author: Bethel, Judge.

text:
    A17A0712.
    SIMMONS v. THE STATE.
    (805 SE2d 615)
   Bethel, Judge.

Ivory Joseph Simmons appeals from the denial of his motion for a new trial following his conviction on one count of aggravated assault and one count of criminal attempt to commit armed robbery. On appeal, he enumerates several errors. First, he argues that the evidence presented by the State on both counts was insufficient to support a verdict of guilt beyond a reasonable doubt. Second, he argues that his trial counsel was ineffective by failing to object to certain evidence identifying Simmons as the assailant and by not objecting to the admission of records of a prior conviction for purposes of sentencing. Third, he argues that the trial court’s instructions to the jury regarding the elements of simple assault were erroneous because they were not tailored to the indictment and the evidence presented by the State. Finally, he argues that the trial court erred by not merging his convictions for aggravated assault and attempted armed robbery for the purposes of sentencing. Because Simmons’ first three enumerations are without merit, we affirm his convictions. However, because the trial court erred by not merging his convictions for purposes of sentencing, we vacate his sentence and remand this case to the trial court for further proceedings consistent with this opinion.

On appeal, the defendant “is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict.” Batten v. State, 295 Ga. 442, 443 (1) (761 SE2d 70) (2014) (citation omitted). So viewed, the evidence shows that one evening a man (the “Victim”) delivered a pizza to an apartment unit. After handing the pizza to the customer, receiving payment in cash, and turning to walk back to his car, the Victim was suddenly attacked from behind.

His assailant, later identified as Simmons, attempted to strike him on the side of the head with a metal automotive water pump. Simmons failed to land the blow directly, instead hitting the Victim in the mouth with his arm. Upon receiving this blow to his face, the Victim heard a loud metal clang but did not see if Simmons had anything in his hand. The Victim reacted to this blow, and commenced a struggle with Simmons, which resulted in both men falling to the ground. The Victim was able to pin Simmons to the ground, and he began calling out for help. Throughout this encounter, the Victim never heard Simmons make any demand for money. Simmons eventually worked himself free from the Victim and fled the scene.

As part of the struggle, the Victim sustained cuts to his lips, which he indicated were the result of Simmons hitting him in the face with his arm. The Victim later recalled seeing a water pump on the ground after his struggle with Simmons. As part of their investigation, police collected a metal water pump approximately 11 inches in length from the scene of the incident.

Simmons was arrested later in the evening and was charged with one count of aggravated assault and one count of attempted armed robbery. While in custody that night, police brought Simmons to the pizzeria where the Victim worked and asked the Victim if Simmons was the person who attacked him. At that time, the Victim positively identified Simmons. The Victim and the arresting officer described this identification to the jury as part of their respective trial testimony, and the Victim also identified Simmons in court. Simmons made no objection to any of these identifications. A second witness for the State, a neighbor who lived across the street from where the incident occurred, also identified Simmons as the assailant. During their trial testimony, both the Victim and the neighbor identified the water pump that was recovered from the scene of the incident.

At the close of the State’s case, Simmons moved for a directed verdict of acquittal on the attempted armed robbery charge. The trial court denied this motion, and, thereafter, Simmons elected not to testify or call any witnesses. After deliberation, the jury found Simmons guilty on one count each of attempted armed robbery and aggravated assault. Simmons’ counsel did not request that the offenses be merged for purposes of sentencing, and the trial court issued 20-year sentences for each offense and set those sentences to run consecutively. Simmons later moved for a new trial, which the court denied following a hearing. This appeal followed.

1. Simmons first challenges the sufficiency of the evidence on both counts of the indictment. Following a conviction in a criminal case, our review is limited to a determination of whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find beyond a reasonable doubt that the defendant committed the essential elements of the crime. Gray v. State, 213 Ga. App. 507, 509 (1) (445 SE2d 328) (1994).

(a) OCGA § 16-8-41 (a) provides, in part, that “[a] person commits the offense of 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, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-4-1 provides that “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”

Here, the evidence was sufficient to permit the jury to find Simmons guilty of attempted armed robbery beyond a reasonable doubt. Although Simmons did not verbally demand, or ultimately steal, any property from the Victim, the jury could infer his intention to do so because the record reflects that he approached the Victim from behind and struck him after the Victim had received cash in payment for the pizza he had just delivered. Likewise, because the Victim was still holding the money he had received from the customer as he completed his delivery, this evidence satisfied the requirement that the attempted robbery must be with respect to property in the person’s immediate presence. See Patterson v. State, 312 Ga. App. 793, 797 (3) (720 SE2d 278) (2011) (immediate presence requirement satisfied if property was under victim’s control or responsibility).

Finally, evidence that Simmons swung a metal water pump at the Victim satisfied the requirement that the robbery be attempted with “an offensive weapon, or any replica, article, or device having the appearance of such weapon.” Although an automotive water pump is not commonly utilized as an offensive weapon, it is not necessary to show that the instrumentality used to carry out (or, in this case, attempt to carry out) the charged offense is a standard weapon. As the Supreme Court of Georgia has discussed,

[f]or purposes of armed robbery, the term “offensive weapon” includes not only weapons which are offensive per se, such as firearms loaded with live ammunition, but also embraces other instrumentalities not normally considered to be offensive weapons in and of themselves but which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use.

Long v. State, 287 Ga. 886, 889 (2) (700 SE2d 399) (2010) (citation and punctuation omitted). In this case, the evidence established that Simmons used the metal water pump, roughly 11 inches in length, in an attempt to hit the Victim on the head. Although Simmons did not land this blow, instead hitting the Victim across his mouth with his arm, we are satisfied that the evidence establishes that Simmons’ offensive use of the metal water pump could have inflicted a serious injury upon the Victim. See Chitwood v. State, 170 Ga. App. 599, 600 (2) (317 SE2d 589) (1984) (evidence sufficient where defendants used metal table leg to strike victim in order to effectuate robbery).

Because the attack was launched from behind him, and because the water pump never appears to have made contact with the Victim, it was not immediately clear to the Victim that Simmons had attempted to hit him with the water pump. However, other testimony, including the testimony of the neighbor who witnessed the attack, established its use by Simmons. The Victim also testified to hearing a “loud metal clang” and seeing the water pump on the ground after his struggle with Simmons. As we noted in Johnson v. State, “circumstantial evidence is sufficient to establish the use of a . . . device appearing to be a weapon, and a conviction for armed robbery may be sustained even though the . . . article used was neither seen nor accurately described by the victim.” The armed robbery statute requires only “some physical manifestation of a weapon or some evidence from which the presence of a weapon may be inferred.” Id. at 136 (1). The evidence presented here satisfies this requirement.

Because the State presented evidence satisfying each element of the offense, we find that there was sufficient evidence to support Simmons’ conviction for attempted armed robbery beyond a reasonable doubt.

(b) OCGA § 16-5-21 (a) provides, in part, that “[a] person commits the offense of aggravated assault when he or she assaults: . . . (2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” An assault occurs when a person “[ajttempts to commit a violent injury to the person of another [or cjommits an act which places another in reasonable apprehension ofimmediately receiving a violent injury.” OCGA § 16-5-20 (a) (1), (2).

Here, the evidence presented by the State was clearly sufficient to allow a jury to find that Simmons committed this offense beyond a reasonable doubt under both theories of assault. Simmons’ act of approaching the Victim from behind, taking him by surprise, and attempting to hit him on the head with a metal object could allow the jury to infer Simmons’ intention to violently injure the Victim. See Maynor v. State, 257 Ga. App. 151, 153 (570 SE2d 428) (2002) (“[Ajggravated assault with a deadly weapon which is likely to result in serious bodily injury does not require a specific criminal intent; rather, it requires only a general criminal intent . . . which ... is a general intent to injure.”).

The evidence also established that Simmons placed the Victim in reasonable apprehension that he was about to suffer a violent injury At trial, the Victim testified that he feared for his life and safety when he was attacked by Simmons. The Victim also testified that he continued to struggle with Simmons because

it was just a matter of defending myself ... he had jumped me out of the blue like that, you don’t know if your life is in danger or not, so I just — my survival instincts had kicked in and I kind of pinned him to the ground where he couldn’t assault me anymore.

The Victim’s testimony provided direct evidence that he was placed in apprehension by Simmons’ attack upon him. Moreover, evidence that, when faced with an attack, the victim confronted and fought the assailant is sufficient for a jury to conclude that the victim was placed in apprehension of receiving an injury See Williams v. State, 299 Ga. App. 345, 347 (682 SE2d 586) (2009). The evidence thus satisfies the necessary elements under both theories of assault.

Additionally, evidence that Simmons attempted to use a metal water pump to hit the Victim on the back of the head satisfies the requirement in the aggravated assault statute that he carry out the assault by using a device capable of inflicting a serious bodily injury See Massey v. State, 278 Ga. App. 303, 303-304 (1) (628 SE2d 706) (2006) (weapon requirement satisfied when defendant struck victim with handle of a metal broom); see also Long, 287 Ga. at 889 (2) (holding that same object can satisfy “offensive weapon” requirement in armed robbery statute and “deadly weapon” requirement in aggravated assault statute). We thus find sufficient evidence in the record to support Simmons’ conviction for aggravated assault.

2. Simmons next argues that his trial counsel was ineffective both in the conduct of the trial and in the sentencing proceedings that followed.

(a) Simmons first argues that his trial counsel was ineffective due to his failure to object to an impermissibly suggestive out-of-court identification of Simmons (commonly referred to as a “showup”) as well as a later in-court identification based on the showup.

At trial, the State introduced evidence that, in the hours following the incident, the police placed Simmons into custody and brought him to the Victim’s place of work so that the Victim could identify Simmons. Simmons did not object at trial to testimony by the Victim and the arresting officer regarding this showup.

Testimony from Simmons’ trial counsel at the hearing on his motion for a new trial indicates that counsel consciously decided not to object to this particular identification. As Simmons’ trial counsel indicated, she had already objected to a previous identification of Simmons by the Victim in an earlier line of questioning. As Simmons’ counsel elaborated, “We had objected at that point to the ID. And I felt like to object again on the second point. . . would be bringing this . . . in front of the jury and calling more attention to it.” Regarding her failure to object to another identification, Simmons’ counsel offered a similar response: “We did not want to . . . point out to the jury that there were several, numerous [identifications] of him and they were done by various persons. And we didn’t want to highlight that anymore than it already was.”

Another member of Simmons’ trial defense team reiterated this point in his testimony, noting that the overall strategy was not to contest before the jury that Simmons had attacked the Victim. Instead, the defense planned to argue that Simmons’ attack was not for the purpose of robbing the Victim and that it did not involve the use of the water pump. The record shows that, in both their opening statements and closing arguments at trial, Simmons’ counsel made this argument explicitly to the jury.

As the Supreme Court of Georgia discussed in McNair v. State, “[t]rial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” In this case, because there were positive identifications of Simmons made by multiple witnesses, a reasonable attorney in the position of Simmons’ counsel could determine that objecting to the identifications in front of the jury would have the undesired effect of emphasizing the cumulative nature of this evidence. As the defense’s overall strategy was predicated on undermining the State’s theory of Simmons’ motive and casting doubt on the evidence of his use of the water pump (and, critically, not on contesting Simmons’ involvement in the incident), we cannot say that “trial counsel’s decision not to object to this testimony was patently unreasonable and a decision that no competent attorney would have made.” Id. at 184 (2) (b). This enumeration is therefore without merit.

(b) Simmons next suggests that his trial counsel was deficient because he did not object during sentencing to the admission of a document purporting to reflect Simmons’ 1991 conviction in the State of New York. Simmons suggests he was prejudiced by this error because the document in the record of the sentencing proceedings does not contain information about the charge or the sentence imposed on him in New York. Simmons argues that the State’s entry of an incomplete record of the New York conviction for purposes of sentencing led the judge to improperly consider evidence in aggravation that Simmons had previously committed a sex crime against a minor. We find no error here.

First, the record of the sentencing proceedings clearly indicates that Simmons’ counsel objected to the admission of these records because, in his counsel’s words “they are so old they really have no bearing on the case.” The documents were admitted over this objection.

Moreover, the document that appears in the record of the sentencing hearing appears to be the first page of a record from criminal proceedings involving Simmons in Wayne County, New York. A longer version of this document appears elsewhere in the record and includes the grand jury’s indictment of Simmons. That document identifies the specific New York penal code sections under which Simmons was charged and a summary of his conviction and sentence. The contents of these documents are consistent with the State’s characterization of Simmons’ New York conviction during the sentencing proceedings, and testimony by Simmons’ trial counsel suggests that the omission of the full version of the document from the record of the sentencing hearing was either an oversight in perfecting the initial record or the result of a stipulation between the State and Simmons. In any event, Simmons’ trial counsel stated that, prior to sentencing, he had “viewed the certified copies and they do appear to meet the standards that Georgia deems acceptable.” Because Simmons has thus failed to show that his counsel or the court lacked access to the full contents of the record of his New York conviction prior to his sentencing, he has not shown how he was prejudiced by this omission in the record of his sentencing hearing. We thus find no error here.

3. Simmons next argues that the trial court erred by giving an improper instruction to the jury regarding simple assault as an underlying element of aggravated assault. We review the jury instructions at issue in this case for plain error, as Simmons did not object below. See Henderson v. State, 333 Ga. App. 759, 760 (1) (777 SE2d 48) (2015) (citing OCGA § 17-8-58 (b) and noting that the failure to object regarding a jury instruction at trial precludes appellate review unless “the jury charge constitutes plain error which affects substantial rights of the parties”) (punctuation omitted).

As noted in Division 1 (b), supra, an underlying simple assault is an element of the offense of aggravated assault. See Zamudio v. State, 332 Ga. App. 37, 47 (6) (771 SE2d 733) (2015). A simple assault can occur in two ways: the assailant can attempt to commit a violent injury to the person of another or the assailant can commit an act which places another person in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a) (1), (2). These theories are distinct, but they are not mutually exclusive. See Adams v. State, 293 Ga. App. 377, 378-380 (1) (667 SE2d 186) (2008) (same act by defendant can satisfy both theories of assault).

Here, Simmons claims that the language of the indictment in the aggravated assault charge indicates that the State would be pursuing only the theory that Simmons attempted to commit a violent injury to the Victim, not that he placed the Victim in apprehension of danger. Simmons’ argument is unpersuasive.

The indictment count charging Simmons with aggravated assault provides, in relevant part, that “[Simmons made] an assault upon the person of [the Victim], with a water pump, an object which, when used offensively against a person, is likely to or actually does result in serious bodily injury...The language in this count tracked, without omission, the language set forth in OCGA § 16-5-21 (a) (2). It therefore placed Simmons on notice that the State was not pursuing the alternate theories of aggravated assault set forth in OCGA § 16-5-21 (a) (1) and (3). Thus, the language in the indictment limited only the theory on which the aggravated assault was based, rather than the theory of the underlying simple assault. Moreover, “[t]he indictment did not and need not specify the manner in which the defendant committed the simple assault, when that is a lesser included offense within the greater offense of aggravated assault.” Hollins v. State, 340 Ga. App. 190, 193 (796 SE2d 901) (2017) (per curiam) (punctuation omitted). Therefore, the trial court was not required to constrain the jury instruction on simple assault in the manner Simmons suggests. Simpson v. State, 277 Ga. 356, 358 (3) (589 SE2d 90) (2003); Hollins, 340 Ga. App. at 193-194.

Simmons also argues that the judge’s charge was not tailored to the evidence that was presented by the State. We also disagree with this contention, as the State presented evidence that established both theories of simple assault. See Division 1 (b), supra. Therefore, because the instruction provided by the judge regarding simple assault conformed to the language of the indictment and the evidence presented by the State, we find this enumeration to be without merit.

4. Finally, Simmons argues that the trial court erred by not merging his convictions for attempted armed robbery and aggravated assault for purposes of sentencing. We agree.

“Whether two offenses should be merged is a question of law, and we apply a plain legal error standard of review.” Herrera v. State, 306 Ga. App. 432, 434 (3) (702 SE2d 731) (2010) (citation and punctuation omitted). As this Court ruled in Mullis v. State, convictions for attempted armed robbery and aggravated assault merge when the two charges arise out of the same act or transaction. Despite the State’s contention, here the aggravated assault and the attempted armed robbery cannot reasonably be characterized as separate acts, as the evidence presented by the State established that Simmons only made a single attempt to hit the Victim with the water pump and that he did so with the intent to both rob and injure the Victim. See Division 1, supra; see also Curtis v. State, 330 Ga. App. 839, 846 (2) (769 SE2d 580) (2015) (armedrobbery and aggravated assault offenses merge when they occur at the same place and approximately the same time). Due to the struggle that ensued immediately between the Victim and Simmons, it does not appear that Simmons had an opportunity to take any additional action against the Victim that might constitute a separate offense. Cf. Gaither v. Cannida, 258 Ga. 557, 557-558 (1) (372 SE2d 429) (1988) (merger of offenses is improper where evidence shows defendant took “repeated, substantial steps” toward committing armed robbery before committing a second act that constituted the aggravated assault). Thus, we agree with Simmons that these two offenses should have been merged by the trial court for purposes of sentencing. Simmons’ sentence is therefore vacated, and his case is remanded to the trial court for resentencing. Mullis, 321 Ga. App. at 721-722.

Decided September 21, 2017.

Jonathan P. Lockwood, L. Jason Jones, Meredyth L. Yoon, for appellant.

George E. Barnhill, District Attorney, Michelle C. Mclntire, Assistant District Attorney, for appellee.

Judgment of conviction affirmed, sentence vacated, and case remanded.

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

       We emphasize that the State need not necessarily prove that the defendant declared an intention to rob the victim in order to satisfy this requirement. Rather, as this Court has previously noted, “[t]he intention maybe gathered from the circumstances of the case as proved. In seeking the motives of human conduct, inferences and deductions may properly be considered where they flow naturally from the facts proved.” Hambrick v. State, 174 Ga. App. 444, 446 (1) (330 SE2d 383) (1985) (upholding denial of motion for directed verdict of acquittal on armed robbery charge where defendant pulled container holding cash from victim).

       331 Ga. App. 134, 135-136 (1) (770 SE2d 236) (2015) (citation omitted).

       296 Ga. 181, 184 (2) (b) (766 SE2d 45) (2014) (citation and punctuation omitted).

       Distinctions between the three theories of aggravated assault were explicitly discussed at the charge conference following the close of the State’s case.

       As we find no error in the trial court’s instruction regarding simple assault, we need not reach Simmons’ enumeration suggesting that his trial counsel was ineffective for failing to object to this jury charge.

       321 Ga. App. 720, 721-722 (742 SE2d 750) (2013).

       Because we have found error in regard to the trial court’s failure to merge the convictions for attempted armed robbery and aggravated assault, we need not reach Simmons’ argument that his trial counsel was ineffective by failing to raise the merger issue with the trial court during sentencing.


source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A17A1017.
    GREEN v. THE STATE.
    (805 SE2d 469)
   Ellington, Presiding Judge.

Following a bench trial in the Superior Court of Wheeler County, the court found Casey Green guilty of four counts of theft by taking, OCGA § 16-8-2. Green appeals following the trial court’s denial of his motion for new trial. He contends that the evidence was insufficient to support his conviction. We affirm for the reasons set forth below.

On appeal of a criminal conviction on grounds of insufficiency of the evidence, the appellate court’s duty is to determine “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 and punctuation omitted.) Thompson v. State, 277 Ga. 102, 103 (1) (586 SE2d 231) (2003). So viewed, the evidence shows that Green and Henry Clark had a longstanding business relationship. Clark, through his company, TC Logging, Inc., was in the business of purchasing and reselling timber. Green was a “forester” who contracted with landowners for the purchase of timber and oversaw harvesting operations. In the course of his business, Green did not sell timber directly to the mills. Rather, Green would take timber to the mill under Clark’s “ticket,” the mill would pay Clark for the timber, and Clark would cut checks to pay the loggers and the landowners. Green would then, according to Clark, “deliver the checks back where they were supposed to be.” After the expenses were paid, Green and Clark would share the remainder.

During July and August 2012, Clark made four checks payable to Rick Compton under the name “RC Timber,” and he gave those checks to Green with direction that he deliver them to Compton. According to Clark, Compton had been acting as a “consultant” for a landowner, and Compton was supposed to pay the landowner out of the proceeds of the checks. Rather than deliver the checks to Compton, Green endorsed the checks in his own name and deposited them in his account at Wheeler County State Bank. The Bank’s teller, who was familiar with both Green and Clark, was initially concerned about processing the deposits, but she did so after Green, either directly or in response to her inquiry, represented to her that his initials had been mistakenly transposed.

Clark realized that there was an issue with the checks when he received word that the landowner had not been paid. After meeting with Compton, Clark called the Bank and asked for copies of the backs of the checks so he could see the endorsements. Clark then made direct payments to the landowner and Compton. An officer of the Bank met with Green in an effort to determine what had happened, but Green offered no explanation for the deposits. Clark testified that he contacted Green and invited him to his office to “work this out,” but Green never came, nor did he explain to Clark where the money had gone.

1. Green testified in his defense that he and Compton were working as “partners” and that Compton had asked Green to deposit the checks payable to Compton’s business in Green’s account. As Compton did not testify, Green contends that there is no evidence to dispute his testimony and that the State therefore failed to prove beyond a reasonable doubt that he unlawfully appropriated the checks.

OCGA § 16-8-2 provides in pertinent part: “A person commits the offense of theft by taking when he ..., being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” The offense’s gravamen “is the taking of the property of another against the will of such other, regardless of whether the property is taken or appropriated and the manner of the taking or the appropriation.” (Citation and punctuation omitted.) Brown v. State, 302 Ga. App. 641, 643 (1) (692 SE2d 9) (2010).

For purposes of our review of the sufficiency of the evidence, “as long as there is some evidence, even though contradicted, to support each fact necessary for the state’s case, the verdict will be upheld.” (Citation and punctuation omitted.) Wiggins v. State, 334 Ga. App. 54, 57 (3) (778 SE2d 60) (2015). And “[i]t is axiomatic that[,] in a bench trial, the trial court weighs the evidence and determines the credibility of witnesses.” (Citation and punctuation omitted.) Kelly v. State, 270 Ga. App. 380, 381 (606 SE2d 586) (2004). Here, the trial court found that, upon considering the witnesses’ credibility, motive, and opportunity, as well as Green’s manner and disposition, Green’s factual account was not persuasive.

Clark testified that Green was working with him and represented Clark’s business, TC Logging. Green also worked with a number of consultants, such as Compton, with different, consultants representing different, landowners. According to Clark, Green came to his office and picked up the checks, and Green’s “job was to deliver these checks to [Compton],” consistently with the manner in which Green and Clark had conducted business for over 12 years. Thus, viewed in a light most favorable to the prosecution, the evidence showed that Green had been entrusted by Clark with the act of physically delivering TC Logging’s checks to Compton, and that, contrary to Clark’s direction and without Clark’s consent, Green deposited the checks in his own account. This was sufficient for any rational trier of fact to find beyond a reasonable doubt that Green had unlawfully appropriated the checks. See Frost v. State, 269 Ga. App. 54, 56 (1) (603 SE2d 481) (2004) (Proof that a check written to another company was deposited in the account of appellant’s company was sufficient to support the jury’s determination that appellant had committed theft by taking.). Compare In the Interest of E. C., 311 Ga. App. 549, 550 (2) (716 SE2d 601) (2011) (As the only evidence that appellant took his sister’s car without her consent was nonprobative hearsay, the evidence was not sufficient to support appellant’s adjudication of delinquency based on theft by taking beyond a reasonable doubt.).

2. Green further argues that the State failed to prove the element of intent beyond a reasonable doubt. OCGA § 16-8-2 requires that, to constitute the crime of theft by taking, an unlawful appropriation of another’s property be “with the intention of depriving him of the property”

[Ijntent may be found by the [trier of fact] upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is being prosecuted. Whether a defendant has the requisite intent to commit a crime is a question for the [trier of fact].

(Citation and punctuation omitted.) Bearden v. State, 316 Ga. App. 721, 723 (1) (728 SE2d 874) (2012). Green argues that his testimony and supporting exhibits showed that he had paid more “legitimate expenses” of his and Compton’s business than the proceeds of the checks that he was accused of taking, and that, as he was entitled to be reimbursed for his expenses, the State failed to show that he intended to deprive either Compton or Clark of their property Whatever expenses Green might have personally incurred, the evidence showed that the checks at issue were not payable to him but were placed in his possession for their physical delivery to Compton, and that, by endorsing the checks and misrepresenting that the checks were actually payable to him, he knowingly took the proceeds of the checks for himself. The evidence was sufficient to establish Green’s criminal intent. See Frost v. State, 269 Ga. App. at 56 (1); Jordan v. State, 242 Ga. App. 547, 549 (1) (b) (528 SE2d 858) (2000) (Proof that defendant deposited unauthorized checks into her own account was sufficient to support the jury’s verdict that defendant committed theft by taking.).

Judgment affirmed.

Andrews and Rickman, JJ., concur.

Decided September 21, 2017.

Thomas H. Hyman, for appellant.

Timothy G. Vaughn, District Attorney, Lauren C. Shur ling, Assistant District Attorney, for appellee.

       Green was indicted with committing five counts of theft by taking. The court found Green guilty of Counts 1, 2, 4, and 5, and not guilty of Count 3.

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

       The checks were payable to the order of RC Timber and drawn on TC Logging’s account at Wheeler County State Bank in the amounts of $7,741.04, $7,129.97, $3,538.15, and $12,902.59, respectively.

       Clark testified that a portion of the proceeds were to be retained by Compton, and “the rest to the landowner.”

       The teller testified that Green’s initials are“CR Green[ ] and I think thechecks were.RC. [Green] is CRG Timber [.]

       The Bank ultimately reimbursed Clark in the amount of $31,311.75 on account of “bank error.”


author: Self, Judge.

text:
    A17A0891.
    REYNOLDS v. CB&T.
    (805 SE2d 472)
   Self, Judge.

Willie T. Reynolds sued CB&T, a division of Synovus Bank (“CB&T”), for wrongful foreclosure, breach of contract, intentional and grossly negligent infliction of emotional distress, unjust enrichment, and promissory estoppel. CB&T moved for summary judgment on all claims, and the trial court granted its motion. As there are genuine issues of material fact supporting all claims, we reverse the trial court’s grant of summary judgment to CB&T.

Summary judgment is appropriate if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “We review a trial court’s grant of summary judgment de novo and construe all inferences in the light most favorable to the nonmoving party” Olde Towne Tyrone v. Multibank 2009-1 CRE Venture, 326 Ga. App. 322, 323 (756 SE2d 558) (2014).

Viewed in the light most favorable to Reynolds, the record shows that Reynolds borrowed $253,371 from CB&T in order to construct his family’s home. Reynolds executed a promissory note for the full amount, which was secured with a deed to secure debt pledging the property on which the home was being built as security for the loan. The promissory note was executed on June 18, 2012, and had a maturity date of June 18, 2013. Its stated purpose was for “construction.” The note was renewed for a nearly identical amount on July 1, 2013, and December 9,2013. On February 13,2015, the amount of the loan renewed was $219,625.93, with a maturity date of May 13, 2015. The note provided that “[a]ny changes to this note or any agreement securing this note must be in writing and signed by you and me.”

On July 7, 2015, Travis Hargrove, CB&T’s attorney, sent a demand letter to Reynolds via certified mail, demanding payment of $222,172.27, the balance owed on the note. On September 2, 2015, Hargrove sent Reynolds a certified mail notice that CB&T intended to foreclose on the property and that a foreclosure sale would be held on October 6, 2015. Hargrove also included a copy of the foreclosure notice in that correspondence. Reynolds never claimed the letter. The notice of foreclosure ran in the local newspaper from September 9, 2015, to September 30, 2015, and a non-judicial foreclosure was conducted on October 6, 2015. CB&T was the highest bidder at the foreclosure sale, purchasing the home for $225,334.24.

Reynolds sued CB&T a month later, alleging that the bank had expressly agreed to extend or modify the note’s maturity date until Reynolds could complete construction of the home and obtain a certificate of occupancy. At that point, Reynolds intended to obtain a permanent mortgage or seek to convert the note into a residential mortgage loan. In his verified interrogatory responses, Reynolds stated that from July 25, 2015, through September 30, 2015, CB&T advised Reynolds to keep building and that he should go ahead and finish the home. Reynolds was led to believe by CB&T and Hargrove that completing the house and acquiring a permanent mortgage was in the best interest of both parties. Reynolds further explained that a CB&T employee, Scott Jackson, was attempting to modify the loan date when another division of the bank began foreclosure proceedings. He further stated that on July 27, 2015, attorney Hargrove stated that he “could finish the construction as it was going well and [a] CB&T Property Inspector came out several times to the property and agreed.” Reynolds applied for a permanent mortgage in July and August 2015 but was denied because the default appeared on his credit report. Reynolds built the home himself and averred in his interrogatory responses that he spent over $70,000 of his own money and personal labor on the project in reliance on CB&T’s promise that he could complete construction of the home after his initial default. According to Reynolds, a professional appraiser “dispatched” by CB&T gave the house a value of “approximately $400,000” which was $175,000 more than the amount owed on the loan.

The trial court granted CB&T’s motion for summary judgment on all claims, ruling that (1) the foreclosure complied with the relevant statutes; (2) parol evidence cannot be admitted to alter or vary the terms of the promissory note; (3) Reynolds defaulted on the loan and, therefore, cannot recover for intentional infliction of emotional distress; (4) the existence of a written contract precludes a claim for unjust enrichment; and (5) Reynolds’ claim for promissory estoppel fails because the alleged promise is vague and indefinite as to material terms such as the interest rate and maturity date. On appeal, Reynolds challenges these rulings.

1. In two related enumerations of error, Reynolds contends that the trial court erred in granting summary judgment on his claims for wrongful foreclosure and breach of contract because CB&T’s oral agreement to modify the due date of the loan to the date Reynolds completed the home and obtained a certificate of occupancy raises a genuine issue of material fact as to whether there was a mutual departure from the promissory note so as to constitute a quasi-new agreement between the parties. Reynolds claims he provided value in exchange for the extended loan date, including expending his own labor and money to complete the construction, thus increasing the property’s value by at least $170,000.

Any modification of a promissory note must be in writing because it falls within the Statute of Frauds. The Statute of Frauds is codified at OCGA § 13-5-30 and provides that in order to be enforceable, various types of agreements must be “in writing and signed by the party to be charged therewith or some person lawfully authorized by him.” Pursuant to OCGA § 13-5-30 (7), the promissory note had to be and was executed in writing. “As the [promissory note] had to be in writing under the Statute of Frauds, so likewise, under the general rule, any proposed modification thereof, to be effective, must also have been in writing.” (Citation and punctuation omitted.) Brooks v. Gwinnett Community Bank, 311 Ga. App. 806, 807 (717 SE2d 647) (2011). See also Jaraysi v. Sebastian, 318 Ga. App. 469, 475 (1) (c) (733 SE2d 785) (2012) (“ ‘a contract which is required by the Statute of Frauds to be in writing can not be modified by a subsequent agreement in parol’ ”), overruled on other grounds by George v. Hercules Real Estate Svcs., 339 Ga. App. 843 (795 SE2d 81) (2016); S & A Indus. v. Bank Atlanta, 247 Ga. App. 377, 381 (3) (543 SE2d 743) (2000) (borrower’s reliance on conversations “ ‘to add to, take from or vary’ ” terms of promissory note, which met requirements of Statute of Frauds, barred by parol evidence rule).

However, oral modification of a written contract subject to the Statute of Frauds, such as the promissory note here, may be effective “where a modification of the written contract has been agreed to by all parties, performed by one and accepted by the other. . . (Citations and punctuation omitted.) Jaraysi, supra, 318 Ga. App. at 469, 475 (1) (c).

This result under the Statute of Frauds comports with the general rule that a mutual departure from the terms of an agreement results in a quasi-new agreement suspending the original terms of the agreement until one party has given the other reasonable notice of its intent to rely on the original terms.

(Citation and punctuation omitted.) Dobson v. Matt Owens Logging, 326 Ga. App. 879, 882 (755 SE2d 374) (2014). See also Eaves v. J. C. Bradford & Co., 173 Ga. App. 470, 471-472 (326 SE2d 830) (1985) (physical precedent only) (while mere breach by one party will not demonstrate the creation of a quasi-new agreement, the consent to enter a new agreement may be shown by the parties’ course of conduct and is generally a question for a jury to determine). Mutual departure is codified at OCGA § 13-4-4 and provides:

Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.

See Wright Carriage Co. v. Business Dev. Corp. of Ga., 221 Ga. App. 49, 51 n. 1 (471 SE2d 218) (1996) (“Mutual departure affects only the particular terms at issue; other executory terms in the agreement remain in force.”). See also Shalom Farms v. Columbus Bank & Trust Co., 169 Ga. App. 145, 146-147 (1) (312 SE2d 138) (1983) (“[wjhile mutual departure from the terms of a contract, as in a quasi new agreement, mandates notice of the intention of one of the parties to return to the original terms before those terms can be enforced, ... it is only the particular terms encompassed in the quasi new agreement that are affected thereby, and the other terms of the original contract remain enforceable as written”). Further, although mutual departure ordinarily requires the receipt or payment of money, slight consideration may support a departure from the contractual terms. See AAF-McQuay v. Willis, 308 Ga. App. 203, 220 (4) (c) (707 SE2d 508) (2011). “The question whether the parties’ mutual conduct caused a waiver and effected a quasi-new agreement ordinarily is a question for the jury” (Citation and punctuation omitted.) Vakilzadeh Enterprises v. Housing Auth. of DeKalb, 281 Ga. App. 203, 206 (635 SE2d 825) (2006). Moreover, “a provision in a contract against waiver of contractual rights may itself be found by the jury to have been waived.” (Citation and punctuation omitted.) Id.

Reynolds claims that the parties by their course of conduct mutually departed from the terms of the original note as to the due date and that, therefore, CB&T could not declare him in default. According to Reynolds, CB&T agreed to modify or extend the due date of the loan to the date Reynolds completed the home and obtained a certificate of occupancy, and the record supports this contention. Reynolds’ interrogatory responses reflect that he expended personal funds and labor completing the home after CB&T and Hargrove reassured him the bank would either modify or extend the note’s maturity date until he could complete construction and obtain a certificate of occupancy. There is some evidence that CB&T agreed with Reynolds to modify the due date of the original promissory note to the date of completion of the house and that CB&T accepted as consideration for that modification Reynolds’ labor and personal expenditure. CB&T not only attempted to work with Reynolds to modify the due date but sent out a property inspector to check on the progress of construction. See Wright Carriage Co., supra, 221 Ga. App. at 53 (1) (before provisions of OCGA § 13-4-4 apply, evidence must establish a pattern or course of conduct evidencing an agreement or waiver of the provisions in the original contract). Accord L. D. F. Family Farm v. Charterbank, 326 Ga. App. 361, 365-366 (2) (756 SE2d 593) (2014).

Reynolds’ personal and financial investment in the home ensured that CB&T could ultimately foreclose on a newly-constructed home instead of an incomplete construction project. Additionally, CB&T’s investment in the property mounted because the property value went up as Reynolds purchased materials and expended labor completing the home. The facts show that CB&T benefitted from encouraging Reynolds to complete construction. Based on the record before us, a genuine issue of material fact exists as to whether the parties formed a quasi-new agreement, and the trial court erred in granting summary judgment to CB&T on this claim.

CB&T argues that this case is identical to, and therefore controlled by our decision in Lovell v. Ga. Trust Bank, 318 Ga. App. 860 (734 SE2d 847) (2012), which the trial court cited in its order granting summary judgment. That case is distinguishable, however, because the borrower never alleged the creation of a quasi-new agreement or the defense of mutual departure. Compare L. D. F. Family Farm, supra, 326 Ga. App. at 365-366 (2). Our decision in Lovell was based on the parol evidence rule, and in reaching that decision we stated as follows:

A promissory note is an unconditional contract whereby the maker engages that he will pay the instrument according to its tenor. It is well established that a promissory note may not be modified by the imposition of conditions not apparent on its face. The note being an unconditional promise, the contract is complete as written. Parol evidence may not be used to impose conditions which are not apparent from the face of the note. An oral agreement between the parties, made contemporaneously with the execution of the note or prior thereto relating to a condition not expressed in the note is incompetent to change the contract as represented on the face of the note.

(Citation and punctuation omitted.) Lovell, supra, 318 Ga. App. at 863 (2). We further explained that the borrower “did not come forward with evidence in the record showing that [the bank] intended to depart from or disregard the terms of the Note.” Id. at 864 (2). As the record before us shows some evidence of a mutual departure Lovell is distinguishable and not controlling here.

CB&T further argues that the certified letters mailed to Reynolds demonstrate that CB&T never intended to depart from the express terms of the note. Reynolds has presented evidence, however, that CB&T sent those letters while simultaneously advising Reynolds to continue construction pending modification of the due date and dispatching a project inspector to assess his progress. Accordingly, a genuine issue of fact exists as to whether Reynolds was given reasonable notice of CB&T’s intention to rely on the original terms of the note before it commenced foreclosure. See, e.g., Curl v. Federal Sav. & Loan Assn. of Gainesville, 241 Ga. 29 (244 SE2d 812) (1978).

2. Reynolds contends that the trial court erred in granting summary judgment to CB&T on his claim for grossly negligent infliction of emotional distress because CB&T wrongfully foreclosed on the property after the mutual departure.

The elements of the tort are: (1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe.

(Citation and punctuation omitted.) Mbigi v. Wells Fargo Home Mtg., 336 Ga. App. 316, 326 (4) (785 SE2d 8) (2016) (physical precedent only). “An intentional wrongful foreclosure may be the basis for an action for intentional infliction of emotional distress.” Id. Given our finding in Division 1, supra, and the evidence in the record, issues of fact exist as to whether CB&T may have intentionally misled Reynolds so that it could foreclose on a newly-constructed home and not an incomplete construction project. Accordingly, the trial court erred in granting summary judgment to CB&T on this claim.

3. Reynolds contends that he has presented sufficient evidence to preclude the grant of summary judgment on his claim of promissory estoppel. His contention has merit.

In Georgia, the doctrine of promissory estoppel is codified at OCGA § 13-3-44. The essential elements of promissory estoppel are:

(1) the defendant made a promise or promises; (2) the defendant should have reasonably expected the plaintiffs to rely on such promise; (3) the plaintiffs relied on such promise to their detriment; and (4) an injustice can only be avoided by the enforcement of the promise, because as a result of the reliance, plaintiffs changed their position to their detriment by surrendering, forgoing, or rendering a valuable right.

(Citation and punctuation omitted.) Mariner Healthcare v. Foster, 280 Ga. App. 406, 412 (5) (634 SE2d 162) (2006). “[T]he promise need not meet the formal requirements of a contract, [but] it must, nonetheless, have been communicated with sufficient particularity to enforce the commitment.” Mooney v. Mooney, 245 Ga. App. 780, 783 (538 SE2d 864) (2000).

Here, Reynolds’ interrogatory responses show that CB&T agreed to modify the due date of the loan until Reynolds completed construction of the home and obtained a certificate of occupancy. It also sent out a project inspector to assess Reynolds’ progress in completing the home. We find no merit in CB&T’s claims that any alleged promise that it would extend the due date until the date of completion was too vague or indefinite. “Although promissory estoppel does not apply to vague, indefinite promises, a trier of fact could conclude that [CB&T’s promise to extend the due date until Reynolds completed construction of the home and obtained a certificate of occupancy] was sufficiently definite to be enforced.” Cheeley Investments v. Zambetti, 332 Ga. App. 115, 119-120 (2) (770 SE2d 350) (2015) (promise to pay attorney fees and legal expenses sufficiently definite to be enforced).

A question of fact also exists as to the second element of promissory estoppel. According to Reynolds, CB&T encouraged him to complete construction in exchange for an extension of the due date. Moreover, in his interrogatory responses, Reynolds averred that he expended his own money and labor to complete the home in reliance on CB&T’s promise that it would extend the due date. “Questions of reasonable reliance are usually for the jury to resolve.” Ambrose v. Sheppard, 241 Ga. App. 835, 837 (528 SE2d 282) (2000). As discussed above, CB&T clearly stood to benefit from the arrangement given that it could ultimately foreclose on a newly-constructed home instead of an incomplete construction project, and its investment in the property mounted because the property value went up. Under these circumstances, a jury could find that CB&T should have expected Reynolds to rely on its promise to modify the due date.

There is also evidence that Reynolds relied on CB&T’s promise to his detriment. In reliance on the promise of an extended due date, Reynolds chose to complete the house using his own money and labor. For these reasons, the trial court erred in granting CB&T’s motion for summary judgment on Reynolds’ promissory estoppel claim.

4. Finally, we address the trial court’s grant of summary judgment to CB&T on Reynolds’ claim for unjust enrichment. Reynolds seems to concede that if we find evidence of a mutual departure, he is precluded from asserting a claim for unjust enrichment. This is incorrect.

Georgia law permits a plaintiff to proceed to trial on alternative theories of recovery. Thus, if a factfinder concludes that [CB&T] is liable on [Reynolds’] breach of contract theory, the issue of [CB&T’s] liability under the alternative [theory] of unjust enrichment . . . would become moot. Conversely, if the factfinder concludes that [CB&T] did not breach any express contract, questions of fact would exist as to whether [CB&T] is liable under [the] alternative [theory].

(Citations and punctuation omitted.) Campbell v. Ailion, 338 Ga. App. 382, 388 (2) (790 SE2d 68) (2016).

A claim of unjust enrichment will lie if there is no legal contract and the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefited party equitably ought to return or compensate for. The concept of unjust enrichment in law is premised upon the principle that a party cannot induce, accept, or encourage another to furnish or render something of value to such party and avoid payment for the value received.

Decided September 22, 2017.

Christopher L. Denison, for appellant.

Page, Scrantom, Sprouse, Tucker & Ford, Stephen G. Gunby, for appellee.

(Citations and punctuation omitted.) Jones v. White, 311 Ga. App. 822, 827-828 (1) (b) (717 SE2d 322) (2011). Here, as reflected by the evidence previously discussed in support of Reynolds’ claim for promissory estoppel, a jury could find that CB&T encouraged Reynolds to confer a benefit upon CB&T by completing construction of the home before CB&T foreclosed. The trial court thus erred in granting summary judgment to CB&T on Reynolds’ claim for unjust enrichment.

Judgment reversed.

Dillard, C. J., concurs. Ray, R J., concurs fully in Divisions 1, 3, and 4 and concurs in judgment only in Division 2.

       While the new due date was not entirely definite, it was certain enough to be enforceable. See, e.g., Cheeley Investments v. Zambetti, 332 Ga. App. 115, 117-118 (1) (770 SE2d 350) (2015) (although price term was not definite, it satisfied requisite certainty required by Georgia law, which “leans against destroying contracts on the basis of uncertainty”).

       The parol evidence rule applied in Lovell because the promise at issue was made before the last renewal was executed; here, the promise was made after CB&T and Reynolds executed the last renewal.

       The note at issue provided that any change must be in writing and signed by the parties. While such a provision may foreclose a finding of reliance, “waiver of a written modification requirement in a contract may be established through the course of conduct between the parties.” (Citation and punctuation omitted.) Gerdes v. Russell Rowe Communications, 232 Ga. App. 534, 536 (1) (502 SE2d 352) (1998). As detailed above, it is for a jury to decide whether the parties’ conduct in this case amounted to a waiver and whether Reynolds’ reliance was reasonable. See Rental Equip. Group v. MACI, 263 Ga. App. 155, 158 (1) (b) (587 SE2d 364) (2003).


author: Doyle, Judge.

text:
    A17A0963.
    PITTMON v. THE STATE.
    (805 SE2d 628)
   Doyle, Judge.

Following a jury trial, Eddye Pittmon was convicted of battery, cruelty to children in the first degree, and cruelty to children in the second degree. She now appeals from the denial of her motion for new trial, contending that (1) the trial court erroneously prevented her from presenting evidence of a third party’s guilt; (2) the trial court failed to sua sponte instruct the jury regarding evidence of prior difficulties; (3) she received ineffective assistance of counsel; and (4) the evidence was insufficient to support the verdict. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that in June 2014, Pittmon worked in the infant room of a daycare center. One morning, Meagan Seabolt dropped off her 18-month-old son Damon, and an early-morning staff person, Amanda Banks, took care of him before other staff arrived. While caring for Damon, Banks had occasion to change Damon’s diaper, and she noticed no injuries, and he seemed “perfectly fine.” When Pittmon arrived shortly after 8:00 a.m., Banks transferred Damon into Pittmon’s care. Shortly after 10:00 a.m., while Banks was outside speaking with other teachers and getting a head count for lunch, Pittmon brought Damon outside to show the other teachers that she had discovered dried feces on his back that had not been properly cleaned. Banks apologized that she had not noticed it when she changed him earlier, and another worker took a photograph of Damon’s body to document his condition because Pittmon was upset that his mother had brought him to the daycare dirty At that time, neither Banks nor another employee noticed anything wrong with Damon other than his unclean condition.

Banks returned to the kitchen, which was across the hall from the infant room, where Pittmon brought Damon to bathe him. Banks heard Damon crying while he was being cleaned, but she did not find it out of the ordinary

Afew minutes later, around 10:15 or 10:30 a.m., another teacher, Montana Girard, arrived to begin her shift in the two-year-old classroom, and Pittmon called her over and asked her to look at Damon’s leg. Girard noticed that Damon had just been crying and looked “scared,” “worried,” and “frightened.” The skin on Damon’s leg “pretty much looked like fresh sunburn with a little blister.” Girard, who was junior to Pittmon, found it unusual that Pittmon would call her over to ask her opinion, and she advised Pittmon to call Damon’s mother. When Girard told Pittmon that Damon’s leg had been burned, Pittmon replied, “no, it is not, don’t say that.” By the end of the day, according to Girard, Damon’s leg had worsened: “[It] was awful. It looked like a third[-] degree burn. It had blisters. It was just really awful.”

At approximately 4:15 p.m., another mother and former Army HazMat team member arrived to retrieve her children after work. Some teachers asked her to look at Damon’s leg, wondering if it could be a chemical burn. She told them that it was a water burn because it had blistered up, and she took some pictures of it. Pittmon had covered Damon’s leg in lotion or ointment, and she maintained the position that it was a bite or rash.

At approximately 5:30 p.m., Banks encountered Damon again as she was getting ready for closing time. She noticed that Damon’s left leg, from his knee to his ankle, “was red,” despite being “fine that morning.” Another teacher saw Damon’s leg around that time and said it “looked bad,” like a burn, and took three pictures to document it. Pittmon insisted that Damon was having a reaction to a bug bite.

Around 6:00 p.m., Damon’s mother, Seabolt, arrived to pick him up. Pittmon told her that she had taken him outside at 5:00 p.m., and he had been bitten by a bug, so she covered it in lotion. When Seabolt arrived home with Damon, she noticed that he was favoring his leg, and the lotion had dispersed so that she was able to see that “it was something serious.” She immediately took Damon to an urgent care clinic, where she was told that it was not a bug bite but a severe liquid burn and that she should take him to the emergency room.

At the emergency room, Damon was diagnosed with second and third-degree burns to his left leg and to small portions of his abdomen, scrotum, and penis. Damon was treated for the burns and released, but he later developed a fever, so after Seabolt returned him to the emergency room, doctors sent him to an intensive burn unit, where he spent time in the intensive care unit and underwent cadaver skin surgery Over the next 11 months, Damon was successfully treated for his burns, including a second surgery involving a graft of his own skin.

Based on these events, Pittmon was charged with two counts of aggravated battery, first degree cruelty to children for burning Damon, and second degree cruelty to children for failing to seek medical care. Following a trial, a jury returned a guilty verdict for two counts of battery (as lesser counts included in the aggravated battery counts) and both cruelty to children counts. Pittmon moved for a new trial, and following an evidentiary hearing, the trial court denied the motion, giving rise to this appeal.

1. Pittmon argues that the trial court erroneously excluded evidence supporting her theory that Damon’s burns occurred in the mother’s care before she dropped him off at the daycare center. “We review a trial court’s evidentiary ruling under an abuse of discretion standard.” We discern no such abuse here.

At trial, Pittmon’s defense was that she never burned the child, and he must have been burned earlier in the morning while still at home with his mother. To support this theory, Pittmon elicited cross-examination testimony from the mother that Damon had pooped in his diaper that morning, and she had cleaned him just prior to dropping him off at the daycare. She apparently missed the feces on his back, which remained after he arrived that morning. Pittmon was also able to elicit testimony that sometimes Damon was dropped off dirty, and he had head lice.

To further challenge the mother’s care in parenting Damon that morning, Pittmon sought to introduce evidence that: another child, Damon’s sibling, was burned on another occasion by spilled hot chocolate while in the mother’s care; another sibling had exhibited bruises and burns; and the mother hada history with the Department of Family and Children Services. The trial court ruled that evidence of the mother’s poor parenting of her other children was not admissible to show that the mother burned Damon in this case simply because she was a bad parent. Pittmon now argues that this ruling prevented her from confronting witnesses and presenting critical exculpatory evidence of another party’s guilt.

As pointed out by the State, under OCGA § 24-4-404 (a): “Evidence of a person’s character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion,” subject to certain exceptions not applicable here. Based on Pittmon’s argument that the mother’s prior bad parenting supports Pittmon’s theory that the mother burned Damon in this case, the evidence at issue could not be used by the jury to show that the mother burned Damon without relying on the impermissible inference that the mother’s bad parenting of other children made it more likely that she burned Damon in this case. This is not a proper use of evidence under OCGA § 24-4-404 (a), and the trial court did not abuse its discretion by excluding the evidence supporting such an inference.

Unlike cases in which the defense was entirely precluded from introducing evidence of a third party’s guilt, the trial court did allow Pittmon to make relevant challenges to the mother’s parenting and conduct with respect to Damon. As noted above, Pittmon elicited testimony that Damon was occasionally dirty and had lice. Specific to the day in question, Pittmon was allowed to cross-examine the mother about her careless bathing of Damon or whether she had spilled any hot liquids on Damon that morning. And Pittmon was allowed to elicit expert testimony that Damon’s burns would not have resulted in blisters until hours after the burning event. All of this supported Pittmon’s theory of third-party guilt; accordingly, based on the record before us, we discern no reversible error.

2. Pittmon next argues that the trial court erred by failing to sua sponte instruct the jury regarding the proper consideration of prior difficulty evidence. At trial, there was testimony from Pittmon’s co-workers that Pittmon had treated Damon harshly on prior occasions by hitting him with a ruler, pen, and hairbrush; being “mean” to Damon; and restricting his play area. Pittmon contends that this evidence required an immediate instruction by the trial court, even absent a request from her counsel, that such evidence could only be considered for the proper purpose of demonstrating the relationship between the defendant and the victim. Nevertheless, Pittmon’s trial counsel did not object on this ground nor request such an instruction or other remedy at the time this testimony was elicited, and “[i]n the absence of a [timely] request, it cannot be said that the trial court erred in failing to give contemporaneous instructions with regard to the [Sjtate’s evidence of prior difficulties.” Further, the trial court did correctly instruct the jury at the close of the evidence as to the proper use of such evidence. Accordingly, we discern no reversible error.

3. Pittmon also argues that her trial counsel rendered ineffective assistance. We disagree.

Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that prejudice resulted.

To show that the performance of [her] lawyer was deficient, [a defendant] must prove that [her] lawyer performed [his] duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. As for prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. If the defendant fails to satisfy either prong of the Strickland test, this Court is not required to examine the other.

Furthermore, “[tjhere is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Pittmon first argues that her trial counsel performed defi-ciently by failing to request a jury instruction for the lesser included offense of second-degree cruelty to children with respect to Count 3, which alleged first-degree cruelty to children. Count 3 alleged that Pittmon committed first-degree cruelty to children by burning Damon; Count 4 alleged that Pittmon committed second-degree cruelty to children by failing to seek appropriate medical attention for Damon’s injuries.

The relevant difference between first- and second-degree cruelty, other than sentencing, is that the former requires malice, while the latter requires criminal negligence. Therefore, Pittmon asserts that her trial counsel should have requested an instruction on second-degree cruelty for the burning of Damon — arguing that she did not burn him with malice, only criminal negligence.

Nevertheless, at the hearing on Pittmon’s motion for new trial, her trial counsel testified that his whole defense was predicated on showing that Pittmon did not burn Damon at all. At that hearing, he highlighted testimony from his expert witness that the burn could not have occurred at the hands of Pittmon. At trial and at the motion for new trial hearing, Pittmon’s defense counsel consistently maintained the theory that “this never happened on her watch, she didn’t do this.”

In light of this testimony, not requesting a charge on mere criminal negligence is consistent with a reasonable strategy of showing that the child was not burned in Pittmon’s care.

Pittmon now points to an affidavit signed by her defense counsel prior to the hearing on her motion for new trial. The affidavit states that Pittmon’s defense counsel did not request a lesser included charge for Count 3 “because I thought that [Count 4] was a lesser - included offense of [Count 3].” But in his testimony, Pittmon’s trial counsel explained that he was going from memory when he signed the affidavit, and he had confused those counts with Counts 1 and 2, for which the trial court did provide instructions on lesser included counts: “[W]hen I looked at the indictment, Counts 3 and 4 weren’t the counts that I thought they were referring to during our discussion. ... So it was an honest error by everybody” Accordingly, the evidentiary value of the affidavit was greatly undermined, and the trial court, as finder of fact, was entitled to disregard it as evidence of trial counsel’s intentions on this issue.

(b) Pittmon also argues that her trial counsel should have moved for a mistrial because the State asked one of Pittmon’s character witnesses, a mother who uses the daycare, questions about Pittmon’s negative employment history without a good faith basis.

While cross-examining the character witness, the State asked the witness whether she was aware that Pittmon had been fired from a previous daycare position for improperly giving a child medication. Pittmon objected on the ground that it was false (arguing that she resigned and was not fired) and was not in evidence. The State argued that it had a good faith basis to elicit the testimony and proffered an account by a witness who would testify about Pittmon’s termination from her prior daycare position. When that witness was later called, she testified that Pittmon had given a child Benadryl without the proper form being filled out by the parent, and she was terminated for that reason. During the earlier questioning, the State implied that it had happened twice, but the witness clarified that it was only once before Pittmon was terminated.

Based on this discrepancy, Pittmon moved for a mistrial but ultimately withdrew the motion. She now argues for the first time that her trial counsel performed deficiently by withdrawing the motion.

It is well settled that

[a] defendant must raise all allegations of ineffective assistance of counsel as soon as practicable. When new counsel appears for a defendant, he or she must raise the ineffectiveness of previous counsel at the first possible stage of post-conviction review. Where new counsel raises the issue of trial counsel’s ineffectiveness on motion for new trial, any ineffective assistance of trial counsel claims not raised at that time are waived.

Here, at the motion for new trial hearing, new counsel probed trial counsel’s performance, but did not argue this ground. Accordingly, it is procedurally barred and cannot serve as a basis for a new trial on direct appeal.

4. Last, Pittmon argues that the evidence was insufficient to support the verdict. When an appellate court reviews the sufficiency of the evidence supporting a guilty verdict,

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

Here, as noted above, Pittmon argued at trial that the burn occurred at home when Seabolt cleaned Damon before taking him to the daycare center. She points to testimony from a defense expert (a plastic surgeon) who testified that the blisters for the type of burn Damon received do not appear until several hours after the burning event, and she relies on other evidence (addressed in Division 1) that allegedly shows Seabolt’s guilt. But as discussed in Division 1, the other evidence of Seabolt’s character as a mother was lawfully excluded from trial, and the State adduced testimony from its own expert (a pediatric critical care physician at a burn center) that the burn Damon received would be “immediately evident with blistering.” “[I]t is for the jury, not the appellate court, to resolve conflicts in testimony, weigh the evidence and draw reasonable inferences therefrom. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” Based on our review of the record before us, there was sufficient evidence of Pittmon’s guilt to authorize the verdict.

Decided September 26, 2017.

Bruce S. Harvey, for appellant.

Lee Darragh, District Attorney, Shiv Sachdeva, Laura K. Lukert, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and Reese, J., concur.

       (Citation and punctuation omitted.) Abernathy v. State, 278 Ga. App. 574, 579 (2) (630 SE2d 421) (2006).

       OCGA § 16-5-23.1 (a).

       OCGA § 16-5-70 (b).

       OCGA § 16-5-70 (c).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       The battery counts merged for sentencing purposes.

        Freeman v. State, 333 Ga. App. 6, 10 (2) (775 SE2d 258) (2015).

       See OCGA § 24-4-404 (a) (l)-(3).

       Cf. Parks v. State, 300 Ga. 303, 307 (2) (794 SE2d 623) (2016) (addressing Rule 404 (b) evidence).

       See Klinect v. State, 269 Ga. 570, 573 (3) (501 SE2d 810) (1998) (“The defense is entitled to a thorough cross-examination, but the scope of cross-examination is within the sound discretion of the trial court, and under the facts of this case, there was no abuse of discretion.”).

       Compare Gilreath v. State, 298 Ga. 670, 673-674 (2) (784 SE2d 388) (2016) (finding reversible error where the defendant, who was convicted of beating his two-year-old child to death, was prohibited from eliciting cross-examination testimony that the child’s mother had threatened her children and once slapped the victim on her face).

       See generally Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998) (“[T]he admission of [prior difficulty] evidence should be accompanied by an instruction from the trial judge explaining the limited use [i.e., to demonstrate the relationship between the victim and the defendant] to which the jury may put such evidence.”). See also Porter v. State, 243 Ga. App. 498, 501 (2) (532 SE2d 407) (2000) (“Because the relationship between the defendant and the victim is usually relevant, it is not surprising that the nature of that relationship is subject to proof at trial.”).

       (Punctuation omitted.) Dunn v. State, 292 Ga. 359, 361 (2) (736 SE2d 392) (2013).

       See id.

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

       (Citations and punctuation omitted.) State v. Harris, 301 Ga. 234, 237 (2) (799 SE2d 801) (2017).

       (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       See OCGA§ 16-5-70 (c).

       See OCGA § 16-5-70 (b) and (c). See also Wells v. State, 309 Ga. App. 661, 663-664 (2) (a), (b) (710 SE2d 860) (2011) (addressing first- and second-degree cruelty to children offenses).

        See Finch v. State, 287 Ga. App. 319, 321 (1) (b) (651 SE2d 478) (2007) (“It is the function of the trial court at the hearing on the motion for new trial to determine witness credibility and to resolve any conflicts in the testimony.”).

       (Citations and punctuation omitted.) McGlocklin v. State, 292 Ga. App. 162, 163 (664 SE2d 552) (2008).

       See Wilson v. State, 286 Ga. 141, 144 (4) (686 SE2d 104) (2009).

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


author: BARNES, Presiding Judge.

text:
    A17A1045.
    TURNER v. THE STATE.
    (805 SE2d 624)
   BARNES, Presiding Judge.

Brehonna Nicole Turner was indicted for one count of malice murder, two counts of felony murder, and two counts of aggravated assault. Following her trial, a Douglas County jury found her guilty of the lesser included offense of first degree homicide by vehicle as to the three murder counts, and not guilty of the two aggravated assault counts. Turner filed a motion for new trial, which she later amended, and alleged that the evidence was insufficient and that the trial court erred by failing to give her requested charge on the lesser included offense of second degree vehicular homicide for failure to maintain a lane. The trial court denied the motion for new trial, and Turner now appeals. Following our review, we affirm.

On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence, and the evidence must be construed in the light most favorable to support the verdict. In evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. Thus, the jury’s verdict will be upheld as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.

(Citations and punctuation omitted.) Evans-Glodowski v. State, 335 Ga. App. 484, 484-485 (781 SE2d 591) (2016).

So viewed, the evidence demonstrates that for approximately two years, Turner was involved in a continuing dispute with Kimberly Kelley about Kelley’s involvement with Tacayor Felder, the father of Turner’s children. The two women verbally sparred on their social media accounts, and during the days leading up to the homicide, Turner also made numerous harassing telephone calls to Kelley On January 31, 2014, the day of the incident, Turner drove to Kelley’s residence to confront her and Felder, but left and came back later with a friend. Kelley, Felder, the victim, who was Kelley’s cousin, and the victim’s boyfriend were among the people present inside Kelley’s residence. When Turner returned to the residence for the second time, Felder approached the car, and the two engaged in a verbal and physical altercation, which ended when Turner sprayed Felder with mace. Turner drove toward the subdivision exit, then turned around and drove back down the street toward where Kelley and the victim were standing. She bumped Kelley on her leg with the car, then turned around in the cul-de-sac, and drove back at a high rate of speed toward Kelley As she drove in that direction, Turner ran over the victim, pinning her beneath the car, causing the victim’s death.

In a statement to police, Turner said that she went to the subdivision to confront Kelley because she was tired of being disrespected, and that while she was there, Felder reached into her car and hit her, and that she sprayed him with pepper spray Turner said that the friend who was with her in the car said to leave but that, “I was just so blacked out and so mad that I turned back around and I was just driving all over the place and I made a mistake and ran somebody over.” She also stated that although, after initially driving off and being advised by her friend to not go back, she “went back anyway,” and that “something just came over [her].” Turner said she was in a “fit of fury” and was driving “like a bat out of hell.”

1. Turner first contends that the evidence was insufficient to sustain her conviction for first degree vehicular homicide because she did not commit the predicate offense of reckless driving. Turner contends that the evidence instead demonstrated that her car “accidentally wound up partially on top of the victim.” At trial, Turner put forth the affirmative defense of accident and maintained that the victim’s death was caused by her inability to see because the car was full of mace.

Under Georgia law, any person who, without malice aforethought, causes the death of another person through the violation of subsection (a) of Code Section 40-6-163, Code Section 40-6-390 or 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the first degree. OCGA § 40-6-393 (a). [Turner] was [convicted of] first degree homicide by vehicle through a violation of OCGA § 40-6-390, reckless driving. Reckless driving occurs when a person drives a vehicle “in reckless dis-regardforthe safety ofpersons or property” OCGA § 40-6-390 (a).

(Punctuation omitted.) Evans-Glodowski, 335 Ga. App. at 486 (1).

Although Turner maintains that the evidence was insufficient to demonstrate reckless conduct, “whether a defendant’s manner of driving under the circumstances demonstrated a reckless disregard for the safety of others is a question that is reserved for the jury” Shy v. State, 309 Ga. App. 274, 278 (4) (709 SE2d 869) (2011). Here, given the evidence of Turner’s animosity and threats toward Kelley, eyewitness testimony about Turner’s manner of driving, Turner’s statements to police that she was driving in a “fit of fury,” and “like a bat out of hell,” the evidence was sufficient for the jury to find beyond a reasonable doubt that Turner was guilty of first degree vehicular homicide.

2. Turner next contends that the trial court erred in not giving her requested charge on homicide by vehicle in the second degree based on failure to maintain a lane. Turner maintains that she was not driving in a reckless manner, but had only failed to maintain her lane, which then resulted in the death of the victim. Thus, according to Turner, the facts justified a lesser included charge of homicide by vehicle in the second degree, and the trial court’s failure to so charge constituted plain legal error. We do not agree.

“OCGA § 40-6-393 distinguishes between first degree and second degree vehicular homicide according to the severity of the underlying traffic offense.” Otuwa v. State, 319 Ga. App. 339, 341 (2) (734 SE2d 273) (2012). As previously noted, under OCGA § 40-6-393 (a), first degree vehicular homicide is defined as causing the death of another person through the violation of certain specified traffic laws, including, as was found in this case, reckless driving. Whereas, in circumstances of second degree vehicular homicide, the cause of the death is by violating any Title 40 traffic law not referenced in OCGA § 40-6-393 (a), such as speeding or, as Turner claims, failure to maintain a lane. See OCGA § 40-6-393 (c). Because the difference between first and second degree vehicular homicide is the predicate traffic offense, second degree vehicular homicide is considered a lesser included offense of first degree vehicular homicide. Hayles v. State, 180 Ga. App. 860, 861 (3) (350 SE2d 793) (1986).

[W]ith regard to giving a defendant’s requested charge on a lesser included offense[,] . . . where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.

(Citation omitted.) Wright v. State, 319 Ga. App. 723, 732 (4) (738 SE2d 310) (2013). Thus, a written request to instruct the jury on second degree vehicular homicide must be given in a case charging first degree vehicular homicide if there is any evidence showing that a less culpable traffic offense caused the fatal collision. Hayles, 180 Ga. App. at 861-862 (3).

Turner acknowledges that she did not provide a written request to charge on vehicular homicide in the second degree for failure to maintain a lane, but instead had requested a charge of vehicular homicide in the second degree for speeding. However, at the charge conference, Turner orally requested that the charge be changed to reflect the predicate offense of “failure to maintain the roadway and yield to the person standing in the roadway,” rather than speeding. The trial court denied the request, and, at the conclusion of the trial court’s jury charge, Turner excepted to the charge as given, including the trial court’s failure to charge “homicide by vehicle in the second degree, with regard to failure to exercise due care under OCGA § 40-6-93.”

We note first that generally, “[a] trial judge never errs in failing to instruct the jury on a lesser included offense where there is no written request to so charge. [And,] [a]n oral request to charge does not alter this mandate.” (Citations and punctuation omitted.) McMurtry v. State, 338 Ga. App. 622, 625 (3) (791 SE2d 196) (2016). Turner submitted a written charge for second degree vehicular homicide for speeding, not failure to maintain a lane, which is a separate offense. Nonetheless,

OCGA § 5-5-24 (c) provides that “the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made . . . or not.” Moreover, it is the duty of the judge, with or without request, to give the jury an appropriate instruction on each substantive point of issue involved in a case so as to enable the jury to judiciously decide the guilt or innocence of a defendant.

(Citation and punctuation omitted.) Williams v. State, 252 Ga. App. 280, 280 (556 SE2d 170) (2001).

Here, however, there was no evidentiary support for the charge of second degree vehicular homicide for committing a traffic violation less culpable than reckless driving, specifically, as Turner maintains, failure to maintain a lane. While certainly, Turner ultimately failed to maintain control of the car in a designated roadway, because the victim was killed in the driveway of a home in the subdivision, the evidence does not support her contention that this less culpable offense caused the victim’s death. Compare Hayles, 180 Ga. App. at 861-862 (3) (where some evidence showed that the defendant “committed an act of following too closely, a traffic violation ‘other than’ the more culpable offense of DUI,” and that the act may have caused the collision and resulting death, the fact that the defendant may have also committed a DUI did not “demand a finding that the DUI was the sole proximate cause of the collision and of the victim’s death.”).

Here, the evidence, including Turner’s own statements to police that she was driving in a “fit of fury,” and “like a bat out of hell,” her admission that she had driven despite being blinded by mace, and the eyewitness testimony that Turner had purposefully driven in the direction of Kelley and the victim did not support a charge of second degree vehicular homicide for failure to maintain a lane, and the trial court did not err in refusing to so charge. Watkins v. State, 336 Ga. App. 145, 149 (3) (784 SE2d 11) (2016). (“It is axiomatic that a requested charge ... be authorized by the evidence. If any portion of the request to charge fails in [this] requirement ], denial of the request is proper.”) (citations and punctuation omitted.)

Decided September 26, 2017.

Lawrence W. Daniel, for appellant.

Brian K. Fortner, District Attorney, David H. Emadi, Assistant District Attorney, for appellee.

Judgment affirmed.

Mercier, J., concurs. McMillian, J., concurs fully in Division 1 and in judgment only in Division 2.


text:
    A15A2334.
    MAYOR AND CITY COUNCIL OF THE CITY OF RICHMOND HILL et al. v. MAIA.
    (805 SE2d 635)
    Decided September 27, 2017.

      Oliver Maner, Patrick T. O’Connor, Benjamin M. Perkins, Lauren E. H. Meadows; Ray C. Smith, for appellants.

      Jones, Osteen & Jones, Billy N. Jones, Carl R. Varnedoe, for appellee.
   Ellington, Presiding Judge.

In City of Richmond Hill v. Maia, 301 Ga. 257 (800 SE2d 573) (2017), the Supreme Court of Georgia reversed Division 2 of our opinion in Mayor and City Council of Richmond Hill v. Maia, 336 Ga. App. 555 (784 SE2d 894) (2016), holding that Appellee cannot demonstrate proximate cause and that “Appellants were entitled to summary judgment in their favor.” City of Richmond Hill v. Maia, 301 Ga. at 262 (2). Accordingly, we vacate Division 2 of our opinion and adopt the opinion of our Supreme Court as our own in place of that division.

Judgment reversed.

Dillard, C. J., Barnes, P. J., Ray, P. J., McMillian, Reese, and Bethel, JJ., concur.


author: McFadden, Presiding Judge.

text:
    A17A0986.
    ANDERSON v. LAUREANO.
    (805 SE2d 636)
   McFadden, Presiding Judge.

Jameila Anderson appeals the award of OCGA § 9-11-68 costs and attorney fees to Kathleen Laureano. Because the $801.99 award does not meet the statutory threshold of OCGA § 5-6-35 (a) (6) for filing a direct appeal in an action for damages, we lack jurisdiction over this appeal. So we must dismiss.

Anderson filed a complaint for damages against Laureano arising out of an automobile collision. Laureano served a written offer to settle the case for $5,500 under OCGA § 9-11-68. The case was not settled and proceeded to a jury trial, where the jury returned a defense verdict. Anderson timely moved for a new trial, and Laureano moved for fees and costs under OCGA § 9-11-68. The trial court entered an order denying Anderson’s motion for new trial and granting Laureano’s motion for fees and costs in the amount of $801.99. Within 30 days, Anderson filed a notice of appeal. On appeal, she challenges only the award of attorney fees and costs.

OCGA § 5-6-35 (a) (6) provides that a party must file an application for discretionary appeal to pursue an appeal “in all actions for damages in which the judgment is $10,000.00 or less[.]” The statute “applies to all judgments for $[10,000] or less that arise from an action for damages. Since the suit filed by [Anderson] was an action for damages and since this judgment was entered in that action, we find inescapable the conclusion that OCGA § 5-6-35 (a) (6) is applicable.” Vaughn v. Cable East Point, 185 Ga. App. 203 (363 SE2d 639) (1987) (citation and punctuation omitted).

The fact that the trial court awarded fees in the same order in which the court denied Anderson’s motion for new trial does not save the appeal. Although the denial of a motion for new trial is generally a final judgment directly appealable under OCGA § 5-6-34 (a) (1), here Anderson challenges only the $801.99 award of attorney fees and costs. See Numanovic v. Jones, 321 Ga. App. 763-764 (743 SE2d 450) (2013) (dismissing appeal because appellant enumerated as error ruling that was subject to discretionary appeal procedure, even though order from which notice of appeal was filed was directly appealable). See also Harpagon Co. v. Davis, 283 Ga. 410, 412 (658 SE2d 633) (2008) (“A judgment on a counterclaim is subject to such discretionary appeal provision, and when it is the focus of the appeal, it maybe evaluated independently from the original complaint for the purpose of applicability of OCGA § 5-6-35 (a) (6).”) (citation omitted). Compare Motor Fin. Co. v. Davis, 188 Ga. App. 291 (372 SE2d 674) (1988) (in dicta, noting that OCGA § 5-6-35 (a) (6) does not apply to an appeal from a judgment in favor of a defendant, i.e., no recovery for the plaintiff on the plaintiff’s claim).

Decided September 27, 2017.

Adamson & Cleveland, Kevin A. Adamson, for appellant.

Gardner Trial Attorneys, Timothy J. Gardner, April A. Robinson; The Werner Law Firm, Benjamin Z. Levy, for appellee.

For these reasons, Anderson’s appeal is dismissed.

Appeal dismissed.

Branch and Bethel, JJ., concur.