author: Adams, Judge.

text:
    A12A0665.
    BENFORD v. THE STATE.
    (729 SE2d 414)
   Adams, Judge.

Larry James Benford, pro se, filed this appeal from the trial court’s denial of his “Motion for Sentence Modification/Reduction.” Finding no merit to Benford’s arguments on appeal, we affirm.

On or around April 6, 2009, Benford was arrested and charged with possession of powder cocaine with intent to distribute. Benford was on probation on another charge of trafficking in cocaine at the time of his arrest. Benford initially entered a plea of not guilty in this case, but he withdrew that plea and entered a plea of guilty. The trial judge accepted Benford’s plea on November 4, 2010, and held a sentencing hearing on January 6, 2011. The State requested that Benford be sentenced to 30 years, to serve a minimum of 12, with a cap of 15 years of jail time. Benford requested that he be sentenced to 30 years, with five to serve, and he presented testimony from a long-time friend and from a co-worker in support of his request for reduced jail time. After considering this testimony, the trial court sentenced Benford to 30 years, with 15 to serve, based on Benford’s past criminal history and the seriousness of the charge.

On June 13, 2011, the trial court denied a Motion to Reduce/ Modify Sentence filed by Benford, and Benford subsequently filed the Motion for Sentence Modification/Reduction that is the subj ect of this appeal on October 20, 2011. The trial court denied that order on October 24, 2011.

1. Benford first argues that his sentence was excessive and constituted cruel and unusual punishment because he is 56 years old, and a sentence of 30 years, with 15 to serve, is “the same as a life sentence.” But Benford’s sentence does not exceed the permissible maximum for the offense to which he pled guilty. See OCGA § 16-13-30(d). And “[w]here the sentence[ ] imposed [is] within the statutory limits, as [it is] here, [it is] not unconstitutional.” (Citation and punctuation omitted.) Jones v. State, 254 Ga. App. 863, 867 (6) (564 SE2d 220) (2002). See also Inglett v. State, 239 Ga. App. 524, 529 (9) (521 SE2d 241) (1999) (“A determinate sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds.”) (citations and punctuation omitted).

2. Benford next argues that the trial court erred in failing to conduct any pre-sentence investigation prior to sentencing him. He asserts that he was harmed because “the court had no positive evidence that would have at least offered [him] a chance of a more lenient sentence.” But the record shows that the trial court conducted a hearing prior to sentencing Benford, in which the court considered not only Benford’s prior criminal history (two prior drug convictions, two prior burglary convictions and a prior trafficking conviction), but also heard testimony from two defense witnesses as to Benford’s work skills and work history, his family connections and responsibilities, as well as his church involvement and charitable work. And in sentencing Benford, the trial judge acknowledged that Benford had “accomplished a great deal in your life that’s positive. You have friends that will come and speak for you and, you know, given our circumstance, that’s quite surprising. And it really speaks well of you, you know. And you’ve come today and you’ve expressed remorse, and that’s also positive.” The trial court also acknowledged that Benford acted based upon what he thought were “compelling, economic reasons” in committing the crime. Accordingly, it is clear that the trial court considered positive evidence presented by Benford and weighed it with that evidence of Benford’s prior criminal history and the seriousness of the charge before pronouncing the sentence in this case. Thus, this enumeration is without merit.

3. Benford also asserts that the trial court erred in failing to consider the arguments he raised in his motion with regard to his family connections, his employment, his membership and contributions to the community and the church, the nature of the crime, and his age without, at least, holding a hearing on his motion. But as discussed above, the trial court considered these factors in accepting his plea and in issuing the original sentence in this case. Moreover, because we held above that Benford’s sentence was within the statutory limitations, no modification of the sentence was mandated; therefore, no hearing was required. See LaBrew v. State, 315 Ga. App. 865, 866 (1) (729 SE2d 33) (2012); OCGA § 17-10-1 (f).

Decided June 1, 2012.

Larry J. Benford, pro se.

Kenneth W. Mauldin, District Attorney, Nhan-Ai T. Du, Assistant District Attorney, for appellee.

4. Benford further contends that he received ineffective assistance of counsel “through coercion and misleading tactics,” in that his attorney advised him to accept a nonnegotiated plea instead of trying to seek a more lenient sentence for his guilty plea. Generally, an appeal “cannot be taken from a guilty plea on the ground of ineffective assistance of counsel unless the issue can be resolved by reference to facts on the record.” (Citation omitted.) Moore v. State, 285 Ga. 855, 858 (3) (684 SE2d 605) (2009). Here, the record indicates that Benford was aware that he could receive a 30-year sentence if he pled guilty; that he knew that the State was asking that he be ordered to serve at least 12 years; and that he was also informed that if the trial court sentenced him to more than 12 years to serve, he could seek to withdraw his guilty plea. Moreover, the record indicates that by the time of the sentencing hearing, the State had agreed to a 15-year cap on time served, and Benford’s counsel further sought to have the jail time reduced to five years. Thus, the record does not support Ben-ford’s argument with regard to ineffective assistance of counsel. To the extent that his argument is based upon conversations with his counsel and facts not appearing on the record, he must seek relief through habeas corpus. Id.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.


source: Caselaw Access Project

author: MlKELL, Presiding Judge.

license: Public Domain

text:
    A12A0219.
    MURPHY v. TICOR TITLE INSURANCE COMPANY.
    (729 SE2d 21)
   MlKELL, Presiding Judge.

Thomas L. Murphy appeals from the trial court’s dismissal for failure to state a claim of his complaint for breach of a contract of title insurance issued by Ticor Title Insurance Company (Ticor) and the denial of his motion for summary judgment on the issue of coverage. Finding no error, we affirm.

On appeal from a grant or denial of a motion for summary judgment, this court conducts a de novo review of the record, construing the evidence and all reasonable inferences therefrom in favor of the nonmovant. Also, “[w]e review the trial court’s ruling on a motion to dismiss under the de novo standard of review.” Here, the trial court’s order reflects that it considered affidavits filed after the original pleadings in making its determination. Therefore, Ticor’s motion to dismiss was converted into a motion for summary judgment pursuant to OCGA § 9-11-56, and we apply that standard of review.

The following facts are not disputed. On January 21, 1987, Murphy and his father, Carl L. Murphy, purchased 85 acres of land in Franklin County. In addition to the description of the real property, the deed included this statement: “ALSO CONVEYED: Right-of-way and easement for ingress and egress over the road presently existing.” The Murphys’s property abutted Lake Side Acres subdivision and the “road presently existing” was a 60 foot wide right-of-way designated Lakeview Lane which ended at the Murphys’s property line and provided access to their property. An unpaved dirt road began at the property line (at the end of Lakeview Lane) and continued across the Murphy property. Ticor issued a Title Insurance Policy on the property, and the Murphys paid the premium for the insurance.

The printed first page of the policy provides:

Subject to the exclusions from coverage, the exceptions contained in schedule B and the provisions of the conditions and stipulations hereof, Ticor ... insures, as of date of policy shown in schedule A, [January 28, 1987] against loss or damage ... by reason of:. . . (3) [l]ack of a right of access to and from the land; or (4) [ujnmarketability of title.

(Emphasis supplied.)

The printed Schedule of Exclusions from Coverage states: “The following matters are expressly excluded from the coverage of this policy:... (3) [djefects, liens, encumbrances, adverse claims, or other matters . . . (d) attaching or created subsequent to Date of Policy[.]” (Emphasis supplied.)

Section 1, Definition of Terms, in the Conditions and Stipulations states:

The following terms when used in this policy mean: . . . (d) “land”: the land described, specifically or by reference in Schedule A and improvements affixed thereto which by law constitute real property; provided, however, the term “land” does not include any property beyond the lines of the area specifically described or referred to in Schedule A, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy.

Schedule A, attached to the title insurance policy, the substantive contents of which are typed into a form, also reflects that the land referred to in the policy includes “ALSO CONVEYED: Right-of-way and easement for ingress and egress over the road presently existing.”

In 2007, a neighbor on Lakeview Lane, who is not a party to this action, blocked Murphy’s access to his property by putting up posts, a gate, chains and locks across Lakeview Lane. Murphy notified Ticor’s agent and wrote a letter to the landowner, who removed the obstruction. In June 2009, Murphy again found his access fully obstructed by the same neighbor’s posts, gates, chains and locks. Murphy again notified Ticor of the loss of his right of access and made a claim for the reduction in the property’s marketability and market value in excess of $50,000. Ticor, by letter of November 12, 2009, denied Murphy’s claim because the neighbor’s actions occurred after January 28, 1987, the date of purchase.

1. Murphy’s first enumeration of error is that the trial court failed to apply rules of construction applicable to insurance contracts in making its determination. The second enumeration is that the trial court did not address ambiguities in the contract and construe them in favor of Murphy. They are addressed together.

Under Georgia law, insurance companies are generally free to set the terms of their policies as they see fit so long as they do not violate the law or judicially cognizable public policy. Thus, a carrier may agree to insure against certain risks while declining to insure against others. In construing an insurance policy, we begin, as with any contract, with the text of the contract itself.

One of the most well-established rules of contract construction is that the contract must be construed as a whole, “and the whole contract should be looked to in arriving at the construction of any part.”

“As with any insurance policy, we construe the policy exclusions most strongly against the insurer and in favor of providing the indemnity sought. The policy’s terms are also construed as reasonably understood by an insured.” “In construing an insurance policy, the test is not what the insurer intended the words to mean, but what a reasonable person in the position of the insured would understand them to mean.”

[W]hen faced with a conflict over coverage, a trial court must first determine, as a matter of law, whether the relevant policy language is ambiguous. A policy which is susceptible to two reasonable meanings is not ambiguous if the trial court can resolve the conflicting interpretations by applying the rules of contract construction. Where a term of a policy of insurance is susceptible to two or more reasonable constructions, and the resulting ambiguity cannot be resolved, the term will be strictly construed against the insurer as the drafter and in favor of the insured.

As noted by the trial court, “[a] policy of title insurance has been defined as the opinion of the insurer concerning the validity of title, backed by an agreement to make that opinion good if it should prove to be mistaken and a loss should result in consequence.” In other words, “[t]itle insurance protects against ‘defective titles.’ ”

Decided May 11, 2012

Reconsideration denied June 5, 2012

Morris L. Rickman, for appellant.

David S. Perrie, for appellee.

There is no allegation that, in 1987, there were any defects in the title conveyed to the Murphys and insured by Ticor as of that date. The events affecting Murphy’s use of the easement did not occur until 2007 and 2009. Therefore, we agree with the trial court that these later events diminishing his property value occurred “subsequent to Date of Policy” and are excluded from coverage by the terms of the policy. We find, as did the trial court, that “[t]he policy is clear and unambiguous” on this point.

2. Based on our discussion in Division 1, we find Murphy’s remaining three enumerations of error without merit.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

        Johnson v. E. A. Mann & Co., 273 Ga. App. 716, 717 (616 SE2d 98) (2005).

       (Citation and punctuation omitted.) Welch v. Ga. Dept. of Transp., 276 Ga. App. 664 (624 SE2d 177) (2005).

       Carl Murphy deeded his interest in the property to appellant prior to initiation of the current litigation.

       (Footnotes omitted.) Reed v. Auto-Owners Ins. Co., 284 Ga. 286, 287 (2) (667 SE2d 90) (2008).

       OCGA § 13-2-2 (4). Fix v. McAllister, 273 Ga. App. 463, 467 (1) (615 SE2d 547) (2005).

       (Punctuation and footnotes omitted.) Fidelity Nat. Title Ins. Co. v. Matrix Financial Sues. Corp., 255 Ga. App. 874, 878 (1) (b) (567 SE2d 96) (2002). See also Fidelity Nat. Title Ins. Co. v. Keyingham Investments, LLC, 288 Ga. 312, 313 (1) (702 SE2d 851) (2010).

       (Footnote omitted.) Harkins v. Progressive Gulf Ins. Co., 262 Ga. App. 559, 560 (586 SE2d 1) (2003). See, e.g., Barrett v. Nat. Union Fire Ins. Co. &c., 304 Ga. App. 314, 320 (1) (696 SE2d 326) (2010).

       (Citations and punctuation omitted.) Hays v. Ga. Farm Bureau Mut. Ins. Co., 314 Ga. App. 110, 111-112 (1) (722 SE2d 923) (2012).

       (Citations and punctuation omitted.) Green v. Sams, 209 Ga. App. 491, 497 (1) (433 SE2d 678) (1993). See also OCGA§ 33-7-8 (Title insurance is written “only upon evidence or opinion of title obtained and preserved by the insurer.”).

       (Citation omitted.) Fidelity Nat. Title Ins. Co., 288 Ga. at 313.

       We also note that there is no evidence to show that Murphy does not still have the legal right to use the easement, only that a neighbor is interfering with it.

        White v. Lawyers Title-Ins. Corp., 197 Ga. App. 780, 783 (4) (399 SE2d 526) (1990).


author: Ellington, Chief Judge.

text:
    A10A2092.
    JONES v. THE STATE.
    (729 SE2d 428)
    Decided June 5, 2012.

      Head, Thomas, Webb & Willis, Gregory A. Willis, for appellant.
   Ellington, Chief Judge.

The Supreme Court granted certiorari in this case and, in Jones v. State,* reversed the judgment of this Court. Therefore, we vacate our earlier opinion and adopt the judgment of the Supreme Court as our own.

Judgment reversed.

Doyle, P. J., and Andrews, J., concur.

Robert Stokely, Solicitor-General, Stephen J. Tuggle, Natalie Ashman, Assistant Solicitors-General, for appellee.

       291 Ga. 35 (727 SE2d 456) (2012).

        Jones v. State, 308 Ga. App. XXII (March 9, 2011) (unpublished).


author: BARNES, Presiding Judge.

text:
    A12A0627.
    SMOOT v. THE STATE.
    (729 SE2d 416)
   BARNES, Presiding Judge.

A jury convicted Ebony Shaun Smoot of keeping a place of prostitution and possession of less than one ounce of marijuana, and the trial court denied her motion for new trial. On appeal, Smoot contends that there was insufficient evidence to support her conviction for keeping a place of prostitution, and she maintains that the trial court erred in denying her motion for a directed verdict of acquittal on the possession of marijuana charge, in overruling her objections to the admission of certain evidence, and in failing to give her requested jury charges on equal access, mere presence, and mere spatial proximity to drugs.

While the trial court acted within its discretion in admitting most of the evidence challenged by Smoot on appeal, we conclude that Smoot’s conviction for keeping a place of prostitution must be reversed because the trial court erroneously allowed the State to introduce into evidence highly prejudicial hearsay statements of a neighborhood group to explain why officers were investigating Smoot’s residence. And, because the remaining competent evidence does not exclude every reasonable hypothesis except that of guilt, double jeopardy principles preclude a retrial on the keeping a place of prostitution charge. In contrast, we affirm Smoot’s conviction for possession of less than one ounce of marijuana for the reasons set forth below.

Following a criminal conviction, the defendant is no longer presumed innocent, and we construe the evidence in the light most favorable to the jury’s verdict. Towry v. State, 304 Ga. App. 139 (695 SE2d 683) (2010). So viewed, the evidence showed that on the afternoon of September 27, 2010, after receiving complaints from the community about suspicious activity, two police officers conducted surveillance of a residence located in Clayton County. Smoot lived at the residence along with several other women.

During the surveillance of the residence, the officers observed a car pull into the driveway. An unidentified male got out of the car and entered the residence. He remained inside for a short period of time and then left in his car. After initiating a traffic stop and speaking with him, the two officers, along with a police lieutenant, conducted an independent investigation of certain websites by personally viewing their content.

As part of their investigation, the officers and lieutenant reviewed advertisements posted on Backpage.com and Craigslist.org, in addition to a separate website with the URL address of www.ifshewonti-will.com (the “Ifshewontiwill website”). The officers and lieutenant later testified that the web pages included “provocative” and “risque” photographs of semi-nude and nude women advertising “sexual services” and “sexual behaviors” for money and providing contact phone numbers. The Ifshewontiwill website included photographs of Smoot, and the advertisements posted on Backpage.com and Craigs-list.org listed contact phone numbers linked to Smoot.

Based upon the content of the web pages and their interview of the male driver, the officers applied for and obtained a search warrant for the residence. The warrant was executed on September 30, 2010. Upon entry, the police found several occupants in the residence, including Smoot. She was discovered “somewhat” undressed in the closet in the upstairs master bedroom. The police found marijuana in the master bedroom on a dresser in a closed wooden box and in plain view in several other areas upstairs, on the kitchen counter, and on a computer desk in the living room. According to one of the officers, a “stripper pole” was set up in the living room as well.

The police also found two types of business cards in the residence. The first business card contained the heading “Adult Social Network.” The card listed the web address of the Ifshewontiwill website and contained the statements “True Freaks ONLY!!!!,” “Ready to Have Some Fun,” and “Created by Gold,” which Smoot admitted was her nickname. The second business card listed “Ms. Shauna Gold” as the “HBIC/CEO” of “All You Need Entertainment.” The card included the address of the residence and claimed “10-20 Entertainers always available” and “Appointments taken 24/7.”

Smoot was arrested and charged with keeping the residence as a place of prostitution. A person commits the offense of prostitution “when he or she performs or offers or consents to perform a sexual act, including but not limited to sexual intercourse or sodomy, for money or other items of value.” OCGA § 16-6-9. In turn, the offense of keeping a place of prostitution has four elements: a person “must (1) knowingly grant or permit the use (2) of a place that offers seclusion or shelter (3) over which [s]he has or exercises control (4) to be used for the purpose of prostitution.” Robert E. Cleary, Jr., Kurtz Criminal Offenses and Defenses in Georgia, Prostitution and Related Offenses, p. 1379 (2011 ed.). See OCGA § 16-6-10. The indictment alleged that Smoot committed the offense of keeping a place of prostitution by knowingly permitting her Clayton County residence to be used for the purpose of prostitution.

Smoot also was arrested and charged with possession of less than one ounce of marijuana. The other occupants of the residence were charged with the same offense in the same indictment. The other occupants pled guilty to the marijuana charge, while Smoot chose to proceed with trial on both the marijuana charge and the keeping a place of prostitution charge.

At trial, the State relied upon the testimony of the two investigating officers who had conducted the surveillance of the residence and who had been involved in the execution of the search warrant, as well as the testimony of the lieutenant who had assisted the officers in reviewing the web pages. During the testimony of one of the officers, the trial court allowed the State to introduce into evidence, over objection, the affidavit that the officer submitted in applying for the search warrant. Among other things, the affidavit stated that the police had received complaints from “Concerned Clayton Community DEMANDING Change” that “OPEN PROSTITUTION” was occurring at Smoot’s residence, and further stated that the neighborhood group had provided the police with “over 25 vehicle descriptions” of cars that had been seen coming and going from the residence for purposes of prostitution. The trial court ruled that the affidavit was admissible because it constituted original evidence that was introduced not to prove the truth of the matters asserted in it, but to explain to the jury why the officers were investigating the residence. The trial court also allowed the affidavit to go out with the jury during its deliberations.

On the identical ground, the trial court allowed the State to introduce, over objection, a document that had been prepared by the same neighborhood group and had been submitted by them to the police. The document alleged that “OPEN PROSTITUTION” was occurring at Smoot’s residence and contained a list of multiple vehicles seen by members of the group coming and going from there over a few days.

Also over objection, the trial court allowed the State to introduce testimony from the investigating officers and the police lieutenant about the content of the web pages they had reviewed, as well as printouts of the Ifshewontiwill website and of the advertisements posted on Craigslist.org. The printout of the Ifshewontiwill website contained photographs of women posing provocatively in various stages of undress, including photographs of Smoot that appeared under the name “Gold.” The website claimed “If She Won’t I Will 100% Satisfaction Guaranteed,” stated that the business focused on “high-quality service” and “customer satisfaction,” and listed “a variety of offerings to choose from,” namely, “Partially/fully nude [cjleaning,” “Partially/fully nude cooking,” “Modeling,” “Dancing (private and parties),” “Girl/Girl Shows,” “Web Cam Shows,” “Escorting (companionship to events),” “X. X. X.,” and “Personal Adult Films.” The printouts of the advertisements posted on Craigslist.org were from the “adult services” section of that website and contained similar provocative photographs of women along with contact phone numbers.

Following the close of evidence, the jury convicted Smoot of both charged offenses. Smoot moved for a new trial, and the trial court denied her motion. This appeal followed.

1. Smoot maintains that the trial court erred in ruling that the search warrant affidavit, which contained hearsay statements from the neighborhood group purportedly linking her residence to prostitution, was admissible as original evidence to explain to the jury why the officers were investigating her residence. She further maintains that the error in admitting the affidavit was harmful and should result in the reversal of her conviction for keeping a place of prostitution. We agree.

OCGA § 24-3-2 provides: “When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” But it is well-settled Georgia law, emphasized time and again by our Supreme Court and by this Court, that

[o]nly in rare instances will the conduct of an investigating officer need to be explained. Otherwise, it is error to permit an investigating officer to testify, under the guise of explaining the officer’s conduct, to what other persons related to the officer during the investigation. The mere circumstance of an officer’s initiation and continuation of an investigation, without more, is not a relevant inquiry.

(Citations and punctuation omitted.) White v. State, 273 Ga. 787, 788 (1) (546 SE2d 514) (2001). See, e.g., Weems v. State, 269 Ga. 577, 578-579 (2) (501 SE2d 806) (1998); Teague v. State, 252 Ga. 534, 536 (1) (314 SE2d 910) (1984); Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982); Foster v. State, 314 Ga. App. 642, 646 (2) (725 SE2d 777) (2012); Doyal v. State, 287 Ga. App. 667, 669-670 (2) (653 SE2d 52) (2007); Collins v. State, 263 Ga. App. 601, 602 (1) (588 SE2d 799) (2003).

Here, there was no necessity justifying introduction of the search warrant affidavit containing hearsay from the neighborhood group, “as the police are expected to investigate crimes, and no explanation of [that] fact is needed.” Strozier v. State, 236 Ga. App. 239, 240 (1) (511 SE2d 295) (1999) (officer’s hearsay testimony about information he received while canvassing neighborhood not admissible as original evidence). Indeed, our Supreme Court has held that hearsay is not admissible to explain police conduct even in cases “where an appellate court suggests that the jury may find police behavior so inexplicable as to cast doubt on the prosecution.” Weems, 269 Ga. at 579 (2). If the State was concerned that the jury might be confused about why the officers were conducting surveillance of Smoot’s residence, it could have simply had the officers testify that they decided to initiate the surveillance because that was the direction their investigation to date had led them. See McKenzie v. State, 271 Ga. 47, 48 (2) (518 SE2d 404) (1999). Accordingly, the trial court erred in allowing the State to introduce into evidence the search warrant affidavit containing hearsay from the neighborhood group that purportedly linked Smoot’s residence to prostitution, the introduction of which effectively allowed Smoot “to be tried based on rumor, gossip, and speculation.” (Punctuation omitted.) Strozier, 236 Ga. App. at 240 (1). See also Doyal, 287 Ga. at 669-670 (2) (officer’s hearsay testimony about complaints he received that the defendant was selling drugs was inadmissible as original evidence).

The standard for weighing nonconstitutional error in criminal cases is whether it is highly probable that the erroneously admitted evidence did not contribute to the judgment. Leverette v. State, 303 Ga.App. 849, 852 (2) (696 SE2d 62) (2010). Given that the State’s case against Smoot for keeping a house of prostitution was entirely circumstantial, and in light of the highly inculpatory hearsay statements contained in the search warrant affidavit, we cannot say that admission of the affidavit was harmless. Consequently, Smoot’s conviction for keeping a house of prostitution must be reversed. Moreover, as discussed below in Division 5, the remaining competent evidence is insufficient to support Smoot’s conviction, and thus double jeopardy principles preclude her from being retried for that offense. See Burks v. United States, 437 U. S. 1, 18 (III) (98 SC 2141, 57 LE2d 1) (1978) (when there is insufficient evidence to support a conviction, the defendant cannot be retried without violating the Double Jeopardy Clause of the United States Constitution).

2. Smoot also contends that the trial court erred in ruling that the State could introduce the document that the neighborhood group submitted to the police, given that the document claimed that prostitution was occurring at Smoot’s residence and listed numerous vehicles that the group had seen coming and going from there over several days. Like the search warrant affidavit, the trial court ruled that the document was admissible as original evidence to explain to the jury why the officers were investigating Smoot’s residence. According to Smoot, the document was inadmissible hearsay, the State had no justifiable basis for introducing the document to explain the officers’ reasons for the investigation, and its admission was highly prejudicial in her prosecution for keeping a place of prostitution. Again, we agree. The trial court committed reversible error in admitting the document for the same reasons discussed in Division 1.

3. Smoot further argues that the trial court erred in allowing the State to elicit testimony from the investigating officers and the police lieutenant describing the photographs and advertisements contained in the web pages that they reviewed as part of their investigation. According to Smoot, the witness’s description of the photographs and advertisements viewed on the websites constituted inadmissible hearsay. We do not agree.

[T]he admission of evidence is committed to the sound legal discretion of the presiding judge, whose determinations will not be disturbed on appeal unless they constitute an abuse of that discretion. Moreover, hearsay evidence is defined as that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons; and hearsay generally relates to an out-of-court statement made by someone other than the witness. Therefore, by definition, evidence is hearsay when a witness at trial offers evidence of what someone else said or wrote, outside of court, and the proponent’s use of the evidence essentially asks the jury to assume that the out-of-court declarant was not lying or mistaken when the statement was made.

(Punctuation and footnotes omitted.) McClain v. State, 311 Ga. App. 750, 752 (716 SE2d 829) (2011). See OCGA§ 24-3-1 (a).

We have pointed out that “testimony describing contents of a photograph [does] not refer to any statements and thus [is] not hearsay.” Hammock v. State, 311 Ga. App. 344, 345 (1) (715 SE2d 709) (2011). See McClain, 311 Ga. App. at 752-753, n. 13; Lott v. State, 303 Ga. App. 775, 784-785 (4) (694 SE2d 698) (2010). Testimony regarding the content of photographs does not “ask the jury to assume the truth of out-of-court statements made by others, and instead the value of the testimony rest[s] on the [testifying witness’s] own veracity and competence.” (Punctuation and footnote omitted.) McClain, 311 Ga. App. at 752. Thus, the testimony of the investigating officers and lieutenant describing the content of the photographs on the web pages was not hearsay.

Nor did the testimony describing the web page advertisements, which the officers and lieutenant testified offered “services” in return for money, constitute inadmissible hearsay. An offer of services in return for money is in the nature of a “verbal act” or “performative utterance” rather than a declarative assertion, and, therefore, has probative value arising from the very fact that it was said, rendering it admissible as original evidence. See Stubbs v. Dubois, 306 Ga. App. 171, 173 & n. 5 (702 SE2d 32) (2010) (letter containing offer constituted a “verbal act” and therefore was “by definition not hearsay but original evidence”); Shealy v. State, 142 Ga. App. 850 (1) (237 SE2d 207) (1977) (conversation with woman “about the prices for certain sexual services” was admissible as “verbal conduct” and did not constitute hearsay); Fitzgerald v. State, 10 Ga. App. 70, 74-77 (72 SE 541) (1911) (statement of woman to man on train that “I charge $2 for my pleasure” constituted “verbal act” and was admissible because the words themselves had “probative value as conduct”). See generally United States v. Montana, 199 F3d 947, 950 (7th Cir. 1999) (discussing “verbal acts” or “performative utterances” and noting that they “are not within the scope of the hearsay rule”). It follows that the trial court did not abuse its discretion in admitting the testimony regarding the content of the web pages.

4. Smoot also argues that the trial court erred in admitting printouts from the Ifshewontiwill website and from Craigslist.org because (a) the State failed to lay a proper foundation for their admission and (b) the content of the printouts constituted inadmissible hearsay. We conclude that the trial court acted within its discretion in admitting the printouts from the Ifshewontiwill website, but not the printouts from Craigslist.org.

(a) As to whether the State established a proper foundation for introducing the printouts, we note that printouts from electronic computer sources are subject to the same rules of authentication as other documents. See Hammontree v. State, 283 Ga. App. 736, 739 (3) (642 SE2d 412) (2007); Simon v. State, 279 Ga. App. 844, 847 (2) (632 SE2d 723) (2006).

As a general rule, a writing will not be admitted into evidence unless the offering party tenders proof of the authenticity or genuineness of the writing. There is no presumption of authenticity, and the burden of proof rests upon the proffering party to establish a prima facie case of genuineness.

(Punctuation and footnote omitted.) Hollie v. State, 298 Ga. App. 1, 3 (1) (679 SE2d 47) (2009).

“Printouts of [w]eb pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at which the printout was made” before they can be introduced into evidence. Kenneth S. Broun, 2 McCormick on Evidence § 227 (6th ed. 2006). See Nightlight Systems v. Nightlites Franchise Systems, No. 1:04-CV-2112-CAP, 2007 U. S. Dist. LEXIS 95538, at *16 (N.D. Ga. May 11, 2007) (order) (noting that “to authenticate a printout from a web page, the proponent must present evidence from a percipient witness stating that the printout accurately reflects the content of the page and the image of the page on the computer at which the printout was made”). Then, to be relevant and material to the case at hand, the printouts often will need to be further “authenticated as having been posted by a particular source.” 2 McCormick on Evidence, supra, § 227. See, e.g., Twiggs v. State, 315 Ga. App. 191, 197 (2) (726 SE2d 680) (2012); Hollie, 298 Ga. App. at 3 (1).

With regard to the Ifshewontiwill website, one of the investigating officers testified that he made the printouts of the website, which were “a fair and accurate representation of the actual things” that he personally viewed on the website as part of his investigation. Moreover, the State presented circumstantial evidence that Smoot was the source of the website by introducing business cards found in her residence that were entitled “Adult Social Network,” listed the web address for the Ifshewontiwill website, and contained the statement “Created by Gold,” which Smoot admitted to police was her nickname. Smoot also admitted to the officers that she was “familiar” with the website. Under these circumstances, the State sufficiently authenticated the printouts from the Ifshewontiwill website to create a prima facie case of genuineness. See generally Simon, 279 Ga. App. at 847 (2) (documents can be authenticated through circumstantial evidence).

We reach a different result with regard to the printouts from the Craigslist.org website. These printouts were introduced through the police lieutenant, but there was no testimony from her that the printouts fairly and accurately represented the contents of the website she personally viewed as part of her investigation. Accordingly, the State failed to elicit testimony sufficiently authenticating the printouts from Craigslist.org, and the trial court abused its discretion in admitting those printouts into evidence.

(b) As to the issue of hearsay, the content of the Ifshewontiwill website consisted of photographs of women, the first names or nicknames of the women, and advertising content, including a list of the “services” offered. The photographs and first names or nicknames appearing on the website were not hearsay. See supra Division 3; Weems v. State, 295 Ga. App. 680, 684 (4) (673 SE2d 50) (2009) (testimony regarding nickname was “verbal act” not introduced to prove the truth of the matter asserted); Wright v. State, 226 Ga. App. 848, 850 (5) (487 SE2d 405) (1997) (testimony regarding first name was “verbal act” not introduced to prove the truth of the matter asserted). Furthermore, the advertising content of the website expressed an offer to perform certain “services” for money, and, as such, was admissible as a “verbal act” or “performative utterance.” See supra Division 3. The trial court thus did not abuse its discretion in admitting the printouts of the Ifshewontiwill website.

5. Smoot asserts that there was insufficient evidence to convict her of keeping a place of prostitution because the State failed to prove beyond a reasonable doubt, with competent evidence, that her residence was being used for the purpose of prostitution. We are constrained to agree under the circumstances of this case. Thus, Smoot cannot be retried for keeping a place of prostitution without violating the Double Jeopardy Clause of the United States Constitution, which “forbids the State from conducting a second trial in order to gain a second opportunity to supply evidence of the defendant’s guilt that it failed to muster in the first proceeding.” (Punctuation and footnote omitted.) Jones v. State, 272 Ga. 900, 904-905 (4) (537 SE2d 80) (2000). See Burks, 437 U. S. at 18 (III).

In reviewing the sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we ask whether the evidence, when viewed in the light most favorable to the verdict, authorized a rational jury to have found the essential elements of the charged offense beyond a reasonable doubt. Bryant v. State, 309 Ga. App. 649 (1) (710 SE2d 854) (2011). We do not weigh the evidence or determine witness credibility, but only determine whether the evidence was sufficient under the Jackson standard. Kelley v. State, 308 Ga. App. 418, 421 (1) (707 SE2d 619) (2011).

In the present case, the State did not come forward with any eyewitness testimony or other direct evidence that Smoot’s residence was being used for the purpose of prostitution, and when a conviction is predicated solely upon circumstantial evidence, “the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Kierv. State, 292 Ga.App. 208,210 (1) (663 SE2d 832) (2008).

When the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable doubt. And while the jury generally determines whether every other reasonable alternative but guilt has been excluded, we must not be blinded by a verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as a matter of law.

(Citations and punctuation omitted.) Grant v. State, 227 Ga. App. 243, 245 (488 SE2d 763) (1997).

To prove that Smoot’s residence was being used for the purpose of prostitution, the State presented the following admissible circumstantial evidence: (1) the investigating officer’s observance of the unidentified male driving up to the residence, going inside for a short time, and then driving away; (2) the business cards found in the residence; (3) the testimony of the investigating officers and lieutenant describing the contents of the web pages they investigated; and (4) the printouts from the Ifshewontiwill website. This circumstantial evidence, when construed in its totality, created a reasonable inference that Smoot’s residence was being used for the purpose of prostitution.

But that does not end the matter. The investigating officers and lieutenant described the content of the web pages in general terms without referring to any specific acts that the photographed women offered to perform in return for money. In contrast, the printouts from the Ifshewontiwill website listed several specific “services” that would not constitute the crime of prostitution. Thus, in the absence of any additional evidence reflecting what actually took place inside the residence, the testimony and documentary evidence presented at trial did not exclude the reasonable hypothesis that the residence was being used for the purpose of commercial voyeurism or some other form of adult nude entertainment not rising to the level of prostitution. Accordingly, there was insufficient evidence to convict Smoot of keeping her residence as a place of prostitution. Compare Ahn v. State, 279 Ga. App. 501, 501-502 (1) (631 SE2d 711) (2006) (keeping a place of prostitution conviction affirmed, where undercover officer entered spa, and then a “spa employee not only touched the officer’s genitals during the massage procedure, but eventually offered masturbation and oral sex services for specified prices”); Snead, v. State, 127 Ga. App. 12, 12-13 (1) (192 SE2d 415) (1972) (keeping a place of prostitution conviction affirmed, where undercover officer entered house, a woman in the house made arrangements with him “for sexual relations for a price of $20,” and the woman took his money, led him to a bedroom, and began to undress).

6. Smoot also argues that the trial court erred in denying her motion for a directed verdict of acquittal on the charge of possession of less than one ounce of marijuana. She maintains that the evidence was insufficient to support her conviction and that she was entitled to a directed verdict because she was merely present at the residence, and other individuals had equal access to the places in the residence where the marijuana was found. We are unpersuaded.

“The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” Washington v. State, 251 Ga. App. 206 (1) (553 SE2d 855) (2001). As noted supra in Division 5, that standard requires us to “view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” always mindful that weighing the evidence and determining witness credibility are for the jury. Id. See Jackson, 443 U. S. 307.

“In Georgia, it is unlawful for any person to possess any controlled substance, and possession of controlled substances may be actual or constructive.” (Punctuation and footnote omitted.) Davenport v. State, 308 Ga. App. 140, 145 (1) (b) (706 SE2d 757) (2011). Although not in actual possession, a person who

knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. To prove constructive possession, the State must establish a link between the defendant and the contraband that goes beyond mere spatial proximity. Such connection can be made where the evidence shows that the contraband was discovered on premises occupied and controlled by the defendant with no right of equal access and control in others. Control may be inferred if the defendant owns or resides in the premises, but not if he is merely an occupant.

(Punctuation and footnotes omitted.) Bussey v. State, 263 Ga. App. 56, 57-58 (1) (a) (587 SE2d 134) (2003). “[S]o long as there is slight evidence of access, power, and intention to exercise dominion or control over the contraband, the question of fact as to constructive possession remains with the jury.” Davenport, 308 Ga. App. at 145 (1) (b).

The State presented sufficient evidence that Smoot had constructive possession of the marijuana seized from the residence. The evidence showed that the police found marijuana in plain view in several areas of the residence, as well as in a closed wooden box in the master bedroom near the closet where Smoot was found during the search. And while her aunt was the owner of the residence, Smoot admitted to the police that she lived at the residence and slept in the master bedroom, thus permitting the jury to presume that she controlled the premises. See Bussey, 263 Ga. App. at 58 (1) (a).

While Smoot relies upon the equal access rule in an effort to overcome the evidentiary presumption of possession arising from the fact that she lived in the residence, “the equal access rule does not apply to eliminate the presumption of possession where all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of the contraband.” (Citation and punctuation omitted.) Cabrera v. State, 303 Ga. App. 646, 651 (1) (694 SE2d 720) (2010). See also Warren v. State, 314 Ga. App. 477,478 (1) (724 SE2d 404) (2012). Because the State charged the other occupants of the residence with possession of the marijuana, the State was entitled to rely on the presumption to demonstrate that Smoot exercised possession and control over the marijuana, and she was not entitled to rely upon the equal access rule to rebut that presumption. See id. Consequently, the evidence was sufficient to authorize Smoot’s conviction for possession of less than one ounce of marijuana, and the trial court committed no error in denying her motion for a directed verdict of acquittal. See id.

7. Lastly, Smoot contends that the trial court erred in declining to charge the jury on mere presence and mere spatial proximity. We disagree.

While Smoot asserts that she was entitled to a charge on mere presence because her written request for the charge was a correct statement of the law and there was at least slight evidence to support it,

the rule that mere presence at the scene of a crime is insufficient to convict is actually a corollary to the requirement that the State prove each element of the offense charged. Here,... the trial court correctly instructed the jury on the duty of the State to prove each element of the crime beyond a reasonable doubt and instructed the jury fully on the law of circumstantial evidence. Under such circumstances, there was no error in the refusal to give [Smoot’s] requested charge. This is true even where the defendant asserts that “mere presence” was [her] sole defense.

Decided June 5, 2012.

David J. Walker, for appellant.

Taska M. Mosley, Solicitor-General, Steven K. Snider, Assistant Solicitor-General, for appellee.

(Citations and punctuation omitted.) Torres v. State, 298 Ga. App. 158, 159 (1) (679 SE2d 757) (2009).

Nor was the trial court required to charge the jury on mere spatial proximity, even if Smoot’s request for such a charge was a correct statement of the law. “A trial court does not err in failing to give an appropriate request to charge, as written, when its charge as a whole contains the same principles of law set forth in the request.” (Punctuation and footnote omitted.) Tran v. State, 246 Ga. App. 153, 160 (7) (539 SE2d862) (2000). Here, the trial court instructed the jury that Smoot could not be convicted of possession of marijuana unless the State proved that she had the requisite criminal intent; that criminal intent could not be presumed; that constructive possession requires that a defendant knowingly have both the power and intention to exercise authority or control over a thing; and that facts and circumstances that merely place upon a defendant a grave suspicion of the crime charged or that merely raise a speculation or conjecture of the defendant’s guilt are not sufficient to authorize a conviction. Under these circumstances, the trial court did not err in declining to give Smoot’s requested charge on mere spatial proximity because the jury instructions as a whole adequately covered that principle. See id.

Judgment affirmed in part and reversed in part.

Adams and McFadden, JJ., concur.

       OCGA § 16-6-10 provides: “Aperson having or exercising control over the use of any place or conveyance which would offer seclusion or shelter for the practice of prostitution commits the offense of keeping a place of prostitution when he knowingly grants or permits the use of such place for the purpose of prostitution.”

       Some information was redacted from the affidavit, including statements made by the male who had been stopped by the investigating officers after he drove away from the residence during the surveillance operation.

       Given that Smoot’s enumeration of error pertains only to the issue of hearsay, our opinion does not address whether or to what extent the best evidence rule applies in cases involving website content. Nor do we address whether the testimony of the investigating officers and the police lieutenant included inadmissible opinion evidence in violation of OCGA § 24-9-65, see, e.g., Dawson v. State, 283 Ga. 315, 319-321 (4) (658 SE2d 755) (2008), because Smoot has not raised that issue on appeal.

       While Smoot also argues that the admission of the testimony about the web pages violated her Sixth Amendment right of confrontation under Crawford v. Washington, 541 U. S. 36 (124 SC 1354, 158 LE2d 177) (2004), the Confrontation Clause does not bar the admission of statements for purposes other than establishing the truth of the matter asserted. Id. at 59 (IV); Tennessee v. Street, 471 U. S. 409, 414 (II) (A) (105 SC 2078, 85 LE2d 425) (1985). Thus, admission of testimony regarding the photographs and the advertising content on the web pages was not barred by the Sixth Amendment. See Weems v. State, 295 Ga. App. 680, 683 (3), n. 2 (673 SE2d 50) (2009) (Confrontation Clause did not bar admission of statements that constituted original evidence).

       The printouts from the website did not violate the Confrontation Clause for the same reasons discussed supra in footnote 4.

       We express no opinion as to whether any of the “services” listed on the website could be prosecuted as crimes under some other provision of the Georgia Criminal Code.

       For the same reason, contrary to Smoot’s assertion, the trial court properly denied her request for a jury charge on equal access. See Wiggins v. State, 258 Ga. App. 703, 704-705 (2) (574 SE2d 896) (2002).


text:
    A12A0107.
    EL RANCHERO MEXICAN RESTAURANT, NO. 10, INC. v. HINER.
    (728 SE2d 761)
   Adams, Judge.

Rosemary Hiner filed this slip and fall suit against El Ranchero Mexican Restaurant, No. 10, Inc. (the “Restaurant”). We granted the Restaurant’s application for interlocutory appeal from the trial court’s order denying its motion for summary judgment, and we reverse for the reasons set forth below.

Viewed in the light most favorable to Hiner, the evidence shows that she arrived for lunch at the Restaurant at about 12:30 or 1:00 p.m. on August 31, 2008. The Restaurant was so busy that day that Hiner’s party was required to sit at the bar. As she walked to the restroom after finishing her meal, Hiner noticed en route that an area of the tile floor in front of the kitchen door was slippery when she almost lost her footing there. The record contains no evidence suggesting that Hiner notified any Restaurant employee about the slippery floor at that time. Hiner testified that she did not look down at that point to determine why the floor was slippery. But when she left the restroom to return to her table, she took “very small steps so [she] did not fall.” Nevertheless, she fell and broke her leg as she traversed the same area, despite her efforts to walk carefully while looking at her feet. Hiner testified that after the fall, she did not look at the floor to see what made her fall; that she did not know if any type of substance was on her clothes; that she did not notice any defect in or any substance on the floor; but that she noticed that there was “film” on the tile. Hiner testified that she had been to the Restaurant “many times” and that she had sometimes “slipped a little bit” because the ceramic tile floor had a film on it. She said that she reported this slipperiness to a waiter about three to seven months before her fall.

The Restaurant’s busboys arrived every morning at around 9:00 and mopped the floor with a degreaser at that time. The degreaser was used to prevent the floor from becoming greasy and to remove any build-up from Restaurant employees tracking grease from the kitchen on their shoes. The Restaurant manager arrived every day around 10:00 or 10:30 a.m. for the opening at 11:00 a.m., and it was his habit to inspect the Restaurant in the morning to make sure everything was in order. Otherwise, employees were required to be on the lookout throughout the day for problems that arose and to either fix or report them. Although the manager could not pinpoint the specific time he made his inspection the day of the fall, he did it every day in the morning when he arrived including the day of Hiner’s accident. When the manager heard Hiner fall, he went to the back of the store to see what had happened. He looked at the floor to see what could have caused the fall, and “the floor was clean. And that’s the first thing that you look at, to see if there was something on the floor that she might have slipped on, and there was nothing.” He said that in the ten years that he worked at the Restaurant, Hiner’s fall was the first accident on the premises.

“The threshold point of inquiry in a slip and fall case is the existence of a hazardous condition on the premises.” (Citation omitted.) Flagstar Enterprises v. Burch, 267 Ga. App. 856 (600 SE2d 834) (2004).

Proof of a fall, without more, does not create liability on the part of a proprietor or landowner. It is common knowledge that people fall on the best of sidewalks and floors. Additionally, causation is always an essential element in slip or trip and fall cases. Where the plaintiff does not know of a cause or cannot prove the cause, there can be no recovery because an essential element of negligence cannot be proven. Amere possibility of causation is not enough and when the matter remains one of pure speculation or conjecture, it is appropriate for the court to grant summary judgment to the defendant.

(Citations and punctuation omitted.) Pinckney v. Covington Athletic Club &c., 288 Ga. App. 891, 893 (655 SE2d 650) (2007). Hiner, therefore, was required to prove more than that the floor was slippery; she “had to prove that the condition of the floor constituted an unreasonable hazard and that [the Restaurant] had superior knowledge of that hazard.” (Citation omitted.) Flagstar Enterprises, 267 Ga. App. at 858. In other words, to establish liability, “[t]here must be proof of fault on the part of the owner and ignorance of the danger on the part of the invitee.” (Citation and punctuation omitted.) Belk Dept. Store &c. v. Cato, 267 Ga. App. 793, 794 (600 SE2d 786) (2004).

Hiner admitted that she did not know what caused her to fall, although she claims to have seen a “film” on the floor. But she argues that the floor was hazardous and the Restaurant was aware of this hazard as evidenced by the busboy’s routine of mopping the floor with a degreaser every morning to clean up grease tracked from the kitchen and her encounter with a film on the floor on a previous visit.

But pretermitting the issue of whether this evidence was sufficient to create an issue of fact that her fall was caused by grease accumulating on the floor, Hiner’s claim fails because she cannot prove that she lacked equal knowledge of the hazard. It is well settled that “[t]he fundamental basis for a defendant’s liability [in a slip and fall case] is that party’s superior knowledge of the hazard encountered by the plaintiff.” (Citations and punctuation omitted.) Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 249 (699 SE2d 439) (2010). Hiner stated that she had noticed on prior visits that the tile in the Restaurant could be slippery, and she had traversed the area moments before and noticed that it was slippery at that time. When a person successfully negotiates a dangerous condition, she is presumed to have knowledge of that condition and cannot recover for a subsequent injury resulting from the hazard. See Pierce v. Wendy’s Intl., 233 Ga. App. 227, 230 (2) (504 SE2d 14) (1998). Thus, “[a]s reflected by her own admissions set out above, [Hiner] was aware of the [slippery tile floor]. Additionally, immediately prior to her fall, she had safely traversed the area in which she thereafter fell. Therefore, her knowledge being at least equal to that of [the Restaurant], she may not recover on her premises liability claim.” (Citations omitted.) Ballard v. Burnham, 256 Ga. App. 531, 533 (568 SE2d 743) (2002). In Hudson v. Quise, Inc., 205 Ga. App. 840 (424 SE2d 37) (1992), this Court upheld summary judgment in favor of the defendant restaurant in Hudson’s suit to recover for injuries sustained when she slid on the restaurant floor and fell. The evidence in that case showed that the restaurant had a problem with grease collecting on the floor, and the restaurant manager testified that to prevent grease from building up, employees cleaned and applied a degreaser to the floor each day, including the day of Hudson’s fall. The evidence further showed that Hudson had slid on the floor earlier in the day but did not fall and that she had not notified any restaurant employees of the slick condition of the floor at that time. This Court concluded that it was “clear that [Hudson] had actual knowledge of the condition of the floor in the vicinity in which she ultimately fell” and that she failed to exercise due care for her own safety. Id. at 841. And, here, Hiner had actual knowledge of the floor’s condition at the time of her fall and also failed to exercise due care for her own safety.

Decided June 6, 2012.

Dennis, Corry, Porter & Smith, Harold W. Whiteman, Jr., for appellant.

Wheeler & Watson, James A. Watson, for appellee.

The Hudson panel also refused to impute constructive knowledge of the floor’s condition to the restaurant in light of its daily routine of cleaning and degreasing every morning, which the court found to be a reasonable cleaning/inspection procedure. Id. at 840-841. The Restaurant in this case followed a similar procedure, along with charging employees to keep their eyes open for any problems and to either fix or report them. Given this reasonable cleaning/inspection procedure, no constructive knowledge of the floor’s condition at the time of Hiner’s fall can be imputed to the Restaurant.

Accordingly, the Restaurant was entitled to judgment as a matter of law, and we reverse the trial court’s denial of the Restaurant’s motion for summary judgment.

Judgment reversed.

Barnes, P. J., and McFadden, J., concur.

       “A de novo standard of review applies to an appeal from a grant or denial 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.” (Punctuation omitted.) Carter v. Moody, 236 Ga. App. 262, 263 (511 SE2d 520) (1999).

       One witness testified that the busboys also applied degreaser after the Restaurant closed and allowed it to sit overnight.

       Compare Taylor v. Golden Corral Corp., 255 Ga. App. 860 (567 SE2d 109) (2002) (summary judgment improper where patron fell on “soapy,” “greasy” tile in area where restaurant recently mopped a spaghetti spill and factual issues remained as to whether restaurant properly cleaned spill and whether wet floor signs gave patron equal knowledge of greasy, slippery condition); Ray v. Restaurant Mgmt. Svcs., 230 Ga. App. 145 (495 SE2d 613) (1998) (summary judgment improperly granted where defendant admitted knowledge of the hazard and could not prove plaintiff traversed the area before her fall); Gourley v. Food Concepts, 229 Ga. App. 180 (493 SE2d 587) (1997) (summary judgment reversed where restaurant charged with knowledge of hazard from floor it recently mopped and factual issues remained as to whether patron had equal knowledge of hazard from son’s statement that floor was slick, her observation that other areas of floor were slippery and her successful negotiation of such other areas).


text:
    A12A0575.
    TUCKER v. THE STATE.
    (728 SE2d 764)
   Adams, Judge.

The trial court denied a motion for new trial filed by Deandre Pierre Tucker after a jury convicted him on one count of burglary and one count of criminal interference with government property. Tucker appeals the denial of his motion, asserting as his sole enumeration of error that the trial court erred in failing to suppress evidence of a pre-trial identification of him as one of the two men involved in the burglary. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, the evidence at trial showed that when Steven O’Connell and his wife left their home in Mableton on the morning of February 16, 2009, the back door of their home and the windows surrounding it were closed and locked, including a steel door that separates the back door and the enclosed porch area from the main house.

Later in the day, while the O’Connells were still away, their neighbor, Andrew Beringause, observed two young men walking up the O’Connells’ driveway. One of the men had dreadlocks and the other man was taller, with short hair. The man with the dreadlocks knocked on the front door, while the taller man went to the back of the house. No one answered the front door, and Beringause saw the taller man open the side door that goes to the back of the house. He then returned to the front, and both men walked back to the side door, opened it and went in. Beringause dialed 911, while he went outside to watch the men. He said that they stayed in the O’Connell house, at the most, ten minutes. Beringause remained on the phone as he watched the men exit the house, walk up the driveway and then up the street. Beringause followed approximately 35 to 40 yards behind the men. At one point the men left the street and cut through some yards toward a street called Woodward Circle. Beringause stated that the men were wearing jackets with hoods. One of the jackets was white with either blue or black on it. The men had their hoods up when Beringause first saw them, but they took the hoods off as they walked up the O’Connells’ driveway. The police arrived approximately 15 minutes after Beringause called. Upon investigation, they discovered that a window by the O’Connells’ back door had been forced open, allowing access to the door handle to open the door, which led to the enclosed porch. O’Connell later determined that items had been moved around on the porch, but nothing had been taken from the house.

Approximately ten minutes after police arrived, the officers drove Beringause to Woodward Circle and asked him if he could identify two men who were standing there. One of the men had dreadlocks and the other was taller, with shorter hair; neither was wearing a jacket at the time. Beringause, who stayed seated in the patrol car, identified them as the two men he had seen go into the O’Connells’ house. At trial, Beringause identified Tucker as the man he saw that day with dreadlocks.

Shortly prior to this showup, the police had stopped Tucker driving a silver Impala on Woodward Circle after a neighbor informed the officers that she had seen the car driving slowly in the neighborhood earlier that day. The police initiated the stop because Tucker and his passenger fit the description provided by Beringause. At the time he was stopped, Tucker was wearing binoculars around his neck and black gloves. And at trial, Beringause identified a jacket later found in the Impala as “about the same jacket” one of the men had been wearing.

After Tucker was arrested and placed into the back of a patrol car, he began rocking back and forth, striking his head on the plexiglass divider between the front and back seats. Before the officers could stop him, he rocked forward again and put his head through the plexiglass.

Tucker asserts that the showup procedure followed by the police with Beringause was impermissibly suggestive, and that the trial court erred in denying his motion to suppress the identification.

Although a one-on-one showup is inherently suggestive, identification testimony produced from the showup is not necessarily inadmissible. We must apply a two-part test to determine whether the showup was impermissibly suggestive, and, if the showup was impermissibly suggestive, we then consider the totality of the circumstances to determine whether a “very substantial likelihood” existed of irreparable misidentification. With regard to part one of the test, this [cjourt has previously held that on-the-scene showup identifications, like the one in the present case, are often necessary “due to the practicabilities inherent in such situations.” Thus, as long as this type of showup was reasonably and fairly conducted at or near the time of the offense, it is not impermissibly suggestive and we need not reach the second part of the test.

(Citations omitted.) Wallace v. State, 295 Ga. App. 452, 454 (1) (671 SE2d 911) (2009). “Conversely, we may immediately proceed to the second question and, if the answer thereto is negative, we may entirely pretermit the first question.” Butler v. State, 290 Ga. 412, 415 (3) (721 SE2d 876) (2012).

Thus, even if we were to assume without deciding “that the circumstances surrounding [Tucker’s] identification rendered the showup impermissibly suggestive, the evidence is inadmissible only if under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification.” (Citations omitted.) Butler v. State, 290 Ga. at 415 (3). We find no such substantial likelihood. The crime occurred in the daylight, and Beringause observed the men from the time they first approached the house and followed them up the street until they turned. Although the men had their hoods up when Beringause first saw them, they removed their hoods as they walked up the driveway to the back of the house. He then followed them up the street for some time at a distance. The description provided by Beringau.se was fairly detailed with regard to the hairstyles and relative height of the two men, which matched Tucker and his passenger. And the showup occurred within one-half hour of his first placing a call to police. Beringause identified the two men readily even though they were not wearing the hooded jackets at the time. And although some discrepancies may have existed between Berin-gause’s description of their clothes at the time of the crime, the clothes Tucker was wearing at the time of his arrest, and the jacket later found in Tucker’s car, such issues are for the jury. Id. “As identity is a question for the trier of fact, the credibility of the witness making such identification is not to be decided by this Court where a witness identifies a defendant. Instead, the witness’s credibility as well as the weight given his testimony on the perpetrator’s identity were issues for the jury.” (Citations omitted.) Scruggs v. State, 309 Ga. App. 569, 576 (4) (711 SE2d 86) (2011). Under these circumstances, we cannot say that the trial court was clearly erroneous in finding Beringause’s identification sufficiently reliable to be admitted at trial. Butler v. State, 290 Ga. at 415-416 (3).

Decided June 6, 2012.

David C. Butler, for appellant.

Patrick H. Head, District Attorney, Anna G. Cross, Assistant District Attorney, for appellee.

judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       The State also introduced evidence of a similar transaction in which Tucker pled guilty to a weekday burglary of a home whose owners were at work. Tucker gained entry to that home through a window in the back of the house.


text:
    A12A0632.
    BAKER v. THE STATE.
    (728 SE2d 767)
   Adams, Judge.

Joseph Baker appeals the denial of his motion for new trial following his conviction of statutory rape; Baker was acquitted on counts of interstate interference with child custody (OCGA § 16-5-45) and battery. On appeal, Baker asserts the trial court erred with regard to evidence suggesting the victim had lied or been deceptive about her age. He also contends the trial court erred with regard to a jury charge and a transcript of a 911 call. Finally he contends his trial counsel was ineffective in several ways. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows the victim was a 14-year-old Florida resident who frequently ran away from home without permission. At some point, the girl met Baker, age 29 at the time, on the Internet, and in April 2009, she asked him to come to Fort Myers, Florida to pick her up, which he did. They returned to his home in Newton County and engaged in sexual intercourse multiple times during that visit. She got homesick and called her father, who picked her up from a bus station in Atlanta. Baker had taken her to the station, but he stayed in his car nearby and did not have any contact with the girl’s parents. In June, the girl again asked Baker to come get her, which he did, and the two of them returned to his residence in Newton County and again had sexual intercourse. On this visit, however, the two got into an argument that escalated into the girl picking up two knives and telling Baker to leave her alone. A struggle ensued, but the girl eventually convinced Baker to let her make a phone call if she promised not to call the police. The victim went to the garage and called the police.

On June 17, 2009, officers in Newton County responded to a 911 call regarding a domestic dispute at a residence in Covington and found the victim crouched in the corner of the garage with the garage door open. She was crying, scared, and hysterical, and she said, “He’s inside. He’s inside.” She reported that she and Baker had gotten into an argument, he became physical with her and choked her, and she cut him with a knife. The officer saw bruising on her neck. Officers spoke to Baker and saw a laceration on his right forearm, which, Baker later admitted, resulted from the girl cutting him. Baker admitted to officers that he had sexual intercourse with the girl on both visits. He did not testify at trial.

1. The evidence was sufficient to support the conviction of statutory rape. See OCGA § 16-6-3.

2. Prior to trial, the State moved in limine to prohibit “any evidence relating to the Defendant’s knowledge of the age of the victim, or evidence that the victim [misled] the Defendant about her age,” as well as any impeachment based on evidence that the victim misled anyone about her age. The State relied on Haywood v. State, 283 Ga. App. 568, 568-569 (642 SE2d 203) (2007), which holds that the defendant’s knowledge of the victim’s age is not relevant to a charge of statutory rape and that such evidence is subject to a motion in limine. Haywood also holds that it is not error to forbid impeachment of a statutory rape victim with contradictory statements she might have made about her age. Id. at 569.

On appeal, Baker admits the trial court’s ruling was correct as to Count 1 — statutory rape, but he argues the trial court erred because the evidence was relevant to Count 2 — interstate interference with child custody — and therefore admissible. See OCGA § 16-5-45. Although Baker was acquitted on Count 2, he argues the issue is not moot and that the evidence was harmful because in connection with Count 2, the State attempted to suggest that he knew the victim was under the age of consent, arguably in violation of the ruling on the motion in limine, and that this information could have prejudiced him in the mind of the jury with regard to the charge of statutory rape. Thus, he argues, the State was able to imply that he knew the victim was underage, but he was prohibited from showing that she misled him in that regard.

We conclude that Baker has not shown that any possible error was harmful. See Ayers v. City of Atlanta, 221 Ga. App. 381, 382 (2) (471 SE2d 240) (1996) (not reversible error where defendant had not shown any specific harm resulting from an error in admitting evidence related to a charge for which the defendant was acquitted). First, the primary information that Baker contends was erroneously admitted in favor of the State consists of statements made by the prosecutor during her opening statement and closing argument, and the jury was instructed that openings and closings are not evidence. Second, the remainder of the information that Baker contends was erroneously admitted in favor of the State consists of the circumstances surrounding Baker’s sexual encounter with the girl, such as that she did not have permission to leave Florida with him, that the parents did not know she was with him, and that he did not meet the parents at the bus station. It would have been within the trial judge’s discretion to admit these facts as a part of a stand alone trial on statutory rape.

[T]he state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial____Acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense.

(Citations and punctuation omitted.) Horner v. State, 257 Ga. App. 12, 13 (1) (570 SE2d 94) (2002). See also Sypho v. State, 175 Ga. App. 833, 835 (3) (334 SE2d 878) (1985). Third, Baker was able to significantly attack the victim’s credibility anyway: the evidence showed that she changed her story about what happened in several ways, including that she withdrew assertions that their sexual encounters had been forced, that Baker had threatened to kill her, and that he choked her on the first trip to Georgia. Accordingly, we find Baker’s argument regarding harm to be without merit, and therefore there is no possible reversible error by the trial court in granting the motion in limine.

3. Baker contends the court erred by failing to instruct the jury on OCGA § 16-3-5, mistake of fact, with regard to Count 2. But the alleged error regarding a charge on a count for which he was acquitted is moot. Nation v. State, 180 Ga. App. 460, 463 (6) (349 SE2d 479) (1986).

4. Baker contends the court erred in response to a question during deliberation by informing the jury that knowledge of the victim’s age was not relevant to either Count 1 or Count 2. This assertion is also moot as a result of Baker’s acquittal on Count 2 and the fact that the answer was correct for Count 1.

5. Baker contends he received ineffective assistance of counsel when counsel failed to assert that the door had been opened to evidence of the victim’s deceit regarding her age. Upon review of a trial court’s ruling on the effectiveness of trial counsel “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citations omitted.) Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

Here, following the hearing on the motion for new trial, which included trial counsel’s testimony, the trial court found that trial counsel had acted effectively. We find no error. Counsel testified that she did not hear or see any evidence that opened the door regarding the victim’s deceit about her age and that she found many of the questions to be helpful to her defense strategy of showing the victim as the one who pursued Baker. Also the transcript shows that the State did not introduce any direct evidence to open the door about the victim’s deceit regarding her age and argument of counsel is not evidence. Finally, “[i]n general, matters of reasonable trial strategy and tactics do not amount to ineffective assistance of counsel.” Scott v. State, 290 Ga. 883, 889 (7) (b) (725 SE2d 305) (2012). Baker has not carried his burden of showing ineffective assistance.

6. Baker contends he received ineffective assistance of counsel when counsel failed to request that the court sever Count 1 and Count 2 for trial when it became apparent that evidence admissible for Count 2 was not admissible for Count 1, again referencing the evidence of the victim’s deceit regarding her age and Baker’s knowledge of her age.

The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.

Howard v. State, 279 Ga. 166, 171-172 (4) (611 SE2d 3) (2005). See also Carter v. State, 261 Ga. 344, 345 (1) (404 SE2d 432) (1991) (enumeration regarding failure to sever two counts for trial not necessarily moot even though defendant acquitted on one count; there is possible harm in a joint trial); Williams v. State, 178 Ga.App. 581, 585 (1) (344 SE2d 247) (1986) (no error where appellant was acquitted of the charges that allegedly should have been severed and appellant “has shown no harm or prejudice which might have been avoided by severing the trials”).

As explained in Division 1, any possible error was not harmful as to the charge of statutory rape; and, as shown above, the true evidence about which Baker complains would be admissible in a stand alone trial regarding statutory rape, anyway. See generally Johnson v. State, 257 Ga. 731, 733 (2) (c) (363 SE2d 540) (1988) (“[Wjhere the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying the motion for severance.”) (citation and punctuation omitted). With regard to a claim of ineffective assistance, the appellant must establish prejudice or harm to obtain reversal. Smith v. State, 302 Ga.App. 222, 227-228 (3) (a) (690 SE2d 867) (2010). This, Baker has failed to do.

7. Baker contends he received ineffective assistance when counsel failed to offer evidence of the victim’s prior encounters with police in Florida that call into question her credibility. But counsel testified that she was bound by the trial court’s ruling on the motion in limine, and in Division 1, we concluded that there was no reversible error with regard to that motion in limine because no harm was shown. Therefore, Baker can show no possible harm on this claim.

8. Baker asserts there were three errors with regard to the transcript of the victim’s 911 call to the police. He contends the trial court erred by allowing unauthenticated transcripts of the 911 call to be shown to the jury while the tape was played; by failing to give a proper limiting instruction regarding the transcript; and by allowing the unauthenticated transcripts of the 911 call to go out with the jury during deliberation. He also contends that counsel was ineffective by failing to object to these three asserted errors.

Decided June 6, 2012.

Jason R. Cornell, for appellant.

Layla H. Zon, District Attorney, Melanie M. Bell, Assistant District Attorney, for appellee.

At trial, the victim authenticated the recording of the 911 call as a fair and accurate recording of the conversation. The prosecutor handed the jury a transcript of the call, and the court instructed the jury as follows:

All right, ladies and gentlemen of the jury, they’re going to play the 911 call. The actual audio that you hear with your ears is the evidence. They’re handing out a transcript that was taken down as a guide, but what you hear with your ears is the actual evidence in this matter. You can use that transcript as a guide to help you listen.

The recording was then played for the jury. Finally, although it is unclear from the trial transcript, Baker’s trial counsel testified at the hearing on the motion for new trial that the transcript did not go out with the jury during deliberations. The trial court was authorized to believe this testimony.

We find no error in this procedure and no ineffective assistance of counsel. This Court, following precedent of the Supreme Court of Georgia, specifically authorized the procedure used in this case: the State lays a proper foundation for the admission of the recording; the court gives a cautionary instruction that the transcript itself is not evidence; the jury uses the transcript to assist them in listening to the recording; and the transcript is not part of the evidence that goes out with the jury. Turner v. State, 245 Ga. App. 476, 477 (1) (538 SE2d 125) (2000), following Washington v. State, 268 Ga. 598, 600 (3) (492 SE2d 197) (1997). Because the transcript was not, in fact, admitted into evidence, Gaston v. State, 180 Ga. App. 470 (349 SE2d 526) (1986), is not on point.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       Prior to trial, the trial court granted the State’s motion for nolle prosequi on a charge of rape.

       Compare Roy wood, 283 Ga. App. at 569 (question of whether evidence regarding victim’s age would somehow be relevant to charge for which defendant was acquitted was moot; no argument regarding harm). See also Goings v. State, 265 Ga. App. 296, 299 (5) (593 SE2d 751) (2004) (enumeration of error regarding testimony concerning one armed robbery was “harmless if not moot” where the defendant was acquitted of that armed robbery hut convicted of a separate armed robbery); Breland v. State, 287 Ga. App. 83, 86 (2), n. 11 (651 SE2d 439) (2007) (challenge regarding identification testimony of an alleged second victim was “harmless if not moot” given that defendant was acquitted of robbing that victim).


text:
    A12A0679.
    JACKSON v. THE STATE.
    (728 SE2d 774)
   MlKELL, Presiding Judge.

In the same indictment, a grand jury charged Kendrick Demone Jackson with the commission, in 2007, of three counts of aggravated battery and one count of aggravated assault during a fight at a restaurant; and with the commission, in 2008, of one count of aggravated assault on a law enforcement officer attempting to arrest him for the crimes allegedly committed in 2007. A jury convicted Jackson of the 2008 aggravated assault on the officer, but acquitted him of the remaining counts. He appeals the denial of his amended motion for a new trial, alleging that the trial court erred in denying his motion to sever the counts and in not granting a mistrial. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that at about 3:00 a.m. on November 11, 2007, Bobby Toole, an officer with the Athens-Clarke County Sheriff’s Department working extra duty at a restaurant, heard someone yelling that there was a fight in the parking lot and immediately after heard a gunshot. Toole found Termaine Johnson lying wounded on the ground. Johnson identified Jackson as the shooter. Awitness told law enforcement that the shooter fled the scene. A law enforcement officer identified Jackson’s photo as depicting a man who had fled the scene.

' A warrant was issued for Jackson’s arrest in connection with the Johnson shooting, and Jackson was the subject of a “be on the lookout” alert. About two months after the shooting, on January 6, 2008, Athens-Clarke County Police Officer Donnie Weller responded to a call from another officer who had seen Jackson at an area apartment complex. Weller testified that Jackson attempted to flee in a vehicle driven by another person. The officers initiated a traffic stop, and Jackson pointed a gun at Weller. Weller arrested Jackson, and a 9 millimeter handgun was found during a search of the vehicle. At arraignment, Jackson pled not guilty to all counts.

1. Jackson contends that the trial court erred in denying his motion to sever the 2008 count of aggravated assault against the officer from the 2007 counts regarding the alleged crimes against Johnson.

[A] defendant has a right to severance where the offenses are joined solely on the ground that they are of the same or similar character because of the great risk of prejudice from a joint disposition of unrelated charges. However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the sound discretion of the trial judge since the facts in each case are likely to be unique. A trial court does not abuse its discretion in denying a severance of counts where evidence of one charge would be admissible in the trial of another.

In Jackson v. State, a case analogous to the case sub judice, we upheld a trial court’s denial of a motion to sever, finding that offenses committed one month apart were based on a series of connected acts where the defendant was charged with crimes related to the armed robbery of a gas station; then, while incarcerated on those charges, the defendant attempted a jail break and was charged with additional crimes. “Where two offenses have been joined because they are based on (1) the same conduct, (2) on a series of connected acts, or (3) on a series of acts constituting parts of a single plan or scheme, the trial judge has discretion to decide whether or not to sever offenses.” In that case, we held, inter alia, that the offenses were connected because “evidence of flight would be admissible at a separate trial as to the original charge to show consciousness of guilt, and evidence of the defendant’s alleged commission of the original charge would be admissible at a separate trial on the escape charge to show the lawfulness of the confinement from which the defendant escaped.” Similarly, in the case before us, the offenses are connected. Evidence of Jackson’s flight from the arresting officer in 2008 would be admissible to show consciousness of guilt at a separate trial on the 2007 aggravated assault and aggravated battery incident. Evidence of the 2007 charges would be admissible in a separate trial on the 2008 charge to show the lawfulness of the traffic stop from which Jackson attempted to flee. “[Wjhere the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying the motion for severance.”

Additionally, we have upheld a trial court’s denial of a motion to sever where, although the charges related to different crimes that occurred in different locations, one was a circumstance of the arrest for the other. In Coleman v. State, the defendants killed two people in Muscogee County, then drove to Alabama. When they were later spotted by an Alabama law enforcement officer who gave chase, they fled and abandoned their vehicle, in which drugs were found.* Our Supreme Court found that as the drug possession charges were the result of a search of the vehicle defendants abandoned as they fled, “[t]he trial court did not err when it refused to sever the charges inasmuch as the drug charges were a circumstance of the arrest for the homicides for which appellants were tried.” In the case sub judice, the 2008 aggravated assault charge was a result of Jackson’s pointing a gun at an officer as he attempted to flee and evade arrest for the charges related to the 2007 incidents, and the trial court did not err in its refusal to sever.

In this situation, severance is a matter for the trial court’s discretion, and severance should generally be granted if it is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense, considering whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

Here, there is no evidence that the jury confused the aggravated battery and aggravated assault charges from the 2007 incident with the aggravated assault on the officer in 2008, as it acquitted Jackson of the former, but found him guilty of the latter. We find no error.

2. Jackson argues that the trial court erred in denying his motion for a mistrial after Officer Weller testified about Jackson’s federal and probation warrants.

“[Wjhether to grant a mistrial is a matter within the discretion of the trial court, and that discretion will not be interfered with on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” We conclude that the trial court did not abuse its discretion in denying the motion for mistrial.

The record shows that defense counsel moved in limine to exclude evidence of federal charges against Jackson, and that counsel for the state represented to the court that she had instructed officers not to mention the federal issues in their testimony. However, when Weller, the first witness, was asked on direct examination what the warrants for Jackson were for, he made a brief reference to “felony — or probation warrants. I think federal probation warrants.” Jackson moved for a mistrial on the grounds that this testimony impermissi-bly put his character in evidence. The trial court denied the motion for mistrial and strongly cautioned all the officers who would testify not to discuss federal or probation warrants. The trial judge then gave curative instructions to the jury, outlining the only issues they were to consider and asking them to “wipe” the officer’s testimony from their minds. When the trial judge asked jurors to raise their hands if they were unable to wipe the officer’s testimony from their minds, none did so.

‘When determining whether the trial court abused its discretion, we consider the statement itself, other evidence against the accused, and the actions of the trial court and counsel dealing with the impropriety.” We have held that where, as here, no details were given about the warrant or charge, the comment was fleeting and incomplete, the witness was immediately redirected before his testimony continued, and curative instructions were given, refusal to grant a mistrial is not an abuse of discretion.

Decided June 7, 2012.

Jennifer A. Trieshmann, for appellant.

Kenneth W. Mauldin, District Attorney, Todd R. Newland, Assistant District Attorney, for appellee.

3. Jackson, in the preservation of errors section of his brief, asserts that he received ineffective assistance of counsel. However, he does not raise this issue elsewhere, nor does he offer argument or citation to the record or legal authority in support of this alleged error. To the extent that Jackson intended to enumerate this issue as error, it is deemed abandoned.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

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

       (Citations and punctuation omitted.) Carruth v. State, 290 Ga. 342, 346 (4) (721 SE2d 80) (2012).

       276 Ga. App. 77 (622 SE2d 423) (2005).

       (Citation and punctuation omitted.) Id. at 78 (1).

       (Citations omitted.) Id.

        Brown v. State, 303 Ga. App. 814, 816, n. 5 (694 SE2d 385) (2010) (flight is always a circumstance which may be shown, and a jury is authorized to take this conduct into account in determining guilt or innocence of an accused).

       See Jackson v. State, supra.

       See Boone v. State, 282 Ga. App. 67,70 (2) (637 SE2d 795) (2006) (upon hearing “be on the lookout” alert describing vehicle and occupants, officer had requisite articulable suspicion to warrant investigative traffic stop and detention).

       (Citation and punctuation omitted.) Woolfolk v. State, 282 Ga. 139, 140-141 (2) (644 SE2d 828) (2007); Bland v. State, 264 Ga. 610, 611 (2) (449 SE2d 116) (1994) (“Whether evidence of one offense would be admissible in a trial of the other offense if severance [were] granted is a relevant consideration.”) (citation omitted).

       286 Ga. 291 (687 SE2d 427) (2009).

       Id. at 292-293 (1).

       (Citation omitted.) Id. at 302 (10).

       See id. Accord Woolf oik, supra at 140 (2) (trial court’s refusal to sever count of aggravated assault on peace officer from counts for homicide and other crimes committed against separate victim upheld where, one day after homicide, officer attempted to question defendant about homicide and defendant brandished murder weapon and fled).

       (Punctuation and footnote omitted.) Dills v. State, 281 Ga. App. 484, 486 (636 SE2d 166) (2006).

       See id.

       (Citation and punctuation omitted.) Jones v. State, 277 Ga. 36, 40 (6) (586 SE2d 224) (2003).

       (Citation omitted.) Hensley v. State, 300 Ga. App. 136, 137 (684 SE2d 673) (2009).

       See id. at 137-138; Brown v. State, 268 Ga. 455, 456 (1) (490 SE2d 379) (1997) (trial court did not abuse discretion in denying mistrial where officer made brief, impermissible mention of probation warrants, but court issued curative instructions to jury and strongly cautioned the state against bringing out prejudicial evidence). See also Gordian v. State, 261 Ga. App. 75, 77 (2) (581 SE2d 616) (2003) (fleeting reference to possible criminal history is harmless and curable by instruction).

        Gaither v. State, 312 Ga. App. 53, 60 (12) (717 SE2d 654) (2011); Court of Appeals Rule 25 (c) (2).