues, and permitting or licensing issues at the Griffin Facility.
      2. All Documents relating to correspondence to and from any person, corporation, public official or governmental agent concerning air emissions, malodor issues, and permitting or licensing issues at the Griffin Facility.
      3. All Documents reflecting, recommending, or in any way relating to alleged violations of federal, state or Department of Agriculture rules, regulations, permits or laws at the Griffin Facility.
      4. All Documents relating to reports to or from and correspondence with engineers, environmental consultants, academic advisors, laboratories, or any other such consultants relating to air emissions or odor issues at the Griffin Facility.
      According to the trial court’s final order, Griffin’s “GORA request sought information for separate litigation against the Department of Agriculture and several individuals in federal and state court!,] which have now been resolved.”

        Ga. Dept. of Agriculture v. Griffin Indus., 284 Ga. App. 259, 262 (644 SE2d 286) (2007).

        Howard v. Sumter Free Press, 272 Ga. 521, 522 (1) (531 SE2d 698) (2000).

       OCGA § 50-18-70 (a) defines “public record,” as used in this article, as “all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, or similar material prepared and maintained or received in the course of the operation of a public office or agency.” There is no dispute in this case that the Department e-mails at issue constitute a “public record” under GORA.

       (Emphasis supplied.) OCGA § 50-18-70 (b). Subsection (f) requires the entity in control of the public records requested to “determine whether or not the record or records requested are subject to access under this article and to permit inspection and copying” within “a reasonable amount of time,” which shall not exceed three business days. The timeliness of the Department’s response to Griffin’s GORA request is not at issue on appeal.

        Howard, 272 Ga. at 522 (1).

       (Emphasis supplied.) OCGA § 50-18-70 (g).

       OCGA § 50-18-70 (d).

       (Citations and punctuation omitted.) Schulten, Ward & Turner, LLP v. Fulton-DeKalb Hosp. Auth., 272 Ga. 725, 726 (535 SE2d 243) (2000).

       (Citations omitted.) Felker v. Lukemire, 267 Ga. 296, 298-299 (2) (477 SE2d 23) (1996).

       The order indicates on its face that it was prepared by counsel for the Department.

       (Punctuation omitted.) Schulten, 272 Ga. at 726-727. See also Ga. Emission Testing Co. v. Reheis, 268 Ga. App. 560, 565 (3) (602 SE2d 153) (2004) (physical precedent only).

       Griffin argues that the Department’s failure to establish a record retention policy as required by the Georgia Records Act (“GRA”), OCGA § 50-18-90 et seq., demanded the denial of summary judgment to the Department. The GRA provides for penalties for failure to comply with the mandates of the Act, but it does not provide a cause of action for failure to so comply. Therefore, we reject Griffin’s argument based on the GRA.

       See Schulten, 272 Ga. at 726-727. See also Ga. Emission Testing Co., 268 Ga. App. at 565 (3) (holding that the party requesting records pursuant to GORA should have been solely responsible for the costs associated with creation of a special report extracted from a database of information because the requested information, in part, “involved the creation of a report that. . . otherwise did not exist and involved information that was not the subject of a regularly produced report”).


author: BARNES, Presiding Judge.

text:
    A09A0839.
    PURVIS v. THE STATE.
    (720 SE2d 377)
    Decided November 30, 2011.

      John G. Edwards, for appellant.

      Catherine H. Helms, District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.
   BARNES, Presiding Judge.

In Purvis v. State, 288 Ga. 865 (708 SE2d 283) (2011), the Supreme Court of Georgia reversed the judgment of this Court in Purvis v. State, 301 Ga. App. 648 (689 SE2d 53) (2009). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment reversed.

Miller, P J., and Andrews, J., concur.