author: McMillian, Judge.

text:
    A16A0452.
    DEMPS v. THE STATE.
    (788 SE2d 525)
   McMillian, Judge.

Kashif Demps appeals the trial court’s denial of his motion for new trial after a jury again convicted him in 2012 of armed robbery and possession of a firearm during the commission of a felony Demps asserts that the trial court erred by (1) allowing the admission of similar transaction evidence; (2) instructing the jury that it could find Demps guilty of possessing a firearm during the commission of a felony in a manner not alleged in the indictment; and (3) allowing the State to impermissibly use similar transaction evidence in closing argument. Demps also asserts that his conviction must be reversed because it is based on insufficient circumstantial evidence. For the reasons that follow, we find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence.” (Citation omitted.) Al-Amin v. State, 278 Ga. 74, 74 (1) (597 SE2d 332) (2004). We “do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” (Citation omitted.) Id.

So viewed, the evidence shows that the victim, who worked at a barbershop in southwest Atlanta, walked to a nearby Church’s Chicken for dinner after dark on November 16, 2007. When he arrived, the door was locked, and the employee indicated through the door that the restaurant was closed. As the victim turned to head back, he noticed that there was a black Crown Victoria sitting in the drive-through with a police scanner on top. Halfway down the block, the victim heard a rustling noise and turned to see two men behind him. The men asked the victim for a “light,” and after giving them a light, he continued walking. However, the two men put a gun to each side of the victim’s head and directed him behind a building where they forced him to remove his clothing and hand over all his belongings. In addition to his clothing and boots, the two men took the victim’s cell phone, his wallet containing approximately $60 in cash, and a money order. At trial, the victim testified that one of the two men was taller and held a black gun while the shorter man had a silver gun.

The victim immediately reported the robbery, and officers arrived within three or four minutes. The victim told the police that he had been robbed and described the suspicious black Crown Victoria he had seen just before the robbery occurred. An officer sent the call out over the radio, and approximately one minute later, another officer located the vehicle and pulled the driver over. Police later identified Demps as the driver of the vehicle and Demetrius Walker as the passenger. A third person, Chequita Woody, was in the back seat of the vehicle. Although the victim was only able to identify Walker as one of the men who had robbed him, he recognized the vehicle and saw his phone and clothing inside the car.

At trial, the State presented evidence that Demps had been arrested in 2005 for armed robbery in Clayton County (the “2005 robbery”). Felix Cuevas testified that he was robbed by two men at gunpoint, with one holding a silver gun, while he was walking home alone from work. The men took his backpack and wallet, which were later recovered by police and returned to him. Major Joseph Woodall of the Clayton County police department testified that he had received a lookout regarding an armed robbery involving a white Ford SUV and responded to assist when a vehicle matching the description was pulled over by another officer. When he arrived at the scene, Major Woodall saw Demps exit the driver’s door and flee on foot but he was able to quickly apprehend him. Meanwhile, Officer Brian Bush made a cursory check of the vehicle and found two handguns (one black and one silver), a backpack, some clothing, a wallet and miscellaneous papers scattered outside the vehicle on the sidewalk. The wallet contained an ID for a Felix Cuevas.

Demps testified in his own defense at trial. With respect to the 2005 robbery charge, he claimed that he had received a call from a friend to pick him up, so he drove his white Ford Explorer to an apartment complex to get him and another individual. While they were driving through a nearby neighborhood, a police vehicle pulled behind them and followed them for a while. According to Demps, as he was driving, he saw his friends going through a backpack and “talking about what they just did.” After the police stopped him, he ran because he knew that his friends had just committed a robbery Although he admitted to owning a gun that he had in the car with him, he denied participating in the robbery

Regarding the 2007 armed robbery at issue in this case, Demps claimed that he received a call from Walker, a long-time friend of his, asking for a ride home from Cleveland Avenue. When he picked up Walker, a man he knew as “New York” and Woody, the mother of Walker’s child, were with Walker. All four of them then stopped at Church’s Chicken to get some food because Woody was hungry Demps parked the car, and although he did not see them, he assumed that Walker and New York went inside the restaurant. Five minutes later, they returned without any food, but Demps did not ask why they did not get any food. He proceeded to drop off New York at a nearby apartment.

While on the way to take Walker and Woody home, Demps was pulled over by police and saw Walker take a gun from his pants and place it on the floor of the car. Demps admitted that when he stepped out of the car, he said “You got me, I did it” but claimed that he was referring to having run a yellow light. He denied seeing a gun or the victim’s belongings until he was pulled over and claimed that Walker or New York must have concealed the boots, jeans, and sweatshirt, under his coat. He further denied participating in or even knowing about the robbery. On cross-examination, Demps testified that he is 5' 10", whereas Walker is 6'2" and New York is 6'3". He also stated that he had approximately $70 in cash on him when he was arrested.

1. In his first enumeration of error, Demps asserts that the trial court erred in admitting evidence of the 2005 robbery because it should not have been admitted on the issue of identity and because no witness specifically identified Demps as one of the perpetrators of the 2005 robbery. Under our former Evidence Code, similar transaction evidence was admissible if the State showed that

(1) it sought to introduce the evidence not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) there was sufficient evidence to establish that the accused committed the independent offense or act; and (3) there was a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Citations and punctuation omitted.) Brittain v. State, 329 Ga. App. 689, 701 (3) (766 SE2d 106) (2014). See also Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991) (establishing the three-prong test). “A trial court’s decision to admit similar transaction evidence will not be disturbed absent an abuse of discretion.” (Citation omitted.) Redding v. State, 297 Ga. 845, 847 (2) (778 SE2d 774) (2015).

(a) During the course of the first trial, the trial court ruled that the 2005 robbery would be admissible, but the State was unable to locate the victim at that time. Once the State was able to locate Cuevas for the second trial, it filed notice of its intent to present Cuevas as a witness for the limited purposes of illustrating the defendant’s state of mind, intent, motive, modus operandi, and course of conduct. Demps first argues that it was error to allow the State to introduce the 2005 robbery as evidence of identity where the two crimes were not so distinctive as to show they were committed by the same person. However, pretermitting whether Demps preserved this enumeration of error for review, the trial court properly admitted the similar transaction evidence for the State’s requested purposes of course of conduct andbent of mind. Accordingly, Demps cannot show reversible error on this ground. See Matthews v. State, 294 Ga. 50, 54 (3) (c) (751 SE2d 78) (2013) (where trial court properly admitted similar transaction evidence following limiting instructions, its failure to limit the use of the similar transaction evidence to the purposes requested by the State was not reversible error); Curry v. State, 330 Ga. App. 610, 615 (1), n. 11 (768 SE2d 791) (2015) (because similar transaction evidence was relevant to show intent, we need not address trial court’s findings that it was also relevant to show motive, plan, and identity).

(b) Demps also asserts that evidence of the 2005 robbery was not admissible because no witness identified Demps at trial as the perpetrator of that crime. This argument is without merit. Again, pretermitting whether Demps waived appellate review of this issue, we find no abuse of discretion. “Absolute proof is not required that a defendant committed the offense in a similar transaction.” (Citation and punctuation omitted.) Dean v. State, 321 Ga.App. 731, 733 (1) (a) (742 SE2d 758) (2013) (only a preponderance of the evidence is required to prove defendant committed the prior act, which may be proven by circumstantial evidence).

Here, although the victim of the 2005 robbery was unable to identify Demps as one of the perpetrators, Demps was arrested shortly thereafter in possession of a gun and the victim’s belongings after initially fleeing from police. In addition, the State produced Demps’ signed guilty plea, and the trial court, after noting the uniqueness of Demps’ name and the matching date of birth, found the signature on the guilty plea to be “real close to identical” to Demps’ signature on the indictment in the case sub judice. And finally, Demps himself testified that he had been apprehended for the 2005 robbery after fleeing from the police and that he ultimately pled guilty in that case to one count of criminal use of a firearm with an altered serial number. Accordingly, this enumeration of error fails.

2. Demps next contends that the trial court erred in instructing the jury that it could find him guilty of possessing a firearm during the commission of a felony in a manner not alleged in the indictment. It is undisputed that Demps did not object to the jury charges at trial. Thus, our review is limited to a plain error analysis under OCGA § 17-8-58 (b). See State v. Kelly, 290 Ga. 29, 31 (1) (718 SE2d 232) (2011).

The test for determining whether there has been plain error in a jury instruction is:

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

(Citations omitted; emphasis in original.) Williams v. State, 297 Ga. 460, 464-65 (3) (773 SE2d 213) (2015).

As we understand Demps’ argument on appeal, he now asserts that the trial court erred in instructing the jury that “a person commits the offense of possession of a firearm during the commission of a felony when the person has on, or within arm’s reach of his person, a firearm during the commission of or any attempt to commit a felony.” According to Demps, this was error because evidence was presented at trial that he possessed a firearm during the commission of armed robbery, a felony, as well as during the commission of aggravated assault, also a felony. However, in defining the remaining charges, the trial court did not define aggravated assault as a felony Rather, after defining possession of a firearm during the commission of a felony, the trial court instructed the jury only that “[t]he offense of robbery is a felony under the laws of this State.” Because the trial court’s instructions regarding the possession charge focused the jury’s attention on robbery without mentioning aggravated assault or identifying any offense other than robbery as a felony, Demps has not shown either clear error or that the complained of instruction affected the outcome of the proceedings. See Robinson v. State, 298 Ga. 455, 462 (5) (782 SE2d 657) (2016) (no plain error where jury instructions, as a whole, were proper); Martin v. State, 298 Ga. 259, 277 (6) (b) (779 SE2d 342) (2015) (no plain error where trial court’s failure to include all language from pattern jury charge did not affect trial outcome).

3. Demps also asserts that he was denied a fair trial where the State improperly commented on similar transaction evidence in closing argument. We first note that a review of the record shows that Demps did not object to any portion of the State’s closing arguments at trial, such that he has waived appellate review of this issue. However, pretermitting this waiver, for the reasons discussed in Division 1, this enumeration of error provides no basis for reversal.

4. In his final enumeration of error, Demps argues that his conviction must be reversed as it is based on insufficient circumstantial evidence because the victim could not identify him as one of the men who robbed him and there was no evidence that he knew that Walker and New York were about to commit an armed robbery. Thus, Demps appears to argue that his conviction was based solely on circumstantial evidence, such that the evidence must “exclude every other reasonable hypothesis save that of the guilt of the accused.” Former OCGA § 24-4-6. However, as our Supreme Court has explained, “not every hypothesis is a reasonable one, and the evidence need not exclude every conceivable inference or hypothesis — only those that are reasonable.” (Citation and punctuation omitted; emphasis in original.) Black v. State, 296 Ga. 658, 660 (1) (769 SE2d 898) (2015). Moreover,

[w]hether an alternative hypothesis raised by the defendant is reasonable is a question committed principally to the jury, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, we will not disturb that finding unless it is insupportable as a matter of law.

(Citation and punctuation omitted.) Id.

Here, the State presented evidence that two men, one taller and one shorter, used handguns to take property from the victim, and within minutes the police located Demps’ vehicle, which matched the victim’s description and contained his stolen belongings as well as two handguns. When stopped, Demps spontaneously stated, “You got me, I did it.” Given these facts, the jury was authorized to discredit Demps’ version of events.

Decided June 29, 2016.

Derek M. Wright, for appellant.

Paul L. Howard, Jr., District Attorney, Kevin C. Armstrong, Assistant District Attorney, for appellee.

Moreover, contrary to Demps’ assertions, the evidence was sufficient for the jury to convict him as a party to the crimes. Under Georgia law, a person may be convicted of a crime even if he does not directly commit the crime, but is instead a party to the crime. See Flournoy v. State, 294 Ga. 741, 756 (3) (755 SE2d 777) (2014). “Aparty to a crime is one who intentionally aids or abets the commission of the crime, or intentionally advises, encourages, hires, counsels, or procures another to commit the crime. OCGA § 16-2-20 (b) (3), (4).” (Citation and punctuation omitted.) Taylor v. State, 331 Ga.App. 577, 581 (2) (a) (771 SE2d 224) (2015). Here, the State showed that Demps was — for the second time in two years — quickly found by police while driving a car containing the possessions of a nearby pedestrian who had been robbed at night by two armed men. Thus, we cannot say the jury’s convictions are insupportable as a matter of law. See Clemente v. State, 331 Ga. App. 84, 86 (769 SE2d 790) (2015) (whether defendant aided and abetted other men in the armed robbery was a question for the jury); Parnell v. State, 260 Ga. App. 213, 220 (6) (581 SE2d 263) (2003) (jury authorized to find “getaway” driver was a party to the charged offenses). Accordingly, the trial court did not err in denying Demps’ motion for new trial.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

       Demps was first tried and convicted on these charges, as well as aggravated assault, in 2009. However, in May 2010, the trial court granted Demps a new trial on the ground that he had received ineffective assistance of counsel. Following the second jury’s conviction, the trial court ultimately sentenced Demps to a total of 15 years, with 10 years to be served in confinement.

       We note at the outset that Demps’ brief fails — in several respects — to comply with the rules of this Court, which require “a succinct and accurate statement of the proceedings below and the material facts relevant to the appeal and the citation of such parts of the record or transcript essential to a consideration of the errors complained of, and a statement of the method by which each enumeration of error was preserved for consideration.” Court of Appeals Rule 25 (a) (1). We remind counsel that our requirements for appellate briefs “were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court.” (Citation and punctuation omitted.) Biggins v. State, 322 Ga. App. 286, 287-88 (1) (744 SE2d 811) (2013). “Further, this Court will not cull the record in search of error on behalf of a party. Accordingly, if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel.” (Citation omitted.) Id. at 288.

       Walker was indicted with Demps but entered a guilty plea on all charges on the eve of the first trial.

       In exchange for Demps’ guilty plea to one count of criminal use of a firearm with an altered serial number, the State dismissed all remaining charges in that case.

       Because this case was tried in December 2012, Georgia’s former Evidence Code applies here. Under the new Evidence Code, the admissibility of this type of evidence is governed by OCGA § 24-4-404 (b).

       At a hearing on the matter, the State sought to admit the similar transaction evidence primarily for the purposes of showing course of conduct and bent of mind but also suggested the 2005 robbery was sufficiently similar to the facts of this case to permit its admission for purposes of identification as well.

        See Jennings v. State, 277 Ga. App. 159, 162 (3) (626 SE2d 155) (2006) (defendant waived similar transaction evidence objection where the only issue preserved in the record was his claim that the State failed to produce sufficient evidence that he was the man who committed the prior crime).

       We also note that the trial court gave appropriate limiting instructions, explaining that the jury could only consider the evidence for the three limited purposes stated and that it was up to the jury to determine whether the evidence proved any of those purposes at all.

       OCGA § 17-8-58 (b) provides:
      Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code Section.

       We also note that the jury did not convict Demps of aggravated assault.

       Former OCGA § 24-4-6 has been carried forward into the new Evidence Code at OCGA § 24-14-6.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A16A0473.
    GRAHAM v. THE STATE.
    (788 SE2d 555)
   Boggs, Judge.

A j ury found Joe Alan Graham guilty of theft by taking. Following the denial of his amended motion for new trial, Graham appeals, challenging the sufficiency of the evidence, the admission of similar acts, and asserting that his trial counsel was ineffective. We discern no error and affirm.

1. Graham first challenges the sufficiency of the evidence. When we review the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence showed that the victim searched Craigslist to find a cabinet maker to replace her kitchen cabinets. She saw Graham’s advertisement as a “semi-retired cabinet maker” and made contact with him. Graham presented the victim with some cabinet samples, and the victim contacted the references provided by Graham and also verified the lumber company Graham used to build cabinets. The victim was “still uncomfortable” about “proceeding] forward” and requested to visit Graham’s workshop. The victim and her friend visited the workshop and Graham showed them “work in progress for his other clients.”

Graham and the victim agreed to a payment of three installments for the cabinets: “The first installment for down payment [Graham] said to obtain the material. The second install was for when he’s finished the box, the boxes. And the third and final installment at installation.” The contract, signed by the parties on September 29, 2011, listed a total price of $7,000, and a delivery date within “4 to 5 weeks.” The agreement provided that Graham would build 36-inch lower cabinets and 32-inch upper cabinets. The victim gave Graham a $2,800 down payment for the cabinets, Graham came to her home to measure, and they agreed that Graham would build 32-inch cabinets.

On October 14, Graham sent the victim draft drawings of the cabinets by e-mail. After some “back and forth because [she] had questions about some of the layout,” Graham asked the victim to confirm measurements, but the victim told him to “come back and redo the measurement himself.” Graham e-mailed the victim pictures of “the boxes” as proof of him having completed them and asked for the second installment payment. Graham told her there was a six-inch “discrepancy between what he had written on the contract versus my full length of the cabinet,” and that he needed additional materials. He and the victim “went back and forth,” but she ultimately agreed to pay him an additional $350 at installation because she felt partly responsible for the discrepancy in the measurements. On November 1, the victim paid Graham the second $2,800 installment.

On November 10, Graham called the victim and told her that he “talked to the manufacturer and they’re willing to discount the doors to me and I can give it to you for $150. But I will need to give them a deposit today so you need to send me the money ... he told me that if I wire it to him, I can go to MoneyGra[ ]m Wal-Mart and wire it to him.” The victim sent Graham the money requested.

Graham and the victim exchanged several e-mails and phone calls concerning the cabinets. After November 11, however, “he stopped responding” and the victim did not receive any communication from Graham until November 23, when she received a handwritten letter from Graham informing her that he would be unable to work on the cabinets until January But in December, Graham informed the victim that he was “now available to resume [her] job,” but needed more money because the price of materials had increased in the interim. The victim refused to pay Graham any additional money to build the cabinets and he again stopped communicating. On January 12, 2012, Graham e-mailed the victim a “proposal to finish [her] kitchen.” He was “proposing to deduct his expenses for the extra work that he’s done and leave me a balance of $1,420 which I can feel free to apply towards another kitchen.” The victim and Graham exchanged several e-mails about how he arrived at this amount, and they scheduled a meeting to discuss the matter further, but Graham cancelled.

On February 22, Graham e-mailed the victim that he would complete the cabinets “as soon as possible when he’s feeling better.” The two scheduled another meeting for February 26, but Graham cancelled again. The two finally met on March 12 and Graham told the victim that it would cost an additional $7,200 to complete her kitchen because he had to take apart the first set of boxes he built for her. When the victim refused to pay Graham another $7,200, which was nearly double the price they had agreed upon initially, Graham invited her to “visit the magistrate court down the street from his house and file [her] civil case against him.” As of the date of trial, the victim did not receive the cabinets, was never “able in person to see any constructed cabinets for [her] home,” and had not received any money back from Graham.

Graham testified in his own defense that he did not begin working on the construction of the boxes until October 2011 or “two to three weeks from the initial signing of the contract” because he had a difficult time getting the victim to approve the drawings and needed an additional measurement. He claimed that after he had already built the boxes for the upper cabinets, the victim “changed her mind on the original size she wanted” and wanted larger cabinets. Graham explained that after several e-mails and calls concerning the changes the victim requested, they met and he told her that he would have to charge her extra for the rebuild of the cabinets. He claimed that he took apart the boxes he had constructed at the victim’s request because she “changed the whole kitchen at that point. She wanted it all rearranged differently.” Graham denied telling the victim that the cost would be an extra $7,200, but explained that he told her “the difference was only $4,400.” He testified that after the victim refused to negotiate any further, she filed a civil suit and was awarded the amount “she had paid [Graham] which was like $5,600.” Graham did not respond on cross-examination when he was asked, “when did you offer to give her the wood and the materials?” He asserted that he did not owe the victim any money because he “did what [he] told her [he] would do and that she signed a contract for.”

The State also presented two similar act witnesses who testified that they also located Graham on Craigslist and hired him to make cabinets. Both witnesses testified that they paid Graham money but never received completed cabinets nor a refund of their money

Graham testified that with regard to the first similar act witness, his work to complete the cabinets was delayed because the witness’ husband was ill. He stated further that he had offered to “bring the base cabinets out and set them.” And with regard to the second similar act witness, Graham asserted that this witness “breached the contract. I do owe him money I owe him back 500 and some dollars.” He testified that he did not “plan to take any money away from these people without doing the work,” and “never intended to defraud them.”

Graham argues that the facts show merely “a civil matter” and that there was “no criminal intent by [him] to take [the victim’s] money and not make the cabinets she had ordered.” OCGA § 16-8-2 provides that “[a] person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” The evidence presented here showed that Graham accepted money from the victim for the purpose of constructing cabinets, did not complete the cabinets or provide the victim with what had been completed, and failed to return any money to the victim. “Under these circumstances, the jury was authorized to infer that [Graham] acted with fraudulent intent and to find him guilty of theft by taking.” (Citations omitted.) Bearden v. State, 316 Ga. App. 721, 724 (1) (728 SE2d 874) (2012) (evidence sufficient to support theft by taking when defendant received money to construct modular homes but shortly thereafter abandoned the projects and failed to return funds to victims); see also Smith v. State, 265 Ga. App. 57, 59 (1) (592 SE2d 871) (2004) (evidence sufficient to support charge of theft by taking when defendant abandoned project and failed to return the unearned portion of down payment after promising to do so).

2. Graham argues that the trial court erred in admitting evidence of the two similar acts. The State sought to admit the evidence pursuant to OCGA § 24-4-404 (b) to show Graham’s intent, knowledge, and plan, and the trial court allowed the similar acts for these purposes. The court determined that the similar acts were “relevant to an issue other than the defendant’s character,” the probative value was “not substantially outweighed by the undue prejudice that the evidence might elicit,” and there was “sufficient proof for a jury to establish or find that the defendant was the person that committed the independent or other acts.”

OCGA § 24-4-404 (b) provides:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

And

[i]n determining the admissibility of “other acts” evidence, this Court has adopted the Eleventh Circuit’s three-part test for admissibility under Federal Rule of Evidence 404 (b) which requires that the admitting court find (1) the evidence is relevant to an issue in the case other than the defendant’s character, (2) the probative value is not substantially outweighed by undue prejudice, and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the prior act. When weighing the probative value of other acts evidence against its prejudicial effect, Georgia courts apply the balancing test set forth in OCGA § 24-4-403, [] which similarly tracks its federal counterpart.

(Citations omitted.) Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642) (2016). On appeal, we review the trial court’s ruling admitting evidence pursuant to OCGA § 24-4-404 (b)

for a clear abuse of discretion, a review requiring the appellate court to make a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.

(Citation and punctuation omitted.) Id.

Graham argues that the other two acts were more prejudicial than probative because the circumstances of those acts were different. He argues that the first witness “was unhappy with the quality of the work and wanted her money back,” while the second witness “was unhappy with the time it was taking for Graham to complete the work and [wanted] to cancel his contract because of some missed appointments.”

Without question, “intent was put in issue by [Graham] entering a plea of not guilty.” Olds v. State, 299 Ga. 65, 72 (2) (786 SE2d 633) (2016). And, as Graham concedes, “the issue of intent was very important to [his] defense.” Graham’s counsel argued at trial that Graham had no intent to deprive the victim of her property Evidence of these other acts, which involved the same sort of intent as required to prove the theft here and had a tendency to prove such intent, was relevant and satisfied the first requirement for admission. See id. at 71, 75-76 (2). Moreover, the evidence had a “greater . . . tendency to make the existence of” Graham’s intent more probable. See id. at 75. Contrary to his argument on appeal, the year-and-a-half span in which the similar acts and charged act occurred, see Brannon, supra, 298 Ga. at 606 (4) (assessment of circumstances includes temporal remoteness), and “the similarity between the crimes and the facts relating thereto make the former act[s] highly probative of [Graham’s] intent.” (Citation and punctuation omitted.) McCoy v. State, 332 Ga. App. 626, 629 (774 SE2d 179) (2015).

In light of the quality of this evidence and the strength of its logical connection to establishing Graham’s intent, we are satisfied that the trial court did not abuse its discretion in determining that the probative value of the similar acts was not outweighed by their prejudicial effect. See Olds, supra at 75-76. Finally, we hold that the third element is satisfied because the testimony of the similar act witnesses and the testimony of Graham was sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the prior acts.

For these reasons, we hold that the trial court did not abuse its discretion in allowing the admission of these similar acts.

3. Graham argues that his trial counsel was ineffective in failing to investigate or present at trial other witnesses, whose names Graham provided, to show that he “was a legitimate cabinet maker.”

To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was professionally deficient and that but for such deficient performance there is a reasonable probability that the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 685, 695 (104 SCt 2052, 80 LE2d 674) (1984)[.j To prove deficient performance, one must show that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. If the defendant fails to satisfy either the “deficient performance” or the “prejudice” prong of the Strickland test, this Court is not required to examine the other.

(Citations and punctuation omitted.) Franklin v. State, 298 Ga. 636, 638 (2) (784 SE2d 359) (2016).

At the motion for new trial hearing, Graham explained that he had given trial counsel the names of other customers who would have testified that he had satisfactorily completed their cabinets. But Graham

did not proffer any uncalled witness to testify at the hearing or otherwise proffer a legally recognized substitute for such testimony. In the absence of such evidence, appellant cannot prevail on the prejudice prong of his ineffective assistance claim, and we need not reach the deficiency prong.

Decided June 29, 2016.

Angela B. Dillon, for appellant.

Daniel J. Porter, District Attorney, Courtney R. Spicer, Assistant District Attorney, for appellee.

(Citations omitted.) Barge v. State, 294 Ga. 567, 569 (2) (755 SE2d 166) (2014); see Curtis v. State, 330 Ga. App. 839, 842 (1) (b) (769 SE2d 580) (2015) (where “ ‘the defendant fails to proffer the testimony of an uncalled witness, he cannot prove that there is a reasonable probability that the trial would have ended differently.’ [Cits.]”). The trial court therefore did not err in denying Graham’s motion for new trial on the basis of ineffective assistance of counsel.

Judgment affirmed.

Barnes, P. J., and Rickman, J., concur.

       This Code section provides: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

       Because the similar act evidence was admissible to prove intent “we need not determine whether it was also admissible to show [knowledge] and plan.” Anthony v. State, 298 Ga. 827, 832 (4) n. 3 (785 SE2d 277) (2016).


author: McFADDEN, Judge. McMlLLIAN, Judge,

text:
    A16A0122, A16A0277.
    SUMMERS v. WASDIN et al. (two cases).
    (788 SE2d 573)
   McFADDEN, Judge.

In these related appeals, we granted interlocutory review of two orders arising from the plaintiff’s contention that the defendants were in default. As detailed below, the trial court correctly held that the defendants timely filed their answer. Accordingly, they were not in default. We therefore vacate the trial court’s order permitting the defendants to open default in Case No. A16A0122, and we affirm the trial court’s order denying the plaintiff’s motion for entry of default judgment in Case No. A16A0277.

1. Facts and procedural history.

On June 2, 2014, the plaintiff filed a complaint seeking injunc-tive and other relief in connection with a dispute over the irrigation of farm land that was the subject of an agreement between the parties. The plaintiff also requested a temporary restraining order (TRO). On June 17, 2014, the trial court entered a temporary consent order on issues raised in the TRO request, and on that same day the defendants’ attorney signed an acknowledgment of service of the complaint, which the plaintiff filed with the trial court on June 25, 2014. On July 23, 2014, the defendants filed their answer. Thereafter, the plaintiff moved for partial summary judgment, which the trial court denied on October 17, 2014.

After the trial court denied the plaintiff’s motion for partial summary judgment, the plaintiff moved the trial court to strike the defendants’ answer and to enter a default judgment, arguing that the answer had been untimely The defendants opposed this motion, arguing that their answer had been timely, and they filed a separate “Motion for Leave to Open Potential Default” reiterating the timeliness of their answer but asking that, if the trial court found them in default, he permit them to open the default.

The trial court entered separate orders on these motions. He denied the plaintiff’s motion to strike the answer and to enter a default judgment, holding that the answer was timely because it was filed 29 days after the filing of the acknowledgment of service with the court. He granted the defendants’ “Motion for Leave to Open Potential Default,” noting that the motion was premised on the plaintiff’s allegation that the answer was untimely, finding that OCGA § 9-11-55 permitted the opening of a default, and requiring the defendants to pay court costs by a specified date or the answer “shall stand dismissed.” The defendants then timely paid court costs.

2. Motion to strike answer and enter default judgment (Case No. A16A0277).

(a) The plaintiff contends that the defendants’ answer was untimely and consequently that the trial court erred in denying his motion to enter a default judgment. That answer, however, was timely.

“A defendant shall serve his answer within 30 days after the service of the summons and complaint upon him, unless otherwise provided by statute. . . OCGA § 9-11-12 (a) (emphasis supplied). Where the person serving the process files proof of service with the court more than five business days after the service date, OCGA § 9-11-4 (h) provides that “the time for the party served to answer the process shall not begin to run until such proof of service is filed. . . Proof of service includes “[t]he written admission or acknowledgment of service by the defendant.” OCGA § 9-11-4 (h) (4). In this case, although the defendants’ written acknowledgment of service was dated June 17, 2014, it was not filed with the trial court until June 26, 2014, more than five business days later. Accordingly, viewing the defendants’ acknowledgment of service as the proof of service in this case, OCGA § 9-11-4 (h) provides that the time for the defendants to answer began to run on June 26, 2014, making their July 23, 2014 answer timely (Our decision in Berklite v. Bill Heard Chevrolet Co., 239 Ga. App. 791, 791-792 (1) (522 SE2d 246) (1999), holding that the date of execution of an acknowledgment, and not the date of its filing, triggered the defendant’s 30-day period for filing an answer, is inapposite; it construed an earlier version of OCGA § 9-11-4 that did not contain the provision governing instances where proof of service was filed more than five business days after the service date. Compare OCGA § 9-11-4 (h) with former OCGA § 9-11-4 (g) (1999).)

(b) The plaintiff argues, however, that we should not view the defendants’ acknowledgment of service as the proof of service in this case. Instead, the plaintiff argues that the defendants made general appearances in the case that waived their right to service and triggered the running of the 30-day period before June 26, 2014. See Roberts v. Bienert, 183 Ga. App. 751, 753 (2) (360 SE2d 25) (1987) (appearance and pleading in writing to the merits will waive service, if want of service is not pleaded at the same time). The plaintiff points to the defendants’ alleged participation in a June 3, 2014 hearing on the plaintiff’s request for a temporary restraining order and to the resulting June 17, 2014 temporary consent order. We are not persuaded.

First, as to the June 3, 2014 hearing, the appellate record does not support the plaintiff’s assertion that the defendants made a general appearance at a hearing on that date. “An appearance signifies an overt act by which a person against whom suit has commenced submits himself to the jurisdiction of the court,” Dyer v. Surratt, 266 Ga. 220, 222 (4) (466 SE2d 584) (1996) (citation and punctuation omitted), but if the person excepts to the service or raises the defense of lack of jurisdiction, no waiver of service is effected. Roberts, 183 Ga. App. at 753 (2). We cannot tell from the record in this case whether, at the June 3 hearing, the defendants acted in a way that constituted a submission to the trial court’s jurisdiction, on the one hand, or took exception to the service or the trial court’s jurisdiction, on the other hand. The record contains no transcript of a hearing or other evidence addressing this issue. Referring to the hearing in prefatory language in the temporary consent order, the trial court states merely that the “matter ha[d] been scheduled for an emergency hearing” and that “the parties ha[d] engaged in settlement negotiations and resolved all matters to be addressed at the hearing on a temporary basis without presenting evidence or argument[.]” (Emphasis supplied.) In the absence of evidence showing that the defendants had, in fact, made a general appearance before the trial court at that time, we must assume that what occurred before the trial court supported the trial court’s ultimate determination. See Griffin v. Travelers Ins. Co., 230 Ga. App. 665, 666 (497 SE2d 257) (1998) (appellant has burden of showing error by the record and where record does not include proof necessary to determine issues on appeal, appellate court must assume judgment below was correct).

Second, as to the defendants’ consent to the temporary consent order on issues raised by the TRO request, it is true that pleading in writing to the merits of a case can waive service. Roberts, 183 Ga. App. at 753 (2). For purposes of our analysis we will assume without deciding that a defendant’s consent to a temporary order resolving issues raised in a TRO request is such a pleading to the merits and can constitute a waiver of service.

Having made that assumption, we are faced with an unusual circumstance: two different waivers of service by the defendants — one implied, in the form of the consent to the temporary order, the other express, in the form of the written acknowledgment of service — that occurred on the same day but that gave rise to different deadlines for answering the complaint. See generally Jones v. Jones, 209 Ga. 861, 865 (1) (76 SE2d 801) (1953) (acknowledgment constitutes waiver of service). The plaintiff accepted the defendants’ acknowledgment of service, and when the defendants filed their answer based on the time period triggered by that express waiver, the plaintiff did not at that time challenge the timeliness of the answer or contend that the defendants were in default; instead the plaintiff filed a motion for partial summary judgment, an action that could be viewed as a waiver of the plaintiff’s right to a default judgment. See generally Laviano v. Travelers Ins. Co., 276 Ga. App. 611, 613 (624 SE2d 189) (2005) (plaintiff may waive statutory right to judgment following default by proceeding with action without taking advantage of his right to judgment in timely and proper manner). Only after the trial court ruled against him on that motion did the plaintiff seek to hold the defendants in default. Pretermitting whether an implied waiver of service could ever trump an express waiver of service, under the circumstances of this case and in light of Georgia’s policy favoring decisions on the merits of cases over default judgments, see Pleats, Inc. v. OMSA, Inc., 211 Ga. App. 643, 644 (1) (440 SE2d 214) (1993), we view the express waiver of service rather than the implied waiver of service to have triggered the 30-day answer period, making the defendants’ answer timely under OCGA § 9-11-4 (h).

3. “Motion for Leave to Open Potential Default ”(Case No. A16A0122).

The plaintiff argues that the trial court erred in granting the defendants’ “Motion for Leave to Open Potential Default.” In that motion, the defendants argued that, if they were in default, they should be permitted to open the default. Because the defendants were not in default, the motion was moot. See Richards v. Wells Fargo Bank, 325 Ga. App. 722, 726 (5) (b) (754 SE2d 770) (2014) (“Amotion is moot when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy”) (citation and punctuation omitted). So it was due to be denied as moot. Cf. Baez v. Miller, 266 Ga. 211 (465 SE2d 671) (1996) (affirming trial court’s order denying as moot appellant’s request for mandamus where appellee had performed duty that appellant sought to compel). We hereby vacate the trial court’s ruling on this motion and remand this case for entry of a judgment not inconsistent with our opinion.

Decided June 30, 2016.

L. Andrew Smith, for appellant.

Keith F. Allen, for appellees.

Judgment affirmed in Case No. A16A0277. Judgment vacated and case remanded with direction in Case No. Al 6A0122. Miller, P. J., concurs.

McMillian, J., concurs fully in Divisions 1, 2 (a), and 3 and in judgment only as to Division 2 (b).

McMlLLIAN, Judge,

concurring specially

I concur fully in Divisions 1, 2 (a), and 3 of the majority’s opinion. I concur in judgment only as to Division 2 (b) because I do not agree with all that is said in that division of the majority opinion. Thus, the majority’s opinion in Division 2 (b) decides only the issues presented in that division and may not be cited as binding precedent in future cases. See Court of Appeals Rule 33 (a).


author: McFADDEN, Judge.

text:
    A16A0249.
    HANTZ v. THE STATE.
    (788 SE2d 567)
   McFADDEN, Judge.

Lisa Hantz was convicted of driving under the influence of alcohol to the extent she was a less safe driver (“DUI”) and speeding. She appeals, claiming that her trial counsel was ineffective in failing to file a plea in bar. Because a single written judgment of conviction covers both her conviction for DUI and her plea to speeding, there was no basis for a plea in bar. The failure to file such a meritless plea does not constitute ineffective assistance of counsel. Accordingly, we affirm.

Construed in favor of the verdict, see Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence showedthat at approximately 4:00 a.m., on December 28, 2014, a state patrol trooper saw Hantz driving her car on Interstate 75 in heavy rain at a speed of 90 miles per hour in a 65-miles-per-hour zone and veering into other lanes of traffic. The trooper stopped the vehicle and, upon approaching it, smelled alcohol on Hantz’s breath, saw that her eyes were bloodshot and watery, and observed that she was slow of speech. Based on Hantz’s admission that she had consumed an alcoholic beverage, her performance on field sobriety tests, and a roadside breath sample indicating the presence of alcohol, the trooper arrested Hantz for DUI. After the trooper read the implied consent notice to Hantz, she refused to submit to a state-administered breath test. The trooper issued citations to Hantz for DUI and speeding.

Thereafter, the state charged Hantz by accusation with the offenses of DUI and speeding. Hantz, with the assistance of counsel, pled not guilty to the charges and requested a jury trial. The case was called for trial on the morning of April 22, 2015. Immediately prior to selecting a jury, Hantz and the state informed the court that she was going to enter a negotiated guilty plea to the speeding offense and proceed to trial only on the DUI charge. The court then held the plea hearing, accepted Hantz’s oral guilty plea to the speeding charge, and orally announced that it would follow the state’s sentencing recommendation of 12 months probation and a $250 fine. At that time, however, Hantz did not sign or tender a written guilty plea to speeding and the trial court did not enter a final written judgment of conviction and sentence on the speeding charge. Rather, immediately after the plea colloquy, the parties proceeded with the jury selection for the DUI trial. Once the jury was selected, the case stood in recess until the following morning.

The next day, April 23, 2015, the DUI charge was tried before the jury, which found Hantz guilty of the charge. Immediately after receiving the verdict and discharging the jury, the court held the sentencing hearing. At the conclusion of the hearing, the court orally announced a 12-month probated sentence for the DUI offense and stated that such sentence would run consecutive to the 12-month sentence for the speeding offense to which Hantz had pled guilty Thereafter, on the same day, Hantz signed her written guilty plea to speeding, that written plea was filed in open court, and the trial court issued a single written order entering the judgments of conviction and sentences for the DUI and speeding offenses.

Hantz’s trial attorney filed a motion for new trial, challenging the sufficiency of the evidence and an evidentiary ruling. The trial court denied the motion, and trial counsel filed a notice of appeal. Trial counsel subsequently withdrew from the case, and new appellate counsel was appointed.

On appeal, Hantz claims that her trial counsel was ineffective in failing to file a plea in bar to prohibit the state from prosecuting the DUI charge after she had pled guilty to the speeding offense. This appeal is the earliest practicable opportunity for Hantz to have raised this claim of ineffectiveness of trial counsel since new appellate counsel was not appointed to represent her until after trial counsel had filed a notice of appeal from the denial of the motion for new trial. Russell v. State, 267 Ga. 865, 867 (4) (485 SE2d 717) (1997) (where appellate counsel was not appointed until after filing of notice of appeal, ineffectiveness of trial counsel claim made for first time on appeal was presented at earliest practicable moment).

Generally, when the appeal presents the earliest practicable opportunity to raise an ineffectiveness claim, and the claim is indeed raised for the first time on appeal, our appellate courts remand the case to the trial court for an evidentiary hearing on the issue. . . . Remand is not mandated[, however,] if we can determine from the record that the defendant cannot establish ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U. S. 668 (104 [SCt] 2052, 80 LE2d 674) (1984). Under Strickland, a defendant must show that trial counsel’s performance was professionally deficient, and but for counsel’s unprofessional errors, there exists a reasonable probability that the outcome of the proceeding would have been more favorable.

Ruiz v. State, 286 Ga. 146, 149 (2) (b) (686 SE2d 253) (2009) (citations and punctuation omitted).

In the instant case, we need not remand the case to the trial court for an evidentiary hearing because we can determine from the record that Hantz cannot establish ineffective assistance of counsel. In support of her ineffectiveness claim, Hantz relies on OCGA §§ 16-1-7 (b) and 16-1-8 (b) (1), arguing that OCGA § 16-1-7 (b) requires all crimes arising from the same course of conduct to be prosecuted in a single prosecution and that under OCGA § 16-1-8 (b) (1) a second prosecution is barred if it is for a crime that should been brought during the first prosecution. Thus, Hantz reasons, because she first pled guilty to the speeding offense, the subsequent prosecution for the DUI charge was barred because that charge should have been prosecuted with the speeding charge in a single prosecution. The claim is without merit.

OCGA § 16-1-8 (b) (1) provides, in pertinent part, that a

prosecution is barred if the accused was formerly prosecuted for a different crime . . . [and] such former prosecution . . . [rjesulted in either a conviction or an acquittal and the subsequent prosecution ... is for a crime with which the accused should have been charged on the former prosecution[.]

(Emphasis supplied.) In this case, contrary to Hantz’s argument, her guilty plea to speeding prior to the DUI trial did not result in a conviction.

As expressly defined in the criminal [c]ode, a “conviction” includes a final judgment of conviction entered upon a verdict or finding of guilty of a crime or upon a plea of guilty. OCGA § 16-1-3 (4). . . . [Thus, a “cjonviction” is not the verdict [or guilty plea]; it is the judgment [entered] on the verdict or guilty plea.

Dorsey v. State, 259 Ga. App. 254, 256 (576 SE2d 637) (2003) (citations and punctuation omitted).

Here, the trial court did not enter a final judgment of conviction on Hantz’s oral guilty plea at the plea hearing. Rather, the judge simply announced that he would accept the plea and would impose the 12-month probated sentence recommended by the state. “An oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is. This is because what the judge orally declares is no judgment until it has been put in writing and entered as such.” Allen v. State, 333 Ga. App. 853, 854 (1) (777 SE2d 699) (2015) (citations and punctuation omitted). See also OCGA § 5-6-31 (the filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment). Thus, “the criminal proceedings against [Hantz] were still pending in the trial court until such time as [her] sentence was entered in writing and became final.” Young v. State, 328 Ga. App. 91, 92 (761 SE2d 504) (2014) (citation and punctuation omitted).

As recounted above, the trial judge did not enter the final written judgment of conviction and sentence on the guilty plea to speeding until after the DUI trial, at the same time and on the same order form as the judgment and sentence entered for the DUI offense. “Consequently, the appellant has not been subjected to any former prosecution within the meaning of OCGA §§ 16-1-7 (b) and 16-1-8 (b). It follows that the trial court [would not have erred] in denying [a] plea in bar.” Collins v. State, 177 Ga. App. 758, 758-759 (1) (341 SE2d 288) (1986) (punctuation omitted). Trial counsel’s failure “to file a merit-less motion does not amount to ineffective assistance. Thus, [Hantz] has not shown that [her] attorney ... performed deficiently by failing to file a [meritless] plea in bar prior to the [DUI] trial.” Riddick v. State, 320 Ga. App. 500, 504 (4) (a) (740 SE2d 244) (2013) (citation omitted).

Decided June 30, 2016.

Lister & Holt, H. Christopher Jackson, for appellant.

John A. Pipkin III, Solicitor-General, William B. Kennedy III, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Miller, P J., and McMillian, J., concur.

       Hantz’s motion to substitute counsel is granted.


author: Peterson, Judge.

text:
    A16A0464.
    CITY HEIGHTS CONDOMINIUM ASSOCIATION, INC. v. BOMBARA et al.
    (788 SE2d 563)
   Peterson, Judge.

Following a bench trial, City Heights Condominium Association, Inc. (“City Heights”) appeals from the trial court’s dismissal of its counterclaim in which it sought to collect on an assessment of litigation fees and costs against former association members, John and Laura Bombara (the “Bombaras”), who had unsuccessfully sued the association. City Heights argues the trial court erred in a variety of ways. But we do not reach City Heights’ arguments, because they all rest on the faulty premise that City Heights had the legal and contractual right to assess the litigation costs against the Bombaras. Because City Heights did not have this right, we affirm the trial court’s dismissal of the counterclaim.

In nonjury trials, “[findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” OCGA § 9-11-52 (a). “The ‘clearly erroneous’ test is the ‘any evidence’ rule. If there is any evidence to support the findings of fact by a trial court sitting without a jury, then the appellate court affirms without interference with or disturbing such factfindings. We construe the evidence in favor of the judgment.” Claxton Enter. v. Evans Cty. Bd. of Comm’rs, 249 Ga. App. 870, 870 (549 SE2d 830) (2001) (citation omitted). Viewed in this light, the record reveals the following:

The Bombaras owned a unit that was part of City Heights. Like the other unit owners, they entered into a contract with City Heights that outlined their rights and responsibilities (“the declaration”). The declaration empowered City Heights to assess the unit owners for common expenses. Although the default form of assessment was to assess all owners in accordance with the unit’s interest in the community’s common property areas, when common expenses were “occasioned by the conduct of less than all” the unit owners, the declaration empowered City Heights to assess those expenses against only the units responsible.

Prior to the events that sparked this litigation, Laura Bombara’s relationship with City Heights was sufficiently rocky that the president of the association kept a binder of all of the association’s dealings with her. In October 2012, in the context of that troubled relationship, the Bombaras — through counsel — began alleging that their unit had mold. City Heights had the Bombaras’ unit tested for mold, and concluded that their allegations were meritless. City Heights’ counsel wrote the Bombaras’ counsel informing him that, if the Bombaras sued, City Heights would rely on the declaration’s special assessment provision to assess against the Bombaras any expenses incurred in the defense of the lawsuit.

In December 2012, the Bombaras sued City Heights and its property management company for claims associated with alleged mold contamination in their condominium and common area of the unit. City Heights counterclaimed for the costs of defending itself and the property management company in the litigation under the special assessment provision of the declaration. The trial court granted summary judgment to City Heights and the property management company on their defense of the claims brought by the Bombaras. We upheld the trial court’s grant of summary judgment in an unpublished opinion, and remanded the case for resolution of City Heights’ counterclaim. Bombara v. Heritage Prop. Mgmt. Svcs., Inc., 331 Ga. App. XXV (Case No. A14A1503) (March 30, 2015).

City Heights then filed a motion for attorneys’ fees under OCGA § 9-15-14. The trial court granted City Heights attorneys’ fees under OCGA § 9-15-14 with respect to one of the Bombaras’ claims (on which, the court said, they failed to present any competent evidence), but denied the motion as to the other claims, noting evidence in the record regarding mold issues.

Following City Heights’ presentation of evidence in support of its counterclaim, which included testimony from its lawyer regarding the total amount of litigation fees and costs due for the special assessment, the Bombaras moved for dismissal under OCGA § 9-11-41 (b) on the basis that City Heights had not shown any right to relief. In particular, the Bombaras argued City Heights’ position meant the association would be able to assess defense costs whether it wins or loses, which the Bombaras’ counsel called “a very, very strange result.” The trial court reserved judgment on the motion, and after hearing the Bombaras’ evidence, granted the dismissal on several grounds, including that the plain language of the declaration and OCGA § 44-3-80(b)(2) did not authorize the trial court “to issue judgment for unassessed attorney’s fees and costs under these circumstances.” This appeal followed.

1. City Heights argues the trial court erred in a number of ways in dismissing its counterclaim for an assessment of defense costs. However, each argument advanced by City Heights in support of its appeal assumes that, in this case, an assessment for defense costs is proper in the first instance. We find that it is not and affirm the dismissal of City Heights’ counterclaim.

City Heights argues that it should be able to collect its defense costs as a special assessment because the declaration provides that it may specially assess “[a]ny Common Expense occasioned by the conduct of less than all of those entitled to occupy all of the Units[.]” The declaration defines a “Common Expense” as “the expenses incurred or anticipated to be incurred by the Association for the general benefit of the Condominium, including, but not limited to, those expenses incurred for maintaining, repairing, replacing, and operating the Common Elements and as required under the Reciprocal Easement Agreement.”

OCGA § 44-3-80(b)(2) allows for “[a]ny other common expenses occasioned by the conduct of less than all of those entitled to occupy all of the units or by the licensees or invitees of any such unit or units” to be specially assessed “against the condominium unit or units, the conduct of any occupant, licensee, or invitee of which occasioned any such common expenses” to the extent provided in the condominium instruments. See OCGA § 44-3-80(b)(2). City Heights argues that it should be able to specially assess the defense costs incurred in defending the Bombaras’ lawsuit under the provision of the declaration that parallels this statute, and cites as authority our decision in Pew v. One Buckhead Loop Condo. Ass’n, Inc., 305 Ga. App. 456 (700 SE2d 831) (2010). In Pew, we held that the statute allowed an award of attorneys’fees as a special assessment. 305 Ga. App. at 462 (2). But in Pew, the condo association incurred attorneys’ fees as a result of having to obtain and enforce a protective order against the condo’s occupant for stalking the association’s property manager and president. 305 Ga. App. at 457. There, the stalking was the conduct that occasioned the expenses; the association’s decision to seek a protective order necessarily resulted from the occupant’s dangerous actions. There is no equivalent conduct here; rather, the conduct City Heights points to as triggering its authority to impose the assessment is the Bombaras “filing their meritless action” against City Heights. But City Heights has already obtained a judgment under OCGA § 9-15-14 for the money to which it was entitled as a result of having to defend against a claim the trial court determined “lacked substantial justification.” The Bombaras’ remaining claims, while not ultimately successful, were sufficiently justified that the trial court did not penalize the Bombaras for bringing them.

City Heights’ argument that the Bombaras’ lawsuit was conduct that occasioned common expenses misreads both Pew and the declaration. The declaration allows City Heights to recapture costs — in the form of a special assessment — resulting from conduct of less than all of the unit owners. This necessarily means that the conduct of the unit owner against whom the assessment is imposed must be the cause of the common expense, and that no conduct of the association itself or any other owners also caused the expense. This provision in the declaration provides an avenue for the association to recoup the money it had to spend from the party responsible for the incursion of that expense in the first place. But here we cannot say the Bombaras’ lawsuit resulted solely from their conduct without reference also to the conduct of City Heights. The Bombaras’ claims were based on the conduct of City Heights with respect to its response to and management of various mold and moisture issues, and therefore were not occasioned solely by the conduct of the Bombaras. Accordingly, we affirm the trial court’s dismissal of City Heights’ counterclaim.

Decided June 30, 2016.

Lueder, Larkin & Hun ter, John T. Lueder, David C. Boy TV, for appellant.

Julie A. Liberman, for appellees.

2. Because of the result reached in Division 1 above, we need not address City Heights’ remaining enumerations of error.

Judgment affirmed.

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

       City Heights argues the trial court erred in concluding an agreement signed by City Heights and the Bombaras waived City Heights’ right to assess defense costs, a special or specific assessment could only be against a unit and not the owners personally, the assessment never fell due under the parties’ agreement, and that as a result of City Heights removing the fees and costs from the association’s ledger, such amounts were no longer an assessment owed by the Bombaras.

       Black’s Law Dictionary defines conduct as “[pjersonal behavior, whether by action or inaction[.]” Black’s Law Dictionary (8th ed. 2004).

       The implications of City Heights’ argument that it is entitled to collect its entire defense costs because it incurred them as a result of the Bombaras filing suit also gives us pause. Under our legal system, the American rule by which each party is responsible for its own attorneys’ fees and litigation expenses generally applies unless there is some statutory or contractual exception. See Smith v. Baptiste, 287 Ga. 23, 28 (1) (694 SE2d 83) (2010); Williams v. Binion, 227 Ga. App. 893, 893 (1) (490 SE2d 217) (1997). For example, where a party believes that it is entitled to collect attorneys’ fees for having to defend itself against a frivolous suit, OCGA § 9-15-14 can provide a statutory avenue.for recovery. See OCGA § 9-15-14. In effect, City Heights is arguing for something more than even the English rule (whereby the losing party pays the winner’s reasonable legal fees) provides — that is, an ability to recoup legal expenses wherever a condo owner’s conduct in filing suit causes the condo association to incur defense costs. By this reasoning, if the common expenses provision of the declaration were to be interpreted as City Heights argues, then even in a meritorious lawsuit brought by a condo owner, City Heights would still be able to seek its defense costs and theoretically even the amount of a judgment against it from the winning party. But given our holding that the text of the declaration does not allow the assessment at issue here, we need not consider the implications of the principle that City Heights proposes.


text:
    A16A0692.
    HILL v. DAVIS.
    (788 SE2d 570)
   McFADDEN, Judge.

Alonzo Q. Hill appeals from a temporary order of the trial court that held him in contempt. Hill enumerates multiple errors on appeal. As to contempt, Hill’s arguments are without merit. But we vacate the award of attorney fees because the trial court did not specify a statutory basis for the award.

Hill and Chanestia Davis are the parents of a minor child, born out of wedlock in 2005 and legitimated in 2006. Davis had joint legal and primary physical custody of the minor. Hill filed numerous contempt actions against Davis. In June 2012, ruling on one such motion, the trial court ordered the parties to receive joint psychological counseling, and wrote out a schedule for visitation.

In September 2012, after Hill filed another contempt action, the court held Hill in contempt, finding that “[t]he sheer volume of text messages [sent by Hill to Davis] . . . demonstrates to the [c]ourt an excessive compulsion to control every aspect of the child’s life.” The court ordered that Hill send no more than ten text messages to Davis each month.

Hill filed yet another motion for contempt in November 2014, arguing that Davis had failed to adhere to the visitation schedule and failed to attend the counseling mandated in the prior order. Davis filed a counterclaim, asking that Hill be held in contempt for his continuous harassment of Davis in violation of the prior court order. In an order entered on August 25, 2015, the trial court denied Hill’s motion for contempt, but granted Davis’s. He found Hill in contempt and awarded Davis attorney fees. This appeal followed. Although the trial court also granted Davis full legal and full physical custody of the minor, Hill appeals only the trial court’s holding of contempt.

1. Deficiencies in Hill’s brief

As a threshold matter, we address the deficiencies in Hill’s brief, which fails to comply with our rules. Notably, Hill’s brief does not contain proper citations to the specific page numbers of the record or transcript that are essential to consideration of the enumerated errors, nor does he include a concise statement of the applicable standard of review. See Court of Appeals Rule 25 (a) (1), (c) (2) (ii). In the absence of proper record citations, we need not “search for or consider such enumeration.” Court of Appeals Rule 25 (c) (2) (i). “Briefs that do not conform to our rules hinder our ability to determine the basis and substance of an appellant’s appeal. Nonetheless, we will review [Hill’s] claims of error to the extent that we can ascertain his arguments.” Gary v. Dollar Thrifty Auto. Group, 329 Ga. App. 320, n. 1 (763 SE2d 354) (2014) (citation omitted).

2. Refusal to hold Davis in contempt.

In his first enumeration of error, Hill contends that the trial court erred by finding that Davis was not in contempt of the June 2012 order. Hill first argues that Davis had previously been held in contempt of that order. But the record is devoid of any orders holding Davis in contempt. “The party asserting error on appeal has the burden to show it affirmatively by the record.” McClaskey v. Jiffy Lube, 197 Ga. App. 537 (398 SE2d 825) (1990) (citation omitted). “This court is a court for the correction of errors and its decision must be made on the record sent to this court by the clerk of the court below and not upon the briefs of counsel.” Sheffield v. Zilis, 170 Ga. App. 62, 65 (2) (316 SE2d 493) (1984) (citation and punctuation omitted). It therefore must be assumed that the evidence supported the trial court’s finding that Davis had not previously been held in contempt.

Hill also argues that the trial court erred because he made a factual finding that both parties failed to comply with the court order by not attending the joint psychological counseling sessions and by not following the visitation schedule, yet did not find Davis in contempt. Trial courts have “broad discretion to determine if a party is in contempt of its order, and the exercise of that discretion will not be reversed on appeal unless grossly abused.” Baker v. Schrimsher, 291 Ga. 489, 491 (2) (731 SE2d 646) (2012) (citations omitted). Here the trial court did not find that either party’s failure to adhere to the prior court order rose to the level of contempt, and Hill fails to show any abuse of the trial court’s discretion in failing to hold Davis in contempt. See Higdon v. Higdon, 321 Ga. App. 260, 263 (1) (b) (739 SE2d 498) (2013).

3. Hill’s contempt.

Hill argues that the trial court erred by holding him in indirect criminal contempt because the trial court did not witness any disrespectful or contumacious conduct from Hill during the hearing. But whether Hill engaged in conduct that was disrespectful or contumacious is irrelevant to whether he was properly held in indirect criminal contempt. “The procedures that a trial court must follow to hold a person in contempt depend upon whether the acts alleged to constitute the contempt are committed in the court’s presence (direct contempt) or are committed out of the court’s presence (indirect contempt).” Ramirez v. State, 279 Ga. 13,14 (2) (608 SE2d 645) (2005) (citations omitted). Indirect contempt “may involve some form of wilful disrespect toward the court; it may involve intentional disregard for or disobedience of an order or command of the court, or it may involve conduct which interferes with the court’s authority to administer justice.” Dogan v. Dept. of Human Resources, 278 Ga. App. 905, 907 (1) (630 SE2d 140) (2006) (citations and punctuation omitted). Here, the trial court based his decision to hold Hill in indirect criminal contempt on Hill’s failure to adhere to the prior court order by sending hundreds of texts to Davis. Such conduct was an intentional violation of a prior court order, and the trial court was authorized to hold Hill in indirect contempt for these actions.

4. Failure to set out findings of fact.

Hill argues that the trial court erred by failing to set out findings of fact in his order. This contention is without merit. The trial court specifically found that Hill was in violation of a prior court order when he failed to limit his texts to ten per month. That was sufficient. “To hold in contempt, the court must find that there was a wilful disobedience of the court’s decree or judgment.” Beckham v. O’Brien, 176 Ga. App. 518, 522 (336 SE2d 375) (1985) (citations omitted).

5. Hearsay.

Hill argues that hearsay evidence that was excluded at the hearing was used to find that he was in contempt. Hill claims that the testimony of the school’s principal “who stated that [a] teacher told her [Hill] had berated her at school and intimidated her,” was hearsay that the trial court used to find Hill in contempt. At the hearing, the principal testified about an incident that occurred when Hill confronted a teacher after his son was disciplined. At the hearing, Hill did not object to this testimony Assuming without deciding that the testimony was hearsay, there is no evidence that the alleged hearsay evidence cited by Hill was considered by the trial court. The order shows that Hill was found in contempt solely because of his violation of the text message provision of the previous order. This contention is therefore without merit.

Hill also argues that “the court allowed [Hill’s] blog to be admitted into evidence despite the fact that said blog was hearsay.” Once again, the trial court’s contempt holding was based solely on the excessive text messages sent from Hill to Davis, and there is no evidence that the blog was considered by the trial court. This contention is also without merit.

Decided June 30, 2016.

The Mignott Law Group, Marsha W. Mignott, for appellant.

James C. West III, for appellee.

6. Attorney Fees.

Hill contends that the trial court erred by awarding attorney fees. Because the trial court did not specify the statutory basis for the award, we agree. Davis sought the award of attorney fees in her counterclaim without stating a statutory basis for the award, and the trial court’s order states no statutory basis for his award of attorney fees to Davis.

“As a general rule, Georgia law does not provide for the award of attorney fees even to a prevailing party unless authorized by statute or by contract.” Cothran v. Mehosky, 286 Ga. App. 640, 641 (649 SE2d 838) (2007) (citation and punctuation omitted). Since Hill originally brought this action to modify child custody, the trial court was authorized to award attorney fees under OCGA § 19-9-3 (g) or OCGA § 19-6-15 (k) (5). See Viskup v. Viskup, 291 Ga. 103, 106-107 (1) (727 SE2d 97) (2012). And because the record shows multiple statutory bases for the attorney fees award, “it was incumbent upon the trial court to indicate which statute was relied upon in making its award.” Hall v. Hall, 335 Ga. App. 208, 212-213 (2) (780 SE2d 787) (2015).

Georgia appellate courts have repeatedly held: When there is more than one statutory basis for the attorney-fee award and neither the statutory basis for the award nor the findings necessary to support an award is stated in the order and a review of the record does not reveal the basis of the award, the case is remanded for an explanation of the statutory basis for the award and the entry of any findings necessary to support it.

Id. at 211 (2) (citations omitted).

We therefore must vacate the award of attorney fees and remand the case for the trial court to explain the statutory basis for the award and to enter any necessary factual findings.

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

Miller, P. J., concurs. McMillian, J., concurs fully in Divisions 1, 2, 3, 4, 5, and in judgment only in Division 6.


author: Branch, Judge.

text:
    A16A0523.
    JONES v. THE STATE.
    (787 SE2d 330)
   Branch, Judge.

After he failed to return a car he had rented in Tennessee, Randall Jones was apprehended while driving the car in Gordon County and charged with theft by conversion and theft by bringing stolen property into the state. On appeal from his conviction on both of these counts, Jones argues that the verdict is mutually exclusive and therefore contrary to law. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation and emphasis omitted).

Thus viewed in favor of the jury’s verdict, the record shows that on December 5, 2013, Jones rented a 2004 Mazda from Tweety’s Automart in East Ridge, Tennessee. The signed rental agreement provided that Jones could drive the car 800 miles per week and that Jones would return the car by December 9, or four days later. At trial, Jones admitted that he had driven the car to California to see his son, stayed “just a couple of hours,” and returned to the Southeast without meeting his son. On December 9, 2013, however, Jones ran out of gas in Atlanta. Jones spent the night in Atlanta but did not call Tweety’s, which could not reach Jones and reported the car stolen on December 10.

On December 11, a police officer driving on Interstate 75 in Gordon County recognized the car from a police alert for a stolen vehicle and stopped the car. Jones was driving at the time of his arrest, and the car’s odometer showed that it had been driven 5,109 miles, or more than four thousand miles over the authorized amount.

Jones was charged with theft by conversion and theft by bringing stolen property into Georgia. The trial court charged the jury that under OCGA § 16-8-11, both of these crimes “shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.” After a jury found him guilty on both counts, Jones was convicted and sentenced to five years on each count, running concurrently, with two to serve. Jones’s motion for new trial was denied.

On appeal, Jones’s sole assertion of error is that the verdict was mutually exclusive as to the two crimes charged because it was impossible for him to have stolen the car in Tennessee and also to have possessed it lawfully in Georgia before converting it to his own use. We disagree.

As the Supreme Court of Georgia has recently clarified, the “general rule” is that “a guilty verdict cannot be challenged on the ground that the jury’s verdict of guilt on one count of an indictment is inconsistent with an acquittal on another count.” State v. Springer, 297 Ga. 376, 377 (1) (774 SE2d 106) (2015), citing United States v. Powell, 469 U. S. 57, 68-69 (105 SCt 471, 83 LE2d 461) (1984) and Dumas v. State, 266 Ga. 797, 799 (471 SE2d 508) (1996). “Such verdicts are deemed constitutionally tolerable because they may reflect an exercise of lenity by the jury that is not necessarily grounded in its view of the evidence.” Springer, 297 Ga. at 377 (citation and punctuation omitted). A verdict is mutually exclusive only when “[a] jury, in finding the defendant guilty of both counts, necessarily reached two positive findings of fact that cannot logically mutually exist.” Id. at 379 (1) (citation and punctuation omitted). In this case, the two crimes of theft by conversion and theft by bringing stolen property into the state can logically mutually exist.

OCGA § 16-8-4 (a) provides:

A person commits the offense of theft by conversion when, having lawfully obtained funds or other property of another including, but not limited to, leased or rented personal property, under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation. . . .

OCGA § 16-8-4 “is not intended to punish a simple breach of contract”; rather, it is “[t]he presence of fraudulent intent [that] distinguishes theft by conversion from breach of contract.” Tukes v. State, 250 Ga. App. 117, 118 (1) (a) (550 SE2d 678) (2001) (footnote omitted). OCGA § 16-8-9 provides that “[a] person commits the offense of theft by bringing stolen property into this state when he brings into this state any property which he knows or should know has been stolen in another state.”

The State presented evidence that Jones drove the Mazda far in excess of the lease’s specification of maximum mileage well before he arrived in California, let alone before he attempted to return to Tennessee via Georgia. Jones also testified that he drove the car to California in order to see his son there. Although Jones lawfully obtained the car, this jury was entitled to infer fraudulent intent to convert the car from Jones’s setting out for a destination thousands of miles away from Chattanooga even though the rental agreement specified that he drive the car no more than 800 miles. See Williams v. State, 328 Ga. App. 898, 900 (1) (763 SE2d 280) (2014) (defendant’s failure to make monthly payments on or return rented televisions, as required under rental contract, was sufficient to sustain a finding that she was guilty of converting the televisions to her own use); Tukes, 250 Ga. App. at 118-119 (finding evidence of defendant’s retention of cash in violation of a contract sufficient to sustain his conviction for theft by conversion). When Jones later returned to Georgia in the same converted car, the evidence authorized this jury to conclude that he committed the crime of bringing stolen property into the state. See Smith v. State, 256 Ga. App. 22, 22 (567 SE2d 359) (2002) (testimony placing defendant in possession of car in another state minutes after a theft and in possession of the same car in Georgia hours after the theft was sufficient to sustain his conviction for theft by bringing stolen property into the state).

Although Jones’s conversion of the car took place well before he arrived in Georgia, venue was established in Georgia because, as the trial court properly charged the jury, that conversion “shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.” OCGA § 16-8-11. Because Jones was seen exercising control over the car in Gordon County, venue was appropriate in that county Pruitt v. State, 245 Ga. App. 801, 802 (2) (538 SE2d 874) (2000) (venue in prosecution for theft by taking a motor vehicle was proper in Hall County when defendant exercised control over vehicle in that county).

Our determination that evidence of venue in Georgia was sufficient does not mean, however, that the conversion actually happened in Georgia such that Jones must have brought the car into Georgia lawfully. A person’s “guilty knowledge” as to the status of property as stolen in another state “can be established by direct or circumstantial evidence and can be inferred from circumstances which would, in the opinion of the jury, lead a reasonable person to believe that the vehicle was stolen.” Cunningham v. State, 222 Ga. App. 740, 742 (1) (b) (475 SE2d 924) (1996) (citation omitted). Jones himself testified that he drove the Mazda from Chattanooga to California after signing an agreement to drive it no more than 800 miles. This jury could reasonably infer that Jones fraudulently converted the car to his own use well before entering Georgia on his return trip to Chattanooga, and was also authorized to conclude that he knew he had thus converted the car when he entered Georgia, thereby bringing stolen property into the state. Cunningham, 222 Ga. App. at 742 (1).

Decided June 9, 2016

Reconsideration denied July 1, 2016

Bentley C. Adams TV, for appellant.

Rosemary M. Greene, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

In sum, the verdict before us cannot be characterized as mutually exclusive because the two crimes of theft by conversion and bringing stolen property into the state logically mutually exist — that is, the evidence before this jury authorized it to conclude both that Jones converted the car to his own use outside of Georgia and that he then brought the same car into Georgia. We therefore affirm Jones’s conviction.

Judgment affirmed.

Ellington, P. J., and Mercier, J., concur.