author: Barnes, Presiding Judge. McFadden, Judge,

text:
    A12A0225.
    MURRELL v. THE STATE.
    (730 SE2d 675)
   Barnes, Presiding Judge.

Following the denial of his motion for new trial, Billy Edgar Murrell appeals from his convictions for child molestation, two counts of sexual battery, four counts of stalking, aggravated assault, false imprisonment, terroristic threats, and public indecency. Murrell contends that his trial counsel was ineffective, that the trial court erred in admitting similar transaction evidence, and that the evidence was insufficient to support any of his convictions except public indecency. For the reasons that follow, we reverse the terroristic threats conviction but affirm the remaining ones.

1. Murrell challenges the sufficiency of the evidence supporting his convictions for child molestation, two counts of sexual battery, four counts of stalking, aggravated assault, false imprisonment, and terroristic threats. When a criminal defendant challenges the sufficiency of the evidence supporting 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.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the duty of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

So viewed, the record reveals that during the summer of 2002, local police received reports of several incidents involving Murrell. Victim R. C. testified that she had met Murrell during the summer of 2002, and they initially had a friendly relationship but not a romantic one. It soon became apparent that Murrell was following her, because he would show up unexpectedly at different places where she was present. She recounted an instance when Murrell followed her to the library and took photographs of her, and another when he showed up at a grocery store and would not let her go in until she agreed to talk with him. Murrell then followed her into the store and observed her as she shopped.

Later that summer, Murrell approached R. C. while her son was swimming at Rocky Mountain beach and began yelling at her that he had been at the beach all day waiting for her. R. C. tried to gather her things to leave, but Murrell carried her into the water over her protestations that she could not swim. After R. C.’s son became very upset, Murrell carried R. C. back to the beach, dumped her on the ground, took her cell phone, keys, and shoes, then left in his car.

As R. C. headed for her car with her son, a park ranger drove up, and R. C. obtained his assistance. Murrell then drove up, and the ranger began to talk to him. Pursuant to the ranger’s direction, R. C. went to a nearby campsite and asked an investigator with the Floyd County Police Department, who was camping with his family, to come and help detain Murrell. Back at the beach parking lot, the ranger made Murrell return R. C.’s belongings, and he and the investigator detained Murrell while R. C. left. Later that day, Murrell found R. C. and her son at a gas station and blocked her car with his, then began “raging” about needing to talk to someone. R. C.’s son was screaming and terrified, and Murrell finally backed up and let R. C. leave the station.

Later that summer, R. C. testified, she was staying overnight with her children at a local hotel when Murrell came into her room, held her down, and raped her, then threatened to hurt her children if she told anyone.

The investigator testified about the incident at the beach and his assistance in detaining Murrell pursuant to the ranger’s request for assistance. When the investigator returned to work the next week, he received a telephone call from victim T. H., who also reported an incident involving Murrell at Rocky Mountain the previous weekend.

T. H. had met Murrell at the grocery store where he worked, and he had followed her home and shown up uninvited at her home on several occasions. Over the next few months his harassment escalated, and in August 2002, Murrell showed up at Rocky Mountain beach where T. H. was swimming with her husband and children. While T. H.’s husband was on a boat out in the lake, Murrell followed her around the beach, and when T. H. attempted to leave in her car with her children, Murrell placed his hands on her car window so she could not roll it up, dropped his swim trunks, and began to fondle himself. T. H. drove down to where her husband was, and Murrell drove off. Her husband got in his car and chased Murrell, who got away.

The investigator noticed that another officer was also working on a case involving Murrell, in which he had allegedly exposed himself to a woman at a local college. Later, on the same day T. H. came to the station to report her encounter with Murrell at the beach, the investigator secured an arrest warrant against Murrell for stalking and a search warrant for his residence. When police executed the search warrant, they discovered numerous photographs of R. C., T. H., and other unidentified women. Later that evening, police located Murrell in his car and arrested him. His passenger, F. C., told police that Murrell had held her against her will at his home for several days and made her have sex with him.

As a result of articles about Murrell in the local newspaper identifying him as a convicted sex offender, several other victims came forward, resulting in additional charges against him. Specifically, A. B. testified that she recognized Murrell from his picture in the paper, and that in June 2002, Murrell approached her car as she was waiting for her parents at a local bank. He asked if she was having car problems and offered her a ride. He later followed her into the bank, sat down beside her, and struck up a conversation, leaving only when her parents arrived. On another occasion, she had a conversation with Murrell at the grocery store where he worked, but became frightened when he showed up later that day at the church she went to after leaving the grocery store. A. B. saw a vehicle similar to Murrell’s parked in front of her home on several different occasions.

K. F.’s mother also contacted police when she saw the newspaper article. In early July 2002, she and her children were at Rocky Mountain beach when her ten-year-old daughter K. F. told her that a man had touched her private parts. The children later identified Murrell from the newspaper article as that man. K. F. told police that she and several other children were playing in the water when Murrell approached them and offered to toss them in the water. After the first time, K. F. said, she did not want to be “throwed [sic] no more because [Murrell] touched [her] private parts,” and she left the water. She told her sister about the incident, and the two went to a nearby bathroom but left when Murrell followed them there.

The police contacted S. E. after discovering her restaurant name tag and photographs of her in Murrell’s residence. She told police that Murrell had been her customer during the early summer of 2002, but that, after a while, he “gave [her] the creeps.” She said that he was “too touchy and too feely” and would hug her and try to rub against her buttocks or chest. He had suggested taking her and her children out, and she avoided him when he came into the restaurant, asking her co-workers to wait on him instead.

J. L., another employee at the same restaurant, saw the articles in the newspaper and reported that she also knew Murrell from the restaurant. She said that he was a regular customer and appeared at first to be “a very nice gentleman, [and] real friendly.” J. L. testified that on July 21, 2002, Murrell gave her a ride home and forced his way into her house. He forcibly kissed her, pinned her against the counter, pulled her shirt down, and “suck[ed] her left breast.” He was “trying to get his hands in [her] pants” when he heard a car pull in nearby and left, after telling her that she would be sorry if she told anyone what happened.

On July 29, 2002, D. B. was running on the track around the lake at a local college. Murrell approached and asked her if she wanted to go fishing with him. She said no, and turned and “ran back the other way.” She ran as far as she could but her usual path was closed, so she ran back and discovered that Murrell had parked his car in a way that blocked hers from exiting. As she began to run past her car to an occupied building nearby, Murrell opened his car door and “giggled,” and D. B. saw that he was nude and masturbating. She continued running, and Murrell drove up beside her, asking her if she wanted a ride. Another car approached, and Murrell drove away, but D. B. was able to write down Murrell’s license plate number. She positively identified him from a photographic lineup.

Following the trial, the jury found Murrell guilty of one count each of child molestation (K. F), aggravated assault (J. L.), false imprisonment (R. C.), terroristic threats (R. C.), public indecency (D. B.), two counts of sexual battery (S. E. and J. L.), and four counts of stalking (J. L., R. C., T. H., and A. B.). It acquitted him of two counts of rape, four counts of stalking, and one count of sexual battery.

Murrell does not contest the public indecency conviction, but contends that the evidence was insufficient to support the other convictions. He argues that the State failed to show beyond a reasonable doubt that he was not merely playing with K. F, or that the aggravated assault against J. L. was more than a casual advance that she misconstrued. He also contends that the evidence was insufficient to support his convictions for terroristic threats and false imprisonment of R. C. He argues that, in light of his acquittal for the rape of R. C., it follows that he did not commit the other acts — terroristic threats and false imprisonment — that allegedly happened on the same day.

This Court cannot weigh conflicting evidence or determine the credibility of the witnesses. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Hash v. State, 226 Ga. App. 643 (487 SE2d 452) (1997). Considering the evidence in the light most favorable to the jury’s verdict, sufficient evidence was presented to authorize the jury to find Murrell guilty of child molestation by touching the vagina of K. F. as alleged in the indictment, under the standard set forth in Jackson v. Virginia, 443 U. S. 307.

Regarding the aggravated assault, Murrell was indicted for the offense of assaulting J. L. “with the intent to rape.” J. L. testified that Murrell forced his way into her house, kissed her against her will, and attempted to pull her pants down, stopping only when he heard another car drive up. “The crime of aggravated assault with intent to rape is complete when there is a substantial step toward a battery of the victim, i.e., an assault, coupled with intent to rape.” (Citation and punctuation omitted.) Butler v. State, 194 Ga. App. 895, 897 (2) (392 SE2d 324) (1990). As noted before, it was for the jury to assess the witnesses’ credibility, and based on the evidence in this case, the jury was authorized to conclude that Murrell intended to rape the victim.

Murrell challenges the terroristic threat and false imprisonment convictions stemming from the incident between him and R. C. at a hotel. The jury acquitted Murrell of rape, but convicted him of terroristic threats, OCGA § 16-11-37, and false imprisonment, OCGA § 16-5-41, arising from that incident.

We note first that although Murrell maintains the convictions cannot stand because he was acquitted of rape, even if the acquittal was inconsistent with the convictions, the inconsistency cannot be used as an avenue to challenge the convictions because the “inconsistent verdict rule” has been abolished in this State. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986).

Regarding the terroristic threats charge involving R. C., R. C. testified that she was sleeping on the floor of the hotel room at the foot of one of the beds in which her children were sleeping. Murrell entered the room, lay on top of her, “put his hand over [her] mouth and turned [her] head to the side so he could get to [her] ear.” She testified that he told her that if she screamed or was loud he would hurt or kill her children, after which Murrell had forcible intercourse with her, leaving when her daughter woke up.

Murrell was charged with threatening “to commit a crime of violence against [R. C.]” with the intent to terrorize.

A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence with the purpose of terrorizing another. The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.

(Citations and punctuation omitted.) Clement v. State, 309 Ga. App. 376, 379 (1) (710 SE2d 590) (2011). However, no person shall be convicted of the offense of terroristic threats based on the uncorroborated testimony of the person to whom the threat was communicated. OCGA § 16-11-37 (a). While only slight evidence maybe sufficient for corroboration, Boone v. State, 155 Ga. App. 937, 939 (1) (274 SE2d 49) (1980); Wilson v. State, 291 Ga. App. 263, 264 (1) (661 SE2d 634) (2008), in this case R. C.’s testimony is completely uncorroborated.

Murrell told R. C. that if she made any noise during intercourse he would “hurt or kill” the children. While the dissent correctly notes that Murrell was involved in crimes against other women during this period, the corroboration conduct as to the terroristic threats, although slight, must be “corroboration of the circumstances during which [the] terroristic threat [was] uttered.” In the Interest of C. S. G., 241 Ga. App. 37, 38 (1) (525 SE2d 106) (1999).

In Scott v. State, 225 Ga. App. 729 (484 SE2d 780) (1997), we determined that there was sufficient corroboration of terroristic threats based on the laceration the victim received when Scott stabbed her, the victim’s testimony, “as well as the testimony of a witness who observed [the victim] immediately following the incident” and saw that she was nearly hysterical. Id. at 732 (3). In Martin v. State, 219 Ga. App. 277, 283 (10) (464 SE2d 872) (1995), the victim’s testimony was corroborated by several witnesses who testified that after the incident the victim was “frightened,” “nervous and scared,” “literally terrified,” “very afraid,” and “scared to death.” In Spray-berry v. State, 241 Ga. App. 501, 503-504 (3) (527 SE2d 224) (1999), testimony from a witness that when the victim “banged” on his door and asked to use his phone, she was “terrified,” “really agitated,” and “nervous almost to the point of shaking,” was sufficient corroboration of the appellant’s threat to kill the victim.

Even though J. L. testified that Murrell said that she would be “sorry” if she told anyone about Murrell’s attack, we have held that similar corroborated threats against one victim could be used to corroborate threats against another victim. Ellis v. State, 176 Ga. App. 384, 386-387 (3) (336 SE2d 281) (1985). In Ellis, the appellant was charged with two counts of terroristic threats, one which was corroborated by the victim’s daughter and other witnesses who overheard the defendant threaten to “kill the victim” and to kill “all white men.” (Punctuation omitted.) Id. at 386. The second count was based on appellant’s threat against a police officer who arrested Ellis to “kill the officer and to kill all white police officers.” Id. at 387. The second threat occurred in the patrol vehicle and was only witnessed by the officer. Id. at 387. We held that the officer’s testimony was sufficiently corroborated because the previous corroborated threat was similar and tended to prove that the incident involving the officer had occurred. Id.

In this case, however, J. L.’s threats were not corroborated by any other witnesses, and thus not sufficient to corroborate the uncorroborated threats against R. C. Moreover, although there were several witnesses present at the hotel with R. C., there is no corroborating evidence, even slight, “that the incident occurred as alleged.” (Citations and punctuation omitted.) Scott v. State, 225 Ga. App. at 732 (3). “Slight corroboration of the circumstances during which a terroristic threat is uttered is . . . necessary to satisfy OCGA § 16-11-37 (a)’s requirement.” (Citation omitted; emphasis supplied.) In the Interest of C. S. G., 241 Ga. App. at 38 (1 ); Drew v. State, 256 Ga. App. 391, 393 (1) (568 SE2d 506) (2002) (even though victim did not hear threat, her testimony about Drew’s violent behavior toward her was sufficient to corroborate the police officer’s testimony that he heard Drew threaten the victim).

Thus, in this case, as Murrell’s threat to “hurt or kill” the victim’s children was uncorroborated, the evidence was insufficient to sustain his conviction for the offense of terroristic threats. Accordingly, we must reverse that conviction. See Hanvey v. State, 186 Ga. App. 690 (1) (368 SE2d 357) (1988).

Murrell also contends that insufficient evidence supports his false imprisonment conviction. The indictment charged that Murrell did “unlawfully . . . arrest, confine and detain [R. C.] without legal authority.” All that is required to prove false imprisonment “is there be an arrest, confinement or detention of the person, without legal authority, which violates the person’s personal liberty (i.e., against his or her will).” (Citation and punctuation omitted.) Armstrong v. State, 244 Ga. App. 871, 872 (1) (537 SE2d 147) (2000). See also OCGA § 16-5-41 (a). Here, evidence was presented that Murrell came into R. C.’s room uninvited, put his hand across her mouth, and lay on top of her, confining her movement and rendering her unable to resist. This evidence is sufficient to sustain Murrell’s conviction for false imprisonment. Rehberger v. State, 235 Ga. App. 827, 827-828 (1) (510 SE2d 594) (1998); Herrin v. State, 229 Ga. App. 260, 263 (3) (493 SE2d 634) (1997) (OCGA § 16-5-41 (a) does not onits face require that imprisonment be for specific length of time).

2. Murrell also contends that his trial counsel was ineffective for failing to object and move for a mistrial when the State failed to present at trial evidence of the similar transaction for which it had given notice; for failing to keep out hearsay evidence of a separate allegation of child molestation; for failing to move for a change of venue; and for failing to move for a mistrial when the jury was given an unredacted transcript containing allegations of a crime for which he had not been indicted.

To establish ineffective assistance, [Murrell] must show both that his trial counsel’s performance was deficient and that this deficiency prejudiced his defense. [Murrell] must establish both elements; if we determine that one element is missing we need not consider whether the defendant has established the other element.

Hinton v. State, 290 Ga. App. 479, 481 (2) (659 SE2d 841) (2008).

(a) The State filed notice of its intent to present evidence that Murrell had previously pled guilty to kidnapping, rape, and aggravated sodomy. Following a hearing, the trial court ruled that the evidence was admissible. At the end of the State’s case-in-chief, the State informed the trial court that its similar transaction witness had been hospitalized and would not be available to testify, so it would not be presenting the similar transaction evidence. Murrell contends that his trial counsel was ineffective for failing to move for a mistrial at that point, because his trial strategy “relied heavily” on the similar transaction evidence being presented at trial.

At the motion for new trial hearing, trial counsel testified that even if he had known that the similar transaction was not coming in, he probably would not have changed his trial strategy. He testified that he “probably would have told the jury about [the similar transaction] anyway” because “our theory was that most of these allegations were made by witnesses who were not credible, who had made these reports only after learning that there was a convicted sex offender living in their community.”

We must measure trial counsel’s performance under the circumstances existing at trial. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). Although another trial counsel might have pursued a different strategy or tactic, the existence of an alternative course of action does not constitute ineffective assistance of counsel. Heard v. State, 177 Ga. App. 802, 804 (5) (341 SE2d 459) (1986). The constitutional right to assistance of counsel means “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” (Citation and punctuation omitted.) Alderman v. State, 241 Ga. 496, 511 (8) (246 SE2d 642) (1978). Considering the totality of the circumstances in Murrell’s trial, he has not met his burden under Strickland v. Washington of showing that his counsel’s performance was deficient for failing to move for a mistrial when the State was unable to introduce its similar transaction evidence.

(b) Murrell also asserts that counsel should have filed a motion for a change of venue because of the publicity surrounding his arrest. To support a motion for a change of venue, Murrell had the burden of demonstrating “(1) that the trial’s setting was inherently prejudicial or (2) that the jury selection process revealed actual prejudice to a degree that rendered a fair trial impossible. [Cit.]” Brady v. State, 270 Ga. 574, 575 (3) (513 SE2d 199) (1999).

At the hearing on the motion for new trial, Murrell’s trial attorney testified that he did not recall an overwhelming amount of media coverage on the case, which came to trial approximately two years after the initial publicity. Further, he testified that his trial strategy was to use the publicity surrounding the case to demonstrate that some of the victims were not reliable and that their calls to police were generated by the newspaper articles rather than made contemporaneously when the incidents occurred. Trial counsel testified that he could not recall the specific responses of the jurors to questions about pretrial publicity, but that prejudice in the pool must have been limited because they were able to satisfactorily seat a jury.

Other than showing that six stories ran in the local newspaper between August 22, 2002 and October 19, 2002, Murrell did not present any evidence at the motion hearing to show that the jury could have been unfairly tainted or biased in the context of a trial that occurred in May 2004.

Under those circumstances, there being no evidence the trial’s setting was inherently prejudicial or the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible, [Murrell] has not shown the failure to seek a change of venue constituted ineffective assistance of counsel.

(Citation omitted.) Williams v. State, 277 Ga. 853, 858-859 (6) (d) (596 SE2d 597) (2004). Moreover, trial counsel’s assessment that the venue was not tainted fell within reasonable trial strategy and tactics and does not amount to ineffective assistance of counsel. Hazelrigs v. State, 255 Ga. App. 784, 786 (2) (567 SE2d 79) (2002).

(c) Murrell further contends that trial counsel was ineffective for failing to keep out harmful hearsay about another allegation of child molestation contained in the recorded interview with K. F. that was played to the jury. During the recorded interview, K. F. told the investigator that “Ashley” told her that Murrell had touched her in the same way he touched K. F. Murrell asserts that the hearsay violated his Sixth Amendment right to confront and cross-examine the witnesses against him, and his trial counsel’s failure to object constituted error.

This claim, however, was not raised in the motion for new trial as amended or at the hearing in the matter. Thus, this allegation of ineffectiveness is deemed waived because a defendant is obligated to raise all allegations of ineffectiveness of counsel at the earliest practicable moment. Hayes v. State, 262 Ga. 881, 882 (2) (426 SE2d 886) (1993).

(d) Murrell also contends that trial counsel was ineffective for failing to request that the trial court ask the jurors if they had read ahead in their copy of the transcript of an interview being played in open court. During the trial, the State played the tape of a police interview with victim R. C., and the jury was given a transcript of the interview to read along as the tape played. While reading ahead, trial counsel discovered an unredacted hearsay statement R. C. made concerning her cousin’s comments about Murrell. The cousin was not a witness at trial. Trial counsel raised an objection, the trial court sustained the objection, and the bailiff collected the jurors’ transcripts.

At the motion for new trial hearing, trial counsel testified that he did not ask for a curative instruction because he did not want to bring unnecessary attention to the statement, and that in his experience, jurors follow along “word for word” with the audiotape and the transcript. He further testified that he believed that he had discovered the inadmissible hearsay before it was exposed to the jury.

As stated earlier, “ [t] rial strategy and tactics do not equate with ineffective assistance of counsel.” (Punctuation and footnote omitted.) Caylor v. State, 255 Ga. App. 362, 364 (1) (566 SE2d 33) (2002).

When a defendant’s complaint relates to tactical judgments made by . . . trial counsel in the absence of a showing, and there is none in the present case, that the trial counsel’s loyalty, integrity or best use of his ability is questioned, a new trial will not be granted on the ground that the defendant was not afforded competent representation.

(Citation and punctuation omitted.) Sledge v. State, 312 Ga. App. 97, 103-104 (2) (b) (717 SE2d 682) (2011). Here, trial counsel’s decision not to seek a mistrial on this ground was a tactical decision and was not ineffective.

3. Murrell also asserts as error the trial court’s jury instruction regarding similar transaction evidence because the State did not introduce such evidence at trial and the instruction “inappropriately drew attention to the similar transaction.” While absent the State’s introduction of evidence regarding the similar transaction the charge was not relevant or applicable, reviewing the charge as a whole, as we must, we conclude that the error was harmless. Stansell v. State, 270 Ga. 147, 150-151 (4) (510 SE2d 292) (1998). The trial court adequately and appropriately informed the jury of the charges against Murrell, of his presumption of innocence, of the State’s burden of proof, and of its duty to acquit if it did not find him guilty beyond a reasonable doubt. Id.

Judgment affirmed in part and reversed in part.

Mikell, P. J., and Miller, J., concur. Adams, J., concurs in judgment only. Doyle, P. J., Blackwell and McFadden, JJ., concur in part and dissent in part.

McFadden, Judge,

concurring in part and dissenting in part.

I respectfully dissent from the portion of Division 1 that reverses Murrell’s conviction for terroristic threats. I concur fully in the remainder of the majority opinion.

I would hold that “[t]he victim’s testimony in this regard was sufficiently corroborated by the evidence concerning the events which transpired immediately before and after the appellant made the asserted threats.” Steele v. State, 196 Ga. App. 330, 331 (3) (396 SE2d 4) (1990). “[Cjorroborating conduct includes the defendant’s commission of similar transactions which were clearly interwoven and linked (connected) with the facts of the crime charged.” (Citations omitted.) Alatise v. State, 291 Ga. 428, 432 (5) (728 SE2d 592) (2012). Here the “evidence of a clear crime spree committed by [Murrell] both before and after the [terroristic threat made to R. C.] corroborated [R. C.’s] testimony.” Id. And that evidence “showed a clear modus operandi” of targeting and isolating women. Id. His effort to discourage R. C. from calling for help was consequently sufficiently “interwoven and linked” with the rest of his crime spree for his other crimes to provide the slight corroboration necessary to sustain his conviction for terroristic threats.

Decided July 16, 2012

Reconsideration denied July 31, 2012

I note that Alatise involved corroboration of a co-defendant’s testimony and that we have found no cases in which similar transactions involving other victims have been recognized as the corroboration necessary to sustain a conviction for terroristic threats. Nevertheless, “[i]n order to interpret [the corroboration requirement of the terroristic threats statute], reference can be made to other corroboration requirements in Georgia law.” Robert E. Cleary, Jr., Kurtz Criminal Offenses and Defenses in Georgia, Terroristic Threats and Acts, p. 1752 (2011 ed.).

In that regard, as the majority notes, Murrell also threatened another of his victims, J. L., if she told anyone about his attack. While the majority attempts to distinguish the instant case from Ellis v. State, 176 Ga. App. 384 (336 SE2d 281) (1985), that case sets forth the rule of law that controls this case.

[T]he corroboration requirement of OCGA § 16-11-37 has been analogized to the corroboration that was formerly required in rape cases and that is still required in statutory rape cases. In crimes involving sexual offenses, evidence of similar previous transactions is admissible to corroborate the testimony of the victim as to the act charged.

(Citations and punctuation omitted; emphasis in original.) Id. at 387 (3). Thus, J. L.’s testimony of a similar threat by Murrell during an assault was sufficient to corroborate R. C.’s testimony as to Murrell’s terroristic threat during his assault of her.

Indeed, “[sjlight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.” (Citations and punctuation omitted.) Ellis, 176 Ga. App. at 386 (3). Because there is some evidence corroborating the victim’s testimony, Murrell’s terroristic threats conviction should be affirmed.

I am authorized to state that Presiding Judge Doyle and Judge Blackwell join in this dissent.

Robert C. Rutledge, for appellant.

Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District Attorney, for appellee.

       “A person commits the offense of aggravated assault when he or she assaults[ ] [w]ith intent to murder, to rape, or to rob.” OCGA § 16-5-21 (a) (1).


source: Caselaw Access Project

author: Phipps, Presiding Judge.

license: Public Domain

text:
    A12A0355.
    MAYFIELD et al. v. HEIMAN et al.
    (730 SE2d 685)
   Phipps, Presiding Judge.

Curtis Mayfield III and Sharon LaVigne (“the beneficiaries”) sued Marvin Heiman, Sussex Financial Group, Inc., an accounting firm, and others for their alleged mismanagement of a family trust created by their father, a singer-songwriter and record producer, Curtis Mayfield, Jr., who died in 1999. The beneficiaries alleged against Heiman and the other defendants a cause of action for breach of fiduciary duty and “breach of trust (and self-dealing).” Some of the defendants were dismissed from the case, but Heiman and Sussex were not. Both sides moved for summary judgment. The trial court denied summary judgment to the beneficiaries and granted summary judgment to Heiman and Sussex.

The beneficiaries appeal, contending that the trial court erred by: (1) finding that their claims accrued at the time a loan transaction was closed; (2) granting summary judgment to Heiman and Sussex because genuine issues of material fact remain as to whether the beneficiaries exercised “due care” to discover their cause of action before the statute of limitation had expired; (3) not applying law which excused them, as beneficiaries of the trust, from exercising due care to discover fraud, during the existence of the trust; (4) misinterpreting OCGA § 9-3-96; (5) transferring the case to “Business Court”; (6) opening a default judgment against the accounting firm; and (7) finding that there was no basis to impose liability for damages caused by the tax strategy rendered in this case. Finding no error, we affirm.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Viewed in the light most favorable to the beneficiaries, the record reveals that the beneficiaries had a contingent interest in the May-field Family Trust (“MFT” or “Trust”). Heiman served as co-trustee of the Trust from 1999 until 2003. Heiman was the president of Sussex, an entity that performed investment and management services for the Trust.

At the center of the dispute was a loan (or “securitization”) transaction that Heiman entered into on May 4,2000, on behalf of the Trust. In that transaction, the Trust (through a corporate entity, “MFT-I, LLC”) received proceeds from a loan which was to be repaid from the royalty stream of, among other things, certain copyright interests which the Trust/MFT-I purchased from the beneficiaries and pledged to a lender for the loan. As part of that transaction, on March 17, 2000, the beneficiaries each signed a Renewal Term Acquisition Agreement, whereby they sold to the Trust/MFT-I, for $65,000 each, their individual rights to certain copyrighted works of Curtis Mayfield, Jr.

The acquisition agreement pertinently provided:

[E]ach of the Assignors [pertinently, Curtis Mayfield III or Sharon LaVigne] represents, warrants, and covenants, for him or herself alone, undertakes and agrees for him or herself only . . . (c) that . . . each has been represented by independent counsel selected by each in connection with the negotiation and execution of this Agreement... and (d) that he or she will indemnify and hold Assignee [Heiman], its successors, assigns and licensees, forever harmless. ... In consideration of Assignee acquiring all Renewal Term Rights as in this Agreement provided, and in reliance upon the warranties and representations made by Assignors herein, Assignee will pay to each Assignor [pertinently, Curtis Mayfield III or Sharon LaVigne] (i) $65,000 within 5 days after Assignee receives its Loan proceeds from UCC Lending Corp. . . . The amount to be paid pursuant to (i) above has been computed on the basis of the following factors: (a) the number of Assignors; (b) the value of the Writer’s [Curtis Mayfield, Jr.’s] share of the Renewal Term Rights based on values utilized by UCC Lending in determining the Loan amount ...[;] (e) the fact that this Agreement is being executed by only 80% of the Writer’s widow and children[;] and (f) that payment is being made only for the so-called Writer’s Share of royalties and not the Publisher’s Share. Each Assignor acknowledges his or her understanding thereof. The right of each of the individuals comprising Assignors to receive payment as aforesaid is conditioned on his or her full compliance with all of the terms, covenants and conditions herein contained.

The acquisition agreement further provided that it “shall be rescinded if UCC Lending Corp does not fund its loan to [Heiman] prior to June 30, 2000 and all Renewal Term Rights shall revert to the Assignors [pertinently, Curtis Mayfield III and Sharon LaVigne].” The same day the beneficiaries signed the acquisition agreement, they each also signed a “Fee Agreement” document, granting Heiman a power of attorney to negotiate the sale or other disposition of each beneficiary’s copyright interests and agreeing, that in exchange for Heiman’s services, Heiman “shall receive a fee/commission of ten percent (10%) of the gross sum obtained from the sale or other disposition” of their copyright interests.

Five days after executing the acquisition agreement, Curtis Mayfield III sent to Altheida Mayfield documentation entitled “Understanding Securitization.” Curtis Mayfield III noted to Altheida May-field that he was sending her the information because he thought it might be of some use to her, that the document explained in detail “some of the things that happen” in a securitization transaction, and that “Marv did take the time to explain it to me but I had to get some more documentation so that I could digest it at my own pace.”

The loan amount to the Trust was $5.41 million. Heiman received a commission of $541,000 from the loan transaction. The beneficiaries each received $65,000 for their copyright interests.

The beneficiaries moved for partial summary judgment on the ground of Heiman’s “breach of the duty to exercise prudence in dealing with trust assets.” They claimed that “Mr. Heiman caused the trust to enter into a securitization transaction although all signs indicated it would result in a loss of millions of dollars to the MFT.” The beneficiaries claimed that Heiman was “motivated to close the transaction by the promise of a $541,000 commission,” and that the undisputed facts were sufficient as a matter of law to find that Heiman breached a duty of trust by his “failure to exercise prudence.”

Heiman and Sussex moved for summary judgment, arguing, among other things, that the beneficiaries’ suit was barred by the statute of limitation. The trial court agreed, finding no facts to support the beneficiaries’ argument that the statute of limitation was tolled by any alleged fraudulent conduct of Heiman and Sussex. In opposition to Heiman’s and Sussex’s motion for summary judgment, the beneficiaries claimed that Heiman was responsible for the “disastrous tax consequences” to the Trust in connection with the loan transaction.

The trial court held that because the loan transaction closed on May 4, 2000, and the beneficiaries did not file suit until January 11, 2007, they were outside the applicable six-year statute of limitation. The court rejected the beneficiaries’ argument that their claim did not begin to accrue until May 2004, when the future loan payments exceeded the loan proceeds and harm thus occurred to the Trust. The court found that the beneficiaries failed to show that the loan transaction was concealed from them and that they were diligent in discovering any alleged imprudence in the transaction.

1. The beneficiaries contend that the trial court erred by finding that the statute of limitation on their claims began to run when the loan transaction was closed in 2000. They claim that the statute of limitation did not begin to run until 2004 when “appreciable harm” occurred to the Trust because it had to repay the loan with payments that exceeded net loan proceeds.

“A cause of action for breach of fiduciary duty in the management of a trust, as we have here, begins to run at the time the wrongful act accompanied by any appreciable damage occurs.” In Allen v. Columbus Bank & Trust Company, a case involving alleged mismanagement of a trust and breach of fiduciary duty, we held that “it [was] clear that each time [the trustee] made an investment which [the beneficiary] deem[ed] to have constituted mismanagement, the trust was detrimentally affected, a cause of action accrued in favor of [the beneficiary], and the . . . statute of limitation began to run.”

Here, the beneficiaries claimed that Heiman and Sussex committed a breach of fiduciary duty and breach of trust when they entered into the loan transaction. Thus, the Trust was allegedly detrimentally affected when the loan transaction closed in 2000. Accordingly, the trial court properly found that the statute of limitation on the beneficiaries’ claims began to run at the time the loan transaction was closed in 2000.

2. The beneficiaries contend that the trial court erroneously granted summary judgment to Heiman and Sussex because genuine issues of material fact remain as to whether the beneficiaries exercised “due care” to discover before the six-year statute of limitation had expired that the loan transaction was imprudent.

Former OCGA § 53-12-198 (a), in effect at all times relevant to this case, provided that a cause of action for a beneficiary’s claim for breach of trust against a trustee must be commenced within six years after receipt of a written report that adequately disclosed the existence of a claim against a trustee for breach of trust. The statute further provided that if

the beneficiary has not received a report which adequately discloses the existence of a claim against the trustee for breach of trust, the claim is barred as to that beneficiary unless a proceeding to assert the claim is commenced within six years after the beneficiary discovered, or reasonably should have discovered, the subject of the claim.

Similarly, OCGA § 9-3-96 provides: “If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.”

The beneficiaries argue that whether a plaintiff exercises diligence is a jury question. But under Georgia law,

[t] hough the level of diligence required by the plaintiff in investigating the fraud is lessened where a confidential relationship exists, it is not entirely extinguished [and] . . . although issues concerning a plaintiff’s diligence in discovering fraud usually must be resolved by the trier of fact, this is not always the case. A party may fail to exercise due diligence as a matter of law.

“Where a fiduciary fails to disclose a material fact there is actionable fraud. . . . Under Georgia law, fraud that gives rise to a cause of action does not necessarily establish the fraud necessary to toll the statute of limitation.”

Fraud sufficient to toll the statute of limitation requires: (1) actual fraud involving moral turpitude on the part of the defendant; (2) the fraud must conceal the cause of action from the plaintiff, thereby debarring or deterring the knowing of the cause of action; and (3) the plaintiff must have exercised reasonable diligence to discover the cause of action, notwithstanding the failure to discover within the statute of limitation.

“To constitute concealment of a cause of action so as to prevent the running of limitations, some trick or artifice must be employed to prevent inquiry or elude investigation, or to mislead and hinder the party who has the cause of action from obtaining information, and the acts relied on must be of an affirmative character and fraudulent.”

In Goldston [v. Bank of America Corp.],[] we reversed the trial court’s decision to dismiss a trust beneficiary’s complaint as time-barred, finding that the statute of limitation was tolled by the fraud engaged in by the trustee/bank when it failed to disclose the very existence of the trust and failed to comply with any of its provisions. In Goldston, we specifically distinguished Allen, [ ] noting that the beneficiary in that case was well aware of the trust’s existence; had received benefits therefrom; and regularly received account statements which she admitted to never reading.

The beneficiaries argue that Heiman did not disclose important information, such as his opinion that the “value of the assets might decline,” or what “amount of money the Trust would repay over the life of the loan.”

The record shows that the beneficiaries knew about the loan transaction when the loan closed in May 2000. Indeed, just two months before the loan closed, the beneficiaries signed documents which stated that the express purpose of their execution was to sell their individual interests in Curtis Mayfield, Jr.’s copyrights to effectuate the loan transaction. The documents which they signed expressly stated that the value they would receive for their copyright interests was based on values utilized by “UCC Lending”; and that they acknowledged their understanding thereof.

Once the beneficiaries were paid the amount agreed upon in the acquisition agreement, they knew, pursuant to that same agreement, that the loan had been funded and that they had lost their interests in the copyrights. Furthermore, as it concerned Curtis Mayfield III, the note (with attached information about securitization transactions) which he sent to Altheida Mayfield just days after executing the acquisition agreement shows that he had discussed the loan transaction with Heiman.

The beneficiaries point to no evidence, however, showing that Heiman intentionally withheld from them information such as his opinion that the value of the assets might decline, or what amount of money the Trust would repay over the life of the loan transaction, and that they were thereby deterred from filing suit. They point to no evidence that they had asked Heiman for his opinion on whether the value of the assets would decline or what amount of money the Trust would repay over the life of the loan. They point to no evidence that Heiman did anything to deter them from hiring an attorney or other professional advisor to review the acquisition agreement documents before they signed them or that Heiman took any action to deter them from timely filing their suit. The beneficiaries had information (particularly, the acquisition agreements) in their possession about which they could have sought advice.

On motion for summary judgment based upon the running of the statute of limitation, “the movant has only the burden of proof as to an affirmative defense of the running of the statute of limitation and not to establish the absence of facts showing a tolling.” The burden of persuasion that the statute of limitation has not attached then “falls to the plaintiff to present some evidence showing that an issue exists that the statute has not run but has been tolled.”

The record showed that the beneficiaries failed to meet their burden by presenting some evidence to raise an issue of material fact that they exercised diligence to discover fraud which would have tolled the running of the statute of limitation. Accordingly, the trial court properly decided the issue as a matter of law.

3. The beneficiaries contend that the trial court erred by failing to apply law which excused them, as beneficiaries of the trust, from exercising due care to discover fraud during the existence of the trust. This issue is controlled adversely to the beneficiaries based on the law we set forth in Division 2, and we need not address it again here.

4. The beneficiaries contend that the trial court misinterpreted OCGA § 9-3-96; that the trial court erroneously relied on Allen; and that the statute of limitation was tolled during the time Heiman was trustee by virtue of his being in a confidential relationship with them.

(a) In reaching our conclusion in Division 2, we considered the provisions of OCGA § 9-3-96 and we held that the trial court did not err in finding that the beneficiaries failed to exercise diligence, which they were required to use, in discovering fraud before the statute of limitation expired.

(b) The beneficiaries contend that the statute of limitation was tolled during the time Heiman was trustee by virtue of his being in a confidential relationship with them. They argue that Allen supports their contention because in that case the beneficiary filed suit for breach of fiduciary duty ten years and two months after the trust had terminated. But in Allen, we included the fact of the beneficiary filing suit at that time only to address her meritless argument that the statute of limitation had not begun to run until the trust corpus was disbursed approximately one year after the trust had terminated and that thus, her suit was timely filed.

As we have already stated, our holding in Allen was that “[a] cause of action for breach of fiduciary duty in the management of a trust. . . begins to run at the time the wrongful act accompanied by any appreciable damage occurs.” And in applying that principle to that case, we held further that it was clear that each time the trustee made an investment which the beneficiary deemed constituted mismanagement, “the trust was detrimentally affected, a cause of action accrued in favor of [the beneficiary], and the ... statute of limitation began to run.” We thus looked to each of the beneficiary’s specific claims of acts of mismanagement to determine when her causes of action accrued.

The beneficiaries misconstrue Allen. Indeed, “[a] confidential relationship cannot, standing alone, toll the running of the statute.” We see no merit in the beneficiaries’ contentions.

5. The beneficiaries contend that the trial court erred by transferring the case to “Business Court.” They assert that the order of the Supreme Court of Georgia allowing such transfers excludes cases that “have a personal injury component unless all parties consent,” and they did not consent to the transfer because they alleged a personal injury claim for intentional infliction of emotional distress in their complaint.

The tort of intentional infliction of emotional distress requires proof of four elements:

(1) intentional or reckless conduct; (2) which is extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress. To warrant recovery, the conduct also must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress. Otherwise, the conduct will not rise to the requisite level of outrageousness and egregiousness.

In support of their assertion that they alleged a claim for the intentional infliction of emotional distress which is a personal injury claim, they point to certain pages of their complaint to show that they alleged a claim for intentional infliction of emotional distress. But we are not persuaded that the pages cited allege facts or law to state a claim for intentional infliction of emotional distress.

The beneficiaries did not allege in any count of the complaint a claim for intentional infliction of emotional distress. Moreover, none of the pages to which they point contain allegations that Heiman’s and Sussex’s conduct was extreme and outrageous, that it caused severe emotional distress, and that there was a causal connection between alleged wrongful conduct and emotional distress. Further, the beneficiaries have pointed to no allegations which show that any conduct was of such serious import to naturally give rise to intense feelings of humiliation, embarrassment, outrageousness and egregiousness.

Accordingly, there was no error in the trial court’s transfer of the case to the Business Case Division of the Fulton County Superior Court.

6. The beneficiaries contend that the trial court erred by opening a default judgment that had been entered against the accounting firm Heiman hired.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense.
Generally, the opening of a default rests within the sound discretion of the trial court. Compliance with the four conditions, including the necessity of setting up a meritorious defense, however, is a condition precedent; absent the showing of a meritorious defense, a trial court has no discretion to open a default. Furthermore, the failure to make this showing is, in and of itself, fatal to the motion to open default, such that no other condition need be considered. In order to establish a meritorious defense, a defendant must demonstrate that the outcome of the case “may be different” if the motion is granted. But, in making that showing, a defendant cannot rely on mere conclusions; he must set forth facts that establish the essential elements of a meritorious defense.

At a hearing, the beneficiaries asserted that of the four required conditions, they took issue with only the fourth one, that the accounting firm had failed to set forth facts that established the essential elements of a meritorious defense. But the record belies this assertion.

Here, the accounting firm filed a motion to open default and a brief in support thereof; the firm attached to the motion the affidavit of a representative from its office, explaining its delay in timely answering the complaint. The affidavit also set forth defenses and supporting facts, including the fact that it was an “accounting firm (professional corporation)” with an office and place of business out-of-state, that the beneficiaries had named it as a defendant, and that all claims alleging professional malpractice against the firm were barred because of the beneficiaries’ failure to comply with the statutory filing requirements. The affidavit referenced an answer the firm had simultaneously filed with the motion to open default. Indeed, the firm pled instanter, and included an announcement that it was ready for trial.

The accounting firm met its burden of setting forth facts to establish a meritorious defense, and the trial court did not abuse its discretion in opening the default judgment in this regard.

7. The beneficiaries contend that the trial court erred in finding that there was no basis to impose liability for damages caused by the tax strategy rendered by the accounting firm that Heiman hired for the Trust. They argue that while Heiman claims he relied on a law firm for advice regarding the proper “depreciation mechanism” to use to file taxes for the Trust, the record shows that “the decision rested solely with Heiman.” The beneficiaries assert that a jury question remains as to whether Heiman acted prudently in connection with employing a “risky and untested tax strategy.”

The beneficiaries misconstrue the trial court’s ruling. The trial court ruled:

[The beneficiaries] claim that the damage to the Trust due to the unfavorable tax consequences of the securitization transaction naturally flows from Heiman’s purported breach of trust in connection with the transaction. Because the Court finds that any underlying claims arising out of the securitization transaction are time-barred, [the beneficiaries] are precluded from recovering any alleged tax damages.

The court ruled further that to the extent that the beneficiaries argued that Heiman committed a further breach of trust “for the tax position taken by the Trust in connection with the transaction, the Court is not persuaded.” The court found that the record showed that Heiman relied on professionals to render tax advice and to prepare the Trust’s tax returns, and thus, there was no basis on which to impose liability on Heiman.

Decided July 16, 2012

Reconsideration denied July 31, 2012

Weinberg, Wheeler, Hudgins, Gunn & Dial, Patrick B. Moore, Ross D. Ginsberg, James E. Voyles, Mark F. Milhollin, for appellants.

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, Todd P. Swanson, Drew, Eckl & Farnham, Paul W. Burke, Eric R. Mull, for appellees.

Indeed, in the lower court the beneficiaries took the position that damages regarding the tax consequences “naturally flowed from the fact that the securitization transaction was entered,” and that “ [b] ecause the underlying transaction constituted breach, the tax damages were a foreseeable consequence of the transaction itself and are recoverable on that basis.” Because the beneficiaries clearly took the position that any tax damages were a consequence of the “breach” on the loan transaction, and because we concluded in Division that their claims for breach in connection with that transaction were time-barred, any tax damages relating to the “foreseeable consequence of the transaction itself” are also barred. Accordingly, the trial court did not err in that regard.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Giles v. Swimmer, 290 Ga. 650, 651-652 (1) (725 SE2d 220) (2012) (citation and punctuation omitted).

       Altheida Mayfield, the widow of Curtis Mayfield, Jr., served as co-trustee with Heiman, and at the time of the summary judgment hearing, she was the sole trustee of the Trust.

        Allen v. Columbus Bank &c., 244 Ga. App. 271, 272 (1) (534 SE2d 917) (2000) (footnote omitted); Hendry v. Wells, 286 Ga. App. 774, 779-780 (1) (650 SE2d 338) (2007).

       Supra.

       Id.

       See id.

       Pursuant to OCGA § 53-12-198 (a), which has been repealed, the applicable statute of limitation for a beneficiary’s claim for breach of trust against a trustee is six years. OCGA § 53-12-307, enacted by Ga. L. 2010, p. 579, § 1, is the current similar statutory provision.

        Cochran Mill Assoc. v. Stephens, 286 Ga. App. 241, 247 (2) (648 SE2d 764) (2007) (punctuation and footnotes omitted); Hunter, Maclean &c. v. Frame, 269 Ga. 844, 849 (1) (507 SE2d 411) (1998).

        Hendry, supra (citations and punctuation omitted); see OCGA § 23-2-53 (suppression of material fact as fraud).

        Kane v. Shoup, 260 Ga. App. 723, 726 (2) (580 SE2d 555) (2003) (citation omitted); see OCGA § 9-3-96 (tolling of limitations for fraud of defendant).

        Wilson v. Tara Ford, 200 Ga. App. 98, 100 (2) (406 SE2d 807) (1991) (citation and punctuation omitted); see OCGA § 23-2-53.

       259 Ga. App. 690 (577 SE2d 864) (2003).

       Supra.

        Cochran Mill Assoc., supra at 246 (1).

        See Allen, supra at 272-277 (1).

       See Hendry, supra at 780 (1) (“the statute of limitation would not be tolled where the plaintiff had information in her possession from which she could have discovered the truth”).

        Miller v. Kitchens, 251 Ga. App. 225, 227 (a) (553 SE2d 300) (2001) (citation omitted).

       Id. (citations omitted).

       Supra.

       Supra.

       Supra.

       Supra.

        Allen, supra at 271.

       Id. at 271-272 (1).

       Id. at 272 (1) (footnote omitted).

       Id.

       Id.

        Hunter, Maclean &c., supra at 847 (1).

       The Supreme Court order which the beneficiaries reference provides for the transfer of cases from the Superior Court of Fulton County to the “Fulton County Superior Court Business Case Division,” not to “Business Court.”

        Nicholson v. Windham, 257 Ga. App. 429, 433 (3) (571 SE2d 466) (2002) (punctuation and footnotes omitted).

       Compare id.

        Butterworth v. Safelite Glass Corp., 287 Ga. App. 848, 849-850 (1) (652 SE2d 877) (2007) (punctuation, footnotes and emphasis omitted).

       See Johnson v. American Nat. Red Cross, 253 Ga. App. 587, 589-590 (1) (569 SE2d 242) (2002); Pinehurst Baptist Church v. Murray, 215 Ga. App. 259, 261-262 (1) (450 SE2d 307) (1994).

       See Hendry, supra at 781-782 (2) (noting that “a party to an action is bound by material allegations made in his pleadings so long as they remain in his pleadings”) (citations and punctuation omitted).

       Supra.

       See generally Ludwig v. Ludwig, 281 Ga. 724, 725 (1) (642 SE2d 638) (2007) (beneficiaries’ “claims relating to events” pre-dating a particular date were barred because they were not brought within applicable statute of limitation).


author: Barnes, Presiding Judge.

text:
    A12A0445.
    WADLEY v. THE STATE.
    (730 SE2d 536)
   Barnes, Presiding Judge.

Following the denial of his plea in bar asserting double jeopardy, Vincent Wadley appeals and contends that the trial court erred in overruling his objection to the child’s hearsay testimony, denying his' motion for directed verdict, and in failing to grant his motion for new trial on sufficiency grounds. He further contends that the trial court erred in denying his plea in bar, and asserts that the trial court erred in finding that the Child Hearsay Statute permitted the introduction of testimony from a child witness who did not testify at trial, that the evidence was sufficient, and that there was no prosecutorial misconduct. Wadley also contends that the trial court erred in denying his motion for bond.

“The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” (Citation and punctuation omitted.) Leonard v. State, 275 Ga. App. 667, 667-668 (621 SE2d 599) (2005).

The record reveals that on May 24, 2010, following a jury trial, Wadley was convicted of one count of child molestation. Thereafter, his trial counsel filed a motion to disqualify the trial judge from further proceedings in Wadley’s case and several other pending cases. The motion was granted, as to Wadley’s case only, based on evidence of the judge’s “bias, prejudice or a systematic pattern against defense counsel.” Wadley then filed a motion for new trial claiming multiple errors, including the trial judge’s bias, the sufficiency of the evidence, and that the child’s hearsay evidence was inadmissible.

The trial court granted Wadley a new trial on the basis that the actions by the trial court exhibited bias, that the trial court had commented on the evidence in the presence of jurors as prohibited by OCGA § 17-8-57, and that over Wadley’s objection, the trial court had held a hearing on sealed Department of Family and Children Services (“DFACS”) records without him being present, presumably as an in camera inspection under OCGA § 49-5-41 (a) (2). The trial court specifically rejected Wadley’s arguments as to the sufficiency of the evidence and the admissibility of certain hearsay under the Child Hearsay Statute.

Facing a second trial, Wadley filed a “Plea in Bar and Motion to Dismiss Indictment with Prejudice Based on Double Jeopardy, Prosecutorial Misconduct and Other Misconduct of the State,” challenging, among other things, the sufficiency of the evidence and the admissibility of the child’s hearsay testimony. The trial court denied the motion, and Wadley appeals.

1. In several enumerations of error, Wadley contends that the evidence was insufficient to support his conviction. He asserts this error within the context of the denial on general grounds of his motion for directed verdict, motion for new trial, and plea in bar. He essentially argues that he cannot be retried because the evidence was insufficient to support his conviction. We do not agree.

“The Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient.” Ricketts v. Williams, 242 Ga. 303 (248 SE2d 673) (1978). “[I]t makes no difference whether the decision on the insufficiency of the evidence is made by the trial court or the reviewing court. The result is the same. . . .” Id. at 303-304. However, “[a]s a general rule, a post-conviction reversal or grant of a motion for new trial which is not based on insufficiency of the evidence does not preclude retrial.” State v. D’Auria, 229 Ga. App. 34, 35 (492 SE2d 918) (1997). Thus, if “the evidence meets the standard of Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)] the case may be retried.” Lively v. State; 262 Ga. 510, 512 (3) (421 SE2d 528) (1992).

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

(Citation omitted.) Prather v. State, 303 Ga. App. 374, 376 (1) (693 SE2d 546) (2010).

So viewed, the evidence shows that Wadley, an investigator with the Albany Police Department, had previously been in a relationship with the victim’s mother. The mother was reported to DFACS for leaving her three younger children alone and on March 10, 2008, a safety plan was developed to avoid a deprivation petition. Per the plan, Wadley, with whom the mother was no longer in a romantic relationship, agreed to keep the children, including the then-seven-year-old victim, during the weekends while the mother was working. The arrangement lasted until August and September 2008, during which time Wadley had entered a new relationship.

In September 2009, the victim told her sister that Wadley had “got [ten] on top of her.” When the sister told the mother what the victim said, the mother took her daughter into her room where the victim “laid [sic] on the bed and . .. moved up and down” to show her mother what Wadley did to her. The mother testified that she asked Wadley about the incident, but that he denied touching the victim. The mother told an acquaintance that “her ex-boyfriend had touched... one of her daughters” and that he was a policeman, after which the acquaintance reported the incident to an officer that he knew. The acquaintance testified that he told the officer that a policeman with the Albany Police Department had “sexually assaulted a friend’s daughter” and that his friend had not reported the incident because she was afraid.

The officer reported the incident to his supervisor, and also spoke with the mother who “started crying” and told him that it had happened to the now nine-year-old victim. The victim told the forensic investigator who interviewed her that “[Wadley] took his clothes off, got on top of her as she was fully clothed [and]... moved his body up and down.” The victim said that Wadley rubbed his penis against her buttocks. Wadley was arrested and charged with one count of child molestation.

A person commits the offense of child molestation when he or she “[d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). Here, there is competent evidence, even if contradicted, to support each element of this offense. See Chalker v. State, 281 Ga. App. 305, 308 (635 SE2d 890) (2006). Contrary to Wadley’s argument, inconsistencies and conflicts in the testimony do not equate insufficient evidence. It is the jury’s role to resolve these conflicts and inconsistencies, and it did so in this case against Wadley. See id. at 307-308.

2. In several enumerated errors, Wadley contends that the trial court erred in denying his plea in bar because the admission of the child victim’s out-of-court statements violated the Child Hearsay Statute and the Sixth Amendment. Relying on Hatley v. State, 290 Ga. 480 (722 SE2d 67) (2012), Wadley contends that, by failing to put the child victim on the stand during the trial, the State violated his Sixth Amendment right of confrontation and that the inadmissible hearsay of the victim’s out-of-court statement was legally insufficient to support a conviction because that was the only evidence of his guilt.

OCGA § 24-3-16 provides:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

In Hatley, our Supreme Court held:

[W]e now interpret OCGA § 24-3-16, consistent with the demands of Melendez-Diaz [u. Massachusetts, 557 U. S. 305 (129 SC 2527, 174 LE2d 314) (2009)], to require the prosecution to notify the defendant within a reasonable period of time prior to trial of its intent to use a child victim’s hearsay statements and to give the defendant an opportunity to raise a Confrontation Clause objection. If the defendant objects, and the State wishes to introduce hearsay statements under OCGA § 24-3-16, the State must present the child witness at trial; if the defendant does not object, the State can introduce the child victim’s hearsay statements subject to the trial court’s determination that the circumstances of the statements provide sufficient indicia of reliability. The trial court should take reasonable steps to ascertain, and put on the record, whether the defendant waives his right to confront the child witness.

Id. at 483-484. The Court also held that construing the Child Hearsay Statute in a manner that “fails to put the onus on the prosecution to put the child victim on the witness stand to confront the defendant” cannot pass constitutional muster. Id. at 483.

“Once a reviewing court reverses a conviction solely for insufficiency of the evidence to sustain the verdict of guilty, double jeopardy bars retrial; however, where a defendant obtains a reversal based upon ‘trial error,’ double jeopardy does not bar retrial. [Cit.]” Osborne v. State, 166 Ga. App. 439, 440 (304 SE2d 416) (1983). Here, although the child victim was available to testify, she was not called to the stand. Her statement was presented through the testimony of other witnesses over Wadley’s continuing objection.

Pretermitting whether the trial court erred in admitting her out-of-court statements, a retrial is not barred by the double j eopardy provisions of the Georgia and United States Constitutions because the evidence against Wadley was not insufficient. Rather, in this case, the error asserted was that it was admitted in a manner that violated Wadley’s right to confront a witness against him. Thus, the testimony could be properly introduced on retrial if the State proceeds as directed by Hatley. Evidence found to be inadmissible hearsay on appeal but which could be made admissible at retrial by laying the proper foundation may be considered when examining whether the evidence was sufficient to authorize the guilty verdict. Hall v. State, 244 Ga. 86, 93 (5) (259 SE2d 41) (1979).

In these circumstances, the trial court did not err in denying Wadley’s plea in bar on this basis.

3. Wadley contends that prosecutorial misconduct should bar a retrial, and asserts as misconduct his contention that the State made many statements of fact outside the record during closing argument in violation of OCGA § 17-8-75.

Actions of the prosecutor constituting even intentional prosecutorial misconduct do not raise the bar of double jeopardy, notwithstanding the fact that the defendant was thereby deprived of due process of law, unless the prosecutor’s actions were intended to subvert the protections afforded by the Double Jeopardy Clause. Although intent is a question of fact for the trial court to resolve, in order for the double jeopardy bar to apply, the facts must warrant the conclusion that the State intended to secure an opportunity to retry the case.

(Citations and punctuation omitted.) State v. D’Auria, 222 Ga. App. 615, 616 (475 SE2d 678) (1996). “[I]nthe context of a reversal or grant of a motion for new trial, this means the prosecutor intended to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct.” (Citations and punctuation omitted.) State v. D’Auria, 229 Ga. App. at 36. Wadley has made no such showing.

Decided July 12, 2012

Reconsideration denied July 31, 2012

James N. Finkelstein, for appellant.

Gregory W. Edwards, District Attorney, Kathryn O. Fallin, Assistant District Attorney, for appellee.

Accordingly, the trial court properly determined that the double jeopardy bar did not apply. See Keith v. State, 222 Ga. App. 360, 361 (474 SE2d 256) (1996).

4. Wadley also contends that the trial court erred in denying his bond once he was granted a new trial and “restored to pretrial detainee status.” He argues that the trial court’s denial of bond after finding that Wadley was a flight risk violated the standards set forth in Ayala v. State, 262 Ga. 704 (425 SE2d 282) (1993).

Wadley, however, presents no argument other than the assertion of error and his plans to “more fully” brief the error in a separate motion for bond. “Pursuant to Court of Appeals Rule 25 (a) (3), an appellant must support enumerations of error with argument and citations of authority, and mere conclusory statements are not the type of meaningful argument contemplated by Rule 25 (a) (3).” (Citation and punctuation omitted.) U.S.A. Gas v. Whitfield County, 298 Ga. App. 851, 855 (3), n. 3 (681 SE2d 658) (2009). Thus, this claim is deemed abandoned.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Wadley’s motion for leave to file a supplemental brief is granted.

       Per Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987), and its progeny, OCGA § 24-3-16 was construed to require that to
      introduce out-of-court declarations by the alleged victim, the court shall... at the request of either party, cause the alleged victim to take the stand. The court shall then inform the jury that it is the court who has called the child as a witness, and that both parties have the opportunity to examine the child. The court shall then allow both parties to examine and cross-examine the child as though the Child Hearsay Statute has not been invoked.
      Those cases have now been overruled by Hatley to the extent they do riot require the State to put the child witness on the stand. See Williams v. State, 290 Ga. App. 841, 842 (1) (660 SE2d 740) (2008); Howell v. State, 278 Ga. App. 634 (2) (629 SE2d 398) (2006); Starr v. State, 269 Ga. App. 466, 468 (2) (a) (604 SE2d 297) (2004).

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


author: Blackwell, Judge.

text:
    A12A0552.
    BATES v. BATES.
    (730 SE2d 482)
   Blackwell, Judge.

Under Georgia law, a judgment entered by a court without jurisdiction is void, Carpenter v. Carpenter, 276 Ga. 746, 747 (1) (583 SE2d 852) (2003), and generally speaking, such a judgment “may be attacked in any court, by any person, at any time.” James v. Intown Ventures, 290 Ga. 813, 816 (2), n. 5 (725 SE2d 213) (2012). See also Cabrel v. Lum, 289 Ga. 233, 235 (1) (710 SE2d 810) (2011) (“[A] judgment void for lack of personal or subject-matter jurisdiction may be attacked at any time.”). But in some circumstances, these principles must yield to competing principles that derive from the compelling public interest in the finality and certainty of judgments, see Abushmais v. Erby, 282 Ga. 619, 622 (3) (652 SE2d 549) (2007), an interest that is especially compelling with respect to judgments affecting familial relations. See Amerson v. Vandiver, 285 Ga. 49, 50 (673 SE2d 850) (2009). In this case, the court below dismissed a petition for custody of a child, reasoning that the petitioner lacks standing to seek custody because the adoption decree under which she claims to be a parent of the child is void. Whether the adoption decree is void, however, is a question that was litigated and effectively decided in a prior proceeding, and we conclude that the principle of res judicata precludes the relitigation of that question in this case. Accordingly, we reverse and remand for further proceedings on the custody petition.

Nicole Ann Bates conceived a child by artificial insemination, and in March 2007, she gave birth to that child. At the time, Nicole wanted her same-sex partner, Tina Diane Bates, also to be a parent to the child, and so Nicole and Tina filed a petition with the Superior Court of Fulton County for Tina to adopt the child. The Fulton County court granted that petition in June 2007, entering a decree that purports to recognize Tina as the adoptive “second parent” of the child. About three years later, Nicole returned to the Fulton County court, where she filed a motion to set aside the adoption decree. By then, Nicole and Tina had ended their relationship, and Nicole apparently no longer wanted Tina to be a parent to the child.

In her motion to set aside the adoption decree, Nicole argued that Georgia law makes no provision for a “second parent” adoption, that the Fulton County court was without jurisdiction to decree such an adoption, and that the adoption decree is, for these reasons, void. The Fulton County court, however, denied the motion as untimely, citing OCGA § 19-8-18 (e), which provides that “[a] decree of adoption issued pursuant to [OCGA § 19-8-18 (b)] shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree.” Nicole sought discretionary review of that decision in this Court, and although we granted her application for discretionary review at first, we later dismissed her appeal as having been improvidently granted. Nicole then petitioned our Supreme Court for a writ of certiorari, but her petition was denied.

In the meantime, Tina had filed a petition with the Superior Court of Henry County for custody of the child, and the Henry County court had stayed its proceedings on the custody petition until the motion to set aside the adoption decree was resolved. After the Supreme Court denied the petition for a writ of certiorari on the denial of the motion to set aside, Nicole moved the Henry County court to dismiss the custody petition. In her motion to dismiss, Nicole argued that the adoption decree under which Tina claimed to be a parent of the child is void — for the same reasons that Nicole had urged in support of her motion to set aside in Fulton County — and that Tina, therefore, is without standing to seek custody of the child. Tina responded that the denial of the motion to set aside in Fulton County is conclusive as to the validity of the adoption decree and that both Tina and Nicole are bound by the judgment of the Fulton County court.

Following a hearing, the Henry County court granted the motion to dismiss, reasoning that Georgia law does not recognize “second parent” adoptions, that the adoption decree is, therefore, void, and that Tina, for this reason, is a stranger to the child in the eyes of the law. The court found that the denial of the motion to set aside in Fulton County was not conclusive of whether Tina has standing to seek custody because the question of custody was not before the Fulton County court. Tina appeals from the dismissal of her custody petition.

The idea that Georgia law permits a “second parent” adoption is a doubtful one, see Wheeler v. Wheeler, 281 Ga. 838, 840 (642 SE2d 103) (2007) (Carley, J., dissenting from denial of cert.), and the arguments that Nicole presses about the validity of a decree that purports to recognize such an adoption might well have some merit. But Nicole made a choice to challenge the adoption decree by way of a motion to set aside in Fulton County, and she had a full and fair opportunity to litigate the issue there. Although the Fulton County court ultimately denied her motion to set aside as untimely, the application of the time bar set out in OCGA § 19-8-18 (e) presupposes that the adoption was one authorized by, and entered in accordance with, OCGA § 19-8-18 (b). See OCGA § 19-8-18 (e) (“A decree of adoption issued pursuant to subsection (b) of this Code section shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree”) (emphasis supplied). So, although the Fulton County court decided the motion to set aside on the basis of a statutory time bar, its decision necessarily included a determination that the adoption was one authorized by the Georgia statutes. Right or wrong, that decision was a final determination of the validity of the adoption decree, and it is, we think, conclusive of that question as between Tina and Nicole.

“Generally speaking, the doctrine of res judicata forbids the litigation of a dispute that already has been litigated by the same parties and decided.” Canton Partners v. Scarbrough Group, 316 Ga. App. 57, 60 (2) (728 SE2d 733) (2012). See also OCGA § 9-12-40 (“A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.”). As our Supreme Court has explained, res judicata requires “identity of the cause of action, identity of the parties or their privies, and a previous adjudication on the merits by a court of competent jurisdiction.” Crowe v. Elder, 290 Ga. 686, 688 (723 SE2d 428) (2012). In addition, it requires that “the party against whom the doctrine of res judicata is raised [had] a full and fair opportunity to litigate the issues in the first action.” Fowler v. Vineyard, 261 Ga. 454, 455-456 (1) (405 SE2d 678) (1991) (citations omitted). Whether or not the Fulton County court properly had jurisdiction of the question of adoption when it entered its adoption decree, it certainly was competent to entertain the motion to set aside that decree and to decide, in connection with that motion, whether it had jurisdiction when it entered the decree. See OCGA § 9-11-60 (d) (1) (“A motion to set aside may be brought to set aside a judgment based upon . . . [l]ack of jurisdiction over the person or the subject matter. . . .”).

As we noted earlier, a void judgment, generally speaking, can be attacked at any time, Cabrel, 289 Ga. at 235 (1), but that principle has limits, as our Supreme Court has acknowledged. Bennett v. State, 268 Ga. 849, 850 (494 SE2d 330) (1998). Among those limits is the doctrine of res judicata; even though an allegedly void judgment may be attacked at any time, once it has been attacked and the attack repelled, the same party cannot thereafter attack the judgment again and again on the same grounds. See Ross v. State, 310 Ga. App. 326, 328 (713 SE2d 438) (2011) (“[W]hile Ross is correct in noting that a void sentence is a mere nullity and may be vacated at any time in any court where it becomes material to the interest of the parties to consider it, this important legal principle is, nevertheless, subject to the equally well established principles of res judicata and the law-of-the-case rule once the issue has been raised and ruled upon.”) (footnotes omitted). And a decision on a motion to set aside an allegedly void judgment may properly form the basis for an application of res judicata, so long as the essential requirements for the application of that doctrine are satisfied. See, e.g., State Bar of Ga. v. Beazley, 256 Ga. 561, 563 (1) (a) (350 SE2d 422) (1986) (affording preclusive effect under res judicata to federal court rejection of claim that earlier state court judgment was void for want of jurisdiction).

Here, no one disputes that the same parties were before the Fulton County court on the motion to set aside and the Henry County court on the petition for custody, and no one disputes that Nicole had a full and fair opportunity to litigate the validity of the adoption decree on her motion to set aside. Those prerequisites to the application of res judicata are, therefore, clearly satisfied. Nicole argues, however, that the question of custody was not put to the Fulton County court, and the Fulton County court was without jurisdiction to decide any question of custody in any event. These things are true enough, but Tina never has contended that the Fulton County judgment is conclusive of all the issues that relate to custody.

To the contrary, Tina argues only that the Fulton County judgment is conclusive of the validity of the adoption decree and, hence, her standing to petition for custody. About this, we think Tina is exactly right. The validity of the adoption decree was put at issue in Fulton County on the motion to set aside — indeed, Nicole made precisely the same arguments there about the validity of the decree as she later made in Henry County — and the Fulton County court decided the motion was time barred, a decision that, as we have explained, necessarily involved a determination by the Fulton County court that the adoption was one authorized by the statutes. And as we also have explained, the Fulton County court was competent to entertain the motion to set aside and to consider whether it properly had jurisdiction when it entered the adoption decree. Its denial of the motion to set aside is, we think, conclusive of the question of standing in the Henry County case. See OCGA § 19-8-19 (a) (2) (valid decree of adoption “creates the relationship of parent and child between each petitioner and the adopted individual, as if the adopted individual were a child of biological issue of that petitioner”).

Decided July 11, 2012

Reconsideration denied July 31, 2012

We decide nothing in this case about whether Georgia law permits a “second parent” adoption. The earlier judgment in Fulton County addressed that question, but the Fulton County judgment is not before us today. We decide only that the Fulton County judgment is res judicata as to the validity of the adoption decree at issue here, and the Henry County court was not entitled to revisit the validity of the decree, at least not upon a challenge to that decree that is premised on the same grounds that Nicole pressed unsuccessfully in Fulton County. Accordingly, we reverse the judgment below and remand for further proceedings on the petition for custody consistent with this opinion.

Judgment reversed and case remanded.

Mikell, P. J., and Miller, J., concur.

King & Spalding, Merritt E. McAlister, Steven S. Griffin, Meadows & Made, Terri S. Sutton, for appellant.

Emily J. Matson, for appellee.

       A “second parent” adoption apparently is an adoption of a child having only one living parent, in which that parent retains all of her parental rights and consents to some other person —• often her spouse, partner, or friend — adopting the child as a “second parent.” See Butler v. Adoption Media, 486 FSupp.2d 1022, 1044 (C) (1) (b) (i) (N.D. Cal. 2007) (describing “second parent” adoption under California law). As we explain later, whether Georgia law permits such adoptions, other than by stepparents, is questionable.

       The Henry County court also found that it was without jurisdiction to entertain the custody petition because the Georgia Constitution, the court said, “sets out that the courts of this State shall not have jurisdiction to grant, consider, or rule on any rights flowing from a same-sex relationship.” The court was referring, of course, to the constitutional provision that “[t]he courts of this state shall have no jurisdiction to ... consider or rule on any of the parties’ respective rights arising as a result of or in connection with [a relationship between persons of the same sex].” Ga. Const., Art. I, Sec. IV, Par. I (b). That provision, however, pretty clearly does not apply here. The parental right to seek custody that Tina asserts in her custody petition is a right that arises, if at all, by virtue of the Fulton County adoption decree, not as an incident of her relationship with Nicole, a relationship with no legal significance. No doubt, Tina and Nicole may have been motivated to petition for adoption as a result of their relationship with one another, but such a motivation does not strip the courts of jurisdiction. After all, the existence of a relationship between two persons of the same sex might motivate them to do a lot of things — to open joint accounts, to acquire and own property jointly, and to contract with one another — and no one would seriously contend that the Constitution strips the courts of jurisdiction to decide disputes about such things just because the parties to those disputes once were involved in a same-sex relationship. The petition for custody does not ask the Henry County court to “consider or rule on any . . . rights arising as a result of or in connection with [a relationship between persons of the same sex].” We note that Nicole does not even attempt on appeal to defend this alternative basis for the decision below.

       In some circumstances, Georgia law permits stepparent adoptions, in which the living parent maintains her parental rights and consents to the adoption of her child by her spouse. See OCGA § 19-8-6 (a) (2). But “[m]arriages between persons of the same sex are prohibited in this state,” OCGA § 19-3-3.1 (a), and so Tina cannot claim that her adoption of the child was a stepparent adoption. Because we conclude that the doctrine of res judicata is dispositive of this appeal, we have no occasion in this case to decide whether Georgia law otherwise permits “second parent” adoptions.

       This is the reason given by the court below for its refusal to apply the doctrine of res judicata.

       Some of us wonder if the doctrine of judicial estoppel might also preclude Nicole from contending that the Fulton County decree is void. That doctrine is intended to “protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment,” and it forbids a party, who has successfully maintained a certain position in a legal proceeding, to assume a contrary position “simply because his interests have changed ... especially if it he to the prejudice of the party who has acquiesced in the position formerly taken by him.” Goddard v. City of Albany, 285 Ga. 882, 885 (2) (684 SE2d 635) (2009) (citation and punctuation omitted). In the original proceedings on the petition for adoption, Nicole not only affirmatively invoked the jurisdiction of the Fulton County court, but her own lawyer prepared the decree that she now contends is void. To some of us, it seems that the present attack upon the validity of that decree amounts to an attempt to play the courts for fools, and that is the sort of thing that judges ought not tolerate. Nevertheless, because res judicata is sufficient to dispose of this appeal, we do not reach the question of judicial estoppel.