author: McMlLLIAN, Judge.

text:
    A12A2352.
    FULTON COUNTY SCHOOL DISTRICT v. HERSH.
    (740 SE2d 760)
   McMlLLIAN, Judge.

Following the grant of its discretionary application, the Fulton County School District (the “District”) appeals the superior court’s order reversing the denial of unemployment benefits to Jan Hersh and awarding her attorney fees under OCGA § 9-15-14. We affirm the superior court’s reversal of the denial of benefits, but we vacate the award of attorney fees against the District, and remand that issue for further consideration by the trial court.

In considering an appeal from an award or denial of unemployment benefits, “the trial court, as well as this [C]ourt, must affirm if there is any evidence to support that ruling. And we will uphold the [Georgia Department of Labor’s (‘DOL’)] factual findings if there is any evidence to support them.” (Citations omitted.) MCG Health v. Whitfield, 302 Ga. App. 408 (690 SE2d659) (2010). Thus, in reviewing the superior court’s order, “our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.” (Citation and punctuation omitted.) Davane v. Thurmond, 300 Ga. App. 474, 475 (685 SE2d 446) (2009). See also OCGA § 34-8-223 (b).

The record here demonstrates that Hersh was a tenured seventh-grade teacher at a Fulton County middle school, when in December 2010, during a lesson on the transcontinental slave trade, she showed her “gifted” social studies class a nine-minute YouTube clip from Amistad, an “R” rated movie. After one of the student’s parents complained about the content of the clip, the school asked Hersh to resign based upon her failure to obtain supervisory or parental consent prior to showing the clip to her class. The District informed Hersh that she was being charged with insubordination, wilful neglect of her duties and other good and sufficient cause. In lieu of resigning, Hersh exercised her right to a “Fair Dismissal” hearing before a tribunal (the “Termination Hearing”). The tribunal found that showing an “R” rated clip without notice or consent “constitutes ‘an intentional violation of a known rule or policy’ so as to support a finding of willful neglect” of Hersh’s duties and further demonstrated a profound lack of judgment constituting other good and sufficient cause for termination. See OCGA §§ 20-2-940 (a) (3) (wilful neglect of duties); 20-2-940 (a) (8) (other good and sufficient cause). On February 1,2011, the Fulton County Board of Education voted to accept the tribunal’s findings and notified Hersh by letter dated February 2, 2011, that her employment was terminated.

Hersh then applied to the DOL for unemployment benefits, and the District submitted information in response stating that Hersh was discharged on February 2, 2011, for “insubordination, willful neglect of duties [and] any other good [and] sufficient cause.” The DOL denied Hersh’s claim under OCGA § 34-8-194 (2) (A) based on a finding that she was fired because she “did not meet the standard of conduct your employer has the right to expect by showing a nine minute movie clip from a rated ‘R’ movie to 7th grade students,” which “is the same as violating an employer rule.” Hersh then sought an administrative hearing on her claim (the “DOL Hearing”).

During that hearing, a human resources specialist for the District identified the District’s guidelines for showing movies in the classroom. The guidelines state that “VHS/DVD rated PG, PG13, or R may not be shown without prior written permission from the principal.” The guidelines further state that “VHS/DVD, rated PG or PG13, requires parental permission to be shown at the elementary or middle school levels. R rated VHS/DVD cannot be shown at the high school level without parental permission.” The specialist testified, over obj ection, that Hersh violated the policy by showing the “R” rated YouTube clip without prior permission.

A human resources personnel investigator for the District testified that she interviewed Hersh in connection with the charges against her. During that interview, Hersh admitted that she was aware of the District’s policy regarding movies on VHS or DVD. But she did not know she could not show a YouTube clip without permission, and she did not know the movie was rated “R.” Hersh told the investigator that in retrospect she regretted showing the clip. The investigator testified that even if Hersh did not know the movie was rated “R,” she violated board policy by showing it without prior permission. The investigator’s written report of the interview indicates that Hersh admitted making an error in judgment and that “she failed to follow county and school procedure.” The transcript of the interview reflects, however, that although Hersh admitted it was an error in judgment and that she did not follow procedure, she said that she did not do it intentionally.

Hersh testified at the DOL Hearing that she reviewed the clip before she showed it to her class and that she thought it was appropriate for a gifted seventh-grade class, even though it included brief, “National Geographic [-] type” nudity and scenes of violence that were “definitely not lollipops and sunshine.” She did not know that the movie Amistad was rated “R,” and she said no District guidelines existed with regard to internet clips, although she believed that such a policy was created after she was terminated. Rather, at the time Hersh showed the clip, she did not think she had failed to follow any required protocol because other teachers and she often used YouTube in their classes without prior permission. And the students themselves could access YouTube on school computers. If she had shown the movie in DVD or VHS format, however, she would have gotten prior permission.

The administrative hearing officer found that Hersh was aware of the policy requiring prior permission before showing DVD or VHS movies. And although Hersh was not aware of a policy pertaining to YouTube clips, the hearing officer concluded that “she should have reasonably believed that she would be required to obtain permission to show a clip taken from an actual movie.” Thus, the hearing officer found that she failed to use “the degree of care expected of someone in her position” by not inquiring into Amistad’s rating and by “subjecting students to inappropriate material without approval.” The hearing officer deemed Hersh to be at fault in her discharge and upheld her disqualification from unemployment benefits under OCGA § 34-8-194 (2) (A). The DOL Board of Review affirmed the denial of benefits, and Hersh appealed the Board’s determination to the superior court.

In considering Hersh’s appeal, the superior court reviewed the evidence from both the DOL Hearing and the Termination Hearing, which included testimony from a number of witnesses who did not testify at the DOL Hearing. In addition, the superior court took “judicial notice that the decision to terminate [Hersh] was reversed by the State Board of Education. Likewise, the Court [took] judicial note of [Hersh’s] reinstatement and reimbursement of all lost wages and benefits.” The superior court concluded that the record contained no evidence that Hersh had deliberately violated a school policy. The superior court also found that although Hersh might have been guilty of a lapse in judgment, tenured teachers may not be dismissed based upon a single negligent act. See Terry v. Houston County Bd. of Ed., 178 Ga. App. 296, 299 (342 SE2d 774) (1986). Thus, the superior court reversed the DOL’s decision and further awarded Hersh $8,000 in OCGA § 9-15-14 attorney fees after finding that the District acted in bad faith in objecting to Hersh’s unemployment benefits, thus causing her unnecessary trouble and expense.

1. We first address the District’s argument that the superior court erred in considering evidence from the Termination Hearing in its review of the DOL decision. And, in fact, the transcript from the DOL Hearing contains no indication that the Termination Hearing transcript was ever admitted into evidence. Moreover, the DOL Hearing officer indicated that she would only “focus on what Ms. Hersh testifies to in regards to the transcript,” that is, what Hersh says she testified to at the Termination Hearing. Nevertheless, the DOL chose to include the entire Termination Hearing transcript in the “Certified Record of the Board of Review” it filed in response to Hersh’s appeal to the superior court, and the superior court considered it in issuing its order. But pretermitting whether the superior court acted properly in considering the evidence from the Termination Hearing, we find that the evidence admitted at the DOL Hearing is sufficient, alone, to support the superior court’s reversal of the denial of Hersh’s unemployment benefits.

Under OCGA § 34-8-194 (2) (A), an individual shall be disqualified for unemployment benefits if he or she was discharged “for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner [of Labor] according to the circumstances in the case.” Therefore, “[i]f the employee refuses to comply with a specific, equitably applied and reasonable rule, then the employer may fire him or her for misconduct and be confident that no unemployment compensation benefits ... will be paid.” (Emphasis supplied.) Millen v. Caldwell, 253 Ga. 112, 114 (317 SE2d 818) (1984).

Under OCGA § 34-8-194 (2) (B), however,

[a]n individual shall not be disqualified for benefits under subparagraph (A) of this paragraph if, based on the rules and regulations promulgated by the Commissioner, the Commissioner determines: (i) The individual made a good faith effort to perform the duties for which hired but was simply unable to do so; (ii) The individual did not intentionally fail or consciously neglect to perform his or her job duties.

An employer, therefore, must demonstrate that the termination was caused by “the deliberate, conscious fault” of the employee before he or she may be disqualified from receiving unemployment benefits. (Citation and punctuation omitted.) Barron v. Poythress, 219 Ga. App. 775, 776 (466 SE2d 665) (1996). Thus, “ ‘[f]ault’ means more than mere failure to perform one’s work duties.” Millen v. Caldwell, 253 Ga. at 113.

This is in keeping with the strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own. OCGA § 34-8-2. Disqualification is an exception to the statutory scheme for unemployment benefits and the employer must show by a preponderance of the evidence that disqualification is appropriate.

(Citations and punctuation omitted; emphasis in original.) Barron v. Poythress, 219 Ga. App. at 776.

Accordingly, unemployment “benefits should not be denied to an employee who has been fired for failure to comply with unknown work requirements, or requirements which could not have been reasonably anticipated.” (Emphasis in original.) Millen v. Caldwell, 253 Ga. at 114. “If an employer nevertheless wishes to be arbitrary about [applying unwritten rules or in enforcing rules], Georgia law allows it nearly free rein as far as the firing is concerned, but not as far as payment of unemployment compensation benefits to the ex-employee is concerned.” Id. And “[a] determination of a disqualifying fault must be made in the context of whether the employee would reasonably expect, under all the circumstances of employment, that sanction would result from a violation. [Cit.]” Barron v. Poythress, 219 Ga. App. at 777. Although we are bound to apply the any evidence standard, “[w]hether there is fault assignable to [a] claimant, which is a legal requirement for disqualification, often requires a legal conclusion. [Cit.]” Id.

The DOL hearing officer never made a finding of deliberate, conscious fault on Hersh’s part. Instead, the hearing officer found that Hersh “should have reasonably known” that she was required to obtain prior permission and that she “failed to use the degree of care” of someone in her position. Although the evidence demonstrated that the District had guidelines for showing VHS and DVD movies in the classroom, these guidelines are not a model of clarity. For example, although the guidelines require a teacher to obtain prior parental permission before showing a “PG” or a “PG13” rated VHS or DVD to middle school students, they contain no such requirement for “R” rated movies. The guidelines, however, do not prohibit showing “R” rated movies to middle school students, and they require parental permission before showing an “R” rated VHS or DVD to high school students. Moreover, the District produced no written policy addressing materials other than VHS and DVD movies, such as materials obtained from the internet.

Hersh testified that she was aware of the policies as it related to movies in the VHS and DVD formats, but she did not know at the time that it applied to internet clips, as teachers at the school often showed such clips without prior permission. And even though Hersh admitted in her investigative interview that she did not follow procedure, she said that her omission was not intentional; rather, she did not believe at the time that the procedure applied to her situation. Thus, the District failed to show by a preponderance of the evidence that Hersh intentionally refused or consciously neglected to comply with a known rule, and the superior court properly reversed the ruling of the DOL Board of Review denying Hersh benefits. See Millen v. Caldwell, 253 Ga. at 115 (finding insufficient evidence to sustain denial of benefits where employee was fired for exactly the same conduct she had engaged in many times before and no evidence existed of a written rule or an unwritten rule properly communicated to employee); Slade v. Butler, 317 Ga. App. 688 (732 SE2d 543) (2012) (reversing denial of benefits where employee did not knowingly disregard school system policies that were ambiguous or applied retroactively) (physical precedent only).

2. With regard to the award of attorney fees, the superior court found that the District

acted in bad faith when it sought to deny [Hersh’s] unemployment benefits after the tribunal panel did not substantiate the insubordination and violation of known policy allegations. [] To that end, the Court further finds [the District and the DOL] caused [Hersh] unnecessary trouble and expense pursuing their frivolous claims against her.

The superior court also found that the record was “void of any evidence that [Hersh] deliberately or consciously violated any known rule or school board policy” and that Fulton County School District’s termination of Hersh “was frivolous and legally unsupportable.” It awarded Hersh attorney fees “pursuant to OCGA § 9-15-14 in the amount of $8,000.00.”

An award under OCGA § 9-15-14 (a) is mandated when a party “has asserted a... defense... with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted... defense.” OCGA § 9-15-14 (a). See also Interfinancial Midtown v. Choate Constr. Co., 284 Ga. App. 747, 752 (3) (b) (644 SE2d 281) (2007). An award under OCGA § 9-15-14 (b) is permitted when a party’s defense of an action “lacked substantial justification”; was “substantially frivolous, substantially groundless, or substantially vexatious”; when the defense “was interposed for delay or harassment,” or when a party “unnecessarily expanded the proceeding by other improper conduct.” OCGA § 9-15-14 (b). See also Interfinancial Midtown v. Choate Constr. Co., 284 Ga. App. at 752 (3) (b).

“[A]n order awarding attorney fees pursuant to [OCGA §9-15-14] must specifically state whether the award is made under OCGA § 9-15-14 (a) or (b).” (Citation omitted; emphasis supplied.) Ga. Dept. ofTransp. v. Douglas Asphalt Co., 295 Ga. App. 421,424 (1) (671 SE2d 899) (2009). Additionally, the court must make “express findings of fact and conclusions of law as to the statutory basis for any such award and the conduct which would authorize it.” McKemie v. City of Griffin, 272 Ga. 843, 845 (4) (537 SE2d 66) (2000). Specificity in the award is important because the standards of appellate review are different under each subsection: the standard under subsection (a) is the “any evidence” rule; the standard under subsection (b) is abuse of discretion. Haggard v. Bd. of Regents of Univ. System of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987).

Decided March 26, 2013.

Brock, Clay, Calhoun & Rogers, Randall C. Farmer, Nelson, Mullins, Riley & Scarborough, Neeru Gupta, for appellant.

Cross & Rosenzveig, Bette E. Rosenzveig, for appellee.

Since the superior court’s order awarding attorney fees to Hersh does not specify the subsection of OCGA § 9-15-14 under which it was made and does not contain the findings necessary to support such an award, the award “must be vacated and the case remanded to the superior court for consideration of the issue under the standards of awards pursuant to OCGA § 9-15-14, and to enter an award, if appropriate.” Interfinancial Midtown v. Choate Constr. Co., 284 Ga. App. at 752-753 (3) (b) (vacating and remanding as insufficient an attorney fees award that did not specify the subsection under which it was made, that concluded appellant’s position was “without justification” and had an “utter lack of merit,” and that simply stated that an award of $6,000 would “fairly compensate! ]” appellee for fees incurred in defending against appellant’s position).

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

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

       That Code section reads in pertinent part: “In any judicial proceeding under this Code section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall he conclusive, and the jurisdiction of the' court shall be confined to questions of law.” OCGA § 34-8-223 (b).

       Under OCGA § 34-8-223 (b), in any appeal to the superior court, the Commissioner of Labor is required to “certify and file with the superior court all documents and papers and a transcript of all testimony taken in the matter, together with the board of review’s findings of fact and decision therein.”

       Nevertheless, if Hersh was indeed reinstated with full benefits and back pay as the superior court’s order indicates, her entitlement to unemployment benefits may be reduced or eliminated. See Powell v. Dougherty Christian Academy, 215 Ga. App. 551, 553 (451 SE2d 465) (1994) (“an individual [may] not receive other compensation based on his previous work and unemployment benefits based on the same work”).

       We note, however, that the tribunal made a specific finding that playing the Amistad clip without prior approval constituted “ ‘an intentional violation of a known rule or policy.’ ” And the District apparently relied upon that finding in initiating its opposition to Hersh’s claim for unemployment benefits.

       We note that in Ellis v. Caldwell, 290 Ga. 336, 339 (2) (a) (720 SE2d 628) (2012), the Supreme Court of Georgia determined that the trial court made its attorney fee award under OCGA § 9-15-14 (b) based on the language in the order even though the specific subsection was not cited. But we must assume that the trial court in Ellis apparently provided the necessary findings of fact to support that award because the Supreme Court did not address that issue. Here, the trial court neither specified the particular section of the statute nor provided the requisite findings of fact. Accordingly, remand is appropriate.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A12A1874.
    ANDREWS v. THE STATE.
    (739 SE2d 445)
   MILLER, Presiding Judge.

Ronald Bernard Andrews appeals from the trial court’s order denying his motion to withdraw his guilty plea. Andrews contends that (i) plea counsel provided ineffective assistance, and (ii) the trial court erred in finding that the duplicitous counts in his indictment did not merge for sentencing purposes. For the reasons discussed below, we affirm.

After sentencing, “a guilty plea may only be withdrawn if the defendant establishes that such withdrawal is necessary to correct a manifest injustice — ineffective assistance of counsel or an involuntary or unknowingly entered guilty plea.” (Footnote omitted.) Wilson v. State, 302 Ga. App. 433, 434 (1) (691 SE2d 308) (2010). The trial court is the final arbiter of all factual issues raised by the evidence, and its refusal to allow a withdrawal will not be disturbed absent a manifest abuse of discretion. See Lawton v. State, 285 Ga. App. 45, 46 (645 SE2d 571) (2007).

The record shows that in July 2003, Andrews was charged by indictment with rape (OCGA § 16-6-1 (a) (1) (2003)), aggravated assault (OCGA § 16-5-21 (a) (2003)), two counts of burglary (OCGA § 16-7-1 (a) (2003)), theft by taking (OCGA § 16-8-2 (2003)), and three counts of robbery (OCGA § 16-8-40 (a) (2003)). On November 18, 2003, Andrews entered a nonnegotiated guilty plea to each count. The trial court sentenced Andrews to twenty years to serve concurrently on the burglary, aggravated assault, and robbery charges (Counts 1, 2, 4, 5, 6 and 7); ten years to serve concurrently on the theft by taking charge (Count 8); and life in prison on the rape charge (Count 3).

On December 19,2003, in the same term of court in which he was sentenced, Andrews filed a pro se letter to the clerk and the district attorney stating that he wished to withdraw his plea on the grounds of misrepresentation and ineffectiveness of counsel. Following an evidentiary hearing, the trial court found that Andrews’s letter should be construed as a motion to withdraw his guilty plea. The trial court entered an order denying Andrews’s motion.

The trial court found that the two burglary counts (Counts 1 and 2), and the three robbery counts (Counts 5, 6 and 7) should have merged, but the merger issue was waived due to Andrews entering a plea. The trial court also found that the sentence imposed was not void because Andrews was sentenced to 20 years on the burglary, robbery and aggravated assault counts (Counts 1,2,4,5,6 and 7), and the 20-year sentences on those counts did not exceed the maximum permitted under the Georgia Code.

1. Andrews contends that the trial court erred in refusing to allow him to withdraw his plea because plea counsel rendered ineffective assistance during the guilty plea. We do not agree.

“When the validity of a guilty plea is challenged, the [SJtate bears the burden of showing affirmatively from the record that the defendant offered his plea knowingly, intelligently, and voluntarily.” (Citation, punctuation and footnotes omitted.) Terrell v. State, 274 Ga. App. 539, 540 (2) (618 SE2d 175) (2005). Since Andrews based his motion to withdraw his plea on a claim of ineffective assistance of counsel, he had the burden of showing that counsel was deficient, and in the absence of that deficiency, there was a reasonable probability that he would have insisted on a trial, rather than pleading guilty. See James v. State, 309 Ga. App. 721, 722 (2) (710 SE2d 905) (2011); Sims v. State, 299 Ga. App. 698, 700 (1) (683 SE2d 668) (2009). “A trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed unless that determination is clearly erroneous.” (Citation and punctuation omitted.) Sims, supra, 299 Ga. App. at 700 (1).

The plea hearing transcript shows that the State met its burden of proving that Andrews’s nonnegotiated plea was knowingly and voluntarily entered. The State laid a factual basis for each crime to which Andrews entered a guilty plea, and Andrews’s counsel stated that he had informed Andrews of his rights and explained them to him. Andrews testified under oath that he was not under the influence of drugs or alcohol, he had never been under the care of a psychiatrist or psychologist, he had three years of college, he understood the charges in the indictment, and he understood the rights he was waiving by entering a guilty plea. Andrews further testified that he understood the maximum sentences for the charged offenses, no promises or threats were made in exchange for his plea, he was satisfied with his counsel’s services, and he was in fact guilty of the charged crimes.

(a) Andrews contends that his counsel did not prepare him to enter a plea.

Andrews’s counsel testified at the hearing on the motion to withdraw plea that he discussed the possibility of a plea with Andrews; explained the ramifications of entering a nonnegotiated plea to Andrews; advised Andrews that he would have to register as a sex offender if he pled guilty to rape; advised Andrews of his constitutional rights and the minimum and maximum sentence he faced if he entered a plea; and advised Andrews that he had three options — a negotiated plea, a nonnegotiated plea or going to trial.

Andrews admitted at the hearing on his motion to withdraw his plea that before he entered his plea he executed a written plea questionnaire, which set out the minimum and maximum sentence, and his counsel told him at that time that the maximum possible sentence was life plus 140 years, and a fine of up to $800,000. Moreover, the transcript of Andrews’s plea hearing shows that he was advised of and understood the maximum sentence and fine he faced upon entering his plea. Although Andrews provided some conflicting testimony at the hearing, the trial court was authorized to credit trial counsel’s testimony over Andrews’s self-serving statements. See Jones v. State, 287 Ga. 270, 272 (695 SE2d 271) (2010); Gower v. State, 313 Ga. App. 635, 637 (722 SE2d 383) (2012). Thus, Andrews failed to carry his burden of proving that trial counsel was deficient in preparing him to enter his plea.

(b) Andrews also contends that trial counsel was deficient in failing to properly advise him about the potential merger of the charged offenses.

Trial counsel testified that he did not discuss the potential merger of the charged offenses with Andrews because he did not believe that the offenses would merge as a matter of law or fact. Assuming arguendo that trial counsel erred in this respect, Andrews still had to show that but for trial counsel’s error, there was a reasonable probability that he would have insisted on a trial, rather than pleading guilty. See James, supra, 309 Ga. App. at 722 (2). Andrews has not met his burden because he produced no affirmative evidence that he would have insisted on going to trial, but for his counsel’s failure to properly advise him about the merger issues.

Andrews does not argue that his life sentence for rape was not authorized, regardless of whether any of the other charges should have merged. See OCGA § 16-6-1 (b) (2003) (providing that a rape conviction is punishable by death, life imprisonment without parole, life imprisonment, or imprisonment for not less than ten nor more than twenty years). Moreover, Andrews admitted that he committed the crimes, he had to be punished for them, and he would have been “alright” if he had received the sentence of 10-20 years that he was expecting.

Although Andrews testified that he wished to withdraw his guilty plea because he was displeased with the life sentence that was imposed, he knew when he entered his plea that the State was seeking a life sentence. Furthermore, even if the State had recommended a sentence of less than life imprisonment for the rape, the trial court would not have been bound by such recommendation. See Brown v. State, 280 Ga. App. 767, 771 (1) (634 SE2d 875) (2006). Finally, as set forth in Division 2 below, Andrews’s sentences are not void, because they did not exceed the maximum sentences permitted under the Georgia Code.

Andrews knew he faced a life sentence for rape, and he did not show that he would have insisted on going to trial but for his counsel’s failure to advise him about the merger issues. Moreover, his mere dissatisfaction with his life sentence did not establish that his trial counsel was deficient in that regard. See Jackson v. State, 288 Ga. App. 742, 745(655 SE2d 323) (2007). Therefore, the trial court did not clearly err in finding that Andrews failed to carry his burden of showing ineffective assistance of counsel.

2. Andrews contends that the trial court erred in finding that the duplicitous counts in the indictment did not merge for sentencing purposes. We disagree.

By pleading guilty to the eight counts in the indictment, Andrews waived all defenses except that the indictment charged no crime, including the issue of whether the offenses merged as a matter of law or fact. See Carson v. State, 314 Ga. App. 225, 228-229 (2) (723 SE2d 516) (2012) (“The fact that [defendant’s] plea was non-negotiated does not alter the conclusion that he waived his right to argue that the counts should have merged.”) (citations and punctuation omitted); see also Regent v. State, 306 Ga. App. 616, 618 (2) (703 SE2d 81) (2010) (holding that the defendant waived his right to challenge on the basis of merger by entering a nonnegotiated plea).

Decided March 7, 2013

Reconsideration denied March 27, 2013

Edwin J. Wilson, for appellant.

Patrick H. Head, District Attorney, John R. Edwards, D. Victor Reynolds, Assistant District Attorneys, for appellee.

Andrews does not contend that the indictment was invalid or that it failed to apprise him of the charges against him. Moreover, Andrews entered his plea knowing the maximum sentence and fine he faced, he knowingly invited sentencing within the statutory ranges on all eight counts, and the fact that his plea was nonnegotiated does not alter the trial court’s proper conclusion that he waived his right to argue that the burglary and robbery counts should have merged. See Carson, supra, 314 Ga. App. at 229 (2); see also Regent, supra, 306 Ga. App. at 618 (2).

The trial court also properly found that Andrews’s sentences were not void because they did not exceed those authorized by law. OCGA § 16-6-1 (b) (2003) authorized Andrews’s sentence of life in prison on the rape charge (Count 3). Andrews’s ten-year sentence for the charge of theft by taking a motor vehicle (Count 8) was also authorized. See OCGA § 16-8-12 (a) (5) (A) (2003). Finally, the 20-year sentences imposed on the burglary, aggravated assault, and robbery counts were also authorized. OCGA §§ 16-7-1 (a) (2003) (burglary), 16-5-21 (b) (2003) (aggravated assault) and 16-8-40 (b) (2003) (robbery) authorized Andrews’s 20-year sentence on the remaining counts in his indictment. Since Andrews failed to establish his claim for ineffective assistance; and his sentences are not void, the trial court did not abuse its discretion in denying Andrews’s motion to withdraw his plea.

Judgment affirmed.

Branch, J., concurs. Ray, J., concurs in judgment only.

       Andrews also contends that the trial court erred in refusing to recognize as a pleading his letter requesting that he be allowed to withdraw his guilty plea, and the trial court erred in finding that he was represented by counsel when he filed his pro se motion to withdraw his guilty plea. We find that these enumerations of error are moot because the trial court did in fact consider the letter as a pro se motion to withdraw Andrews’s guilty plea, and the trial court considered the merits of the pro se motion.

       Andrews was sentenced on November 18, 2003, in the November term of court for the Cobb County Superior Court. See OCGA § 15-6-3 (11) (2003) (defining terms for Cobb Circuit). He filed his pro se motion to withdraw his plea on December 19, 2003, within that same term.

       The trial court had jurisdiction to entertain Andrews’s motion to withdraw his guilty plea, even though the hearing on the motion was not held until several years after the term of court in which Andrews entered his plea, because Andrews filed the motion within the mandated time frame, and the State had adequate notice of the motion. See McKiernan v. State, 286 Ga. 756, 759 (692 SE2d 340) (2010) (holding that the trial court erred in dismissing the defendant’s motion to withdraw his guilty plea where the defendant filed the motion within the mandated time frame, and the State had reasonable notice of the motion, even though the hearing on the defendant’s motion was not held until more than two years after the motion was filed); Watson v. State, 307 Ga. App. 839, 840 (1) (706 SE2d 194) (2011) (holding that the trial court erred in denying the defendant’s motion to withdraw his plea on the ground of abandonment where the defendant filed the motion before the end of the term in which his sentence was rendered, and the State had adequate notice of the motion, even though the hearing on the motion was not held until well after expiration of that term).


author: Ellington, Chief Judge.

text:
    A12A2560.
    NEILL v. BRANNON.
    (738 SE2d 724)
   Ellington, Chief Judge.

Kelly Neill, the mother of seven-year-old C. B. N., appeals from the trial court’s grant of the legitimation petition filed by the girl’s biological father, Charles Brannon. Neill contends that the court erred in failing to expressly rule upon whether Brannon had abandoned his opportunity interest in establishing a parent-child relationship with C. B. N. and whether legitimation was in the child’s best interest. She also argues that there was insufficient evidence to support the court’s judgment. For the following reasons, we reverse the court’s grant of Brannon’s legitimation petition, and, as a result, the grant of visitation rights to Brannon is vacated as a matter of law.

1. Neill contends that the trial court committed reversible error when it granted Brannon’s legitimation petition without expressly determining, as a threshold matter, whether Brannon had abandoned his opportunity interest in establishing a parent-child relationship with C. B. N. We agree.

“In considering a legitimation petition, the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child.” (Citation and punctuation omitted.) In the Interest of M. K., 288 Ga. App. 71, 74 (2) (653 SE2d 354) (2007).

As our Supreme Court has found, a biological father is afforded an opportunity to develop a relationship with his offspring. If the father grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. Unwed fathers gain from their biological connection with a child an opportunity interest to develop a relationship with their children which is constitutionally protected. This opportunity interest begins at conception and endures probably throughout the minority of the child. But it is not indestructible. It may be lost. It is an interest which can be abandoned by the unwed father if not timely pursued.

(Punctuation and footnotes omitted.) Binns v. Fairnot, 292 Ga. App. 336, 338 (665 SE2d 36) (2008). “Factors which may support a finding of abandonment include, without limitation, a biological father’s inaction during pregnancy and at birth, a delay in filing a legitimation petition, and a lack of contact with the child.” (Footnotes omitted.) Morris v. Morris, 309 Ga. App. 387, 389 (2) (710 SE2d 601) (2011). If the evidence supports a finding that a father has abandoned his opportunity interest in developing a relationship with his biological child, then the court is authorized to end its inquiry and to deny the legitimation petition on that basis. In the Interest of J. S., 302 Ga. App. 342, 344 (1) (691 SE2d 250) (2010).

“We review a trial court’s ruling on a legitimation petition for abuse of discretion.” (Footnote omitted.) Binns v. Fairnot, 292 Ga. App. at 337. We review the court’s factual findings, however, for clear error and will only sustain such findings if there is competent evidence to support them. Matthews v. Dukes, 314 Ga. App. 782, 786 (1) (726 SE2d 95) (2012), overruled on other grounds, Brine v. Shipp, 291 Ga. 376, 380 (3) (729 SE2d 393) (2012).

In this case, the record shows the following undisputed, relevant facts on the issue of whether Brannon abandoned his opportunity interest. Sometime prior to 2005, Brannon met Neill at a friend’s house, and they began a sexual relationship. During that period, Brannon was “dealing in methamphetamine,” and both he and Neill were abusing the drug. When Neill told Brannon she was pregnant, Brannon asked her if he was the father, and she told him no. Neill’s daughter, C. B. N., was born in September 2005. At some point within the next year, a DNA test revealed that Brannon was, in fact, the child’s biological father. Based upon those results, Neill filed a paternity action seeking child support, and, in December 2006, the Superior Court of Dawson County ordered Brannon to begin paying $40 a week in child support. By February 2008, however, Brannon was $792 in arrears in his support payments, and Neill filed a child abandonment petition. Neill withdrew the petition when Brannon resumed his payments.

In March 2008, Brannon was arrested for felony possession of methamphetamine and Darvocet. He was convicted and incarcerated for six months; he then spent twelve months in a residential drug rehabilitation program, followed by a six-month outpatient program. In February 2011, about a year after completing the programs, Brannon filed the instant legitimation petition; at that time, C. B. N. was five-and-a-half years old.

Neill objected to the legitimation petition, asserting that Bran-non had failed to visit, contact, or make any other meaningful attempt to establish a relationship with C. B. N. since her birth and had failed to provide court-ordered child support on a consistent basis. She contended that Brannon had therefore abandoned his opportunity interest in establishing a parent-child relationship with C. B. N., and, consequently, the court should deny his legitimation petition. She also asserted that, even if Brannon had not abandoned his opportunity interest, the court should deny his petition because he is not a fit parent and legitimation would not be in C. B. N.’s best interest, citing his history of domestic violence, numerous DUI and other convictions, and felony drug possession convictions.

During the hearing on the legitimation petition, Brannon admitted that, during the years between when he learned that he was C. B. N.’s biological father in 2006 and November 2010, when he had triple bypass heart surgery, he never spoke to C. B. N., visited her, or sent her cards or presents, nor did he file a legitimation petition. Although Brannon claimed that he did not know Neill’s address during that time period, he admitted that he learned Neill’s mailing address in 2008, when she filed the child abandonment petition. Further, Brannon admitted that he had known the address of Neill’s parents since at least 2006, yet he never tried to contact Neill or C. B. N. at that address. In addition, the record shows that Brannon was $618 in arrears in his child support payments at the time of the February 2012 hearing.

In an attempt to explain his lack of effort toward developing a relationship with C. B. N., Brannon testified that he had been in contact with Neill sometime in 2007 and had arranged to meet with her and the child, but he missed the meeting. According to Brannon, Neill then told him that he had missed his only chance to see C. B. N. Brannon also admitted that he made no efforts to contact Neill during the 18 months he was incarcerated and in the residential rehabilitation program following his 2008 arrest. In fact, he testified that he only started looking for Neill sometime in 2010, when he was preparing to file the legitimation petition. In addition, Brannon testified that he had never tried to contact Neill at her parents’ house because he had gone to their home one time on an unrelated errand and Neill’s father had told him to leave Neill alone or he would have a “fatal accident.” Brannon failed to testify as to when this incident occurred, however, so there is no evidence to show whether it happened before or after C. B. N. was born.

Although the juvenile court judge in this case made no express findings in its written order as to whether Brannon abandoned his opportunity interest in establishing a relationship with C. B. N., he suggested during the hearing that he believed Brannon’s failure to establish a relationship with C. B. N. was partly caused by Neill’s statements to him, his “trouble finding” Neill, her return of the birthday cards he sent to C. B. N. in September 2011, and her father’s threatening statement to Brannon. The judge stated that “I think there was a real problem in trying to communicate, even if [Brannon] had wanted to [communicate] with the child.”

As shown above, however, Brannon admitted that he had addresses for Neill and/or her parents since at least 2006, yet never tried to contact her or C. B. N. at those addresses. In addition, he admitted that he made no attempt to find an alternate address for Neill or to initiate legitimation proceedings until the fall of 2010, when C. B. N. was already five years old. Although Brannon suggested that he was unable to contact Neill while he was incarcerated and in residential drug rehabilitation for 18 months, “Georgia law is well settled that [Brannon] cannot object to the natural consequences brought about by his own voluntary commission of criminal acts.” (Citation omitted.) Turner v. Wright, 217 Ga. App. 368, 369 (1) (457 SE2d 575) (1995). As for Neill’s father’s threat, there was no evidence to show when it occurred; it follows that, until the threat was actually made, it could not have prevented Brannon from contacting Neill at her parents’ home. Further, the birthday cards for C. B. N.’s sixth birthday that Brannon sent to Neill’s parents’ address in September 2011 were the only cards or letters he had ever sent to C. B. N., and, by that time, Neill had already challenged his legitimation petition on the basis of his having abandoned his opportunity interest, as well as his lack of parental fitness.

Given these circumstances, we conclude that, even if Neill and/or her family had attempted to discourage Brannon from contacting her or C. B. N. from 2006 through 2010, the trial court erred to the extent it found that those efforts were the primary cause of Brannon’s failure to pursue a parent-child relationship with the child. Instead, by his own admission, Brannon waited until after his heart surgery in November 2010 — more than four years after conclusively learning that C. B. N. was his biological daughter — before even deciding that he would like to have a parent-child relationship with her and filing his legitimation petition.

Moreover, there is no evidence that any actions by Neill or her family prevented him from filing a legitimation petition at any point before 2011. In fact, even though Brannon did not learn that he was definitely the child’s father until the child was one year old, he was aware of the possibility that he could be the biological father before the child was born and, to remove any doubts, he could have filed a legitimation petition right after her birth and sought court-ordered genetic testing. In the Interest of J. L. E., 281 Ga. App. 805, 806-807 (637 SE2d 446) (2006) (obtaining the results of genetic testing is not a condition precedent to filing a legitimation petition under OCGA § 19-7-22); see OCGA §§ 19-7-43 (d); 19-7-45.

Consequently, we conclude that the undisputed evidence establishes that Brannon abandoned his opportunity interest in a parent-child relationship with C. B. N. It follows that the trial court’s grant of Brannon’s legitimation petition must be reversed. See Matthews v. Dukes, 314 Ga. App. at 783-787 (1) (A child was conceived during an extramarital affair between the biological father and the child’s mother. Although DNA tests confirmed the child’s parentage and the father provided some financial support and had sporadic visits with the child, the father waited five years before filing a legitimation petition. This evidence showed that the father had abandoned his opportunity interest and supported the denial of his legitimation petition.).

2. Neill also contends that, even if Brannon had not abandoned his opportunity interest in developing a relationship with C. B. N., the trial court still erred in granting the legitimation petition because there was no evidence that legitimation was in the child’s best interest. We agree.

If the evidence does not show that the father has abandoned his opportunity interest, then the court may grant the legitimation petition if the evidence shows either that the father is a fit parent or that legitimation is in the best interest of the child. In the Interest of M. K., 288 Ga. App. at 74 (2). In determining whether legitimation is in the best interest of the child, “the court must examine the benefits that might flow to the child if she were legitimated and . . . consider the legal consequences of the grant of the petition.” (Citation and punctuation omitted.) Id. at 73 (2).

Pretermitting the fact that our finding in Division 1, supra, requires the reversal of the court’s order, we address this issue because the evidence presented not only fails to show that C. B. N. would benefit in any way by the grant of Brannon’s legitimation petition, it actually suggests that placing the seven-year-old girl in a situation in which she must communicate and visit with a man whom she has never known could potentially be harmful. For example, it is undisputed that Brannon was 50 years old when he filed his legitimation petition in February 2011, which means he was at least 46 years old when he was arrested and incarcerated for possession of methamphetamine and Darvocet in 2008. At the time of that arrest, he was addicted to methamphetamine, and he already had an extensive criminal history that included four convictions for driving under the influence and a designation as a habitual violator; a conviction for criminal damage to property; a conviction for fleeing and attempting to elude a police officer; a conviction for reckless driving; a conviction for possession of a firearm by a convicted felon; and two convictions for possession of methamphetamine. Further, at the time of the February 2012 legitimation hearing, Brannon had been unemployed since his triple bypass heart surgery in November 2010, although he had made some money selling scrap metal he collected from his yard.

Moreover, the transcript of Brannon’s deposition shows that, when he was asked why he was seeking to legitimate his relationship with C. B. N. five years after learning that he was her biological father, he responded, “Because she’s my daughter, and that’s my ... God-given right. And... I would have done it sooner if I’d had myself straightened out to where I could do something like that.” He added that “she needs her father,” explaining that he had “been without [his father], and I know what it’s about.” When asked why he believed it was in C. B. N.’s best interest to have a relationship with him, given his criminal and drug history, he responded, “I don’t know... why my history would have anything to do with it.”

In contrast to Brannon’s testimony, Neill testified that she had stopped using illegal drugs before C. B. N. was bom, although she admitted to using drugs one time in 2006. There is no evidence that Neill has a criminal history. Further, she got married in 2011, and her husband has been the primary “father figure” in C. B. N.’s life for over three years.

We conclude that, under these circumstances, Brannon failed to meet his burden of showing that legitimation was in the best interest of C. B. N. This conclusion establishes an alternate basis for reversing the trial court’s legitimation order.

3. Given our decisions in Divisions 1 and 2, supra, the court’s grant of visitation to Brannon, which was dependent upon the grant of the legitimation petition, is vacated as a matter of law. See Ernst v. Snow, 305 Ga. App. 194, 198 (2) (699 SE2d 401) (2010) (This Court held that, because we were vacating the juvenile court’s grant of the petition to legitimate, “all orders of the court dependent on that order are also vacated. Until legitimation is properly entered, only the mother is entitled to custody of the child.”) (citation omitted).

Judgment reversed in part and vacated in part.

Phipps, P. J., and Dillard, J., concur.

Decided March 15, 2013

Reconsideration denied March 27, 2013.

Christopher L. Moore, for appellant.

James R. Argo, Jr., for appellee.

       See Division 3, infra. Notably, the trial court ruled that, if the mother appealed the legitimation order, its order granting Brannon’s request for visitation would be stayed pending the outcome of the appeal.

       See OCGA §§ 16-13-30 (a), (e), (g) (felony possession of controlled substances); 16-13-26 (3) (B) (methamphetamine is a Schedule II controlled substance); 16-13-28 (a) (30.05) (propoxyphene, the active component of the pain-relief medicine Darvocet, is a Schedule IV controlled substance).

       On this issue, Brannon testified that he, his adult daughter, and some of his grandchildren sent birthday cards to C. B. N. at Neill’s parents’ address, hut Neill returned them to him unopened. The record shows, however, that all of the cards were sent in September 2011, which was several months after Neill objected to his legitimation petition on the basis of his abandonment of his opportunity interest.

       During his deposition, Brannon explained that, before his heart surgery, he was trying to get his life “straightened out” and had no money to spend on efforts to contact C. B. N. or to file a legitimation petition.

       According to Neill, she did not attempt to maintain contact with Brannon after 2006 because he had been physically abusive and she was frightened of him andbecause she believed that he was still abusing drugs. Brannon admitted that, as part of his residential drug rehabilitation program, he participated in anger management counseling.

       According to Neill, she was living with her parents at the time C. B. N. was bom in 2005, and she and C. B. N. lived there until 2010, with the exception of a nine-month period between June 2007 and March 2008. In 2010, they moved into an apartment with Neill’s boyfriend, Richard Evans; Neill and Evans married in December 2011.

       During his deposition, Brannon testified that the arrearage accrued while he was incarcerated following his March 2008 arrest and that he had been paying toward the arrearage ever since. The record shows, however, that Brannon was already $792 in arrears before his March 2008 arrest.

       Notably, this testimony contradicts Brannon’s deposition testimony about the alleged threat hy Neill’s father. During his deposition, he testified that he never talked to Neill’s father at the latter’s home, but that, during a phone call between his (Brannon’s) daughter and Neill’s father, the latter had “apparently threatened to kill him. That testimony was hearsay, however, as Brannon was not a party to the phone conversation and, thus, did not personally hear the alleged threat. We also note that Brannon did not mention the alleged direct, “fatal accident” threat at any point during his deposition.

       See also In the Interest of J. S., 302 Ga. App. at 344 (1) (Although the biological father had lived with and financially supported his child and the child’s mother for a year after the child was horn, he had no significant contact with the child and failed to pay child support for the next four years, while he was incarcerated for felony theft by taking. This evidence showed that the father had abandoned his opportunity interest and supported the denial of his legitimation petition.); In the Interest of J. L. E., 281 Ga. App. at 806-807 (A child horn to unwed parents was placed in the state’s custody when the child was six months old. The biological father visited the child twice over the next four months, then was arrested on a probation violation and incarcerated. Eight months after his arrest, and four months after the state filed a petition to terminate his parental rights, the father filed a legitimation petition. This evidence showed that the father had abandoned his opportunity interest and supported the denial of his legitimation petition.); Smith v. Soligon, 254 Ga. App. 172, 173-174 (2) (561 SE2d 850) (2002) (Although the biological father had lived with the child and the child’s mother until the child was four years old, for the next two years, the father had only a few contacts with the child and did not provide any child support. Only after the mother married and her husband filed an adoption petition did the father file a legitimation petition. This evidence showed that the father had abandoned his opportunity interest and supported the denial of his legitimation petition.); In the Interest of D. S. P., 233 Ga. App. 346, 346-349 (2) (504 SE2d 211) (1998) (Concerned that he may not be the biological father of his girlfriend’s two-month-old child, the father insisted on a DNA test, which confirmed that the child was his. While the child’s parentage was in doubt, the father failed to maintain contact with the mother or provide any financial or emotional support for her, and, despite knowing that the mother intended to place the child for adoption, he did nothing to protect his parental interests until the adoption agency filed a petition for termination of his parental rights. This evidence showed that the father had abandoned his opportunity interest and supported the denial of his legitimation petition.).

       The trial court did not address whether Brannon was fit to be a parent, nor did Brannon present any evidence on that issue.


author: McFADDEN, Judge.

text:
    A12A1691.
    CARTER et al. v. HERITAGE CORNER, LTD. et al.
    (741 SE2d 182)
   McFADDEN, Judge.

Sharon F. Carter and Irene Bryant, residents of Arkansas, sought to domesticate a default judgment that they had obtained in an Arkansas county circuit court against Heritage Corner, Ltd. and Heritage Funding Group, Inc. (collectively, the “Heritage entities”), and those entities’ chief executive officer, Rodney Wayne Callaway. The trial court granted the defendants’ motion to set aside the judgment on the ground that the Arkansas court lacked personal jurisdiction over them. Carter and Bryant appeal. As detailed below, we reverse as to Callaway because he was not entitled to attack the judgment collaterally, having appeared before the Arkansas court and having waived the defense of lack of personal jurisdiction. We affirm as to the Heritage entities, however, because they were entitled to attack the judgment collaterally and the record supports the trial court’s finding that Carter and Bryant did not demonstrate that the Arkansas court had personal jurisdiction over the Heritage entities.

1. Facts and procedural history.

The record shows that Carter and Bryant brought an action in Arkansas alleging that Callaway and the Heritage entities engaged in fraud, breach of contract, and other tortious acts related to a purported investment. The defendants did not answer the complaint, but Callaway, acting pro se on behalf of himself and the Heritage entities, moved to dismiss the action. In the motion to dismiss, Callaway did not allege that the defendants lacked sufficient contacts with Arkansas to allow a court in that state to assert personal jurisdiction over them.

Ultimately, the Arkansas court granted a default judgment in favor of Carter and Bryant. In its order, that court found that it “ha[d] jurisdiction of this matter,” but it made no specific findings pertaining to its personal jurisdiction over the defendants.

Carter and Bryant sought to domesticate the Arkansas judgment in Georgia under the Uniform Enforcement of Foreign Judgments Law, OCGA § 9-12-130 et seq. The defendants moved to set the judgment aside on the ground that the Arkansas court lacked personal jurisdiction over them due to insufficient contacts between the defendants and that state. After a hearing, the trial court granted the motion, finding that

none of the [defendants were personally served in Arkansas, none of the [defendants made an appearance in the Arkansas court proceedings and judgment by default was entered, and none of the [defendants were domiciled nor incorporated in Arkansas nor had a place of business there.

The trial court further noted that the Arkansas court’s order did not contain any findings of fact “to support the argument that personal jurisdiction was proper in that [cjourt” and that, to the extent the order set forth a prima facie case of that court’s personal jurisdiction over the defendants, the defendants had presented evidence to rebut that prima facie case.

2. The trial court erred in setting aside the judgment as to Callaway, but was authorized to set aside the judgment as to the Heritage entities.

Carter and Bryant argue that the trial court erred in failing to accord the Arkansas judgment full faith and credit. Under the full faith and credit clause of the United States Constitution, this court has held:

[A] judgment of a foreign court will be enforced by courts of this state. To be enforced in Georgia, the foreign judgment must first be domesticated pursuant to the Uniform Enforcement of Foreign Judgments Law[.] In Georgia, the proper method for attacking a foreign judgment filed in Georgia under the [Uniform Enforcement of Foreign Judgments Law] is a motion to set aside under OCGA § 9-11-60 (d).

(Citations and punctuation omitted.) LeRoy Village Green Residential Health Care Facility v. Downs, 310 Ga. App. 754, 754-755 (713 SE2d 728) (2011). “A trial court’s ruling on a motion to set aside a judgment will be affirmed if there is any evidence to support that ruling.” (Citation and punctuation omitted.) Aqua Sun Investments v. Kendrick, 240 Ga. App. 671, 673 (2) (524 SE2d 519) (1999).

Under OCGA § 9-11-60 (d) (1), a defendant may collaterally attack a foreign judgment on the ground that the foreign court lacked personal jurisdiction over him. See E. Howard St. Clair & Assoc, v. Northwest Carpets, 237 Ga. App. 537, 538 (515 SE2d 660) (1999). But a collateral attack based on lack of personal jurisdiction is precluded when the defendant has appeared in the foreign court and has had an opportunity to litigate the issue. Aqua Sun Investments, 240 Ga. App. at 673 (2).

(a) The judgment against Callaway.

Contrary to the trial court’s finding, the record shows that Callaway appeared in the Arkansas court by filing in that court his motion to dismiss the action brought by Carter and Bryant. And as Carter and Bryant argue, Callaway waived his defense of lack of personal jurisdiction when he failed to raise the issue in his motion to dismiss. See Ark. R. Civ. R 12 (h) (1). Consequently, Callaway could not attack that court’s personal jurisdiction collaterally in the motion to set aside the judgment, and the trial court erred in setting aside the judgment against him. See Packer Plastics v. Johnson, 205 Ga. App. 797 (423 SE2d 690) (1992).

(b) The judgment against the Heritage entities.

The record, however, supports the trial court’s finding that the Heritage entities did not appear in the Arkansas court. Arkansas law precluded Callaway, a nonlawyer, from representing the Heritage entities pro se, and thus his motion to dismiss on behalf of the Heritage entities was a nullity. See Davidson Properties v. Summers, 244 SW3d 674, 675 (Ark. 2006); All City Glass & Mirror v. McGraw Hill Information Systems Co., 750 SW2d 395, 395-396 (Ark. 1988). Because they did not appear before the Arkansas court to litigate the personal jurisdiction issue, the Heritage entities were entitled to attack the Arkansas judgment collaterally on that ground. See E. Howard St. Clair & Assoc., 237 Ga. App. at 538.

Where, as here, a foreign judgment was obtained by default,

no presumption of personal jurisdiction exists. The party seeking to domesticate the judgment bears the burden of negating the defense of lack of personal jurisdiction. During a hearing on the determination of jurisdiction, in personam jurisdiction must be proven by a preponderance of the evidence.

(Citations omitted.) E. Howard St. Clair & Assoc., 237 Ga. App. at 538. Accord Standard Bldg. Co. v. Wallen Concept Glazing, 298 Ga. App. 443, 445 (680 SE2d 527) (2009).

Carter and Bryant argue that minimum contacts existed for the Arkansas court to exercise personal jurisdiction under that state’s law because the defendants “solicited the investment of Arkansas residents.” They alleged in their complaint that Carter sought investment advice from Callaway, her first cousin, who recommended that she invest in a foundation for which he served as a board member. But in an affidavit in support of the motion to set aside the judgment, Callaway denied soliciting the transaction and stated that he “has not otherwise engaged in any business activity in the State of Arkansas.” Carter and Bryant presented no evidence at the hearing in response to the Callaway affidavit. Under these circumstances, we cannot say that the trial court had no basis for finding that Carter and Bryant failed to meet their burden of showing that the Arkansas court had personal jurisdiction. Because there is evidence to support the trial court’s ruling on the motion to set aside the judgment as to the Heritage entities, we affirm the ruling as to those defendants. See Aqua Sun Investments, 240 Ga. App. at 673 (2).

Decided March 27, 2013.

Scott M. Stevens, for appellants.

James W. McKenzie, Jr., for appellees.

Judgment affirmed in part and reversed in part.

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


author: Ray, Judge.

text:
    A12A2071.
    WILLIAMS v. THE STATE.
    (740 SE2d 766)
   Ray, Judge.

Following a jury trial, Laquan Williams was found guilty beyond a reasonable doubt of burglary and contributing to the deliquency of a minor. He appeals from his convictions and the denial of his motion for new trial, contending that the evidence was insufficient to support the verdict, and that the trial court erred (1) in allowing identification testimony, and (2) in failing to give a jury charge on grave suspicion. Williams also contends that he had ineffective assistance of counsel. Finding no error, we affirm.

On appeal, we must view the evidence “in the light most favorable to the verdict and the appellant no longer enjoys the presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency and does not weigh the evidence or determine witness credibility.”

So viewed, the evidence shows that Cynthia Randolph, Eric Davenport, and their four children lived together in an apartment at 258 Parkview Extension. In the early evening hours of August 19, 2009, Margaret Davis, who lived next door to Randolph, heard a noise outside her apartment. When Davis opened the back door to investigate, she observed a boy standing by Randolph’s back door and saw Williams standing on top of an air conditioning unit beating on Randolph’s kitchen window. Davis, who was only a few feet away, asked them what they were doing. After Davis observed them for approximately three minutes, Williams got off the air conditioning unit and walked away with the boy. Davis then closed and locked her door.

Shortly thereafter, Davenport was returning home when he observed his young cousin, T. B., and Williams walking down the road. Davenport noticed that T. B. was carrying an “Iron Man” book bag which looked like one that belonged to Randolph’s son. When Davenport blew his horn to get T. B.’s attention, T. B. dropped his head as if to avoid eye contact. When Davenport arrived at his apartment, he discovered that it had just been burglarized. The point of entry appeared to be the kitchen window that Williams had been beating on. Among the items taken during the burglary was the book bag that Davenport had seen T. B. carrying moments earlier. None of the items taken in the burglary were ever recovered.

1. Williams contends that the evidence was insufficient to convict him. Specifically, he argues that there was no evidence, either direct or circumstantial, to establish that he entered Randolph’s residence. We disagree.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

A person commits the offense of burglary when he enters the dwelling house of another, without authority, and with the intent to commit a felony or theft therein. To obtain a conviction on circumstantial evidence, the proven facts must exclude every other reasonable hypothesis except the guilt of the accused. However, the State is not required to remove every possibility of innocence of the crime charged, and it is not required to disprove bare possibilities that the crime could have been committed by someone else. Whether a hypothesis is reasonable and whether every other hypothesis except the guilt of the accused has been excluded are generally questions for the jury to decide. Because the jury is able to hear the witnesses and observe them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is this Court, and we will not disturb their findings unless it is unsupportahle as a matter of law.

Evidence that, taken together, authorized the jury to find that Williams was the perpetrator of the burglary included the following: that Davis identified him as the person she saw standing on the air conditioner unit beating on the kitchen window; that the point of entry for the burglary was the kitchen window; and that, just minutes later, Davenport observed Williams and T. B. walking away from his residence carrying an item that was taken during the burglary. Although circumstantial, the evidence was sufficient to authorize the jury to conclude that all reasonable hypotheses were excluded other than Williams’ guilt.

Although Williams offered alibi witnesses in his defense, the jury was authorized to disbelieve this testimony and to believe the eyewitness’ testimony placing him at the scene of the burglary and in possession of property taken in the burglary. It is well-settled that the determination of witness credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury. Therefore, we find that the evidence was sufficient to support Williams’ conviction.

2. Williams contends that the trial court erred in allowing Davis’ testimony regarding her identification of Williams. Specifically, Williams argues that the trial court erred in finding that the circumstances of Davis’ showup identification of Williams subsequent to his arrest did not create a substantial likelihood of irreparable misidentification. We discern no error.

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.

In evaluating the likelihood of misidentification, a court must consider “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation.”

The trial court held a hearing on Williams’ motion in limine regarding the admissibility of Davis’ out-of-court identification of Williams. The evidence shows that, shortly after Williams and T. B. were arrested for burglary, Randolph went over to Davis’ apartment and informed her that the police “have the boys” and asked her if she would come identify them. Randolph then took Davis to the house where Williams and T. B. had been arrested. Davis testified that, at the showup identification, she was able to get a good look at Williams, who was sitting in the back of a police car, and that she had no question in her mind that he was the one she had seen standing on the air conditioner. The evidence further shows that Davis’ positive identification of Williams was based upon the fact that she had been able to get a good look at Williams for “three or four minutes” as he was standing on the air conditioner a few feet away. Furthermore, her description of the individual she saw standing on the air conditioner was consistent with her observations of Williams at the showup identification. At the conclusion of the hearing, the trial court found that the showup identification was “suggestive,” but it did not find that it was impermissibly so. The trial court further found that the showup did not create a substantial likelihood of irreparable misidentification.

In reviewing the denial of a motion in limine, we construe the evidence most favorably to uphold the findings and judgment of the trial court, and we adopt its findings as to disputed facts and credibility unless clearly erroneous. As the trial court’s findings were supported by the evidence, it did not err in allowing Davis’ identification testimony.

3. Williams contends that the trial court erred in failing to give a jury charge on grave suspicion. Williams argues that the charge was required because the evidence against him was entirely circumstantial. We discern no error.

The pattern jury instruction for grave suspicion provides as follows:

Facts and circumstances that merely place upon the 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 of the defendant.

Although the trial court refused such a charge, it did fully and accurately charge the jury on Williams’ presumption of innocence and the State’s burden of proving guilt beyond a reasonable doubt. Thus, “the charge as a whole covered the principles of law embodied in the [grave] suspicion charge.” Furthermore, the trial court instructed the jury on the credibility of witnesses, impeachment of witnesses, circumstantial evidence, mere presence, mere association, and identity. When considering the charge as a whole, we find that the trial court did not abuse its discretion in denying Williams’ request for the charge on grave suspicion.

4. Williams contends that his trial counsel was ineffective for three reasons. All of his arguments lack merit.

To prevail on a claim of ineffective assistance, [Williams] must show that counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. We need not address both the deficient performance and prejudice prongs of the test if [Williams] has made an insufficient showing on either prong.

(a) Williams contends that his trial counsel was ineffective for failing to secure a ruling on an objection to Davenport’s in-court identification of Williams. When Davenport was asked on direct examination if he could identify in court the individual he saw walking with his cousin on the day of the burglary, Davenport identified Williams and stated, “[i]t look like him right there.” Trial counsel objected to this in-court identification. Rather than ruling on the objection, the trial court permitted the State to question Davenport to clarify his initial response. Upon further examination, Davenport testified that “I seen him” and confirmed that the person he saw with his cousin was Williams. Thus, any additional arguments against the in-court identification would have been futile. And as this Court has repeatedly noted, “[t]he failure to pursue a futile objection does not amount to ineffective assistance.”

(b) Williams contends that trial counsel was ineffective for failing to require a proper foundational witness for the admission of similar transaction evidence. At trial, the State called Investigator Thomas Gillis for the purpose of admitting evidence of Williams’ prior conviction for burglary. Gillis testified that, during his investigation of the prior burglary, he collected blood evidence from the scene and obtained a warrant to obtain a buccal swab of Williams for the purposes of a DNA comparison. Williams was ultimately convicted for that burglary. Williams argues that trial counsel was ineffective for failing to object to Gillis’ testimony regarding the DNA analysis, and for failing to move for a mistrial and/or a curative instruction, because Gillis was not the witness who conducted the analysis. However, Gillis did not testify as to the results of the DNAanalysis. Rather, his testimony was limited to facts of which he had personal knowledge, and Williams was unequivocally linked to the prior burglary through the State’s tender of a certified copy of his conviction. We previously have found the same type of evidence presented here to be sufficient to establish a similar transaction. Thus, Williams has failed to show that his trial counsel was ineffective.

Decided March 27, 2013.

Katherine M. Mason, for appellant.

Kenneth W. Mauldin, District Attorney, Kristopher M. Bolden, Assistant District Attorney, for appellee.

(c) Williams contends that trial counsel was ineffective for withdrawing a request to charge on knowledge. However, Williams’ argument is belied by the record. While trial counsel initially withdrew the request to charge on knowledge, counsel later asked that the charge be given. Accordingly, Williams’s argument is without merit.

5. Williams also contends that the trial court erred in failing to give a jury charge on knowledge. Although this issue is mentioned in his appellate brief in the section designated for his statement of facts and in his argument regarding ineffective assistance of counsel in Division 4 (c) above, it does not appear that this issue was raised in his enumerations of error. Pretermitting whether we have jurisdiction to decide this issue, Williams has failed to provide proper citations to authority or argument to support his contention. To the extent it can be considered a proper enumeration of error, it is deemed abandoned pursuant to Court of Appeals Rule 25 (c) (2).

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-7-1.

       OCGA § 16-12-1 (b) (1).

       (Citation and punctuation omitted.) Williams v. State, 217 Ga. App. 636, 638 (3) (458 SE2d 671) (1995).

       (Citations and punctuation omitted; emphasis in original.) Nangreave v. State, 318 Ga. App. 437, 438 (1) (734 SE2d 203) (2012).

       OCGA § 16-7-1 (b).

        Huffv. State, 281 Ga. App. 573, 575 (636 SE2d 738) (2006).

        Rivera v. State, 293 Ga. App. 215, 216 (666 SE2d 739) (2008).

       Id.

        Badie v. State, 317 Ga. App. 712, 716 (1) (732 SE2d 553) (2012); Moore v. State, 277 Ga. App. 474, 475-476 (1) (627 SE2d 107) (2006).

        Nangreave, supra; Badie, supra; Veasley v. State, 312 Ga. App. 728, 730 (1) (719 SE2d 585) (2011).

        Frazier v. State, 305 Ga. App. 274, 275 (1) (699 SE2d 747) (2010).

       (Citation omitted.) Davis v. State, 315 Ga. App. 625, 627 (727 SE2d 238) (2012).

       (Citation and punctuation omitted.) Miller v. State, 266 Ga. App. 378, 382 (1) (597 SE2d 475) (2004).

        Flint v. State, 308 Ga. App. 532, 537 (6) (707 SE2d 498) (2011).

        Miller, supra.

       (Punctuation omitted.) Sherman v. State, 302 Ga. App. 312, 314 (3), n. 1 (690 SE2d 915) (2010), citing Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.20.20.

       (Citations and punctuation omitted.) Jones v. State, 318 Ga. App. 105,109 (5) (733 SE2d 407) (2012).

       Id. Accord Jackson v. State, 247 Ga. App. 273, 275 (2) (543 SE2d 770) (2000).

       (Citations and punctuation omitted.) Anthony v. State, 317 Ga. App. 807, 813 (4) (732 SE2d 845) (2012). See Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SC 2052, 80 LE2d 674) (1984).

       (Citation omitted.) Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008).

       Williams does not contend that the prior offense was not sufficiently similar, or that the prior offense was not admissible to show bent of mind and course of conduct, but argues instead that proof of the crime was insufficient because the proper foundational witness did not testify at trial.

       See Howard v. State, 318 Ga. App. 329, 331 (1) (733 SE2d 859) (2012) (proof of similar crimes sufficient where State admitted certified copies of convictions and introduced testimony of investigating police officers). Accord Rose v. State, 275 Ga. 214,216 (2) (563 SE2d 865) (2002) (prior crime sufficiently established by testimony of responding officer and certified copy of conviction).

       See Coweta County v. Simmons, 269 Ga. 694, 694 (507 SE2d 440) (1998) (Court of Appeals “has jurisdiction to decide only those issues fairly raised by an enumeration of error”). See also Bibb v. State, 315 Ga. App. 49, 50 (1), n. 4 (726 SE2d 534) (2012) (calling into question whether an issue is properly raised by the enumerations of error where the issue is only mentioned within an argument on a separate enumeration of error).


text:
    A12A2204.
    BRYANT v. THE STATE.
    (740 SE2d 772)
   MILLER, Presiding Judge.

Following a jury trial, Michael Bryant was convicted of possession of cocaine (OCGA § 16-13-30(a)), two counts ofpossessionof atool for the commission of a crime (OCGA § 16-7-20 (a)), riding a bicycle without a headlight (OCGA § 40-6-296 (a)), and failure to surrender a license after suspension (OCGA § 40-9-7 (b)). Bryant was granted an out-of-time appeal to challenge the denial of his motion for new trial. On appeal, Bryant contends that the trial court erred in denying his motion to suppress, and that the evidence was insufficient to support his conviction for possession of a cell phone as a tool for the commission of a crime. Bryant also challenges his conviction for possession of cocaine because the indictment listed the offense of possession of cocaine with intent to distribute under OCGA § 16-13-30 (b), and further contends that his trial counsel provided ineffective assistance. Discerning no error, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh the evidence nor judge the credibility of witnesses.

(Citation omitted.) Drammeh v. State, 285 Ga. App. 545, 546 (1) (646 SE2d 742) (2007).

So viewed, the evidence shows that on the night of June 17,2010, two police officers observed Bryant riding his bicycle on a Clayton County street. The officers initiated a traffic stop when they noticed that Bryant was riding without a headlight. Upon approaching Bryant, the officers observed a big bulge in one of Bryant’s pockets. When the officers asked Bryant about the headlight, Bryant was acting very nervous, did not make eye contact with the officers, and kept reaching toward the bulge in his pocket.

The officer then asked Bryant for identification, and Bryant presented his driver’s license. After entering Bryant’s identification information into a mobile terminal, the officer learned that Bryant’s license had been suspended. When the officer returned from his vehicle, he asked Bryant if Bryant knew that his driver’s license had been suspended, and Bryant responded in the affirmative. At this time, Bryant again moved his hand toward the bulge in his pocket, and the officer asked Bryant for consent to search. Bryant refused, and the officers then placed Bryant under arrest for operating a bicycle at night without a headlight and for failing to surrender his driver’s license after suspension.

Before transporting him to jail, the officers searched Bryant for weapons or contraband. As a result of the search, the officers found a digital scale, two cellular telephones, over $270 in U. S. currency, and a small plastic bag containing 27 rock-like substances believed to be crack cocaine. The rock-like substances were later tested and determined to be cocaine.

1. On appeal, Bryant contends that the trial court erred in denying his motion to suppress because he was in custody without the benefit of Miranda warnings once the officers discovered that his driver’s license was suspended, rendering inadmissible statements he made and evidence found as a result of those statements. We disagree.

An individual must be advised of his Miranda rights, including his right against self-incrimination, only after being taken into custody or otherwise deprived of his freedom of action in any significant way. A person is in custody for Miranda purposes if he has been formally arrested or restrained to the degree associated with a formal arrest. The test for determining whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee’s position would have thought the detention would not be temporary.... As a general rule, although a motorist is deprived of his freedom of action during a traffic stop, such detention is insufficient to trigger the rights set forth in Miranda. The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.

(Citations and punctuation omitted.) Waters v. State, 306 Ga. App. 114, 116 (1) (701 SE2d 550) (2010).

Here, although Bryant’s freedom of movement was deprived during the traffic stop, the officer was not required to provide Miranda warnings during the preliminary investigation. See Waters, 306 Ga. App. at 116 (1). Although Bryant argues that the officer was required to Mirandize him at the point the officer discovered his license was suspended, the relevant inquiry is whether the individual was formally arrested or restrained to the degree associated with a formal arrest, not whether the officer had probable cause to arrest. See Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16) (1995); Arce v. State, 245 Ga. App. 466, 466-467 (538 SE2d 128) (2000). We find nothing in the record indicating that Bryant should have been given Miranda warnings at any point prior to the time the officer placed him under arrest for failure to surrender his suspended driver’s license. Notably, there is no evidence that, at any time between the initial stop and the actual arrest, the officer made any statement or took any action that would cause a reasonable person in Bryant’s position to believe that his freedom was restrained to the degree associated with a formal arrest. Bryant was not handcuffed, secured in the back of a police vehicle, or treated in any manner that would raise the investigative stop to the level of an arrest. Consequently, the trial court was authorized to conclude that Bryant was not in custody at the time the officer asked Bryant about his driver’s license, and that Miranda warnings were not required at this time. See Brown v. State, 299 Ga. App. 402, 405 (1) (683 SE2d 614) (2009). Therefore, the trial court did not err in denying Bryant’s motion to suppress on this basis.

2. Bryant challenges his conviction for possession of cell phones as instrumentalities to commit a crime, because such possession was innocuous. We do not agree.

With respect to the cell phones, Bryant was charged with possessing devices commonly used in the commission of a violation of the Georgia Controlled Substances Act, with the intent of using said device in the commission of a crime. OCGA § 16-7-20 (a) provides:

A person commits the offense of possession of tools for the commission of crime when he has in his possession any tool, explosive, or other device commonly used in the commission of burglary, theft, or other crime with the intent to make use thereof in the commission of a crime.

In this case, there is no dispute that Bryant possessed two cell phones when he was arrested. The officer testified that based upon his experience and training, the possession of multiple cell phones was consistent with someone involved in drug distribution. While the mere possession of a common instrument is, by itself, not a crime, such possession may become a crime when there is an intent to use the instrument to commit a crime. See Kennon v. State, 232 Ga. App. 494, 496 (3) (502 SE2d 330) (1998) (possession and intent are essential elements of offense of possession of instrumentalities of commission of crime). Intent is a question of fact for jury resolution and “may be proven by circumstantial evidence, by conduct, demeanor, motive, and all other circumstances.” (Citation and punctuation omitted.) Id. The circumstances in this case show that at the time he was arrested, Bryant possessed 27 rocks of crack cocaine, over $272 in U. S. currency, and a digital scale. Based on these circumstances, the jury was authorized to find that Bryant intended to use the cell phones with the intent to commit a violation of the Georgia Controlled Substances Act. See Copeland v. State, 273 Ga. App. 850, 854 (2) (616 SE2d 189) (2005) (possession of large amount of currency, cocaine, and electronic scale was evidence to support a finding of a Georgia Controlled Substances Act violation).

3. Bryant next contends that his conviction for possession of a controlled substance was improper because he was not charged with this offense, but was instead charged with possession of a controlled substance with intent to distribute. There is no merit to his claim.

Count 1 of the indictment was denominated as “possession of a controlled substance with intent to distribute.” The indictment actually charged Bryant with “knowingly, intentionally and unlawfully, . . . possessing] a Schedule II controlled substance, to wit: cocaine, in violation of the Controlled Substances Act[.]”

As an initial matter, we note that an accused may challenge the sufficiency of an indictment by filing a general or special demurrer. A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment. Under OCGA § 17-7-110, a special demurrer must be filed within ten days after the arraignment, unless the trial court extends the time for filing. But a general demurrer, in which a defendant contends that the charging instrument fails altogether to charge him with a crime, may be raised at any time before the trial court.

(Citations and punctuation omitted.) Jackson v. State, 316 Ga. App. 588, 591-592 (2) (730 SE2d 69) (2012). Bryant did not file a special demurrer in this case and thus waived his right to a special indictment. See Jones v. State, 289 Ga. 111, 115 (2) (c) (709 SE2d 773) (2011); Jackson, supra, 316 Ga. App. at 592 (2). Bryant did, however, file a general demurrer.

In determining the sufficiency of an indictment to withstand a general demurrer, the following test is applied: If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premised, the guilt of the accused follows as a legal conclusion, the indictment is good. An indictment which charges the offense in the language of the defining statute and describes the acts constituting the offense sufficiently to put the defendant on notice of the offense with which he is charged survives a general demurrer.

(Footnote omitted.) Pulliam v. State, 309 Ga. App. 477, 479-480 (2) (711 SE2d 21) (2011). Moreover, “it is immaterial what the offense is called, if the averments of the presentment are such as to describe an offense against the laws of the State.” (Citation and punctuation omitted.) Jackson, supra, 316 Ga. App. at 592 (2); Striplin v. State, 284 Ga. App. 92, 94 (643 SE2d 361) (2007).

[A]n inconsistency between the denomination and the allegations in the indictment is an imperfection, but is one that is subject to a harmless error test on appeal; and a defendant who was not at all misled to his prejudice by any imperfection cannot obtain reversal of his conviction on this ground.

(Punctuation and footnote omitted.) Striplin, supra, 284 Ga. App. at 94.

Although the challenged offense was denominated as “possession of a controlled substance with intent to distribute,” the allegations tracked the language of possession of a controlled substance and fully apprised Bryant of the offense charged. See OCGA § 16-13-30 (a). Bryant has failed to show that his defense was prejudiced in any way by the inconsistency between the denomination of the offense and the allegations in the indictment. Notably, Bryanthimself requested a jury charge on the offense of possession of a controlled substance as a lesser included offense of possession of a controlled substance with intent to distribute. Given Bryant’s specific request for the lesser included offense, he cannot show that any imperfection in the indictment prejudiced him because

an indictment not only charges the defendant with the specified crime, it also embraces all lesser included offenses of the charged offense. An indictment places an accused on notice that he can be convicted of the crimes expressly charged as well as lesser crimes that are included in the charged offenses as a matter of law or fact. Indeed, if an offense is a lesser included offense as a matter of law or fact, an accused can be convicted of that offense [.]

(Citations and punctuation omitted.) State v. Wilson, 318 Ga. App. 88, 91 (1) (732 SE2d 330) (2012). Since Bryant cannot establish prejudice in the charge in the indictment, his claim affords no basis for reversal.

4. Bryant also contends that trial counsel was ineffective in several respects. We disagree.

To establish an ineffective assistance claim, an appellant must show not only that his counsel’s performance was deficient but also that the deficiency so prejudiced him as to create a reasonable probability that but for counsel’s errors, the outcome of the trial would have been different. Failure to satisfy both requirements is fatal to an ineffectiveness claim.

(Footnotes omitted.) Mitchell v. State, 250 Ga. App. 292, 295-296 (2) (551 SE2d 404) (2001).

(a) Bryant argues that trial counsel failed to adequately cross-examine the arresting officer as to Bryant’s pre-arrest statements. The record reveals that trial counsel conducted a thorough cross-examination of the arresting officer, and Bryant does not specify how the cross-examination was inadequate. An attorney’s decision on how to conduct cross-examinations is a matter of trial tactics that does not amount to ineffective assistance of counsel. See Ray v. State, 253 Ga. App. 626, 627 (2) (560 SE2d 54) (2002). Moreover, at the motion for new trial hearing, trial counsel was not asked about his cross-examination of the arresting officer. In the absence of testimony to the contrary, counsel’s decisions regarding cross-examination are presumed to be strategic. See Ray, supra, 253 Ga. App. at 627 (2).

(b) Bryant also argues that trial counsel was ineffective in failing to request a Jackson-Denno hearing to test the voluntariness of the statements he made to the arresting officer prior to his arrest. Bryant has made no showing that his statements were involuntary and would have been excluded had a Jackson-Denno hearing taken place. Consequently, Bryant has not demonstrated that counsel’s failure to request a Jackson-Denno hearing prejudiced him. See Daly v. State, 285 Ga. App. 808, 815 (4) (i) (648 SE2d 90) (2007); Causey v. State, 215 Ga. App. 723, 727 (10) (a) (452 SE2d 564) (1994).

Judgment affirmed.

Ray and Branch, JJ., concur.

Decided March 27, 2013.

Kimberly L. Copeland, for appellant.

Larry Chisolm, District Attorney, Arvo H. Henifin, Meg E. Heap, Assistant District Attorneys, for appellee.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       Bryant was charged and convicted of two counts of possessing instrumentalities to commit a crime, hut he does not challenge the conviction relating to his possession of the digital scale.