text:
    A13A1951.
    SINGLETON v. THE STATE.
    (757 SE2d 211)
   Miller, Judge.

Following a jury trial, Leslie Howard Singleton was convicted of armed robbery (OCGA § 16-8-41 (a) (2000)), two counts of aggravated assault (OCGA § 16-5-21 (a) (1) (2000)), and possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b) (1) (2000)). Singleton appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support his convictions; (2) the trial court erred in admitting hearsay testimony in violation of his confrontation right, and in holding a witness in contempt in the presence of the jury; (3) the delay in hearing his motion for new trial and the trial court’s failure to deem him indigent violated his due process rights; and (4) his trial counsel provided ineffective assistance. For the reasons that follow, we affirm.

Viewed in the light most favorable to Singleton’s conviction and sentence, the evidence shows that early in the morning of July 1, 2000, the victim, who is an investigator with the Fulton County Sheriff’s Department, went to the Windjammer Apartments in Clayton County, Georgia, to execute an arrest warrant. The victim, who was not in uniform, was carrying a black backpack which contained his service weapon — a 40 caliber dock pistol — with extra clips, pepper spray, handcuffs, and a handcuff key. The victim’s gun had the words “Fulton County Sheriff’s Department” stamped on it.

When the victim arrived at the apartment complex, he drove around a couple of times until he located the apartment in question. The victim then backed into the farthest parking space, verified that he had the right apartment building, and exited his vehicle so he could confirm the apartment number. The victim threw his backpack over his shoulder and walked toward the apartments. When the victim reached the end of the corridor where the stairs were located, a young African-American man came up a flight of stairs next to where the victim was standing. The young man was approximately 16 to 19 years old, was about 5'11" tall and weighed around 145 to 155 pounds. The young man wore a bandana mask and a backwards hat, and he came off the stairs with a chrome-plated revolver which he pointed at the victim’s face.

The victim identified himself as a police officer, said he would give the young man whatever he wanted, and then tossed his backpack to the young man. The victim then reached for his wallet, which was in his back pocket, and again said “I’m a police officer.” When the wallet came out of the victim’s pocket, it opened up, causing his police badge to become visible. The young man then ran down the stairs with the backpack.

Later on that same day, Singleton met a friend, Ameisha Witt, at her home off of Riverdale Road. Witt’s cousin was also at her house when Singleton arrived, and Singleton had the victim’s gun. Singleton initially told Witt that he found the gun “in the woods.”

Later that day, Singleton met Witt again at Michael Waters’s home. Witt’s boyfriend, David Mierez, was also at Waters’s home that day. When Singleton arrived, he still had the victim’s gun with him. That night at Waters’s home, Singleton told Witt that he got the victim’s gun when he “robbed a cop” in Windjammer. Singleton also told Mierez that a man had thrown him the gun inside a backpack.

1. Singleton contends that the evidence was insufficient to support his convictions. We disagree.

Aperson commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or immediate presence of another by use of an offensive weapon. OCGA § 16-8-41 (a) (2000). Aperson commits the offense of aggravated assault when he assaults with the intent to rob. OCGA § 16-5-21 (a) (1) (2000).

A person commits the offense of possession of a firearm during the commission of a felony when he has on or within arm’s reach of his person a firearm during an armed robbery. OCGA § 16-11-106 (b) (1) (2000). “Where a robbery is committed by the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commission of a crime are specifically authorized by OCGA § 16-11-106 (e).” (Citations and punctuation omitted.) Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323) (1991). Contrary to Singleton’s contention, the evidence, as set forth above, was more than sufficient to support his convictions for armed robbery, aggravated assault, and possession of a firearm during the commission of the armed robbery.

2. Singleton also contends that the trial court erred in admitting Waters’s hearsay statement in violation of Singleton’s confrontation right, and that the trial court erred in holding Waters in contempt in the presence of the jury. We discern no error.

At trial, the prosecution called Waters as a witness. When Waters told the trial judge that he did not want to testify, the State moved to hold Waters in contempt. The judge then held Waters in contempt of court, sentenced him to serve 30 days, and told the State to again ask Waters to be sworn in. The State asked Waters to swear in and testify three more times, and each time he refused. After each refusal, the Judge held Waters in contempt of court, and added 30 additional days to his sentence, resulting in a total sentence of 120 days for contempt. Although the jury was present during this entire exchange, Singleton did not object. Instead, Singleton moved for a mistrial after the judge told the State to call its next witness.

The trial court denied Singleton’s motion for mistrial and, over his subsequent hearsay objections, allowed the State to call Fulton County Police Detective Frank Martin as a witness. Detective Martin testified that, on July 7, 2000, he spoke with Waters in the course of his official investigation in an unrelated case. Waters told Detective Martin that Singleton stole the victim’s gun from a police officer during a robbery at the Windjammer Apartments in Clayton County,

(a) Confrontation Right

The [Confrontation [C]lause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant. . . . [Statements made to police officers during an investigation qualify as testimonial.

(Citations and punctuation omitted.) Jackson v. State, 291 Ga. 22, 24 (2) (727 SE2d 106) (2012). Although Singleton’s trial occurred before the United States Supreme Court issued its opinion in Crawford v. Washington, 541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004), we apply that decision retroactively to cases, such as Singleton’s, which are pending on direct review. See Soto v. State, 285 Ga. 367, 369 (2) (a) (677 SE2d 95) (2009).

Pretermitting whether Singleton waived this issue by failing to object on Sixth Amendment grounds, any error in admission of Waters’s statement was harmless. Notably, Waters’s testimony was cumulative of other admissible testimony that the victim’s gun was inside a backpack that was thrown to Singleton during the Windjammer robbery. See Miller v. State, 289 Ga. 854, 857 (2) (717 SE2d 179) (2011) (admission of evidence in violation of confrontation right can be harmless error where evidence at issue is cumulative); Brown v. State, 288 Ga. 404, 408 (3) (703 SE2d 624) (2010) (admission of hearsay was harmless error because hearsay was cumulative).

(b) Holding Waters in contempt in the jury’s presence.

“The decision to grant a mistrial is within the discretion of the trial court and will not be disturbed on appeal unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial.” (Citation omitted.) Jackson v. State, 292 Ga. 685, 689 (4) (740 SE2d 609) (2013). The trial court also has a wide latitude of discretion in controlling the examination of witnesses, and this Court will not reverse on appeal absent a manifest abuse of that discretion. See Sillah v. State, 291 Ga. App. 848, 849 (1) (663 SE2d 274) (2008).

Singleton argues that the trial court’s extended colloquy with Waters and the State created the impression that Waters was trying to protect Singleton and thus implied his guilt. Pretermitting whether Singleton waived this error by failing to make a contemporaneous objection, we find that under the specific circumstances of this case there was no reversible error, even though the better practice would have been to remove the jury from the courtroom before holding a witness in contempt. See Roberts v. State, 208 Ga. App. 628 (1) (431 SE2d 434) (1993) (holding that recommended practice is to remove jury from courtroom while trial court holds witness in contempt).

Notably, Waters was called to the stand as a witness for the State. Therefore, the jury’s knowledge that he was held in contempt for failing to testify was unlikely to give rise to any prejudicial inferences against Singleton. See Hendricks v. State, 283 Ga. 470, 473 (3) (660 SE2d 365) (2008) (no prejudicial inference where trial court informed jury that State’s witness refused to testify and was held in contempt). Moreover, the record shows that the State merely asked Waters to be sworn in, and never asked him any questions that suggested Singleton’s guilt. Accordingly, under the circumstances of this case, Singleton has not shown that the trial court manifestly abused its discretion or that a mistrial was essential to the preservation of his right to a fair trial.

3. Singleton also contends that the more than ten-year delay in hearing his motion for new trial, and the trial court’s error in failing to deem him indigent violated his due process rights.

(a) The appellate delay did not violate Singleton’s due process rights.

In determining whether an appellate delay violated a defendant’s due process rights, we apply “the four speedy trial factors set forth in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), which are the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Citation omitted; emphasis supplied.) Browning v. State, 283 Ga. 528, 531 (2) (b) (661 SE2d 552) (2008); see also Thread v. State, 282 Ga. App. 884, 886 (640 SE2d 316) (2006).

These factors, individually, are neither necessary nor sufficient by themselves to find that the appellant’s due process rights were violated; rather, these factors should be considered together in a balancing test weighing the conduct of the State and the appellant contributing to the delay.

(Citation omitted.) Thread, supra, 282 Ga. App. at 886. “[I]n determining whether an appellate delay violates due process, prejudice, unlike in the speedy trial context, is not presumed but must be shown.” (Citations and punctuation omitted.) Glover v. State, 291 Ga. 152, 155 (3) (728 SE2d 221) (2012).

On appeal, we apply the Barker factors to determine whether the trial court abused its discretion in ruling that Singleton’s due process rights were not violated. See Thread, supra, 282 Ga. App. at 887. Nevertheless, “the length of delay that will raise a constitutional inquiry is dependent upon the peculiar circumstances of the case, and not every delay in the appeal of a case, even an inordinate delay, will implicate an appellant’s due process rights.” (Citation omitted.) Browning, supra, 283 Ga. at 532 (2) (b).

Here, even assuming that the more than ten-year delay required the trial court to weigh the first three Barker factors in Singleton’s favor, he has not shown that the delay prejudiced his ability to assert his arguments on appeal. “Appellate delay is deemed prejudicial when there is a reasonable probability that, but for the delay, the result of the appeal would have been different.” (Citation omitted.) Owens v. State, 286 Ga. 821, 826 (2) (d) (693 SE2d 490) (2010); see also Chatman v. Mancil, 280 Ga. 253, 260 (2) (e) (626 SE2d 102) (2006) (prejudice necessary to establish due process violation based upon direct appeal delay is prejudice to defendant’s ability to assert his arguments on appeal).

Singleton’s sole claim of prejudice is that he was unable to assert on appeal that the State made improper remarks during closing argument by stating that “the Defendant had not refuted the evidence.” Closing arguments were not transcribed and neither trial counsel nor the State could remember if that subject was discussed. Nevertheless, the issue was subsequently discussed at trial, and the trial court concluded that the State merely commented in closing that “the evidence was unrefuted,” not that Singleton specifically failed to refute the evidence. Absent a transcript of the closing arguments, we must presume that the trial court’s ruling was correct. See Arnold v. State, 305 Ga. App. 45, 48 (2) (699 SE2d 77) (2010). Furthermore, this Court has previously construed this type of argument as permissible. See Turner v. State, 199 Ga. App. 836, 838 (4) (406 SE2d 512) (1991). Finally, an appellate delay’s effect on counsel’s memories is not the kind of specific evidence required to show that the delay prejudiced a defendant’s appeal. See Loadholt v. State, 286 Ga. 402, 406 (4) (687 SE2d 824) (2010). Accordingly, Singleton has failed to offer the specific evidence required to show that the delay prejudiced his appeal. “While we do not approve of the delay occasioned here, we must review each case on its own facts.” Id. Since Singleton has not shown that he was prejudiced from the more than ten-year delay, the trial court did not abuse its discretion in ruling that Singleton’s due process rights were not violated. See Glover, supra, 291 Ga. at 155-156 (3) (absent prejudice trial court did not abuse its discretion in ruling that defendant’s due process claim failed).

(b) Singleton argues that his due process rights were violated when the trial court denied his indigency motion. For the reasons that follow, we find no reversible error.

In criminal cases, an indigent, on appeal, is entitled as a matter of right to a free copy of the transcript of trial court proceedings in which he has been a party. Motions for new trial and other post-trial motions are part of the proceedings contemplated by this rule. The right to a free transcript arises regardless of whether the indigent defendant was represented by retained counsel at the time of the trial court proceeding for which the transcript is sought.

(Citations and punctuation omitted.) Mitchell v. State, 280 Ga. 802 (1) (633 SE2d 539) (2006).

Our review of the record shows that, Singleton was in fact deemed indigent for purposes of his new trial motion and appeal, he was appointed counsel to represent him, and he was provided with a free copy of his trial transcript. Nevertheless, Singleton retained his own counsel prior to the hearing on his motion for new trial. Following the trial court’s denial of his new trial motion, Singleton filed two affidavits of poverty and a new motion to be deemed indigent so that he could proceed on appeal in forma pauperis. The trial court denied the motion, finding that Singleton had declined the services of his approved public defender and retained his own counsel, and that he was not entitled to a free transcript.

As an indigent defendant, Singleton was entitled to a free transcript of his new trial hearing. Therefore, the trial court erred in denying his motion. See Mitchell, supra, 280 Ga. at 802 (1). Nevertheless, it is axiomatic that a defendant must show harm as well as error to authorize a reversal by this Court. See Dryden v. State, 316 Ga. App. 70, 73 (1) (728 SE2d 245) (2012). Here, the record clearly shows that Singleton did in fact obtain a copy of his new trial transcript, albeit at his own cost. Moreover, Singleton has failed to show prejudice from the additional appellate delay, if any, between the denial of his motion for new trial and the docketing of his appeal in this Court. As set forth above, this Court must review each case on its own facts. See Loadholt, supra, at 406 (4). In the absence of a showing that the outcome of his appeal would have differed, Singleton cannot show that his due process rights were violated by the trial court’s error in denying his right to a free transcript of his new trial hearing.

4. Singleton also contends that his trial counsel provided ineffective assistance. We do not agree.

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant bears the burden of showing that counsel’s performance was deficient and that the deficient performance so prejudiced [the] defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. . . . The trial court’s determination with respect to ineffective assistance of counsel will be affirmed unless its findings are clearly erroneous.

Decided March 27, 2014

Brown & Gill, Angela B. Dillon, for appellant.

Tracy Graham-Lawson, District Attorney, Frances C. Kuo, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Robinson v. State, 312 Ga. App. 736, 742 (3) (719 SE2d 601) (2011). Here, Singleton argues that trial counsel was ineffective for failing to object when the trial court held Waters in contempt in front of the jury. As set forth above in Division 2 (b), the trial court did not reversibly err in holding Waters in contempt in front of the jury. Therefore, even assuming that trial counsel’s failure to contemporaneously object constituted deficient performance, Singleton cannot show that the outcome of his trial would have differed but for his trial counsel’s failure to object. Accordingly, the trial court did not err in denying Singleton’s motion for new trial based on his claim of ineffective assistance of counsel.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

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

       We note that Singleton raised only a hearsay objection to the admission of Waters’s statement at trial.
      There is a distinct difference between a challenge to the admission of evidence based upon the Confrontation Clause and that based upon an exception to the hearsay rule. Although the rules concerning the Confrontation Clause and hearsay evidence generally protect similar values, they do not always prohibit the same evidence. The Confrontation Clause may bar the admission of some evidence that would be admissible under an exception to the hearsay rule. The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.
      (Citations and punctuation omitted.) Walton v. State, 278 Ga. 432, 434 (1) (603 SE2d 263) (2004).

       Compare Lawrence v. State, 257 Ga. 423, 424-425 (3) (360 SE2d 716) (1987) (finding reversible error where witness invoked right to remain silent and trial court thereafter in jury’s presence permitted State to ask witness fourteen leading questions suggestive of defendant’s guilt).

       We note that trial counsel testified at the new trial hearing that it was not his normal practice to have the entire trial transcribed in felony cases due to the costs incurred in paying a court reporter to take down jury selection and opening and closing arguments.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A13A2062.
    KINSEY v. THE STATE. WHITE v. THE STATE.
    A14A0116.
    (757 SE2d 217)
   Miller, Judge.

Following a jury trial, Deandre Antwan Kinsey and Tevon White were convicted of kidnapping with bodily injury (OCGA § 16-5-40 (d) (4)), aggravated assault (OCGA § 16-5-21 (a) (2) (2010)), and one count of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b) (l)). Kinsey and White appeal from the denial of their motions for new trial. In Case No. A13A2062, Kinsey contends that the trial court erred in denying his motion to suppress, that the evidence was insufficient to support his convictions, and that the trial court erred in refusing to give a jury charge on mere presence. In Case No. A14A0116, White contends that the trial court erred in denying his motion to suppress, in allowing the book-in photo to be introduced into evidence, and in refusing to charge the jury on mere presence. White also contends that the evidence was insufficient to support his convictions. Discerning no error, we affirm the judgments in both cases.

On appeal from a criminal conviction, we view the record in the light most favorable to the conviction. The relevant facts are set forth in Johnson v. State, 324 Ga. App. 508 (751 SE2d 141) (2013), which provides as follows:

[AJround midnight on November 1-2, 2010, [Kinsey, White] and [two] other men went to the victim’s house. The victim knew one of the men, co-defendant Germaine Gaither, but did not know ... the others. The victim agreed to go with Gaither to Aspen Woods, a nearby apartment complex, because he believed they were going to smoke some marijuana.
Upon arriving at the apartment complex, Gaither left the car and informed the others he would go speak to his contact so they could smoke marijuana. Gaither returned a few minutes later and informed everyone in the car that it was okay to get out. The men, including the victim and [Kinsey and White], exited the vehicle and walked toward the apartment building but did not enter.
After waiting a while to be let inside an apartment, Gaither said he needed to use an ATM. . . . [T]he group walked back toward the car, with the victim in front of [Kinsey, White, and the other co-defendants]. The victim was then struck from behind and fell to the ground, where he was kicked and punched [in the back and the back of the head]. The victim’s face was then covered with duct tape and his arms and legs were also bound with duct tape. [None of the four individuals present with the victim offered to help him.] The victim was carried to the car with a shotgun pressed against the back of his head and placed in the trunk.
Around the same time, an Aspen Woods resident looked out her window and saw two men standing by a small, silver or gray-colored, four-door vehicle, and one of the men appeared to be hiding an object along the side of his leg. The car was parked under an illuminated light pole. Based on the men’s furtive movements around the car, the resident initially believed the men were going to break into the vehicle. The resident called 911 and stayed on the phone with the 911 operator while she described her observations. The resident witnessed the men walking or hurrying between the apartment building and the car, and she stated that she believed the men were robbing somebody’s apartment and carrying items to the car. The resident then saw all four men, described as four black males wearing black clothing, get into the car and drive off and turn right out of the apartment complex onto Candler Road.
While the resident was talking to the 911 operator, a nearby police officer was dispatched to the location. Dispatch informed the officer of a possible burglary in progress involving four black males in black clothing in a silver vehicle. The officer parked his patrol car near the only exit/entrance to the apartment complex. Almost immediately thereafter, the officer observed a silver vehicle, which matched the description given by dispatch, approach his patrol car and turn right out of the apartment complex. As the car passed the officer, he observed that the occupants matched the description given by dispatch. The officer then followed the car to an intersection along Candler Road, where he and other responding officers conducted a stop. The stop occurred only a few minutes after the resident observed the four males get into the vehicle and leave the apartment complex.
One officer approached the stopped vehicle and spoke with the passenger at the driver side, asking if there were any weapons in the vehicle. [] [Johnson] answered in the affirmative and the officer saw a shotgun in between [his] legs. Johnson was taken out of the vehicle, searched and placed in a patrol car. Officers found several shotgun shells in Johnson’s front pocket. [Kinsey was seated in the back with a gun case between his legs and duct tape on his fingertips. Kinsey was taken out of the vehicle, searched and placed in a patrol car.] The officers removed the other men from the vehicle and searched the car, finding the shotgun, a rifle case, and a ski mask. During the search, the officers noticed a gap between the rear seat and the trunk and observed what appeared to be a person in the trunk. The trunk was opened, and the victim was discovered hog-tied with duct tape, bruised, and bleeding. The 911 caller, who had arrived at the scene within three minutes of placing the call, testified that the car and suspects matched her observations at the apartment complex.

Johnson, supra, 324 Ga. App. at 509-510.

Case No. A13A2062

1. In his first enumeration of error, Kinsey argues that the trial court erred in denying his motion to suppress because the resident’s 911 call did not provide sufficient articulable suspicion required for a stop. We disagree.

On appeal from a trial court’s ruling on a motion to suppress or a motion in limine, we may consider all relevant and admissible evidence of record introduced at the motion hearing or during trial. While a trial court’s findings as to disputed facts will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations and punctuation omitted.) Walker v. State, 314 Ga. App. 67 (1) (722 SE2d 887) (2012).

To establish reasonable suspicion to make an investigative stop, the totality of the circumstances must show that the officer had specific and articulable facts which, taken together with rational inferences from those facts provided a particularized and objective basis for suspecting the particular person stopped of criminal activity.

(Citation and punctuation omitted.) Johnson v. State, 313 Ga. App. 137, 138 (1) (720 SE2d 654) (2011). “Although the primary means by which officers acquire reasonable suspicion is personal observation, information acquired from an informant that exhibits a sufficient indicia of reliability can also be the basis for reasonable suspicion.” (Citation omitted.) Slocum v. State, 267 Ga. App. 337, 338 (599 SE2d 299) (2004).

(a) Kinsey argues that the police officers were required to corroborate the information given by the 911 caller. Contrary to Kinsey’s argument, however, the 911 caller was a concerned citizen who resided in the apartment complex and believed a burglary had occurred. “Information received from a concerned citizen is inherently more credible and reliable than that received from an anonymous tipster; indeed, it is deemed reliable.” (Footnote omitted.) Fleming v. State, 281 Ga.App. 207, 208-209 (2) (635 SE2d 823) (2006). Moreover, regardless of the identity of the 911 caller, the officer who responded to the apartment complex received the information about the possible burglary from dispatch.

A dispatcher who reports a crime at a specified location gives police an articulable suspicion to investigate and detain individuals at the scene, particularly where police observations on arriving at the scene corroborate the dispatcher’s report. Even if the dispatcher’s information comes from a citizen or an unidentified informant, the investigatory detention is valid, for patrolling officers are not required to question dispatchers about the source of the information. Further, corroboration only solidifies the existence of an articulable suspicion.

(Citations and punctuation omitted.) Prather v. State, 279 Ga. App. 873, 874 (1) (633 SE2d 46) (2006).

Here, the evidence shows that the responding officer observed a silver vehicle turning right out of the complex at about the same time dispatch relayed the same information to him about the suspects’ movements. The officer observed that the vehicle contained four black males wearing all black, which matched the description given by dispatch. The evidence also shows that at the time of the call, there was very little traffic on the roadway near the apartment complex. Based on the totality of these circumstances, the officers had the requisite articulable suspicion to justify the investigative stop. See Boone v. State, 282 Ga.App. 67, 70 (2) (637 SE2d 795) (2006) (officer had the requisite articulable suspicion necessary to conduct a traffic stop shortly after receiving a be-on-the-lookout (“BOLO”) describing the vehicle’s color, number of occupants, road and direction of travel); McNair v. State, 267 Ga. App. 872, 874 (1) (600 SE2d 830) (2004) (officer had an objective, reasonable suspicion of criminal activity to conduct a traffic stop of a car that matched description given in a BOLO alert and was traveling from the direction of the crime scene five minutes after the alert was issued).

(b) Kinsey also argues that the trial court erred in denying his motion to suppress because the officers effectively arrested him without probable cause when, after stopping the vehicle, they forcibly removed him from the vehicle and placed him in handcuffs and into a patrol vehicle. Kinsey did not specifically raise this issue in his motion to suppress and, by adopting the arguments of his co-defendants, he indicated that he was only challenging the legal basis of the initial stop. As a result, Kinsey has waived his challenge that his arrest was not supported by probable cause. See Young v. State, 282 Ga. 735, 736-738 (653 SE2d 725) (2007); State v. Gomez, 266 Ga. App. 423, 425 (2) (597 SE2d 509) (2004).

2. Kinsey further contends that the evidence was insufficient to support his convictions for kidnapping with bodily injury, aggravated assault, and possession of a firearm during the commission of a crime. 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.

(Citation, punctuation and emphasis omitted.) Patterson v. State, 272 Ga. App. 675, 676 (1) (613 SE2d 200) (2005). “As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, this Court will uphold the jury’s verdict.” (Footnote omitted.) Heard v. State, 299 Ga. App. 44, 44 (1) (681 SE2d 701) (2009). Additionally, “the testimony of a single witness is generally sufficient to establish a fact.” Boyt v. State, 286 Ga. App. 460, 461 (1) (649 SE2d 589) (2007).

Furthermore, “[ejvery person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). Although

mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. If the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor. Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime.

(Citations and punctuation omitted; emphasis omitted.) McWhorter v. State, 198 Ga. App. 493, 493 (1) (402 SE2d 60) (1991). See also Bell v. State, 156 Ga. App. 190 (274 SE2d 153) (1980) (one who intentionally aids or abets the commission of a crime by another is equally guilty with the principal).

(a) Kidnapping with Bodily Injury

“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” OCGA § 16-5-40 (a).

For the offense of kidnapping to occur, slight movement shall be sufficient; provided, however, that any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.

OCGA § 16-5-40 (b) (1). Bodily injury is accomplished by inflicting any physical injury upon the victim’s body, however slight. Green v. State, 193 Ga. App. 894, 896 (1) (389 SE2d 358) (1989).

Here, the record contains evidence from which a jury could find that Kinsey was a party to the crime of kidnapping with bodily injury against the victim. The victim identified Kinsey at trial as one of four men who beat him, held a shotgun to his head, duct-taped his head and body, put him in the trunk of a car and drove off. A responding officer testified that Kinsey was in the same car with the victim. Accordingly, the evidence was sufficient to support Kinsey’s conviction for kidnapping with bodily injury. See McWhorter, supra, 198 Ga. App. at 493 (1); Williams v. State, 307 Ga. App. 675, 678 (1) (705 SE2d 906) (2011) (asportation for kidnapping offense occurred when defendant dragged the victim into another room after assaulting the victim; movement of victim from one room to another was not inherent part of assault, which was completed when defendant pointed gun at and grabbed victim, and movement, even though minimal, created additional danger by enhancing defendant’s control over victim); Sipplen v. State, 312 Ga. App. 342, 344 (1) (718 SE2d 571) (2011) (evidence was sufficient to convict defendant as party to kidnapping when defendant followed kidnapper and victim in another car).

(b) Aggravated Assault

A person commits an aggravated assault in violation of OCGA § 16-5-21 when he “assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2).

Here, the victim testified that Kinsey was among the group of men who struck the victim in the back of the head with something that “felt like more than a fist,” covered his entire face in duct tape, causing difficulty breathing, kicked and punched him and held a shotgun to his head. This evidence was sufficient to authorize a jury to find Kinsey guilty beyond a reasonable doubt as a party to the crime of aggravated assault. See Romero v. State, 307 Ga. App. 348, 350-351 (705 SE2d 195) (2010) (evidence sufficient to show that defendant was a party to aggravated assault where defendant accompanied attacker to the crime scene and stood by while another man attacked the victim).

(c) Possession of a Firearm during the Commission of a Crime

A person is guilty of possession of a firearm during the commission of a crime when he is found beyond a reasonable doubt to “have on or within arm’s reach of his or her person a firearm ... during the commission of, or the attempt to commit. . . [a]ny crime against or involving the person of another[.]” OCGA § 16-11-106 (b) (1).

As laid out above, the victim identified Kinsey as one of four men who, acting together, held a shotgun to the victim’s head, duct-taped his head and body and put the victim in the trunk of a silver car and drove off. Additionally, a sawed-off shotgun and a rifle were found in the car in which Kinsey was a passenger. Based on this evidence, a jury could readily infer that Kinsey was a party to the crime of possession of a firearm during both the kidnapping and assault of the victim. See Victrum v. State, 203 Ga. App. 377, 379 (3) (416 SE2d 740) (1992) (co-defendant was within arm’s reach of two pistols during commission of crime, therefore, defendant was guilty of offense as party to crime); Sipplen, supra, 312 Ga. App. at 344 (1) (evidence was sufficient to convict defendant as party to crimes of kidnapping and possession of firearm when defendant followed kidnapper, who had a gun, and victim in another car).

3. Kinsey also contends that the trial court abused its discretion in failing to give a jury charge on mere presence as requested by defense counsel. We do not agree.

“[JJury instructions must be read and considered as a whole in determining whether the charges contained error.” (Citation and punctuation omitted.) Alexander v. State, 308 Ga. App. 245, 245 (707 SE2d 156) (2011). Moreover, “[t]he rule that mere presence at the scene of a crime is insufficient to convict is actually a corollary to the requirement that the State prove each element of the offense charged.” (Citations and punctuation omitted.) Hulsey v. State, 284 Ga. App. 461, 462 (2) (643 SE2d 888) (2007). “It is not reversible error to fail to charge in the exact language requested when the charge given adequately covers the correct legal principles.” (Citations and punctuation omitted.) Head v. State, 261 Ga. App. 185, 187-188 (2) (582 SE2d 164) (2003).

Here, the trial court clearly instructed the jury to treat each individual defendant as separate and distinct from each other. The trial court charged the jury that the guilt of any one of the defendants is determined based on the facts showing what part, if any, he had in the commission of the crimes charged. It further charged that the guilt of one person named in the indictment creates no presumption of guilt as to any other defendant. The trial court also instructed that “[n]o person shall be convicted of any crime unless and until each element of the crime as charged is proven beyond a reasonable doubt,” and that the burden of proof rests upon the State to prove every material allegation of the indictment and essential element of the crimes charged beyond a reasonable doubt. The trial court further charged that

to warrant a conviction... the proven facts must not only be consistent with the theory of guilt, but must also exclude every other reasonable theory other than the guilt of the accused. The comparative weight of circumstantial evidence and direct evidence, on any given issue, is a question of fact for you, the jury, to decide.

We hold that the foregoing jury charges, when read as a whole, were complete and fair, and in view of them, the trial court did not reversibly err in refusing to give a separate charge on mere presence. Muhammad v. State, 243 Ga. 404, 406 (1) (254 SE2d 356) (1979) (where trial court correctly instructed the jury on the duty of the state to prove each and every element of the crime beyond a reasonable doubt, trial court’s refusal to instruct the jury on “mere presence” of the accused at the scene of the crime did not constitute reversible error).

Case No. A14A0116

4. In his first enumeration of error, White argues that the police lacked the requisite articulable suspicion to stop the vehicle in which White was a passenger.

As set out above in Division 1, the officers had the requisite articulable suspicion to stop the vehicle in which White was a passenger. Prather, supra, 279 Ga. App. at 874 (1). Because the police had the requisite articulable suspicion to conduct the stop, the trial court did not err in denying White’s motion to suppress.

5. White next argues that the trial court erred in allowing into evidence, over his objection, the photograph taken following White’s arrest. We disagree.

“When a trial court is faced with the challenge that the probative value of evidence is outweighed by its tendency to unduly prejudice the jury, it must exercise its discretion in determining admissibility.” (Citation and punctuation omitted.) Stokes v. State, 289 Ga. 702, 706 (4) (715 SE2d 81) (2011). “Whether to admit evidence is a matter resting in the trial court’s sound discretion, and evidence that is relevant and material to an issue in the case is not rendered inadmissible because it incidentally places the defendant’s character in issue.” (Citation and punctuation omitted.) Alexis v. State, 313 Ga. App. 283, 286-287 (2) (721 SE2d 205) (2011).“In general, mug shots of a defendant taken after arrest with regard to the crime for which he is currently being prosecuted do not prejudice the defendant.” Sharpe v. State, 288 Ga. 565, 567 (4) (707 SE2d 338) (2011).

Notwithstanding White’s argument to the contrary, his book-in photograph was almost completely neutral in appearance, did not reveal that White was in custody or in handcuffs when he was photographed, and was not a photograph related to a previous crime. The trial court specifically noted that the photograph was probative of the fact that White was wearing black when he was apprehended, as described by the 911 tipster. Under these circumstances, the trial court did not abuse its discretion in admitting the book-in photograph of White.

6. White contends that the trial court erred in refusing to charge the jury on the law regarding “mere presence” at the scene of a crime, despite his request to do so. White’s arguments have been considered and rejected above in Division 3.

Decided March 27, 2014

Dell Jackson, for appellant (case no. A13A2062).

Carnesale, Delan, Flinn, & Michael, C. Christopher Flinn, for appellant (case no. A14A0116).

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

7. White also argues that the evidence was insufficient to support the verdict against him.

(a) Aggravated Assault and Kidnapping with Bodily Injury

As discussed above, White was among the four individuals who hit the victim about the head and back, pressed a shotgun to his head, deposited him into the trunk of a car and drove off. Therefore, the evidence was sufficient to support the verdicts against White for aggravated assault and kidnapping with bodily injury. See Romero, supra, 307 Ga. App. at 351.

(b) Possession of a Firearm during the Commission of a Crime

As stated above in Division 2 (c), a person is guilty of possession of a firearm during the commission of a crime when he is found beyond a reasonable doubt to “have on or within arm’s reach of his or her person a firearm ... during the commission of, or the attempt to commit... [a]ny crime against or involving the person of another[.]” OCGA § 16-11-106 (b) (1). Further, pursuant to OCGA § 16-2-20 (a), a defendant may properly be convicted of possession of a firearm during the commission of a crime on the ground that he was a party or aider or abettor to the offense. See Victrum, supra, 203 Ga. App. at 379 (3). In this case, White was in the car with the other co-defendants when the vehicle, which contained two shotguns, was stopped. The shotguns were within his reach, and one officer testified that White was in actual possession of a sawed-off shotgun. The evidence was therefore sufficient to convict White of possession of a firearm during the commission of the victim’s kidnapping.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       Kinsey and White were tried with co-defendants Kelvin Johnson and Germaine Gaither. The jury found Kinsey and White not guilty of another count of possession of a firearm during the commission of a crime. Johnson’s appeal from the trial court’s denial of his motion to suppress was affirmed by this Court. Johnson v. State, 324 Ga. App. 508 (751 SE2d 141) (2013).

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

       Germaine Gaither was driving; appellant Kelvin Johnson was in the front passenger seat; co-defendant Deandre Kinsey was in the rear passenger seat behind Johnson; and co-defendant Tevon White was in the rear passenger seat behind driver Gaither.

       See former OCGA § 24-4-8.

       A person convicted of kidnapping shall be punished by life imprisonment or death if the person received bodily injury. OCGA § 16-5-40 (d) (4).


author: Phipps, Chief Judge.

text:
    A13A2204.
    SALAZAR v. THE STATE.
    (757 SE2d 224)
   Phipps, Chief Judge.

Following a jury trial, Juan Salazar was convicted of trafficking in cocaine, and acquitted of operating a vehicle with a false or secret compartment. On appeal, he challenges the sufficiency of the evidence to support his conviction and the denial of his motion to suppress evidence obtained during a search of the vehicle he was driving. For the reasons that follow, we affirm.

1. Salazar contends that the evidence was insufficient to support the conviction for trafficking in cocaine “because the jury did not convict [him] on the predicate offense of knowingly driving a vehicle with [a] false compartment.” He asserts that the jury could not have found that he possessed the drugs, given its finding that he had not knowingly operated a vehicle with a false compartment. The contention is without merit.

When an appellant challenges the sufficiency of the evidence to support his 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 appellant no longer enjoys a presumption of innocence, and an appellate court determines only the legal sufficiency of the evidence and does not weigh the evidence or assess the credibility of the witnesses.

The evidence showed that on January 28, 2010, Salazar was driving a tractor-trailer on 1-20 in Douglas County when a police officer initiated a stop for failure to maintain lane. As the officer approached the stopped tractor-trailer, he observed that Salazar had already exited the cab of the truck. To the officer, Salazar’s manner of breathing indicated that he was nervous; Salazar also “pace[d] back . . . like he was slowly trying to get [the officer] away from the truck.” Salazar told the officer that he was delivering a load of produce to Atlanta, though he did not know the specific destination.

The officer returned to the patrol vehicle to check Salazar’s driver’s license and the truck’s license plate, and to review the freight documents Salazar had handed him. The officer noticed several discrepancies in the documents. He radioed dispatch to check Salazar’s driver’s license and the license plate, and began writing a warning citation for the alleged lane violation.

For several reasons (which were articulated at the suppression hearing and at trial), the officer became suspicious. The officer left the patrol vehicle and asked Salazar for permission to search the truck’s cab. Salazar consented.

When the officer looked inside the truck’s cab, he noticed that the fabric on the ceiling did not match other fabric in the cab. The officer, now joined by a second officer, pushed up on the ceiling of the cab and, as he did so, an upholstery button came loose; there was wet glue around the button, and a bottle of glue was found on a shelf above the driver’s seat. The officer pulled the ceiling down slightly and saw a steel plate, which, he stated, was not typically found in truck cab ceilings. As he pushed the steel plate, he saw a void in the ceiling area. Inside that void were brick-like objects, lined up across the ceiling. The officer removed one of the objects, which was packaged in “Saran wrap,” and saw that it consisted of a white powdery substance. A search of the ceiling area revealed 85 of the brick-like objects. Subsequent testing showed that the substance tested positive for cocaine, and the net weight of the one package tested was 1,020 grams, with a purity of 67.6 percent.

A person who had been jailed with Salazar before trial testified that Salazar told him in jail that he knew he had been transporting cocaine at the time of his arrest, and that he had been transporting a larger amount of cocaine than the charge reflected. A second person who had been jailed with Salazar before trial testified that Salazar told him that police officers had under-reported the amount of drugs that he had; and that he could get drugs for the witness, a drug dealer, for less money than the witness had been paying.

The indictment charged Salazar with trafficking in cocaine, alleging that he had knowingly possessed 400 grams or more of a mixture with a purity of ten percent or more of cocaine, and that he had operated a vehicle with a false or secret compartment.

(a) Contrary to Salazar’s contention, operating a vehicle with a false compartment is not a “predicate offense” of trafficking in cocaine. The offense of trafficking in cocaine does not require, as an essential element, that a defendant be charged with or convicted of a false compartment offense as a predicate offense.

Assuming arguendo that there was an irreconcilable conflict in the verdicts, the Supreme Court of Georgia has

abolished the rule that inconsistent verdicts in irreconcilable conflict in criminal cases warranted reversal^ explaining] that inconsistent verdicts could be the result of jury mistake, compromise, or lenity, but it is unknown whether the mistake, compromise, or lenity was exercised in favor of the defendant or the prosecution. Appellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense.

In this case, the record does not make transparent the jury’s reasoning, and Salazar’s contention is without merit.

(b) The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Salazar committed the offense of trafficking in cocaine.

In cases involving contraband found in automobiles, the State is generally entitled to an evidentiary presumption that the owner or driver of the automobile is in constructive possession of the contraband. Here, there was . . . evidence indicating that [Salazar] .. . controlled the vehicle in which the cocaine was found____Thus, evidence existed for the jury to find that [Salazar] was guilty of trafficking in cocaine beyond a reasonable doubt.

“Furthermore, . . . knowledge may be proved by facts and circumstances from which a jury could reasonably infer that a defendant knowingly possessed contraband.” Indeed, OCGA § 16-2-6 provides that a jury may find criminal intention “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” Here, a finding “that [Salazar] knew that the vehicle . . . which he was [operating] . . . contained the cocaine . . . could be inferred from the circumstances.” Although Salazar asserts that there were conflicts in the evidence and that some witnesses lacked credibility, it was for the jury to resolve conflicts in the evidence, and assess the credibility of the witnesses.

Accordingly, the evidence was sufficient to support the jury’s verdict beyond a reasonable doubt that Salazar knowingly possessed the cocaine found in the truck’s cab, and that he was guilty of trafficking in cocaine.

2. Salazar contends that the trial court erred by denying his motion to suppress the contraband seized during the search of the truck. Salazar has not preserved the issue for appellate review because at trial his counsel affirmatively stated that he had no objection to admission of the evidence. “In so doing, counsel waived any objection, including those raised in his motion to suppress.”

Decided March 27, 2014

Lawrence W. Daniel, for appellant.

David McDade, District Attorney, James A. Dooley, Emily K. Richardson, Assistant District Attorneys, for appellee.

Judgment affirmed. Ellington,

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

       OCGA § 16-13-31 (a) (1) (C) (pertinently providing that a person commits the offense of trafficking in cocaine when he possesses 400 grams or more of cocaine or of any mixture with a purity of ten percent or more of cocaine).

       OCGA § 16-11-112 (c) (1) (providing that it is unlawful for any person to knowingly operate any vehicle containing a false or secret compartment); OCGA § 16-11-112 (a) (1) (A) (a false or secret compartment “means any enclosure which is integrated into or attached to a vehicle and the purpose of the compartment is to conceal, hide, or prevent discovery by law enforcement officers of: . . . (ii) Controlled substances possessed in violation of Article 2 of Chapter 13 of [Title 16 of OCGA]”).

        Simmons v. State, 299 Ga. App. 21 (1) (681 SE2d 712) (2009) (punctuation and footnotes omitted).

       For instance, the officer explained that the documents had indicated that the truck was destined for Montezuma, Georgia, not Atlanta as Salazar had claimed; travel along 1-20 would have been an indirect route from the place of the truck’s origin; the truck carried a load of produce, but the trailer was bolted shut, which was unusual; the truck’s weight ticket was handwritten and had scratch marks on it, which was also unusual, suggesting that the weight record had been changed to account for cargo that had been added to the load; and there were discrepancies between the weight ticket and the log book.

       Although there were four boxes of the substance, each of which contained multiple packages or bricks, the witness (a forensic chemist) did not test each of the bricks. She did visually inspect and weigh all of the packages, and testified that the net weight of the substance (cocaine) contained in one of the four boxes was 19,000 grams; the gross weight of the contents of the other boxes (minus the weight of the boxes) was 74,895 grams.

       OCGA § 16-13-31 (a) (1) (C).

       The indictment also charged Margarito Moreno, the truck’s purported owner, with the same offenses. Before trial, Moreno pled guilty to charges of trafficking in cocaine (28-200 grams) (OCGA § 16-13-31 (a) (1) (A)), and operating a vehicle with a false compartment.

       See OCGA § 16-13-31 (a) (1). See, e.g., Leachman v. State, 286 Ga. App. 708, 709-710 (649 SE2d 886) (2007). For examples of crimes requiring predicate offenses, see generally King v. Waters, 278 Ga. 122-124 (1), (2) (598 SE2d 476) (2004) (involving the “compound offense” of possession of a firearm during commission of a crime and the “predicate or underlying offense” of aggravated assault on a peace officer); Cochran v. State, 288 Ga. App. 538, 540 (1) (654 SE2d 458) (2007) (an indictment for fleeing or attempting to elude a police officer pursuant to OCGA § 40-6-395 (a) must contain one of the four designated predicate offenses required for conviction of a felony under the fleeing or attempting to elude statute); Duncan v. State, 183 Ga. App. 368, 370 (5) (358 SE2d 910) (1987) (proof of the elements of first degree homicide requires proof of the elements of the underlying traffic violation).

        Harris v. State, 310 Ga. App. 460, 461 (713 SE2d 665) (2011) (punctuation and footnote omitted); see Coleman v. State, 286 Ga. 291, 296 (4) (687 SE2d 427) (2009).

       See Jackson v. State, 322 Ga. App. 196, 200-201 (3) (744 SE2d 380) (2013); Harris, supra at 462; McDaniel v. State, 261 Ga. App. 360, 362 (3) (583 SE2d 141) (2003).

        Feliciano v. State, 302 Ga. App. 328, 331 (690 SE2d 680) (2010) (citations, punctuation and footnotes omitted).

       Id. (citations, punctuation and footnotes omitted).

       Id.

       See generally Hayes v. State, 292 Ga. 506, 509 (739 SE2d 313) (2013); Harris, supra.

       See Jackson, supra at 198 (1); Feliciano, supra at 331-332; Simmons, supra at 23 (1) (a).

        Williams v. State, 314 Ga. App. 840, 843 (4) (a) (726 SE2d 66) (2012) (citation and punctuation omitted); see Nowlin v. State, 260 Ga. App. 903, 904 (581 SE2d 413) (2003).


text:
    A13A2304.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. THOMPSON.
    (757 SE2d 228)
   Miller, Judge.

In this case, Metropolitan Atlanta Rapid Transit Authority (“MARTA”) unilaterally reduced Kathy Thompson’s temporary total disability (“TTD”) benefits to temporary partial disability (“TPD”) benefits after MARTA no longer allowed her to work with restrictions in its transitional program. Thompson filed a workers’ compensation claim, and an administrative law judge (“ALJ”) agreed that MARTA was not allowed to consider the period Thompson actually worked with restrictions for purposes of OCGA § 34-9-104 (a) (2). MARTA appealed the AL J’s decision to the Appellate Division of the Board of Workers’ Compensation (the “Board”), which affirmed. MARTA then appealed to the superior court, which also affirmed. Pursuant to our grant of its application for discretionary review, MARTA contends that the trial court erred by (1) failing to apply the proper standard of review, (2) by affirming the AL J’s interpretation of OCGA § 34-9-104 (a) (2), and (3) in affirming the award of attorney fees. We conclude that the Board’s interpretation of OCGA § 34-9-104 (a) (2) was consistent with the statute’s purpose, and as a result, we affirm the Board’s ruling that MARTA improperly reduced Thompson’s benefits. We also affirm the award of attorney fees to Thompson because there is evidence to show that MARTA acted without reasonable grounds when it limited Thompson from continuing to work in the transitional program and then unilaterally reduced her benefits.

In the absence of legal error, the factual findings of the Board must be affirmed by the superior court and by the Court of Appeals when supported by any evidence in the administrative record. Erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, however, are subject to the de novo standard of review.

(Citation and punctuation omitted.) Strickland v. Crossmark, Inc., 298 Ga. App. 568, 569 (680 SE2d 606) (2009).

The parties stipulated to the following relevant facts. Thompson suffered a work-related injury on December 16,2009. MARTA accepted the injury as compensable and began paying TTD benefits to Thompson. On April 7, 2010, Thompson’s treating physician released her to return to light-duty work. Based upon the light-duty work release, MARTA served Thompson with a Form WC-104, pursuant to Board Rule 104, on May 28, 2010. In its WC-104 notice, MARTA informed Thompson that her TTD benefits would be converted to TPD benefits on April 7, 2011 unless she returned to work at an earlier date.

On June 24, 2010, Thompson began working in MARTA’s transitional program on light duty, and MARTA suspended Thompson’s TTD benefits as a result. Thompson continued to work in the transitional program for one year, at which point she was not allowed to remain in the program. Following her participation in the transitional program, Thompson was unable to return to regular-duty work and, therefore, stopped working. Thereafter, on June 27,2011, MARTA recommenced paying her TTD benefits. On October 30,2011, MARTA suspended Thompson’s TTD benefits and began paying her TPD benefits, using a WC-2 based upon the prior WC-104.

Thompson then filed a workers’ compensation claim, requesting that her full TTD benefits be reinstated. MARTA disagreed, arguing that under OCGA § 34-9-104 (a) (2), it could unilaterally suspend TTD benefits because Thompson was not working and it had been determined that she was capable of performing light- duty work for 52 consecutive weeks. After a hearing, an ALJ ruled that MARTA was not authorized to include the time Thompson worked in the transitional program in determining when it could unilaterally convert her TTD benefits to TPD benefits. Consequently, the ALJ ordered MARTA to make up the difference between the TPD benefits it had paid and the TTD benefits it owed. The ALJ further ordered MARTA to pay a fine for late payment and to pay Thompson’s attorney fees. MARTA appealed the award to the Appellate Division of the Board, which affirmed. MARTA then appealed to the superior court, which likewise affirmed. MARTA now seeks review here.

1. MARTA first contends that the superior court erred by concluding that it was “constrained” to apply the “any evidence” standard of review without addressing the legal issues presented. MARTA’s claim lacks merit.

It is true that, like this Court, the superior court must affirm the Board’s findings of fact if any evidence supports them and it reviews legal questions under the de novo standard of review. See Strickland, supra, 298 Ga. App. at 569. We presume that the trial court knows the law and faithfully performs its duties. MXenergy, Inc. v. Ga. Public Svc. Comm., 310 Ga. App. 630, 633 (1) (714 SE2d 132) (2011).

In its order, while the superior court stated that its review was circumscribed by the “any evidence” standard for factual determinations, it also stated that the Board’s decision would be set aside, if among other things, that decision was contrary to law. The superior court determined that, after consideration of the parties’ arguments and a thorough review of the record, MARTA had not presented any basis for setting aside the decision of the Board. There is no evidence in the record affirmatively showing that the superior court applied the wrong standard of review, and we will not presume error. See MXenergy, supra, 310 Ga. App. at 633 (1) (no error presumed simply because trial court’s order did not contain the words “de novo review”).

2. MARTAcontends that the superior court erred in affirming the ALJ’s interpretation of OCGA § 34-9-104 (a) (2). Specifically, MARTA argues that it could unilaterally reduce Thompson’s TTD benefits to TPD benefits because she was not working at the time of the reduction and it had been determined that she was capable of performing some work for 52 consecutive weeks. We disagree.

“The interpretation of a statute by the agency charged with enforcing or administering its provisions is to be given great weight and deference, unless contrary to law.” (Punctuation and footnote omitted.) City of Atlanta v. Sumlin, 258 Ga. App. 643, 645 (1) (574 SE2d 827) (2002). Additionally, the workers’ compensation statutory scheme is a humanitarian measure that should be liberally construed to effectuate its purpose. See City of Waycross v. Holmes, 272 Ga. 488, 489 (532 SE2d 90) (2000).

OCGA § 34-9-104 (a) (2) allows an employer to unilaterally reduce an employee’s TTD benefits to TPD benefits once the treating physician releases the employee to work with limitations or restrictions. “In order to avail itself of the opportunity to unilaterally convert an employee from temporary total disability to temporary partial disability, MARTA was required to strictly comply with OCGA § 34-9-104 (a) (2).” (Citation omitted.) MARTA v. Bridges, 276 Ga. App. 220, 224 (1) (623 SE2d 1) (2005).

OCGA § 34-9-104 (a) (2) pertinently provides:

When an injury is not catastrophic, as defined in subsection (g) of Code Section 34-9-200.1, and the employee is not working, the [Bjoard shall determine that a change in condition for the better has occurred and the employee shall be entitled to the payment of benefits for partial disability in accordance with Code Section 34-9-262 if it is determined that the employee has been capable of performing work with limitations or restrictions for 52 consecutive weeks. Within 60 days of the employee’s release to return to work with restrictions or limitations, the employer shall provide notice to the employee on a form provided by the [B]oard that will inform the employee that he or she has been released to work with limitations or restrictions, will include an explanation of the limitations or restrictions, and will inform the employee of the general terms of this Code section. . . . Whenever an employer seeks to convert an employee from benefits for total disability to benefits for partial disability as provided in this paragraph, such employer may convert the benefits unilaterally by filing a form indicating the reason for the conversion as prescribed by rule of the [B]oard.

The primary question presented in this case is whether MARTA could count the one-year period Thompson was working in MARTA’s transitional program for the purpose of establishing that “the employee has been capable of performing work with limitations or restrictions for 52 consecutive weeks” under OCGA § 34-9-104 (a) (2). The answer is no.

An employer cannot include the period of time an employee works with restrictions in the 52-week period under OCGA § 34-9-102 (a) (2). Moreover, we must give great weight to the interpretation adopted by the Board when it comports with the meaning and purpose of OCGA § 34-9-104 (a) (2), because the Board is charged with enforcing that statute. See Schrenko v. DeKalb County School Dist., 276 Ga. 786, 791 (2) (582 SE2d 109) (2003) (courts must give great weight to the agency’s interpretation of the statute); Ga. Dept. of Revenue v. Ga. Chemistry Council, Inc., 270 Ga. App. 615, 617, n. 7 (607 SE2d 207) (2004) (if a statute is silent with respect to the specific issue, the question for this Court to determine is whether the agency’s answer is based on a permissible construction of the statute). We cannot say that the Board’s interpretation is contrary to law. Construing OCGA § 34-9-104 (a) (2) liberally, and reading the first sentence of OCGA § 34-9-104 (a) (2) as a whole, it is clear that the purpose of the statute is to allow an employer to unilaterally convert benefits when an employee has been released to return to work with restrictions but has not actually returned to work. See OCGA § 34-9-104 (a) (2); James B. Hiers, Jr. et al., Ga. Workers’ Compensation Law & Practice, § 23-11 (5th ed.) (unilateral reduction in benefits from TTD to TPD benefits authorized when the employee has been released to return to work with restrictions for 52 consecutive weeks but has not actually returned to work); G. Mark Cole, Workers’ Compensation: Revise Extensively the Provisions Concerning Benefits and Coverage, Employer Ratings by Insurers, the Award Process, and Other Miscellaneous Aspects of the System, 9 Ga. St. U. L. Rev. 285, 290, n. 39 (1992) (noting that the provision for unilateral reduction of benefits was prompted by a desire to provide an incentive to employees, who had been released to work with restrictions but had not done so, to return to work).

Given that the purpose of OCGA § 34-9-104 (a) (2) is to provide an incentive for employees to return to work, it would be incongruous with that purpose to allow for a reduction of benefits when Thompson is unable, through no fault of her own, to return to work since she was only allowed to participate in MARTA’s transitional program for one year. Therefore, the superior court did not err in affirming the Board’s interpretation of the statute and its conclusion that MARTA could not unilaterally reduce Thompson’s benefits under the circumstances.

3. MARTA next contends that the trial court erred in imposing attorney fees because it had reasonable grounds to believe that it could unilaterally reduce Thompson’s benefits. We disagree.

The Board is authorized to assess attorney fees under either OCGA § 34-9-108 (b) (1) or (2). Subsection (b) (1) provides:

Upon a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the administrative law judge or the [Bjoard may assess the adverse attorney’s fee against the offending party.

Similarly, subsection (b) (2) provides:

If any provision of Code Section 34-9-221 [method of payment], without reasonable grounds, is not complied with and a claimant engages the services of an attorney to enforce his or her rights under that Code section and the claimant prevails, the reasonable quantum meruit fee of the attorney, as determined by the [B]oard, and the costs of the proceedings may be assessed against the employer.

Whether an employer defended against a claim or failed to comply with OCGA § 34-9-221 without reasonable grounds presents an issue of fact for determination by the ALJ or Board, and if there is any evidence to support the award, the superior court and this Court must affirm. See Printpack, Inc. v. Crocker, 260 Ga. App. 67, 72-73 (3) (b) (579 SE2d 225) (2003). However, attorney fees may not be awarded where the matter is closely contested on reasonable grounds. Id.; Autry v. Mayor & Aldermen of City of Savannah, 222 Ga. App. 691, 692 (475 SE2d 702) (1996).

Decided March 27, 2014.

F. Taylor Putney, Jr., for appellant.

Cummings & Middlebrooks, William M. Cummings II, for appellee.

Here, the AL J did not specify which Code section it was awarding fees under, but it found that MARTA acted without reasonable grounds in unilaterally reducing Thompson’s benefits because the provisions of OCGA § 34-9-104 (a) (2) were straightforward and unambiguous. As discussed above, we agree, because the clear purpose of the statute is to encourage injured employees to return to work when they have been released to work by their doctor.

In this case, Thompson elected to return to work in MARTA’s transitional program after getting a light-duty release, at which point her TTD benefits were suspended. There is no evidence in the record indicating why MARTA allowed Thompson to work in the transitional program for only one year. Had MARTA truly believed that it could unilaterally reduce Thompson’s benefits based upon the 52-week period that Thompson worked in the transitional program, it would have paid her TPD benefits at the end of her participation in that program. Instead, MARTA recommended paying Thompson TTD benefits. There is no evidence to explain why MARTA paid the TTD benefits for approximately five months following Thompson’s participation in the transitional program before reducing her benefits in October 2011. Given the clear purpose of OCGA § 34-9-104 (a) (2), the absence of evidence showing why MARTA stopped Thompson from continuing to work in the transitional program, and the arbitrary date chosen by MARTA to reduce benefits from TTD to TPD, the ALJ was authorized to find that MARTA’s actions were unreasonable. While MARTA contends that it acted with reasonable grounds because it followed Board Rule 104, MARTA’s technical compliance with the rule does not overcome the fact that its actions violated the purpose and spirit of the statute. Since there is some evidence to support the ALJ’s findings, we must affirm the award of attorney fees.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       MARTA argues that the sentence creates two conditions that must be met before a unilateral reduction can occur, namely that (1) an employee is not working and (2) the employee has been released to work with restrictions for 52 consecutive weeks. While MARTA is correct that these conditions must be met, it provides no authority that periods of employment can be included in the 52 consecutive weeks. We defer to the Board’s resolution of the issue.


author: BARNES, Presiding Judge.

text:
    A13A2313.
    KOULES v. THE DOLCE GROUP ATLANTA, LLC et al.
    (757 SE2d 233)
   BARNES, Presiding Judge.

On appeal, Shereen Arazm Koules, as guarantor of a lease between The Dolce Group Atlanta, LLC (hereinafter “Dolce”) and appellee SP5 Atlantic Retail Ventures, LLC (hereinafter “SP5”), contends that the trial court erred in holding that Koules lacked standing to participate in a hearing on the amount of unliquidated damages resulting from Dolce’s default. Upon our review, and for the reasons stated below, we reverse.

The evidence establishes that SP5 filed suit against Dolce and three guarantors, including Koules, for rent and other charges associated with two commercial leases. The complaint sought damages of over $5 million for unpaid rent, and approximately $2 million for other costs, including interest, late charges, and attorney fees. After the defendants failed to answer the complaint, the trial court entered a default judgment in favor of SP5 against Dolce but not against Koules or the other guarantors. Thereafter, Koules filed a motion to set aside the default judgment against Dolce, in which she alleged that SP5 had not established in its pleadings that the damages were liquidated. Koules further asserted that the failure to do so was a nonamendable defect pursuant to OCGA § 9-11-60 (d) (3), and thus the default judgment against Dolce should be set aside.

The trial court granted Koules’ motion to set aside the default judgment and in its order first determined that Koules had standing to bring the motion to set aside the default judgment because she had a “clear material interest” as a guarantor of the subject matter lease, and was thus subject to liability by rendition of the judgment. The trial court further found that because the damages alleged in SP5’s complaint were not “certain and fixed and ascertainable from the pleadings,” the damages were unliquidated. The trial court noted that

[SP5] has attached the lease agreements, amendments, and termination agreements relevant to the underlying claims for breach of contract.... However, [SP5] has merely stated amounts for which Defendant Dolce owes on the leases, without explanation of how that amount was calculated. In the termination agreements, [SP5] and Defendant Dolce agree that [SP5] does not waive its right to rents not paid by consenting to those agreements. However, the Complaint is devoid of any evidence regarding which months went unpaid. By lacking an explanation as to how the amounts claimed in the Complaint were calculated, [SP5’s] alleged damages do not satisfy the burden set out in Kitchen Int’l, Inc. v. Evans Cabinet Corp., 310 Ga. App. 648, 653 [(2) (714 SE2d 139) (2011)], and thus the damages alleged by [SP5] are unliquidated, and necessitate an evidentiary hearing before the entry of a default judgment.

The trial court also set the date for an evidentiary hearing to determine the unliquidated damages.

At the damages hearing, SP5 argued that Koules was not a party to the default judgment against Dolce and that it had a separate suit against the guarantors that was pending on a motion for summary judgment. It maintained that Koules did not have standing to object to the default judgment against Dolce, that “if [Dolce] contested the damages, then [Dolce] should be here today to defend the lawsuit, but they’re not,” and that it was “seeking a judgment against [Dolce], the obligor, who has never responded,” not the guarantors. SP5 further maintained that if it lost on the pending summary judgment motion in the action against the guarantors, then Koules and the other guarantors would have their day in court. Citing McCorvey Grading & Pipeline v. Blalock Oil Co., 268 Ga. App. 795 (602 SE2d 842) (2004), SP5 maintained that the judgment was not conclusively binding against the guarantors, and that “this [was] not [the guarantors’] hearing.”

In contrast, Koules maintained that she was entitled to participate in the evidentiary hearing on the damages as “a party with a material interest in the relief requested” because SP5 was seeking to collect the damages from the guarantors, and she was there “to make sure that those damages are supported by the evidence and fact.” Thereafter, the trial court held:

Having heard from both sides and based on what we had contemplated for today’s hearing... the court is not going to permit [Koules] to participate in this hearing. I’m going to proceed to hear the evidence presented for the purpose indicated. . . . [T]he court will then enter an order with the requisite findings and conclusions based on the numbers presented.

Koules’ attorney asked the trial court if she would be permitted to object to the evidence, and the trial court responded that “[t]he ruling is that you are observing, not participating.” Koules then objected to the “procedure.”

In support of its damages, SP5 presented evidence that it had properly served Dolce with a copy of its request for admissions and that Dolce had not responded, thus admitting it owed the amounts set forth in the pleadings. SP5’s witness, the bookkeeper for Atlantic Station’s properties including Dolce, testified that each amount was owed. No other evidence was presented. SP5 then moved for default judgment, which the trial court granted.

On appeal, Koules does not challenge the entry of the default judgment against Dolce, nor do the parties challenge the trial court’s determination that the damages were unliquidated. Koules’ claim essentially is that the trial court erred in its holding that she did not have standing as guarantor to participate in the hearing on the amount of unliquidated damages to be awarded against Dolce, thereby denying her the opportunity to challenge the amount of the damages. We agree.

OCGA § 9-11-55 (a) provides that in the event of a default, the plaintiff shall be entitled to a verdict and judgment as if every item and paragraph of the complaint were supported by proper evidence, without the intervention of a jury unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages.

(Punctuation omitted.) Sellers v. Nodvin, 207 Ga. App. 742, 745-746 (3) (429 SE2d 138) (1993).

Although SP5 maintains that the judgment was against Dolce and thus, Koules, as the guarantor, did not have a right to intervene in the damages hearing, we addressed a similar argument in Escambia Chemical Corp. v. Rocker, 124 Ga. App. 434 (184 SE2d 31) (1971). There, the creditor had sued the principal debtors and the guarantor, and the guarantor filed an answer, but the case against the debtors went into default and a judgment was entered against them. Id. The guarantor moved to set aside the default judgment so that he could contest the issue of liability or the amount of the judgment. Id. The trial court denied the motion, but entered an order holding that the default judgment was not binding on the guarantor “in any manner,” and thus he could challenge both liability and the amount of the award. Id. at 440 (2). We reversed in part, holding that while a guarantor is not conclusively bound by a judgment against the principal debtor, the liability and amount established by that judgment nevertheless constitutes prima facie evidence against the guarantor, which she or he can then attempt to rebut. Id. at 440. See also Noorani v. Sugarloaf Mills L.P. of Ga., 308 Ga. App. 800, 807 (4) (708 SE2d 685) (2011).

Decided March 27, 2014.

Schreeder, Wheeler & Flint, John A. Christy, Adam L. Hoipkemier, for appellant.

Wiles & Wiles, John J. Wiles, Victor W. Newmark, for appellees.

Based on Escambia, it is clear that Koules, as guarantor, had a material interest in the outcome of the default judgment hearing, given that the amount of the judgment could be used as prima facie evidence in the claim against her. Thus, even though the principal, Dolce, did not present evidence at the hearing on the unliquidated damages, Koules had standing to contest the amount of damages. See Noorani, 308 Ga. App. at 805-806 (4).

Accordingly, the trial court erred in not permitting Koules to participate in the evidentiary hearing on the unliquidated damages. Thus, we reverse the trial court’s order entering default judgment in favor of SP5 and remand the case for further proceedings regarding the unliquidated damages owed to SP5.

Judgment reversed and case remanded.

Miller and Ray, JJ., concur.

       Koules had also subpoenaed this witness and two others to testify at the hearing.

       “Grounds that are not attacked as erroneous will not be considered on appeal and are presumed to be binding and correct.” Tidwell v. Coweta County Bd. of Ed., 240 Ga. App. 55 (1) (521 SE2d 889) (1999).


author: PHIPPS, Chief Judge.

text:
    A13A2483.
    In the Interest of O. L., a child.
    (757 SE2d 236)
   PHIPPS, Chief Judge.

Fourteen-year-old O. L. was adjudicated delinquent for committing the offense of possession of a handgun by a person under the age of 18 years, and for committing acts that, if committed by an adult, would have constituted aggravated assault and misdemeanor obstruction of an officer (two counts).

O. L. appeals only from the adjudication as to the aggravated assault charge, asserting that the evidence related thereto was insufficient because it showed that he had acted in self-defense when he fired a gun in the direction of the alleged victim, T. S. The state concedes in its brief, albeit on a different basis, that the evidence was insufficient as to the aggravated assault adjudication; it asserts that there was no evidence that the alleged victim had been placed in apprehension of immediately receiving a violent injury. But because a rational trier of fact was authorized to reject 0. L.’s claim of self-defense and conclude beyond a reasonable doubt that O. L. had committed an act which would constitute the crime of aggravated assault had the act been committed by an adult, and because the state was not required to prove in this case that the victim had been placed in apprehension of immediately receiving a violent injury, we affirm.

To establish delinquency based on acts of a criminal nature, the State must prove the commission of these acts beyond a reasonable doubt, just as it would in a criminal prosecution of an adult for the same acts. So, when a juvenile challenges the sufficiency of the evidence, we apply the standard set forth in Jackson v. Virginia, [ ] and we consider whether the evidence adduced at the hearing would permit a rational trier of fact to conclude beyond a reasonable doubt that the juvenile committed the acts with which [ ]he is charged.

OCGA § 16-5-21 (a) (2) provides that a person commits the offense of aggravated assault when he or she assaults with a deadly weapon or with any object, device or instrument which, when used against a person, is likely to or actually does result in serious bodily injury. OCGA § 16-5-20 (a) provides that “[a] person commits the offense of simple assault when he or she either: (1) [attempts to commit a violent injury to the person of another; or (2) [cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” “A victim’s apprehension of receiving a violent injury is not an essential element of an assault in which it is alleged that the defendant actually attempted to commit a violent injury to the person of the victim.”

The delinquency petition pertinently alleged that 0. L. committed the offense of aggravated assault “when he attempted to commit a violent injury to a person, an assault under OCGA § 16-5-20 (a) (1) with a deadly weapon, to wit: discharged a firearm at [T. S.].”

Thus, given the allegations in this case, the state was not required to prove that O. L. had placed T. S. in reasonable apprehension of immediately receiving a violent injury (with a deadly weapon). It was instead required to prove that O. L. attempted to commit a violent injury to T. S. (with a deadly weapon).

OCGA § 16-3-21 (a) provides, in pertinent part:

A person is justified in . . . using force against another when and to the extent that he or she reasonably believes that such . . . force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, ... a person is justified in using force which is intended to or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

The question of whether a defendant acted in self-defense is normally for the trier of fact to resolve.

Viewed in the light most favorable to the adjudication below, the evidence showed that in April 2013, O. L. and two other juveniles were sitting on the porch of R. M.’s residence when T. S. entered the driveway of his mother’s adjacent residence. T. S. yelled at the juveniles, accusing them of having burglarized his mother’s house, and fired a handgun into the air. O. L. ran inside R. M.’s house, stating to the occupants, “he’s out there trying to kill us.” R. M., the homeowner, instructed O. L. to wait inside the house. O. L. went to the kitchen. Looking out the kitchen window, O. L. observed T. S. fire a shot at A. F. as A. F. ran away, and point a gun at 0. L.’s cousin; no one was shot (although a bullet struck A. F.’s shoe). T. S. asked where O. L. was and then yelled for him to come out of the house. O. L. returned to the living room, opened the front door, “pulled [a gun] out” and, from inside the house, fired the weapon in T. S.’s direction; the bullet did not strike anyone, although it did strike the front screen/storm door. After O. L. fired the weapon, T. S., who according to O. L. had been walking toward R. M.’s house (but was not on the porch), backed up and walked to his mother’s yard.

Testifying on his own behalf, O. L. explained that he had run into the house because he knew that T. S. would not enter the house and kill him; he stated that the house was filled with people, that he thought he would be safe in the house, and that R. M. had told him that he could stay inside. O. L. testified that he had fired the weapon to show T. S. that he had a gun and to scare him because he did not know whether T. S. would enter the house and shoot him.

The juvenile court found that 0. L.’s claim that he had fired the weapon in T. S.’s direction to defend himself was not credible. The court noted, inter alia, that there was a lapse of time between O. L.’s entering the home and his re-engaging the violence by opening the front door and firing the weapon at T. S., after looking out the kitchen window. The court reasoned that O. L. had retreated to a safe place, but then returned to the doorway to fire his weapon. The court concluded that, under the circumstances, a reasonable person would not have believed that it was necessary to use deadly force.

“[IJntentionally firing a gun at another, absent justification, is sufficient in and of itself to support a conviction of aggravated assault.” O. L. testified that he had fired the weapon in the direction of T. S. His intent was a question for the trier of fact. The trier of fact decides the witness’s credibility and the reasonableness of a hypothesis, such as a claim of self-defense; a trier of fact may reject a claim of self-defense. Similarly, “[rjesolving evidentiary conflicts and inconsistencies... are the province of the factfinder, not the appellate Court.”

Decided March 27, 2014

Eric D. Hearn, Brent D. Hutchison, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Christy R. Jindra, Assistant District Attorneys, for appellee.

Construing the evidence in favor of the adjudication, we find that the juvenile court was authorized to reject O. L.’s claim of self-defense and to find that O. L. committed an act which, if committed by an adult, would have constituted the offense of aggravated assault.

Judgment affirmed.

Ellington, P. J., concurs. Branch, J., concurs in judgment only.

       OCGA § 16-11-132.

       OCGA §§ 16-5-21 (a) (2); 16-5-20 (a).

       OCGA § 16-10-24 (a). Prior to the adjudicatory hearing, O. L. admitted to having committed the handgun possession and obstruction offenses.

       See OCGA § 16-3-21 (a).

       See OCGA § 16-5-20 (a) (2).

       443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

        In the Interest of Q. S., 310 Ga. App. 70, 72-73 (1) (712 SE2d 99) (2011) (citation omitted).

       (Emphasis supplied.)

        Love v. State, 268 Ga. 484, 485 (1) (490 SE2d 88) (1997) (citation and punctuation omitted); see Anthony v. State, 276 Ga. App. 107, 108 (1) (622 SE2d 450) (2005).

       OCGA § 16-5-20. See Goforth v. State, 271 Ga. 700, 701-702 (3) (523 SE2d 868) (1999); Tiller v. State, 267 Ga. 888 (4) (485 SE2d 720) (1997) (overruled on other grounds, Dunagan v. State, 269 Ga. 590, 593 (502 SE2d 726) (1998)); Watkins v. State, 306 Ga. App. 769, 770 (1) (702 SE2d 904) (2010); Jordan v. State, 322 Ga. App. 252, 254 (3) (744 SE2d 447) (2013) (where indictment charged defendant with aggravated assault for having shot the victim with a gun, a deadly weapon, the state was not required to show that the victim was in reasonable apprehension of a violent injury, as required for an assault under OCGA § 16-5-20 (a) (2); it was sufficient to show that the defendant shot at another intending to commit a violent injury against him, as required for an assault under OCGA § 16-5-20 (a) (1)). Notably, although evidence that T. S. was placed in reasonable apprehension of receiving a violent injury was not required in this case, there was circumstantial evidence of such apprehension (namely, that T. S. backed up and left the premises after O. L. fired the gun). See generally Watts v. State, 321 Ga. App. 289, 294 (2) (739 SE2d 129) (2013); Tiller, supra at 890 (3).

       See Watkins, supra.

       See Holmes v. State, 273 Ga. 644, 645 (1) (543 SE2d 688) (2001); Thompson v. State, 291 Ga. App. 355, 356-357 (1) (662 SE2d 135) (2008); Hill v. State, 276 Ga. App. 874, 875-876 (625 SE2d 108) (2005).

       See In the Interest of Q. S., supra at 71 (1).

        Anthony, supra at 108 (1) (citation and punctuation omitted); Tiller, supra at 891 (4); Williams v. State, 249 Ga. 6, 8 (4) (287 SE2d 31) (1982) (deliberately firing a gun in the direction of another to scare him, absent justification, constitutes an aggravated assault); Goodman v. State, 237 Ga. App. 795 (516 SE2d 824) (1999).

       See Cade v. State, 180 Ga. App. 314, 316 (3) (348 SE2d 769) (1986).

       See Thompson, supra at 356-357 (1).

        Ganaway v. State, 282 Ga. 297, 299 (1) (647 SE2d 590) (2007); Hill, supra; see In the Interest of J. W. B., 296 Ga. App. 131-132 (1) (673 SE2d 630) (2009).

        Hill, supra at 875 (citations and punctuation omitted).

       See generally Thompson v. State, 281 Ga. App. 627, 629 (636 SE2d 779) (2006) (deliberately firing a gun in the direction of another in and of itself constitutes an aggravated assault); Hill, supra at 875-876.


text:
    A13A1728, A13A1729.
    LRD, LLC et al. v. STATE BANK AND TRUST COMPANY (two cases).
    (757 SE2d 251)
   Phipps, Chief Judge.

These appeals are from orders confirming the foreclosure sales of two parcels of real property purchased by LRD, LLC. At issue is whether the lender proved the parcels’ true market values as of the date of the foreclosure sales. We find that the evidence was sufficient, and affirm.

On July 6, 2010, State Bank and Trust Company (“State Bank”) foreclosed on two parcels of real property that had served as security for loans made to LRD, LLC, and guaranteed by several individuals, including Leo Owens, Ralph Barlow, and Joseph Hession. State Bank was the highest bidder at the foreclosure sales, paying $1,706,250 for Parcel 1 and $625,800 for Parcel 2. Before the foreclosure sale, in May 2010, LRD owed $4,108,881 (principal) on Parcel 1, and $1,400,250 (principal) on Parcel 2.

State Bank filed in superior court an application to confirm the sales, naming LRD and the guarantors (collectively hereafter, “LRD”) as respondents. At the confirmation hearing, State Bank called as a witness an expert in real estate appraisal. The expert opined that the true market value of Parcel 1 was $1,625,000, and the true market value of Parcel 2 was $596,000. The expert affirmed that the “effective date of values” for both parcels was June 1, 2010. The court entered orders confirming the sales, finding that the true market value of Parcel 1 at the time of the foreclosure sale was $1,706,250 (the amount for which the parcel sold at foreclosure); and that the true market value of Parcel 2 at the time of the sale was $596,000 (with a foreclosure sale price of $625,800). The court concluded that the sales were valid, and confirmed them.

LRD contends that the trial court erred by confirming the foreclosure sales because State Bank failed to prove the true market values of the parcels as of the sale date. LRD concedes that “[State Bank] presented . . . evidence at the lower court hearing as to the value of Parcel 1 and Parcel 2 as of June 1, 2010,” (emphasis in original) but asserts that “no evidence whatsoever was presented that the appraised values of those Parcels on June 1, 2010 remained the same on July 6, 2010 (5 weeks later),” the date of the foreclosure sales.

Under OCGA § 44-14-161 (a) and (b), the superior court shall require evidence to show the true market value of the property sold under the powers contained in security deeds, mortgages, or other lien contracts, and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale. “[A] superior court may consider a property’s value at times close to the date of sale to arrive at the market value at the time of the sale.”

What [the property] may have brought or what it may have been regarded as being worth on the market at times relatively close to the date of sale may be considered as aids in arriving at market value at the time of sale — which is what the court is charged with determining in granting or denying an order of confirmation.
Value on the date of sale is a factual question to be resolved by the trier of fact, which is the judge in a confirmation proceeding. The trial judge’s findings and conclusions have the effect of a jury verdict and when that finding is based upon conflicting evidence, it should not be disturbed by a reviewing court if there is any evidence to support it. Further, we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.

Regarding true market value, the mortgagee bears the burden of proof, and the judge is vested with considerable discretion.

At the hearing, State Bank introduced appraisal reports of the properties’ values as of June 1,2010, as well as expert testimony from the certified real estate appraiser who prepared the reports. The appraiser explained his methodologies in detail, described the factors and calculations used in his appraisals, and gave his opinion about the fair market values of the parcels as of June 1,2010. He noted that, compared to 2007, the real estate market had changed dramatically; that in 2008 the market had declined, which it continued to do through 2010, “demand [had] dried up,” and “land values [had taken] a downward turn.”

Decided March 28, 2014.

Wallace Harrell III, Ferrelle Burns, John R. Ferrelle, J. Rice Ferrelle, Jr., Ligón, Middleton & Lindberg, William T. Ligón, Jr., for appellants.

In this case, there was evidence of the parcels’ value about five weeks before the foreclosure sales occurred. Thus, the appraisal date was “relatively close to the date of [the foreclosure sales],” which was sufficient. Notably, direct testimony as to market evidence is in the nature of opinion evidence, and a trier of fact is not absolutely bound by the opinion of a witness as to value, but may exercise its own judgment based upon the evidence as a whole. “[T]he superior court... had sufficient data in evidence upon which it could apply its own knowledge and ideas so as to derive its own opinion as to the market value of the property at the time of the sale,” which occurred just weeks after the appraisal date. Finally, there was no evidence that the sale was chilled or that any fraud was exerted.

Although LRD asserts that there was conflicting evidence, “the trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb [the trial court’s] findings if there is any evidence to support them”; “[w]hat value is, or may have been, was a question of fact to be resolved as others are.” As there was some evidence to support the trial court’s findings, the judgments must be affirmed.

Judgments affirmed.

Ellington, P. J., and Branch, J., concur.

Gilbert, Harrell, Sumerford & Martin, Wallace E. Harrell, Mark D. Johnson, Joseph R. Greene III, for appellee.

       The parcel purchased by LRD, LLC in April 2006 ($5.2 million note) is referred to herein as Parcel 1. The parcel purchased by LRD, LLC in August 2007 ($1.4 million note) is referred to herein as Parcel 2.

       Other guarantors are not parties to this appeal. The security deeds were initially given to Security Bank of Bibb County, then assigned to State Bank.

       See OCGA § 44-14-161 (a), pertinently providing that when real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, and at the sale the real estate does not bring the amount of the debt secured by the deeds, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall report the sale to the judge of the superior court for confirmation and approval.

       LRD does not challenge the validity of the sales in any other respect; we limit our review in these appeals to the challenge made.

        Eayrs v. Wells Fargo Bank, 311 Ga. App. 504, 505 (1) (716 SE2d 561) (2011) (citation omitted; emphasis supplied).

        Thompson v. Maslia, 127 Ga. App. 758, 764 (4) (195 SE2d 238) (1972) (emphasis omitted); Royal Crown Properties v. Regions Bank, 306 Ga. App. 568, 571, n. 3 (703 SE2d 36) (2010).

      . REF Dev. v. First Citizens Bank & Trust Co., 316 Ga. App. 391 (1 (729 SE2D 535) (2012) (citation omitted).

        Thompson, supra at 762 (2).

       See id. at 764 (4); Royal Crown Properties, supra at 570-571 (1) (affirming confirmation order where expert’s appraisal was two months old at the time of the foreclosure sale); Eayrs, supra at 506 (1), 507-508 (5) (affirming confirmation order despite debtors’ claim that the true market value appraisals were based on “stale” market data).

        Smith v. Fidelity Fed. Sav. & Loan Assn., 149 Ga. App. 730, 731 (256 SE2d 43) (1979).

        La Ronde, Ltd. v. Amsouth Bank of Fla., 203 Ga. App. 400, 401 (1) (416 SE2d 881) (1992) (citation and punctuation omitted).

       See Smith, supra at 731-732 (affirming confirmation order but noting that the failure to sell property for market value will justify the trial court’s declining to confirm the sale, where there was inadequacy of price plus fraud, mistake, misapprehension, surprise or other like circumstances).

        Blue Marlin Dev. v. Branch Banking & Trust Co., 302 Ga. App. 120-121 (690 SE2d 252) (2010) (citation and punctuation omitted).

        Smith v. Great Southern Fed. Sav. Bank, 192 Ga. App. 386, 387 (3) (385 SE2d 1) (1989) (citation and punctuation omitted).

       See generally Blue Marlin Dev., supra at 122 (1); Nash v. Compass Bank, 296 Ga. App. 874, 877 (b) (676 SE2d 28) (2009).