author: Miller, Judge.

text:
    A13A0768.
    AVILA v. THE STATE.
    (744 SE2d 405)
   Miller, Judge.

Following a trial, a Forsyth County jury convicted Orlin Avila of burglary (OCGA § 16-7-1), three counts of armed robbery (OCGA § 16-8-41), and four counts of aggravated assault (OCGA § 16-5-21). The trial court sentenced Avila to eight 20-year sentences, to run concurrently. On appeal, Avila challenges the sufficiency of the evidence supporting his conviction on one of the armed robbery counts (Count 3). Discerning no error, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

(Citation omitted.) Liger v. State, 318 Ga. App. 373 (734 SE2d 80) (2012). So viewed, the evidence shows that on the evening of August 15, 2010, Arnulfo Manzano (“Arnulfo”) answered a knock on the door of the Forsyth County mobile home in which he resided with his brother, Adrian Manzano (“Adrian”), Carlos Cortes, and Maria Moto. When he opened the door, he saw four men standing on the porch and a black Crown Victoria parked on the street. The men started asking for someone Arnulfo did not know. Arnulfo found the situation suspicious and was trying to step back inside when one of the men pulled out a gun and forced his way into the house. The man pushed Arnulfo against a wall and held a gun to his head. One of the other men on the porch also entered the house armed with a gun. The men forced Arnulfo into a chair, handcuffed his hands behind his back, and started asking for money.

Around this time, Cortes, Moto, and Moto’s three-year-old son arrived home. When Moto and her son entered the house, one of the men pointed a gun at them. The men forced Cortes into a chair and bound his hands and covered his mouth with duct tape. When one of the men discovered Adrian and his five-year-old son sleeping in a bedroom, he forced Adrian and his child into the living room at gunpoint. The men made Adrian sit in a chair and used duct tape to tie his hands and cover his mouth. The men locked Moto and the children in the bathroom. Arnulfo testified that a third intruder then entered the house. One of the men became angry with Adrian and Cortes for disobeying instructions and sprayed them in the face with pepper spray. At that point, the men separated Cortes from Arnulfo and Adrian.

The men ransacked the home and took Cortes’s wallet from his pocket and a necklace from Adrian’s neck. The men also took two phones belonging to Arnulfo, iPods belonging to Carlos and Moto, and more jewelry, including a ring Arnulfo remembered Adrian wearing that day, a bracelet, and a watch. The men became scared and left when someone knocked on the door.

Once the men were gone, the victims borrowed a phone from neighbors to call 911. Approximately an hour and a half later, an Alpharetta police officer who had received a be on the lookout notice from Forsyth County regarding armed robbery suspects traveling in a black Crown Victoria pulled over a car that matched the description and bore an incorrect tag. Jairo Delossantos was the driver, Brian Bonilla was the front passenger, and Avila was in the back seat. Police subsequently searched the vehicle pursuant to a search warrant and recovered, among other things, a nine-millimeter pistol, a revolver, and a bag containing various items including pepper spray. In the front seat, police found the stolen phones and iPods. They recovered Adrian’s ring and necklace and a bracelet and watch belonging to the victims from the pocket of a jacket located in the back seat.

Bonilla and Delossantos, who were indicted with Avila, entered guilty pleas and testified against Avila at trial. Bonilla testified that on August 15, 2010, the co-defendants drove to Forsyth County armed with two guns and pepper spray and intending to rob a house. The men targeted the house because an acquaintance told Bonilla that they would find money and computers there. Bonilla and Delossantos testified that Avila entered the home armed with a gun.

In his sole enumeration of error, Avila argues that the evidence fails to support his conviction on Count 3 of the indictment, which alleged that Avila “with intent to commit a theft, did unlawfully take jewelry, cash and a camera, the property of Maria Moto, from the person and immediate presence of Maria Moto” by use of a firearm. According to Avila, the State failed to present competent evidence that any of the items listed in Count 3 were taken from Moto. Avila’s argument rests on the erroneous assumption that in order to prove armed robbery, the State was required to present evidence that property identified in the indictment was taken directly from Moto’s person. To the contrary, as discussed below, the State could prove armed robbery with evidence that property was taken from Moto’s immediate presence while she was forcibly detained.

Pursuant to OCGA § 16-8-41 (a), a person commits armed robbery “when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.” It is immaterial whether an indictment alleges that property is taken from the victim’s person, immediate presence, or, as here, both, because “the victim’s person includes the entire area within his immediate presence.” (Citation and punctuation omitted.) Felder v. State, 270 Ga. 641, 643 (2) (514 SE2d 416) (1999).

It has long been recognized that when perpetrators forcibly cause the victim to be away from the immediate presence of the property at the time it is stolen, the offense of armed robbery can still be committed. Thus, the immediate presence element of the offense of armed robbery has been held to extend fairly far, and robbery convictions are upheld even out of the physical presence of the victim.

(Punctuation and footnotes omitted.) Wilson v. State, 291 Ga. App. 69, 70-71 (1) (661 SE2d 221) (2008). See also Young v. State, 290 Ga. 392, 396 (4) (721 SE2d 855) (2012). The State is not required to prove theft of all the items the indictment alleged were taken from the victim. Booker v. State, 242 Ga. App. 80, 82 (1) (a) (528 SE2d 849) (2000).

In this case, the State presented evidence that Avila and his co-defendants ransacked the victims’ residence, including Moto’s bedroom, and took various items from the premises in addition to the necklace and ring taken from Adrian and the wallet taken from Cortes. Among the items recovered from the co-defendants’ get-away car were a watch and bracelet, which the lead investigator testified were returned to the victims. Given that these items were taken from the home while Moto was forcibly detained in the bathroom, the State presented sufficient evidence that such jewelry was taken from her immediate presence. See Ham v. State, 303 Ga. App. 232, 238 (1) (b) (692 SE2d 828) (2010) (evidence was sufficient to support appellant’s conviction of armed robbery of victim who was held at gunpoint in living room while valuables were taken from her bedroom); Whitley v. State, 293 Ga. App. 605, 606 (667 SE2d 447) (2008) (armed robbery conviction supported by evidence in case in which teenage victim was tied up while his home was ransacked and his computer was taken).

Avila argues that the State did not prove that any jewelry taken from the victims’ home belonged to Moto. “[T]he gravamen of the offense of armed robbery,” however, “is the taking of items from the possession of another by use of an offensive weapon, and not the identification of the specific owner of the item taken.” (Punctuation and footnote omitted.) Ham, supra, 303 Ga. App. at 237 (1) (b); Ward v. State, 304 Ga. App. 517, 521-523 (1) (a) (696 SE2d 471) (2010) (stating that “it does not matter exactly whose property was taken so long as it was taken from a person or the immediate presence of another”) (citation and punctuation omitted). Whether the watch and bracelet taken from the home belonged to Moto or another victim, the rule that the allegations of the indictment and proof at trial must correspond was not violated, and the State presented sufficient evidence that Moto was “subjected to the robbers’ exercise of actual force by the use of an offensive weapon so as to induce the relinquishment of the property of another.” Ham, supra, 303 Ga. App. at 237 (1) (b) (affirming appellant’s convictions of armed robbery of both boyfriend and girlfriend regardless of whether State proved that items taken belonged to both victims, as alleged in indictment).

Decided June 12, 2013.

Mary Erickson, for appellant.

Penny A. Penn, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A13A0787.
    SHERMAN et al. v. DICKEY et al.
    (744 SE2d 408)
   Dillard, Judge.

In this personal-injury action arising from a motor-vehicle accident, Daniel Sherman and Jennifer Sherman appeal the trial court’s order granting summary judgment to William Allen Dickey and Melvin Dickey to enforce a settlement agreement. On appeal, the Shermans argue that the trial court erred in (1) granting summary judgment to the Dickeys when the facts show that the parties did not reach an enforceable settlement agreement and (2) awarding attorney fees pursuant to OCGA § 13-6-11. Because a binding settlement agreement was reached but the trial court was without authority to award attorney fees on summary judgment, we affirm in part and reverse in part.

The record reflects that Daniel Sherman and the Dickeys were involved in a motor-vehicle accident, which resulted in Sherman suffering serious injuries and incurring significant medical expenses. The Dickeys’ vehicle was covered by an insurance policy issued by First Acceptance Insurance Company of Georgia, Inc. And on August 10, 2010, the Shermans offered to settle their claims against the Dickeys in exchange for the $25,000 policy limit covering the subject vehicle.

Specifically, the Shermans’ demand requested receipt of a settlement check, a limited-liability release, and affidavits to establish the limits of the available liability-insurance coverage, all by August 20, 2010. As to the limited-liability release, the demand explained that it could not include language requiring indemnification or the release of any property-damage claims, but the demand did not include any other restrictions as to what could or could not be included in the release.

Two days after receiving the demand, the Dickeys’ attorney sent correspondence to the Shermans’ attorney, seeking clarification on a few points. Enclosed in this correspondence was what the Dickeys’ attorney deemed a “sample” limited-liability release, to which he invited a response letting him “know if you see anything in this limited liability release which causes you concern.” Thereafter, the Dickeys ultimately obtained an extension to respond to or otherwise accept the Shermans’ demand until August 25, 2010.

On August 20, 2010, the Shermans’ attorney indicated that he would provide a draft of a limited-liability release, and this was sent to the Dickeys’ attorney via e-mail on August 23, 2010, along with responses to the earlier-requested clarifications. That same day, the Dickeys’ attorney responded through e-mail and attached “proposed revisions” to the release drafted by the Shermans’ attorney, including a statutory healthcare-provider lien affidavit in the release, which read as follows:

The Undersigned, who first being sworn, deposed and said that they have the legal capacity to give the within affidavit, that the[y] are giving the within affidavit from personal knowledge for all purposes permitted under law, hereby declare, assure, and warrant that they are residents of Henry County, Georgia. In addition, with respect to the treatment of the injuries for which this settlement is made, all hospital, nursing home, physician practice, or provider of traumatic burn care medical practice bills have been fully paid. The sworn statement in this subpart shall constitute an affidavit in compliance with OCGA § 44-14-473.

The Dickeys’ attorney specifically stated in his correspondence that “[i]f you do not want your client to sign a release with my proposed changes, please let me know and let’s discuss.” The Shermans’ attorney responded that he would take a look at the revised settlement documents and “get back to” the Dickeys’ attorney.

When the Dickeys did not receive a response from the Shermans’ attorney by the following day, they sent a letter unconditionally accepting the demand and included a check for the $25,000 policy limit, the requested affidavits, and a limited-liability release containing the language e-mailed to the Shermans’ attorney the previous day. The letter stated that the enclosed release was “proposed” and again invited feedback if the Shermans disagreed with the proffered changes.

Thirty days then passed with the Dickeys hearing nothing from the Shermans. And when the Dickeys made inquiry into the status of the settlement, they learned that the Shermans were in the process of deciding whether the inclusion of the statutory-lien affidavit in the proposed release constituted a counteroffer. Thereafter, in September and November, the Dickeys’ attorney again invited the Shermans to discuss or make changes to the proposed release, but instead, the Shermans returned the settlement check on November 2, 2010, along with a “rejection” of what they deemed the Dickeys’ counteroffer.

The Dickeys eventually filed a complaint for breach of contract, seeking specific performance of the settlement agreement and attorney fees pursuant to OCGA § 13-6-11, and the Shermans counterclaimed with personal-injury claims. Both parties then moved for summary judgment on their respective claims. The trial court granted the Dickeys’ motion for summary judgment; denied the Shermans’ cross-motion; and awarded the Dickeys $6,400 in requested attorney fees pursuant to OCGA § 13-6-11, finding that the Shermans’ behavior “constitutes stubborn litigiousness and bad faith litigation.” This appeal by the Shermans follows.

1. First, the Shermans argue that the trial court erred in granting summary judgment to the Dickeys to enforce the settlement agreement, arguing that the parties failed to reach a binding agreement. We disagree.

To begin with, we note that in reviewing the trial court’s order on both a motion to enforce a settlement agreement and a motion for summary judgment, we apply a de novo standard of review and, thus, view the evidence in a light most favorable to the nonmoving party. Moreover, well-established principles guide our inquiry into whether the parties entered into a settlement agreement. Chief among these principles is that, in order to prevent litigation, “[Compromises of doubtful rights are upheld by general policy . . . .”

At the same time, courts are certainly limited to “those terms upon which the parties themselves have mutually agreed.” Indeed, apart from such mutual agreement, no enforceable contract exists between the parties. And settlement agreements must meet the same requirements of formation and enforceability as other contracts. Thus, an answer to an offer “will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer.” The offer must be accepted “unequivocally and without variance of any sort.” And if a purported acceptance of the plaintiff’s settlement offer imposes any new conditions, it constitutes a counteroffer rather than an acceptance. Nevertheless, when determining whether a purported acceptance imposes conditions rendering it a counteroffer, “our courts have drawn a distinction for ‘precatory words,’ ” which are words “whose ordinary significance imports entreaty, recommendation, or expectation rather than mandatory direction.” Finally, we note that the party asserting the existence of a contract has the burden of proving its existence and its terms. With the foregoing principles in mind, we turn now to the Shermans’ argument on appeal.

The Shermans contend that the Dickeys’ insertion of statutory-lien-affidavit language into a proposed limited-liability release rendered their purported acceptance a counteroffer. But the record reflects that the Dickeys repeatedly invited changes to the proposed release and feedback regarding any concerns the Shermans might have, and we discern nothing to suggest that the Dickeys intended for the release to constitute a counteroffer or that the Shermans were required to sign that particular release to effectuate settlement. And it is well settled that the mere inclusion of a release form that is unacceptable to the plaintiff “does not alter the fact that a meeting of the minds has occurred with regard to the terms of the settlement.” Furthermore, the inclusion of the statutory-lien affidavit sought only to confirm an assertion that had previously been made by the Shermans’ attorney — i.e., that there were no known healthcare-provider liens. Accordingly, the trial court did not err in determining that a binding settlement agreement was reached and granting summary judgment to the Dickeys.

2. Next, the Shermans contend that the trial court erred in granting attorney fees pursuant to OCGA § 13-6-11. We agree.

OCGA § 13-6-11 provides that

[t]he expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

Here, when the trial court awarded summary judgment to the Dickeys on their contention that a binding settlement agreement was reached, it also granted their request for $6,400 in requested attorney fees after finding that the Shermans’ behavior “constitutes stubborn litigiousness and bad faith litigation.” On appeal, the Shermans argue, inter alia, that the trial court’s award of attorney fees was erroneous because the trial court did not have the power to make such an award at summary judgment. The Shermans are correct.

Our Supreme Court has held that attorney fees cannot be awarded by a trial court pursuant to OCGA § 13-6-11 at the summary-judgment stage of proceedings because the very language of the statute “prevents a trial court from ever determining that a claimant is entitled to attorney fees as a matter of law.” Indeed, it is well established that “because both the liability for and amount of attorney fees pursuant to OCGA § 13-6-11 are solely for the jury’s determination, a trial court is not authorized to grant summary judgment in favor of a claimant therefor.” And although a trial court is permitted to grant such fees when it sits as a trier of fact, “it is not a trier of fact on a motion for summary judgment.” Accordingly, the trial court here was without authority to grant attorney fees pursuant to OCGA § 13-6-11 on summary judgment, and we reverse the trial court’s grant of summary judgment to that extent.

Decided June 12, 2013

Jeremy E. Citron, for appellants.

Waldon, Adelman, Castilla, Hiestand & Prout, Jonathan M. Adelman, for appellees.

Because we agree that a binding agreement was reached but hold that the trial court lacked authority to award OCGA § 13-6-11 attorney fees at summary judgment, we affirm in part and reverse in part.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and McMillian, J., concur.

        See OCGA § 44-14-473 (c) (l)-(2) (providing requirements for healthcare-provider lien affidavits to validate a release of a cause of action, which affidavit must affirm “[t]hat all hospital, nursing home, physician practice, or provider of traumatic burn care medical practice bills incurred for treatment for the injuries for which a settlement is made have been fully paid; and . .. [t]he county of residence of such affiant, if a resident of this state; provided, however, that the person taking the affidavit shall not he protected thereby where the affidavit alleges the county of the affiant’s residence and the lien of the claimant is at such time on file in the office of the clerk of the superior court of the county and is recorded in the name of the patient as it appears in the affidavit”); see also OCGA § 44-14-470 (b) (providing for hospital and other healthcare-provider liens “upon any and all causes of action accruing to the person to whom the care was furnished or to the legal representative of such person on account of injuries giving rise to the causes of action and which necessitated the hospital, nursing home, physician practice, or provider of traumatic bum care medical practice care, subject, however, to any attorney’s lien”). See generally Southern Gen. Ins. Co. v. Wellstar Health Sys., Inc., 315 Ga. App. 26, 29-30 (726 SE2d 488) (2012) (discussing an insurance company’s obligations to satisfy healthcare-provider liens).

       With respect to the inclusion of this section in the release, the Dickeys’ attorney further explained in his correspondence that, because Daniel Sherman “had health insurance, he should be able to attest to this.” And indeed, in the Shermans’ response to the requested clarifications, their attorney noted that the only lien the Shermans were aware of was from a health-insurance provider.

        See OCGA § 13-6-11 (“The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”).

        See, e.g., Anderson v. Benton, 295 Ga. App. 851, 852 (673 SE2d 338) (2009).

        See, e.g., AKA Mgmt., Inc. v. Branch Banking & Trust Co., 275 Ga. App. 615, 616 (621 SE2d 576) (2005).

        Anderson, 295 Ga. App. at 854 (1).

        Herring v. Dunning, 213 Ga. App. 695, 696 (446 SE2d 199) (1994) (punctuation omitted).

        Id. at 696-97 (punctuation omitted).

        Id. at 697.

        See, e.g., Greenwald v. Kersh, 275 Ga. App. 724, 725-26 (621 SE2d 465) (2005).

        Anderson, 295 Ga. App. at 855 (1) (punctuation omitted).

        Id. (punctuation omitted).

        Id.

        Turner v. Williamson, 321 Ga. App. 209 (738 SE2d 712) (2013).

        Id. (punctuation omitted).

        See, e.g., Millwood v. Art Factory, Inc., 306 Ga. App. 164, 166 (702 SE2d 7) (2010).

        See Hansen v. Doan, 320 Ga. App. 609, 612 (1) (740 SE2d 338) (2013) (holding that a binding contract was formed when plaintiff was invited to tailor limited-liability release to fit his needs, no suggestion was made that release constituted a counteroffer or that plaintiff was required to execute the specific release as a condition of settlement, and communications clearly contemplated that plaintiff would change portions that were unacceptable); see also Turner, 321 Ga. App. at 213 (2) (holding that binding agreement was reached when communications demonstrated an unequivocal acceptance of demand terms and “contained no language conditioning acceptance upon execution of the particular release form . . . provided with” acceptance letter); Smith v. Hall, 311 Ga. App. 99, 102 (714 SE2d 742) (2011) (holding that “inclusion of a general release was merely a suggestion of how to terminate the lawsuit,” and that acceptance was not qualified on use of the specific release and party was “willing to discuss the terms of a release”). Compare McReynolds v. Krebs, 290 Ga. 850, 853-54 (2) (725 SE2d 584) (2012) (holding that purported acceptance was a counteroffer when response required additional act of resolving all liens); Frickey v. Jones, 280 Ga. 573, 575-76 (630 SE2d 374) (2006) (holding that purported acceptance letter was a counteroffer when it conditioned settlement upon additional act of resolving medical liens that were not mentioned in offer); Torres v. Elkin, 317 Ga. App. 135, 142-43 (2) (730 SE2d 518) (2012) (holding that purported acceptance was a counteroffer when it conditioned settlement upon satisfaction of liens); Penn v. Muktar, 309 Ga. App. 849, 850-51 (711 SE2d 337) (2011) (holding that purported acceptance was a counteroffer when “proposed” release contained terms that directly contradicted the demand and letter required execution and return of the release before draft of policy limits could be removed from trust); Anderson, 295 Ga. App. at 855 (1) (holding that purported acceptance was a counteroffer when it was expressly contingent upon execution of included release that contained terms directly contradictory to demand requirements).

        Hansen, 320 Ga. App. at 614 (1) (punctuation omitted); accord Smith, 311 Ga. App. at 102; Moreno v. Strickland, 255 Ga. App. 850, 853 (1) (567 SE2d 90) (2002); Herring, 213 Ga. App. at 699.

        See Mealer v. Kennedy, 290 Ga. App. 432, 436 (659 SE2d 809) (2008) (noting that proffer of no-lien affidavit and request that it he signed was “merely an attempt to memorialize” an understanding that no liens existed after injured party’s attorney had previously stated that there were no known liens); see also Frickey, 280 Ga. at 576 n.2 (“We do not suggest... that the mere request for confirmation that no liens exist renders an acceptance a counteroffer which rejects the plaintiff’s offer.” (punctuation omitted)).

       We note that the Dickeys argue that the Shermans have waived this argument on appeal by failing to raise it below, but we do not agree. Indeed, the lack of argument below does not preclude the fact that the trial court was expressly without authority to do what it did, and it is conceivable that the Shermans would not have made such an argument until the award was made specifically because the trial court was without authority.

        Covington Square Assoc., LLC v. Ingles Mkts., Inc., 287 Ga. 445, 445 (696 SE2d 649) (2010); accord Royal v. Blackwell, 289 Ga. 473, 477 (2) (b) (712 SE2d 815) (2011).

        Covington Square Assoc., 287 Ga. at 446; see also Royal, 289 Ga. at 478 (2) (b) (“Whether a plaintiff has met any of the preconditions for an award of attorney fees and litigation expenses set forth in OCGA § 13-6-11 is solely a question for the jury. Both the liability for and amount of attorney fees pursuant to OCGA § 13-6-11 are solely for the jury’s determination.” (punctuation omitted)); Tyler v. Thompson, 308 Ga. App. 221, 222 (1) (707 SE2d 137) (2011) (“[Ajwarding summary judgment in favor of a claimant for expenses of litigation under OCGA § 13-6-11 is error because the issue is for the trier of fact.”).

        Covington Square Assoc., 287 Ga. at 448 (punctuation omitted); accord Meek v. Mallory & Evans, Inc., 318 Ga. App. 407, 411 (5) (734 SE2d 109) (2012); Crouch v. Bent Tree Cmty., Inc., 310 Ga. App. 319, 323 (6) (713 SE2d 402) (2011).

        See, e.g., Crouch, 310 Ga. App. at 323 (6) (reversing trial court’s grant of summary judgment awarding attorney fees and costs under OCGA § 13-6-11).


author: BARNES, Presiding Judge.

text:
    A13A0223.
    GEORGIA DEPARTMENT OF CORRECTIONS v. COUCH.
    (744 SE2d 432)
   BARNES, Presiding Judge.

David Lee Couch, an inmate at Walker State Prison, was injured while working on a painting detail at the warden’s house. He filed a complaint for damages against the Georgia Department of Corrections (“the Department”), which proceeded to trial, and Couch was awarded a jury verdict of $105,417. Couch filed a motion for attorney fees and expenses pursuant to OCGA § 9-11-68 (b) (2) based on the Department’s earlier rejection of his pre-judgment offer to settle the claims. Couch had a contingency agreement with his attorneys to pay them 40 percent of any recovery plus reasonable costs, and after the trial court granted the motion for attorney fees, it awarded Couch 40 percent of his final recovery and litigation expenses in attorney fees.

The Department appeals, contending, among other things, that the trial court erred when it concluded that sovereign immunity was waived for Couch’s claim under OCGA § 9-11-68. It maintains that the Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20 et seq., provides a limited waiver of sovereign immunity for torts, and that there is no express waiver of sovereign immunity for the rejection of a settlement offer. Upon our review, we affirm.

The underlying facts are more fully set forth in Ga. Dept. of Corrections v. Couch, 312 Ga. App. 544 (718 SE2d 875) (2011), the case in which we affirmed the jury verdict. In pertinent part, the evidence showed that Couch was part of a team of Walker State Prison inmates who were painting the warden’s house. While he was working, a dry-rotted joist gave way, causing him to fall and land with his legs straddling a joist. Id. at 545. As a result of the fall, Couch suffered a severed urethra. Id. Couch filed a premises liability action against the Department for damages for physical injuries he sustained, and the jury returned a verdict in favor of Couch in the amount of $105,417. Id.

Before the trial, Couch made a written offer of settlement in the amount of $24,000, which the Department rejected. After the verdict, which was greater than 125 percent of the offer of settlement, Couch moved for attorney fees and expenses pursuant to OCGA § 9-11-68, the offer of settlement statute, in the amount of $ 104,158.79, based on an hourly rate, despite a contingency fee arrangement for 40 percent of the final recovery. The Department subsequently moved to dismiss Couch’s claim for attorney fees based on lack of subject matter jurisdiction. It maintained that the Georgia Constitution only permits recovery of damages against a state entity resulting from a tort as provided in the GTCA, and that there is no express waiver contained in the GTCA authorizing the award of attorney fees. In the trial court’s order denying the Department’s motion and granting Couch attorney fees, the trial court found:

The State has waived sovereign immunity with respect to [Couch’s] claim for attorneys’ fees and expenses of litigation and therefore [the Department’s] Motion to Dismiss is DENIED. The Court finds that [Couch] satisfied the requirements of [OCGA] § 9-11-68, i.e. [Couch] made an offer of settlement which [the Department] rejected, and [Couch] subsequently obtained a final judgment that was more than 125% greater than the offer. Therefore, the Court GRANTS [Couch’s] Motion for Attorneys’ Fees and Costs of Litigation. The Court finds that [Couch] had a contingency fee agreement with his attorneys that required him to pay 40% of any recovery as attorneys’ fees. The ultimate recovery in this matter, after an appeal, totaled $123,855.65, which included postjudgment interest and court costs. Therefore, the Court awards [Couch] $49,542.00 in attorneys’ fees incurred by [Couch] which represents the 40% contingency fee based on the total recovery of $123,855.65.

The trial court also awarded Couch $4,782 in litigation expenses for a total award of $54,324.

1. The Department first contends on appeal that the trial court erred in denying its motion to dismiss Couch’s claim under OCGA § 9-11-68 based on sovereign immunity.

The party seeking to benefit from a waiver of sovereign immunity has the burden to establish waiver, and any suit brought to which an exception applies is subject to dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction. The trial court’s ruling on the motion to dismiss is reviewed de novo, while factual findings are sustained if there is evidence supporting them.

(Punctuation and footnotes omitted.) Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 (666 SE2d 383) (2008).

Regarding the waiver of sovereign immunity under OCGA § 9-11-68, the Department maintains that the Georgia Constitution clearly provides that the State has sovereign immunity, except to the extent that the General Assembly enacts legislation that “specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. 1983, Art. I, Sec. II. Par. IX (e). It further asserts that the GTCA by its express terms limits its waiver of sovereign immunity to losses resulting only from “the torts of state officers or employees” subject to certain exceptions not applicable here, “only to the extent and in the manner provided” therein, and that the GTCA constitutes the exclusive remedy for any tort committed by the State. It further maintains that the legislature could have chosen to amend the GTCA to waive sovereign immunity for claims for attorney fees and expenses when it adopted OCGA § 9-11-68, but it chose not to do so.

Under the GTCA, the state waives its sovereign immunity for the torts of state employees while acting within the scope of their official duties “in the same manner as a private individual or entity would be liable under like circumstances.” OCGA § 50-21-23 (a). See Lewis v. Ga. Dept. of Human Resources, 255 Ga. App. 805, 806 (567 SE2d 65) (2002). OCGA § 9-11-68 (b) (2) provides:

If a plaintiff makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer of settlement, the plaintiff shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the plaintiff or on the plaintiff’s behalf from the date of the rejection of the offer of settlement through the entry of judgment.

Our Supreme Court explained that “[t]he clear purpose of this general law is to encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation.” Smith v. Baptiste, 287 Ga. 23, 29 (2) (694 SE2d 83) (2010). The Court further explained that,

in Georgia, attorney’s fees are recoverable where authorized by some statutory provision or by contract. OCGA § 9-11-68 is such a statutory provision authorizing the recovery of attorney’s fees under specific circumstances. [And] there is no constitutional requirement that attorney’s fees be awarded only pursuant to OCGA § 9-15-14 or § 13-6-11. . . .

(Citation and punctuation omitted.) Id. at 28.

In Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821 (426 SE2d 905) (1992), this Court rejected the notion that a claim for attorney fees against a state agency pursuant to OCGA § 13-6-11 was barred by sovereign immunity because there was no specific statutory waiver. In finding that a claim for expenses of litigation under OCGA § 13-6-11 is not an independent cause of action, we held that the “statute merely establishes the circumstances in which a plaintiff may recover the expenses of litigation as an additional element of his damages.” Id. at 826 (5).

Likewise, OCGA § 9-11-68 does not provide for an independent cause of action, but merely establishes circumstances in the event of the rejection of an offer of settlement under which attorney fees shall be paid. Thus, we reject the Department’s contention that the claim for attorney fees under the statute is barred by sovereign immunity.

2. The Department also contends that the trial court erred in failing to prorate Couch’s contingency fee under OCGA § 9-11-68. It maintains that even if the attorney fees award were appropriate, the trial court erred by awarding Couch the full amount of the contingency fee because some of the fees were incurred before the settlement offer was rejected, and that per OCGA § 9-11-68 (b) (2), Couch was only “entitled to recover reasonable attorney’s fees and expenses of litigation incurred from the date of the rejection of the offer of settlement through the entry of judgment.”

The trial court awarded $49,542 in attorney fees which represented 40 percent of the total recovery of $123,855.65. Couch originally sought attorney fees of more than $99,000, supported by his attorney’s affidavit itemizing the hours worked and expenses incurred from the date of the rejected settlement offer to the verdict. Couch asserts that he is entitled to the entire contingency fee because no fee was due until the jury returned the verdict, which was after the Department rejected his settlement offer.

Our Supreme Court has held that when the contingency which fixed an attorney’s entitlement to a fee is “a jury verdict and judgment,” then “the right to a specific amount as a contingent fee was fixed by the judgment.” (Citations and punctuation omitted.) Greer, Klosik & Daugherty v. Yetman, 269 Ga. 271, 274 (1) (496 SE2d 693) (1998). However,

evidence of the existence of a contingent fee contract, without more, is not sufficient to support the award of attorney fees. An attorney cannot recover for professional services without proof of the value of those services. A naked assertion that the fees are “reasonable,” without any evidence of hours, rates, or other indication of the value of the professional services actually rendered is inadequate.

Decided June 13, 2013

Samuel S. Olens, Attorney General, Robert L. Bunner, Assistant Attorney General, for appellant.

Farah & Farah, Kevin Elwell, Thomas G. Tidwell, for appellee.

(Citations and punctuation omitted.) Brandenburg v. All-Fleet Refinishing, 252 Ga. App. 40, 43 (5) (555 SE2d 508) (2001).

Here, the right to the 40 percent contingency fee was fixed by the judgment entered on the verdict, and the fee awarded by the trial court reflected that percentage. Further, the trial court was presented with evidence of the hours worked and rates charged, substantiating the value and reasonableness of the services thereof. Thus, we find no error.

3. The Department also contends that the trial court erred in awarding litigation expenses for mileage, hotels, and meals, and failing to make findings of fact that such expenses were reasonable. However, “[b]y its terms, OCGA § 9-11-68 does not require that the trial court make written findings of fact or conclusions of law unless the court concludes that an offer was not made in good faith. . . .” Cohen v. The Alfred & Adele Davis Academy, Inc., 310 Ga. App. 761, 764 (2) (714 SE2d 350) (2011). The trial court made no such conclusion here, and thus was not required to make findings of fact.

Here, the trial court’s decision to award Couch attorney fees pursuant to OCGA § 9-11-68 was supported by ample evidence and was not an abuse of discretion. Great West Casualty Co. v. Bloomfield, 313 Ga. App. 180, 183 (721 SE2d 173) (2011); Cohen, 310 Ga, App. at 763.

Judgment affirmed.

Miller and Ray, JJ., concur.

       The case was initially removed to the Northern District of Georgia because of the inclusion of federal claims brought under 42 USC § 1983, and after the District Court granted partial summary judgment to the Department on these claims, the case was remanded to state court for resolution of the remaining claims.

       OCGA § 9-11-68 was enacted as part of the Tort Reform Act of 2005, Ga. L. 2005; it became effective on February 16, 2005. See Fowler Properties, Inc. v. Dowland, 282 Ga. 76 (1) (646 SE2d 197) (2007). The Code section was amended by Ga. L. 2006, p. 589, § 1/HB 239, effective April 27, 2006.


author: McFADDEN, Judge.

text:
    A13A0336.
    In the Interest of M. C., a child.
    (744 SE2d 436)
   McFADDEN, Judge.

A juvenile court adjudicated minor M. C. delinquent for acts of aggravated sodomy and child molestation. M. C. appeals, challenging the sufficiency of the evidence supporting the adjudication and establishing venue, and the admission of child hearsay statements. But because there was enough evidence from which the juvenile court was authorized to find beyond a reasonable doubt that M. C. had committed the delinquent acts and that venue had been established, and because the trial court did not abuse its discretion in admitting the child hearsay statements, we affirm.

1. Sufficiency of the evidence.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged. Thus, the standard of review on appeal in a case of adjudication of delinquency of a juvenile is the same as that for any criminal case. In reviewing such cases, we do not weigh the evidence or determine witness credibility.

In the Interest of M. L., 316 Ga. App. 413 (729 SE2d 548) (2012) (citation omitted).

So construed, the evidence shows that the 11-year-old victim told his mother that M. C. was making him go into a bedroom, take off his clothes and perform sexual acts. The mother contacted the police and gave a statement indicating that the victim had told her that M. C. had “put his thing in [the victim’s] butt.” During a forensic interview, the victim again stated that M. C. had put his penis in the victim’s “butt.” In describing the incident, the victim stated that no one else was home at the time, that M. C. had closed the bedroom door, that M. C. had pulled down the victim’s pants, that M. C. had touched the victim’s “butt” with his hands, that'M. C. then stood behind him and put his penis “inside” the victim’s “butt,” that M. C.’s penis felt hard and that it hurt.

Citing Elrod v. State, 208 Ga. App. 787 (432 SE2d 808) (1993), M. C. claims that the evidence was insufficient because it did not show that there was contact between his penis and the victim’s anus. But Elrod is distinguishable from the instant case. In Elrod, an aggravated sodomy conviction was reversed because the evidence showed only that the defendant had rubbed his penis against the victim’s “butt” and “crack,” however there was nothing in the record to show contact between the defendant’s penis and the victim’s anus. Id. at 788 (2). Unlike Elrod, the evidence in the instant case did not show only that M. C. had rubbed his penis against the victim’s buttocks; rather, the evidence showed that M. C. put his penis “inside” the victim’s “butt” and that such contact hurt the victim. “Georgia law defines sodomy as any sexual act involving the sex organs of one person and the mouth or anus of another. A showing of penetration is not required to establish sodomy. A showing of contact is all that is required.” Bryson v. State, 282 Ga. App. 36, 38 (1) (a) (638 SE2d 181) (2006) (citations, punctuation and emphasis omitted). In this case, the juvenile court was authorized to find from the evidence that M. C. had put his hard penis “inside” the victim’s “butt”, and that it hurt the victim, and therefore that there was a sexual act involving contact between M. C.’s penis and the victim’s anus.

This evidence was sufficient to authorize [M. C.’s adjudication of delinquency] beyond a reasonable doubt. See OCGA § 16-6-4 (c); Morgan v. State, 226 Ga. App. 327, 329 (2) (486 SE2d 632) (1997) (testimony that the defendant put his penis “on the victim’s butt” was sufficient to sustain the conviction for aggravated child molestation based upon an act of sodomy); Morgan v. State, 191 Ga. App. 279 (381 SE2d 427) (1989) (affirming aggravated child molestation conviction based upon testimony of the victim). See also Bryson v. State, [supra at 37-38 (1) (a)] (victim’s testimony that the defendant had touched the victim’s “behind” with the defendant’s “private part” was sufficient to authorize aggravated sodomy conviction).

(Punctuation omitted.) Prudhomme v. State, 285 Ga. App. 662, 664 (1) (647 SE2d 343) (2007).

M. C. further claims that there was no evidence of the force required to sustain the aggravated sodomy adjudication. We disagree.

OCGA § 16-6-2 (a) (2) provides in part that a person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age. Our courts have held that the term force includes not only physical force, but also mental coercion, such as intimidation. Lack of resistance, induced by fear, is force. Moreover, force may be proved by direct or circumstantial evidence. And as with rape, only a minimal amount of evidence is necessary to prove that an act of sodomy against a child was forcible.

Boileau v. State, 285 Ga. App. 221, 223 (1) (a) (645 SE2d 577) (2007) (citations and punctuation omitted). In this case, there was testimony that M. C. made the victim go into a bedroom, remove his clothes and perform sexual acts. Moreover, “some evidence of physical force was presented by [M. C.’s] pulling down the pants ... of the victim. There was therefore sufficient evidence of force to sustain [his adjudication] for aggravated sodomy. [Cits.]” Id.

2. Venue.

“ ‘Cases against juveniles alleging delinquent conduct may be brought in either the county of the juvenile’s residence or the county in which the allegedly delinquent acts occurred. OCGA § 15-11-29 (a).’ [Cit.]” In the Interest of J. B., 289 Ga. App. 617, 618 (658 SE2d 194) (2008). Here, the evidence showed that the delinquent conduct occurred in the victim’s house, which is located in Worth County, where this case was adjudicated. “Whether the evidence as to venue satisfied the reasonable-doubt standard was a question for the [fact-finder], and its decision will not be set aside if there is any evidence to support it.” Mahone v. State, 293 Ga. App. 790, 793-794 (2) (668 SE2d 303) (2008) (citations and punctuation omitted). Because there is evidence supporting the juvenile court’s finding of venue in Worth County, we find no error.

3. Child, hearsay.

M. C. contends that the trial court erred in admitting the child hearsay statements made by the victim to his mother and the forensic interviewer because they lacked sufficient indicia of reliability. We disagree.

Because M. C.’s adjudicatory hearing occurred before January 1, 2013, former child hearsay statute OCGA § 24-3-16 applies to this case. Whorton v. State, 321 Ga. App. 335, 337 (1), n. 9 (741 SE2d 653) (2013).

Under former OCGA § 24-3-16, hearsay statements by underage victims of sexual abuse are 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. The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court’s ruling on the admissibility of statements under former OCGA § 24-3-16 only if the trial court abused its discretion.

Maurer v. State, 320 Ga. App. 585, 588 (2) (740 SE2d 318) (2013) (citation and punctuation omitted).

In determining that the circumstances of the victim’s statements provided sufficient indicia of reliability, the juvenile court found, among other things, that after the initial outcries to the victim’s grandmother and mother an appropriate forensic interview was conducted, that there was nothing unusual in the victim’s demeanor and he did not appear to be either detached or overly emotional, that there was no evidence of threats or promises of benefit, that there was no evidence of coaching the victim, and that any inconsistencies in the victim’s statements did not render them unreliable. Under these circumstances, “the trial court did not abuse its discretion in admitting the child-hearsay statements.” (Citation omitted.) Whorton, supra at 341 (1).

Decided June 13, 2013.

Matthew T. Dale, for appellant.

C. Paul Bowden, District Attorney, Bryce A. Johnson, Assistant District Attorney, for appellee.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


author: Branch, Judge.

text:
    A13A0450.
    PRESSLEY v. THE STATE.
    (744 SE2d 439)
   Branch, Judge.

On appeal from his conviction for second-degree child cruelty, Adrian Pressley argues that the trial court erred when it admitted into evidence his videotaped statement and a picture showing the extent of the victim’s permanent injuries. Pressley also argues that the court should have charged the jury on criminal negligence. We find no error and affirm.

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

So viewed, the record shows that in early November 2009, a mother noticed large and dark bruises on her ten-month-old daughter’s face, buttocks, and arms. Pressley’s sister, who was also present, noticed bruises and bite marks on the child’s face. The child, who had no significant health problems before this time, had also become lethargic. The mother took the child to a pediatrician, who referred her to a hospital, where she was admitted, diagnosed with retinal bleeding, and remained for a week. A few days after her release, the child vomited twice at a follow-up appointment with the pediatrician. When the mother asked Pressley, her boyfriend at the time, whether he had caused the child’s injuries, he denied having done so.

On November 22, the mother, child and Pressley went to Pressley’s mother’s house. The mother fed her daughter there and then showered. Less than five minutes after the mother left her daughter in the living room with Pressley, he carried the child to her mother in the bathroom. The child was limp and not visibly breathing, with her eyes rolled into the back of her head, such that the mother thought at first that the child was dead. The mother took the child from Pressley, who called 911. The mother performed CPR according to the 911 operator’s instructions, but the child began having seizures in the ambulance taking her back to the hospital, where she spent more than three weeks in intensive care. On the basis of multiple retinal hemorrhages, a doctor diagnosed the child as having been shaken. After her release, she required a feeding tube, physical and speech therapy, and leg and hand splints. As a result of the brain damage she suffered, the child cannot walk and speaks only a few words.

A police investigator interviewed Pressley twice: first at his house, where he denied having harmed the child, and then at the Columbia County sheriff’s office, where he appeared to take a polygraph test. In the course of an hour-long unrecorded conversation with the polygraph examiner, who was a retired police officer and did not wear a badge or carry a gun, Pressley incriminated himself. The examiner then escorted Pressley into an interview room and left him there for an unspecified period of time.

A videotape commencing while Pressley was in the interview room and lasting through and after his interview by the police investigator shows Pressley sitting in a chair with the door open and texting on his cell phone. The examiner reentered the room with the investigator, introduced Pressley to the investigator, and closed the door. The examiner said that he wanted to be sure that he (the examiner) had told the investigator what Pressley had already told the examiner: that Pressley had bitten and shaken the child “a little harder than [he] meant to,” causing her injuries. When Pressley agreed to the examiner’s brief account, the examiner thanked him for “telling the truth” and left the room. Pressley immediately told the investigator that Pressley had not “done the right thing.” The investigator then left the room briefly, returned, and read Pressley his Miranda warnings from a preprinted form. Pressley initialed and signed the form. In the interview that followed, Pressley again confessed to harming the child on two different occasions. After the investigator again left Pressley alone, Pressley called his mother on his cell phone, repeated his confession, and told her that he was “going to plead guilty.”

Pressley was charged with two counts of first-degree child cruelty arising from biting the victim on the first occasion and shaking the child on the second. Before trial, Pressley moved to suppress his videotaped statement on the ground that it had been coerced. After a Jackson-Denno hearing, the trial court found that Pressley had given the statement freely and voluntarily and after a knowing and intelligent waiver of his rights. The videotape was played for the jury. Neither the State nor Pressley called the polygraph examiner to testify at trial. A jury found Pressley guilty of two counts of child cruelty in the second degree. His motion for new trial was denied.

1. Citing the investigator’s testimony that once Pressley was brought into the interview room, the investigator considered Pressley to be in custody, Pressley argues that his videotaped confirmation of his previous and unrecorded confession to the examiner should have been suppressed because the police obtained it before giving Miranda warnings. We disagree.

“Miranda warnings are required when a person is (1) formally arrested or (2) restrained to the degree associated with a formal arrest.” (Citation and punctuation omitted.) Sewell v. State, 283 Ga. 558, 560-561 (2) (662 SE2d 537) (2008).

The determination of whether one is in custody depends upon the objective circumstances attending the particular interrogation at issue, and not upon the subjective views of either the person being interrogated or the interrogating officer. The relevant inquiry in determining whether one is in custody is how a reasonable person in the suspect’s position would perceive his or her situation.

(Citation and punctuation omitted; emphasis supplied.) Crawford v. State, 288 Ga. 425, 426 (2) (a) (704 SE2d 772) (2011); see also Hardin v. State, 269 Ga. 1, 3 (2) (494 SE2d 647) (1998) (whether investigators “have already decided that they will take the person into custody and charge them with an offense” is “not relevant” on the question whether Miranda warnings should be given so long as the person is not in custody) (footnote omitted). We will defer to a trial court’s findings as to whether a defendant was in custody unless they are clearly erroneous. Sewell, supra at 562 (2). It is undisputed that Pressley appeared at the sheriff’s office for the purpose of taking a polygraph test, that he made incriminating statements to the polygraph examiner, and that he was escorted into an interview room and remained there, unrestrained and with the door open, for some time. Pressley has not argued or shown that his original statement to the examiner was coerced, and the videotape shows that Pressley agreed without reservation to the examiner’s brief account of their previous and unrecorded conversation, at which point the police investigator read Pressley his Miranda warnings and obtained his initials and signature on the form bearing the warnings before beginning the interrogation. Because the evidence thus supported a conclusion that a reasonable person would not have perceived Pressley to be in custody when he made the videotaped statement agreeing to the examiner’s summary of his prior, unrecorded confession, and because Pressley confessed to the attacks again while left alone in the interview room after the Mirandized portion of his interview, we cannot say that the trial court clearly erred when it admitted all of the videotaped statement. See Crawford, supra at 427 (2) (a), n. 5 (defendant who came to sheriff’s department in his own car, “voluntarily agreed to speak with officers,” and “was not handcuffed, threatened or coerced” was not in custody when he made a portion of a statement before being read his Miranda warnings); Sewell, supra (evidence including that defendant was not handcuffed and that door to interview area was not locked supported trial court’s finding that defendant was not in custody). Compare State v. Kendrick, 309 Ga. App. 870, 874-876 (2) (711 SE2d 420) (2011) (affirming trial court’s suppression of statements of defendant who was handcuffed, placed in patrol car, and questioned both before and after being read Miranda warnings as not clearly erroneous).

2. Pressley also argues that the trial court erred when it failed to define criminal negligence as part of its charge on second-degree child cruelty. We disagree.

OCGA § 16-2-1 (a) defines a “crime” as “a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” Subsection (b) of the same statute defines criminal negligence as “an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.” Finally, OCGA § 16-5-70 (c) defines second-degree child cruelty as “with criminal negligence causing a child under the age of 18 cruel or excessive physical or mental pain.”

The record shows that Pressley submitted a written charge on second-degree child cruelty which did not include a definition of criminal negligence and that the trial court gave Pressley’s charge precisely as requested. The record also shows that the trial court’s charge included the definition of a crime stated in OCGA § 16-2-1 (a).

Where an appellant has failed to object to a portion of the trial court’s charge to the jury, we review an error raised on appeal only for “plain error.” State v. Kelly, 290 Ga. 29 (1) (718 SE2d 232) (2011). “On ‘plain error’ review, the presence of actual legal error is not enough, as the jury instruction in question must have obvious defect rather than a merely arguable defect.” (Citation and punctuation omitted.) Terry v. State, 291 Ga. 508, 509 (2) (731 SE2d 669) (2012).

Pressley never objected to the portion of the charge concerning second-degree child cruelty, and has cited no authority on appeal for the proposition that this jury could not reach a proper result on the charges of second-degree child cruelty before it without an explanation of the term “criminal negligence.” See, e.g., Owen v. State, 266 Ga. 312, 315 (6) (467 SE2d 325) (1996) (approving of a charge including only OCGA § 16-2-1 (a)’s definition of “crime” without suggesting that subsection (b)’s definition of “criminal negligence” must be included as well). Because Pressley has failed to show an obvious defect in this portion of the charge, he cannot show plain error in the trial court’s delivery of it. Terry, supra at 509 (2).

3. Finally, Pressley argues that the trial court erred when it admitted into evidence a photograph of the victim that shows her current medical condition and the fact that she must now be strapped into a chair to remain upright. Pressley asserts that because the photograph went only to the issue of the crime’s impact on the victim, its introduction should have been reserved for the penalty phase of the trial. We disagree.

The record shows that the State sought to introduce photographs showing the victim both before and after the incidents at issue. After laying a foundation concerning the photographs’ accuracy of representation of the victim’s condition before and after her injuries, the State asked that they be admitted into evidence. Pressley objected to the later photograph showing the victim strapped into a chair on the ground that it was irrelevant as taken well after the dates alleged in the indictment. The State responded that the photograph went to the State’s burden of showing that the physical harm caused to the child was “excessive,” see OCGA § 16-5-70 (b), and that the State would later link the photograph to an account of the victim’s permanent disabilities, which it did. The trial court then admitted the photograph for that purpose.

Decided June 13, 2013.

Cruelty to children. Richmond Superior Court. Before Judge Blanchard.

Terry M. Taylor, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

Under OCGA § 16-5-70 (b), a person commits second-degree cruelty to children only if that person causes the victim “cruel or excessive physical or mental pain.” “The determination of what is cruel or excessive physical or mental pain is to be made by the jury.” (Citation and punctuation omitted.) Sims v. State, 234 Ga. App. 678, 679 (1) (a) (507 SE2d 845) (1998).

Pressley’s objection at trial went not to the photographs’ accuracy, but rather to their capacity to inflame the jury against him. As we held in Stokes v. State, 204 Ga. App. 586 (420 SE2d 84) (1992), however, “[p]hotographs showing the extent of injuries suffered by the victim of the alleged criminal act are relevant at the trial of the defendant, and are admissible despite allegations that they may inflame and prejudice the jury.” (Citations omitted.) Id. at 586 (1). There was no error in the admission of these photographs, which showed the conditions under which the victim must live in the wake of Pressley’s attack. Id. at 586-587 (1).

Judgment affirmed.

Ellington, C. J., and Phipps, P. J., concur.

       See Jackson v. Demo, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       As a result, the videotape was the only evidence of any custodial statement made by Pressley.


author: McFadden, Judge.

text:
    A13A0510.
    RUDISON v. THE STATE.
    (744 SE2d 444)
   McFadden, Judge.

James Rudison was convicted of several offenses stemming from a home invasion — armed robbery, aggravated assault, burglary, and possession of a firearm during the commission of a crime. He appeals. As detailed below, we find that there was sufficient evidence to support the convictions, that Rudison did not receive ineffective assistance of counsel, and that the trial court did not err in instructing the jury to continue deliberations after the jury had informed the court that it could not reach an agreement. Accordingly, we affirm.

1. Sufficiency of the evidence.

Rudison challenges the sufficiency of the evidence. On appeal, “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 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence showed that in the early morning on September 8, 2008, Donnie Norris opened his front door to a person he knew, who asked to use Norris’s bathroom. While that person was in the bathroom, Norris observed through a video monitor two persons wearing black masks pacing back and forth in front of his house. He locked the front door, retreated to his bedroom and called 911, but before he could speak to the operator a masked man entered the room, struck him on the head, forced him to the floor, threatened to shoot him, and demanded money and the location of a safe. Norris feared for his life. When he denied having a safe, the man struck him with a gun, rendering him temporarily unconscious. At some point, a second man entered the bedroom. The men took jewelry off of Norris’s person and money from his wallet. A visitor to the house, who arrived while the invasion was in progress, saw two masked men, carrying guns, emerge from Norris’s bedroom and head toward the back of the house.

The 911 operator dispatched law enforcement officers to Norris’s address. When the officers arrived they heard a “commotion” in the laundry room at the back of the house, which was near an exterior door blocked by various items and locked with a deadbolt. The police officers discovered Rudison and another man in the laundry room. They also found masks, gloves, money, and some of Norris’s jewelry in or near the laundry room, and they found a gun stashed between the washing machine and dryer.

The police took Rudison to the police station where they interviewed him. The station’s practice was for officers to remove an interview subject’s shoes, belt and any items in his pockets and place those items outside the interview room during the interview. A detective found two of Norris’s rings among the items left outside Rudison’s interview room.

One to two weeks after the home invasion, Norris found another gun hidden in his laundry room. Subsequently, a Georgia Bureau of Investigation forensic scientist identified Rudison’s DNA in saliva found inside one of the masks recovered from Norris’s laundry room.

Rudison argues that this evidence was insufficient to support his convictions, because no witness identified him as one of the masked men and the circumstantial evidence did not exclude every reasonable hypothesis save that of his guilt. See former OCGA § 24-4-6 (2012) (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”). (A comparable provision is found in Georgia’s newly-enacted Evidence Code at OCGA § 24-14-6.) Rudison suggests the possibility that he was framed, pointing to evidence that he was intoxicated the night of the crime and that a number of other people were on the scene at the time. The jury, however, was entitled to reject this suggestion as unreasonable. See Shields v. State, 285 Ga. 372, 375 (1) (677 SE2d 100) (2009) (jury was authorized to reject as unreasonable defendant’s theories about possible causes of victim’s death); Mitchell v. State, 312 Ga. App. 293, 296 (1) (718 SE2d 126) (2011) (whether circumstances were sufficient to exclude every reasonable hypothesis save for defendants’ guilt was jury question). The evidence was sufficient for the jury to find that Rudison committed the offenses of armed robbery, OCGA § 16-8-41, aggravated assault, OCGA § 16-5-21, burglary, OCGA § 16-7-1, and possession of a firearm during the commission of a crime, OCGA § 16-11-106.

2. Effectiveness of counsel’s assistance.

Rudison argues that he received ineffective assistance of trial counsel for failing to object to certain parts of the testimony of a police detective. To prevail on this claim, he “must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.” (Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). In reviewing a trial court’s determination on a claim of ineffective assistance of counsel, we uphold the trial court’s factual findings unless they are clearly erroneous and review the court’s legal conclusions de novo. Badie v. State, 317 Ga. App. 712, 717 (2) (732 SE2d 553) (2012). For the reasons set forth below, we find that Rudison has failed to show he received ineffective assistance.

(a) Detective’s testimony about rings.

First, Rudison argues that his trial counsel should have objected, on hearsay and Confrontation Clause grounds, to the detective’s testimony that another officer told him that two rings, later determined to belong to Norris, had been removed from Rudison’s pants at the police station. Assuming without deciding that trial counsel performed deficiently in failing to object to this testimony, Rudison has not shown that he was prejudiced as a result, because the testimony was cumulative of other evidence that the rings were found among Rudison’s belongings outside of his interview room and of evidence that the practice at the police station was to place items taken from an interview subject’s pockets outside the room during the interview. See Williams v. State, 292 Ga. 844 (3) (a) (742 SE2d 445) (2013) (finding defendant failed to show that he was prejudiced by trial counsel’s failure to object to alleged hearsay testimony, even if the failure constituted deficient performance, because the testimony was cumulative of other testimony and evidence).

(b) Detective’s testimony about the second gun.

Rudison also argues that his trial counsel should have objected and moved for a mistrial when the detective testified that Norris told him he found the second gun hidden in his laundry room. He argues that this testimony impermissibly bolstered Norris’s earlier testimony about finding the second gun. See generally Williams, 292 Ga. at 849 (3) (c) (discussing rules for admissibility of witness’s prior consistent statement under Georgia’s former Evidence Code).

Again, Rudison has not demonstrated that his counsel’s failure to object to this testimony, even if it constituted deficient performance, prejudiced him. The state presented evidence that police found Rudison hiding in Norris’s laundry room, that they also found stolen jewelry and a mask bearing Rudison’s DNA in or near the laundry room, and that they found a gun hidden in the laundry room on the night of the home invasion. Given this overwhelming evidence of Rudison’s guilt, no reasonable probability exists that, but for counsel’s failure to object to the allegedly bolstering testimony about the second gun, the outcome of the trial would have been different. See Decapite v. State, 312 Ga. App. 832, 836-837 (4) (720 SE2d 297) (2011) (finding that, even if allegedly bolstering statement was inadmissible, defendant did not demonstrate that counsel’s failure to object to it prejudiced him where “[significant other evidence . . . implicated him in the crimes”); see also Westbrook v. State, 291 Ga. 60, 62 (2) (727 SE2d 473) (2012) (finding that any error in court’s admission of allegedly bolstering statement was harmless where evidence of defendant’s guilt was overwhelming).

3. Instruction for jury to continue deliberations.

During deliberations, the jury twice informed the trial court that it could not reach an agreement. After having deliberated for close to seven hours, the jury stated in a note to the court: “We cannot agree on some of the charges. What do we do?” With the acquiescence of Rudison’s counsel, the court instructed the jury, “Continue deliberation.” About an hour later, the jury sent another note to the court, stating: “We cannot come to an agreement. We have voted multiple times. We have at least two members who have stated that they will not change; what do we do?” When the trial court again proposed instructing the jury to continue deliberations, counsel for one of Rudison’s co-defendants objected and Rudison’s counsel joined the objection and moved for a mistrial. The court opined that a mistrial was premature and instead instructed the jury to continue deliberations. The jury deliberated another full day, during which it requested to be recharged on certain points and to rehear the audiotape of the 911 call. The jury gave no further indication that it was deadlocked, and the trial court never gave the jury an Allen charge. See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896). The next day, the jury reached its verdict.

Decided June 13, 2013.

David J. Walker, for appellant.

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

Rudison argues that the second instruction to continue to deliberate was reversible error because the instruction was improperly coercive and did not contain the “safeguards of an approved Allen charge.” We disagree.

[T]he trial court made no statements that could be construed as attempting to force any juror to give up his or her honest opinion. The fact that the court did not reiterate that a juror should not surrender his or her convictions merely in order to reach a verdict did not render its treatment of the situation coercive.

(Citations omitted.) Mayfield v. State, 276 Ga. 324, 330 (2) (a) (578 SE2d 438) (2003).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


author: MCFADDEN, Judge.

text:
    A13A0801.
    JORDAN v. THE STATE.
    (744 SE2d 447)
   MCFADDEN, Judge.

After a jury trial, Michael Quintrell Jordan was convicted of two counts of aggravated assault in connection with a shooting at a nightclub. He argues that he was entitled to a directed verdict on one of the counts, that the evidence was insufficient to support his conviction on the other count, and that the trial court erred in charging the jury. Because the evidence authorized Jordan’s conviction on both counts and the challenged charge was proper, we affirm.

1. Facts.

In the early morning on October 11, 2009, Jordan got into an argument at a nightclub, and a bouncer used a “chokehold” to forcibly ej ect him from the club. The two exchanged words, and J or dan told the bouncer, “wait ’til I go to the car, I’ll be back.” The bouncer construed this as a threat that Jordan “was going to go get a gun.” Another club employee called the police, and the bouncer remained outside the club. A few minutes later, several shots were fired in the bouncer’s direction. One of those shots hit a bystander, who was standing outside near the bouncer.

2. Aggravated assault against the bouncer.

The indictment charged Jordan with aggravated assault against the bouncer by shooting at the bouncer with a gun, a deadly weapon. See State v. Nejad, 286 Ga. 695, 700 (2) (690 SE2d 846) (2010) (firearm is deadly weapon as matter of law). The trial court denied Jordan’s motion for a directed verdict on this count, and Jordan contends this was error. We review a denial of a motion for directed verdict under the same standard as that for determining the sufficiency of the evidence to support a conviction. Hash v. State, 248 Ga. App. 456, 457 (1) (546 SE2d 833) (2001). “[T]he 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 SCt 2781, 61 LE2d 560) (1979).

“A person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon....” OCGA § 16-5-21 (a) (2). “A person commits the offense of simple assault when he or she either ... (1) [ajttempts to commit a violent injury to the person of another; or (2) [cjommits an act which places another in reasonable apprehension of receiving a violent injury.” OCGA § 16-5-20 (a).

No witness testified to seeing the shooter, but circumstantial evidence supported a finding that Jordan fired the shots. This included evidence that, shortly before the shooting, the bouncer had forcibly ejected Jordan from the club, that Jordan had told the bouncer he was going to his car and would be back, that the bouncer viewed Jordan’s comments as threatening and thought he was going to get a gun, and that the subsequent shots were fired in the bouncer’s direction. See Giles v. State, 211 Ga. App. 594, 595 (1) (440 SE2d 48) (1993) (finding sufficient circumstantial evidence that defendant shot victim’s car to support criminal damage to property conviction; evidence included the facts that defendant had sent threatening notes to victim and that shooting occurred shortly after defendant left restaurant in vicinity of parked car). It was for the jury to determine whether the circumstantial evidence excluded every other reasonable hypothesis but that of Jordan’s guilt. See Mahan v. State, 282 Ga. App. 201, 203 (1) (638 SE2d 366) (2006).

Although, as Jordan points out, the bouncer did not specifically identify what he was afraid would happen, the bouncer’s testimony, viewed in the light most favorable to the prosecution, authorized a finding that he was in reasonable apprehension of receiving a violent injury as shots were fired in his direction. The bouncer testified that he was afraid and “tr[ied] to get out of the way” when he heard the shots. He also testified that, as this occurred, others pushed him back into the club and onto the floor, and that afterward he saw bullet fragments inside the club and bullet holes inside and outside the club. See Craft v. State, 309 Ga. App. 698, 700-701 (2) (710 SE2d 891) (2011) (evidence that bullet came through apartment resident’s window while she was sitting on the floor, that she remained “paranoid” and stayed on the floor for about ten minutes, and that she crawled to her telephone and the door to seek help, authorized finding of reasonable apprehension sufficient for aggravated assault conviction); Maynor v. State, 257 Ga. App. 151, 155 (570 SE2d 428) (2002) (evidence that victims heard gunshots outside their house, realized that shots had hit the house, and were afraid that the person might continue shooting at the house, was sufficient to show reasonable apprehension required for assault conviction).

Moreover, the evidence set forth above, viewed in the light most favorable to the prosecution, also depicted circumstances from which the jury could infer that Jordan intended to shoot the bouncer. A jury may infer criminal intent from the circumstances, see Campbell v. State, 314 Ga. App. 299, 302 (724 SE2d 24) (2012), and there is a rebuttable presumption that “[a] person of sound mind and discretion ... intend[s] the natural and probable consequences of his acts.” OCGA § 16-2-5.

Because a rational trier of fact could have found that Jordan shot a gun in the bouncer’s direction, attempting to commit a violent injury against him and placing him in reasonable apprehension of receiving a violent injury, the trial court did not err in denying Jackson’s motion for directed verdict on the charge that he committed aggravated assault against the bouncer.

3. Aggravated assault against the bystander.

The indictment charged Jordan with aggravated assault against the bystander by shooting him with a gun, a deadly weapon. Unlike the bouncer, the bystander’s testimony did not show that he was in reasonable apprehension of a violent injury at the time of the shooting, as required for an assault under OCGA § 16-5-20 (a) (2). Jordan argues that the evidence also was insufficient to show that he intended “to commit a violent injury to the person of another,” as required for an assault under OCGA § 16-5-20 (a) (1). We disagree.

As explained above, the jury was authorized to infer from the evidence that Jordan intended to shoot the bouncer when he instead shot the nearby bystander.

[W]hen an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it.

(Citation and punctuation omitted.) Smith v. State, 279 Ga. 423 (614 SE2d 65) (2005). Because a rational trier of fact could have found that Jordan shot at the bouncer intending to commit a violent injury against him and that the bullet struck the bystander instead, the evidence authorized Jordan’s conviction for aggravated assault against the bystander. Id. at 423-424.

4. Jury charge.

Jordan argues that the trial court erred in charging the jury on aggravated assault. As explained below, his argument lacks merit, but we take this opportunity to clarify the appropriate standard of appellate review for such a claim of error.

(a) Standard of review usage.

Appellate review of the jury charge is de novo. Collier v. State, 288 Ga. 756, 761 (1) (a) (707 SE2d 102) (2011) (Nahmias, J., concurring specially). The de novo standard is the only standard of review that accords the trial court no deference. See Glover v. Ware, 236 Ga. App. 40, 45 (3) (510 SE2d 895) (1999).

Both parties write that the standard of review is “plain legal error” — which is an expression this court has adopted as a synonym for “de novo.” See id. But the state confuses the plain legal error standard with the plain error doctrine — which is something else entirely. The plain error doctrine authorizes consideration on the merits for a narrow category of issues that had been waived. See Collier, 288 Ga. at 762 (1) (b) (Nahmias, J., concurring specially). Until January 1, 2013 that doctrine applied only to alleged error in three circumstances not present in this case: “the sentencing phase of a trial resulting in the death penalty, a trial judge’s expression of opinion in violation of OCGA § 17-8-57, and a jury charge affecting substantial rights of the parties as provided under OCGA § 17-8-58 (b) [when no objection was made at trial].” Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012) (noting that “[t]he new Evidence Code will change this rule in cases tried after January 1, 2013, allowing a court to consider plain errors affecting substantial rights” more generally).

In light of the similarity of the two expressions, the state’s confusion is understandable. And the expression “plain legal error” is confusing in another respect. It wrongly implies that, under the de novo standard, we would let stand a legal error that is not “plain.”

Decided June 13, 2013.

Tobe C. Karrh, for appellant.

S. Hayward Altman, District Attorney, Tony A. May, Assistant District Attorney, for appellee.

Use of “plain legal error” as a synonym for “de novo” is apparently unique to this court. We coined the expression in Leverett v. Jasper County Bd. of Tax Assessors, 233 Ga. App. 470, 471 (1) (504 SE2d 559) (1998). It now appears in more than 200 of this court’s opinions — and in one opinion of our Supreme Court, Goddard v. City of Albany, 285 Ga. 882, 883 (1) (684 SE2d 635) (2009), in which that court cited to one of our opinions. But we have found no cases from any other jurisdiction adopting that usage.

We conclude that the phrase “plain legal error” should not be used to designate the de novo standard of review. Instead, we recommend describing the standard of review applicable to questions of law as simply “de novo” — as in, “we review questions of law de novo.”

(b) The trial court properly charged the jury.

Jordan argues that the trial court erroneously charged the jury that a defendant can commit the assault required for an aggravated assault by “intentionally committing] an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury.” He contends that this instruction was improper because “[t]he indictment specifically avers the attemptedbattery type aggravated assault” in the count alleging aggravated assault against the bouncer. But the indictment was not so specific. It merely alleged that Jordan “unlawfully ma[de] an assault upon the [bouncer] with a gun, a deadly weapon, by shooting at him.” This allegation could encompass either method of committing an assault — attempting to commit a violent injury to the person of another under OCGA § 16-5-20 (a) (1), or committing an act that places another in reasonable apprehension of receiving a violent injury under OCGA § 16-5-20 (a) (2). “The trial court did not charge a separate, unalleged method of committing aggravated assault, but simply defined both methods of committing simple assault, a lesser included offense.” (Citation and punctuation omitted.) Johnson v. State, 281 Ga. 229, 230 (2) (637 SE2d 393) (2006). We find no error.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


text:
    A13A0812.
    BOOKER v. THE STATE.
    (744 SE2d 429)
   BARNES, Presiding Judge.

This is a home invasion case in which the jury found Patrick Antwon Booker guilty of burglary, armed robbery, two counts of aggravated assault, kidnapping, two counts of possession of a firearm during the commission of a crime, and possession of a firearm by a first offender probationer. The jury acquitted Booker of several offenses, including malice murder, and the trial court declared a mistrial on a felony murder charge after the jury was unable to reach a verdict on that count. The trial court subsequently denied Booker’s motion for new trial. On appeal, Booker contends that the trial court impermissibly bolstered the credibility of the State’s witnesses by explaining the rule of sequestration to the jury. Booker further contends that the trial court’s jury charge on malice murder and felony murder was improper because the court instructed the jury on how to enter a verdict of guilty without also instructing them on how to enter a verdict of not guilty. Lastly, Booker contends that his trial counsel rendered ineffective assistance for failing to object to the aforementioned alleged errors by the trial court. For the reasons discussed below, we conclude that Booker’s contentions are without merit and therefore affirm.

Following a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict. See Bryan v. State, 271 Ga.App. 60(1) (608 SE2d 648) (2004). So viewed, the evidence showed that on September 24, 2008, at approximately 2:00 a.m., a home invasion occurred at a mobile home in Columbia County. There were three victims of the home invasion — a man who died during the incident (the “decedent”), his girlfriend, and their infant son.

The home invasion transpired as follows. The decedent and his girlfriend awoke when they heard the sound of glass breaking followed by gunshots in their mobile home. According to the girlfriend, they then saw four armed men coming down the hallway toward them. The men demanded money, and when the decedent initially said that he had none, one of the men put his handgun in the mouth of the infant and threatened to kill the infant and the decedent’s girlfriend. One of the men also struck the girlfriend in the head with his handgun.

The decedent ultimately told the robbers that he had money over at his cousin’s house, and the decedent’s girlfriend offered to take the robbers there to retrieve it. Three of the robbers followed the girlfriend, who was holding her infant son, out the front door of the mobile home. Two of the robbers then went back inside the mobile home, while the third robber held a gun to the back of the girlfriend’s head as she walked toward another home in the trailer park. However, the third robber eventually abandoned the girlfriend and ran back to the decedent’s mobile home. At that point, the girlfriend began running with her infant through the trailer park to find help, and as she ran, she heard the decedent yelling as well as several gunshots. The girlfriend ran to a trailer where she knew the occupants, and they called 911 for her.

The police quickly responded to the scene. The decedent had sustained multiple gunshot wounds and was found unresponsive on the floor of the mobile home. He was rushed to the hospital, but he never regained consciousness and died from his wounds. Witnesses in the trailer park told the police that, after the gunshots were fired, two of the robbers fled from the scene in a red or burgundy Chevrolet Camaro, and a be-on-the-lookout (“BOLO”) was issued for the vehicle at approximately 2:20 a.m.

Within minutes, a patrol officer saw a Camaro matching the description given in the BOLO at a gasoline station. The Camaro, which had a male driver and passenger, pulled out of the station, and the officer subsequently stopped the vehicle at approximately 2:37 a.m. about 4.5 miles from the decedent’s mobile home. The driver was identified as Booker, who was arrested at that point for certain motor vehicle-related offenses. The passenger was arrested after marijuana was found on his person during a pat-down search conducted as part of the stop.

After Booker and his passenger were arrested, they along with two other suspects were taken to the police department, where one-on-one “show-up” identifications were conducted with the decedent’s girlfriend at approximately 5:25 a.m. When the girlfriend saw Booker, she immediately dropped to her knees, began to sob, and identified him as one of the robbers in the mobile home. She later confirmed that Booker was one of the robbers during her testimony at trial. In addition to identifying Booker, the girlfriend identified the passenger in the Camaro as one of the robbers, as well as one of the other suspects presented during the “show-up” procedure.

The police obtained a search warrant for the Camaro, and the officers who conducted the search found a glove in the vehicle that matched a glove found at the decedent’s mobile home. Ahollow-point .380-caliber R&P cartridge also was found in the Camaro that matched two cartridges found at the mobile home.

After being advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), Booker told an investigator that he had borrowed the Camaro and gone with his passenger to visit some women but had gotten lost. He denied having any involvement in the home invasion. However, when the investigator later re-interviewed Booker, he admitted to driving other armed men to the trailer park, but denied getting out of the Camaro during the home invasion.

1. Booker argues that the trial court erred by sua sponte instructing the jury on the rule of sequestration. After counsel had invoked the rule of sequestration and before the State’s first witness was sworn and began to testify, the trial court explained to the jury:

Ladies and gentlemen, the Rule of Sequestration has been invoked and what that rule requires is that the witnesses remain outside the presence of the courtroom while the testimony is given. It also requires that once a witness testify they not go out and tell the other witnesses what was said so there won’t be any comparison of the stories. I’m requiring on both counsel to make sure your witnesses stay outside the courtroom until they are called. . . .

According to Booker, the trial court’s explanation to the jury was an impermissible expression of opinion that bolstered the credibility of the State’s witnesses and constituted reversible error under OCGA § 17-8-57. Booker’s claim is without merit.

“It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” OCGA § 17-8-57. Even if defense counsel fails to raise an objection, if the trial court violates this statutory provision, we are “required to order a new trial, and there can be no finding of harmless error.” (Footnotes omitted.) Sauerwein v. State, 280 Ga. 438, 439 (2) (629 SE2d 235) (2006). See State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010). However, “[a] ruling by the court on a point of law is not an expression of opinion [, and] neither are remarks by the court explaining the court’s rulings.” (Punctuation and footnotes omitted.) Rogers v. State, 294 Ga. App. 195, 196 (1) (670 SE2d 106) (2008).

The trial court’s explanation of the rule of sequestration clearly was not a prohibited expression of opinion. The explanation was not a comment on the credibility of any of the witnesses and did not suggest that any given witness had violated the rule. Rather, it was a neutral explanation of the rule of sequestration that did not favor either party, and, in this respect, the trial court specifically stated that the court was “requiring . . . both counsel to make sure your witnesses stay outside the courtroom until they are called.” (Emphasis supplied.) Accordingly, OCGA § 17-8-57 was not violated in this case. See Watson v. State, 278 Ga. 763, 769 (4) (604 SE2d 804) (2004) (charge to jury onruleof sequestration didnotviolate OCGA § 17-8-57); Rogers, 294 Ga. App. at 196 (1) (same).

2. Booker also argues that the trial court committed reversible error in its jury charge on malice murder and felony murder because the court instructed the jury on how to enter a verdict of guilty without also instructing them on how to enter a verdict of not guilty on those counts. We disagree.

Because Booker did not object to the jury charge regarding malice murder and felony murder, we review the charge only for plain error. See OCGA § 17-8-58 (b); Kegler v. State, 317 Ga. App. 427, 434 (3) (731 SE2d 111) (2012).

Reversal based on plain error is authorized if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.

(Citations and punctuation omitted.) Jackson v. State, 316 Ga. App. 588, 595-596 (5) (b) (730 SE2d 69) (2012). See White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012); State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).

Regardless of whether any of the other prongs were satisfied, there is no plain error because Booker cannot demonstrate that the alleged error in the jury charge likely affected the outcome of the proceedings. Booker was not convicted of either malice murder or felony murder, and thus cannot show that the alleged error in the jury charge pertaining to those offenses harmed him in any manner whatsoever. See Knox v. State, 290 Ga. App. 49, 54 (3) (658 SE2d 819) (2008) (an error in jury charge was harmless where charge related to offense of which defendant was acquitted); Hurston v. State, 278 Ga. App. 472, 475 (2) (629 SE2d 18) (2006) (error rendered harmless where' jury was unable to reach a verdict on the counts of the indictment that would have been affected by the error).

3. Booker asserts that his trial counsel rendered ineffective assistance for failing to object when the trial court explained the rule of sequestration to the jury and when the trial court charged the jury on malice murder and felony murder. We disagree.

Decided June 13, 2013.

Charles A. Jones, Jr., for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

To prevail on a claim of ineffective assistance of counsel under the test enunciated in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), “[Booker] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.” Johnson v. State, 281 Ga. 770, 771 (2) (642 SE2d 827) (2007). If Booker cannot establish one of the prongs of the Strickland test, he cannot prevail on his claim of ineffective assistance, and we need not examine the other prong. Id. at 771-772 (2).

As discussed supra in Division 1, the trial court’s explanation to the jury of the rule of sequestration was not a prohibited expression of opinion, and, therefore, any objection would have been meritless. It follows that the trial counsel’s failure to object did not constitute deficient performance and cannot support an ineffective assistance claim. See Henry v. State, 279 Ga. 615, 617 (3) (619 SE2d 609) (2005) (“Failure to make a meritless objection cannot be evidence of ineffective assistance.”) (citation and punctuation omitted).

As discussed supra in Division 2, any alleged error in the trial court’s charge on malice murder and felony murder did not affect the outcome of the proceedings because Booker was not convicted of either offense. For the same reason, Booker cannot establish prejudice based on his trial counsel’s failure to object to the jury charge and thus cannot prevail on his claim of ineffective assistance.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Two of the other robbers involved in the home invasion were tried separately from Booker and were convicted of multiple offenses, including malice murder and armed robbery. See Butler v. State, 290 Ga. 412 (721 SE2d 876) (2012).