author: PHIPPS, Presiding Judge.

text:
    A10A2027.
    EDWARDS v. THE STATE.
    (707 SE2d 917)
   PHIPPS, Presiding Judge.

After a jury trial, David Wayne Edwards was convicted of failing to wear a safety belt in a passenger vehicle and of two counts of misdemeanor obstruction of an officer. He appeals the obstruction convictions, challenging the sufficiency of the evidence and arguing that the trial court erred in charging the jury and in excluding evidence regarding a witness’s potential bias. Finding no reversible error, we affirm.

1. When an appellant challenges the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence showed that on November 21, 2008, two police officers (a supervisor and a trainee) observed Edwards driving without wearing a safety belt. They followed Edwards, intending to make a traffic stop. Before the officers could position their patrol car behind Edwards and activate the car’s blue lights or siren, however, Edwards pulled into a parking lot, got out of his car, and entered a commercial building. They pulled in behind Edwards’s car and waited for him.

Two or three minutes later, Edwards exited the building, and the officers, who were in uniform, approached him. The trainee officer asked Edwards for his driver’s license, but did not tell Edwards why he wanted to see it or explain the purpose of the encounter. Edwards responded, using a vulgarity, that he did not have to give the officer anything. The trainee officer then asked Edwards to sit in his car and to produce his license. Edwards refused. The trainee officer informed Edwards that he was questioning him about a safety belt violation and again asked Edwards for his license. Instead of complying, Edwards moved into a “combative position,” with one leg behind the other and his arms positioned so that he could push with force. The supervising officer intervened, asking for Edwards’s license, and Edwards refused, using a vulgarity.

The supervising officer then informed Edwards that he was under arrest for obstruction. That officer grabbed one of Edwards’s hands to place handcuffs on him; Edwards pushed back, and the trainee officer pushed Edwards against the patrol car. The supervising officer then forced Edwards to the ground and ordered him to “quit fighting, quit resisting.” Edwards did not respond to those commands and would not allow the officer to handcuff him, instead tensing his arms. A third officer arrived and subdued Edwards with pepper spray. The officers then were able to handcuff him. Edwards was taken by ambulance to the hospital to be treated for pepper spray and a heart condition; he was arrested several days later.

Edwards was charged with, among other things, two counts of violating OCGA § 16-10-24, for refusing to provide a license to the trainee officer and resisting arrest by that officer, and for physically resisting arrest by the two officers after being advised that he was under arrest. OCGA § 16-10-24 (a) provides in pertinent part that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.”

The evidence showed that the officers were engaged in the lawful discharge of their official duties when they initiated an encounter with Edwards in connection with his violation of the safety belt law. Edwards contends, however, that the state did not prove he knowingly and wilfully hindered the officers because there was no evidence that he knew they were engaged in the lawful discharge of their official duties when they approached him and asked for his driver’s license. Thus, he argues, he was entitled to refuse their requests for his license. But there was evidence that, although he had been informed of the purpose of the encounter, Edwards persisted in refusing to provide his driver’s license, assumed a physically aggressive stance, and refused to comply with commands to stop fighting or resisting; this evidence authorized the jury to find that Edwards had obstructed or hindered the trainee officer as alleged in the accusation. There also was evidence that, after being informed he was under arrest for obstruction, Edwards physically resisted the arrest; this evidence authorized the jury to find that he had obstructed or hindered the two officers as alleged in the accusation.

2. The court instructed the jury that, “when operating a motor vehicle, every licensee shall display his license upon the demand of a law enforcement officer.” Although Edwards’s counsel objected to this instruction at the charge conference, she did not do so at the conclusion of the court’s final charge. Because counsel “did not specifically object to this [instruction] at the conclusion of the jury charge,” appellate review thereof is precluded under OCGA § 17-8-58, “unless such portion of the jury charge [challenged on appeal] constitutes plain error which affects substantial rights of the parties.”

Pretermitting whether the instruction given accurately set forth the requirements of OCGA § 40-5-29 (on which the instruction was based), we find no plain error. The court’s charge to the jury enumerated for the jury the specific offenses with which Edwards was charged and instructed the jury to determine whether he was guilty of those offenses; it did not instruct the jury to determine whether Edwards was guilty of a violation of OCGA § 40-5-29. We find no reasonable probability that the charge to the jury, when viewed as a whole, permitted Edwards’s conviction under an erroneous theory; thus Edwards was not harmed. Under these circumstances, giving the cited instruction did not constitute plain error.

3. Edwards sought to introduce evidence that the supervising officer involved in the November 21 incident subsequently made a threat against him. He proffered that his wife would testify that, when officers came to her home to serve an arrest warrant on Edwards two days after the incident, the supervising officer told her that he would give Edwards a “double dose of what he got last time.”

The trial court excluded as irrelevant the proffered evidence regarding the officer’s alleged threat. Edwards contends that the excluded evidence “cuts directly at the heart of [the supervising officer’s] credibility and casts significant doubt as to whether the events of November [21], 2008, were indeed the result of Mr. Edwards’s conduct as asserted by the officers at trial.” We agree with Edwards that this evidence was admissible under OCGA § 24-9-68, which provides that the “state of a witness’s feelings toward the parties . . . may always be proved for the consideration of the jury.”

Nevertheless, the court’s exclusion of the proffered evidence provides no ground for reversal. While the excluded evidence was relevant to the credibility of the supervising officer, the supervising officer’s testimony was corroborated by the testimony of two other witnesses (the trainee officer, who witnessed all the events during the November 21 incident, and the third officer, who arrived during the incident and who witnessed the events relating to one of the two counts with which Edwards was charged). The excluded evidence did not challenge the credibility of the other two witnesses; there was no evidence that either the trainee officer or the third officer who assisted in Edwards’s arrest harbored any ill feelings toward Edwards. Nor was any other evidence presented to dispute the testimony of those two witnesses. Thus, the evidence that Edwards committed obstruction as charged in the accusation was overwhelming, and it was highly probable that the court’s error did not contribute to the verdict.

Decided March 18, 2011.

Carrol L. Perrin, for appellant.

Donald E. Moore, Solicitor-General, Donald L. Hudson, Jr., Assistant Solicitor-General, for appellee.

Judgment affirmed.

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

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

       See OCGA § 40-8-76.1 (b) (requiring each occupant of the front seat of a passenger vehicle to be restrained by a seat safety belt while the vehicle is being operated on a public road).

       See West v. State, 296 Ga. App. 58, 61 (2) (673 SE2d 558) (2009) (officer was engaged in lawful discharge of duties when he investigated defendant’s suspicious behavior, which had been reported in 911 call); Wynn v. State, 236 Ga. App. 98, 100 (2) (511 SE2d 201) (1999) (officers were engaged in lawful discharge of duties when they questioned defendant after having observed him violating open container law).

       See West, supra at 61-62 (2) (evidence that defendant refused to comply with officer’s repeated commands to leave the scene presented question for factfinder regarding whether defendant had committed offense of obstruction; distinguishing Beckom v. State, 286 Ga. App. 38 (648 SE2d 656) (2007), in which there was no evidence that defendant knew there was an ongoing investigation or that she attempted to wilfully impede that investigation); Bailey v. State, 190 Ga. App. 683, 684 (379 SE2d 816) (1989) (evidence that defendant refused to identify himself to officer who had observed him committing traffic violations, after officer identified himself, was sufficient to show that defendant had knowingly and wilfully obstructed or hindered officer in the lawful discharge of his duties).

       See Pearson v. State, 224 Ga. App. 467, 469 (2) (480 SE2d 911) (1997) (evidence that defendant resisted arrest by struggling as officer attempted to handcuff him was sufficient to support conviction for obstruction).

        Madrigal v. State, 287 Ga. 121, 123 (3) (694 SE2d 652) (2010) (citation and punctuation omitted). Although Madrigal did not specifically address the effect of an objection made during a charge conference, prior to the enactment of OCGA § 17-8-58 action taken at a charge conference did not preserve a party’s objections to charge for appellate review, see Palmer v. State, 270 Ga. 278, 279 (2) (507 SE2d 755) (1998) (expression of reservation of objections made at charge conference could not encompass objections to charge as subsequently given), and nothing in that Code section indicates the General Assembly’s intent to change the law in this respect. See generally Humphreys v. State, 287 Ga. 63, 70 (4) (694 SE2d 316) (2010).

         OCGA § 17-8-58 (h); see Collier v. State, 288 Ga. 756, 758 (4) (707 SE2d 102) (2011); Hicks v. State, 287 Ga. 260, 264 (4) (695 SE2d 195) (2010).

       See Ward v. State, 271 Ga. 62, 64 (2) (515 SE2d 392) (1999).

       See Hammonds v. State, 263 Ga. App. 5, 7 (2) (587 SE2d 161) (2003) (finding no reversible error where instructions read as a whole sufficiently limited jury’s consideration to elements of offenses as charged in indictment such that no reasonable possibility exists that jury could have convicted defendant of committing crime in manner not alleged in indictment).

       See Dolphy v. State, 288 Ga. 705, 708 (3) (707 SE2d 56) (2011); Hicks, supra.

       See generally Johnson v. State, 238 Ga. 59, 61-62 (230 SE2d 869) (1976) (setting forth test for determining if nonconstitutional error was harmless).


source: Caselaw Access Project

author: Blackwell, Judge.

license: Public Domain

text:
    A10A2089.
    NORTHEAST ATLANTA BONDING COMPANY v. STATE OF GEORGIA.
    (707 SE2d 921)
   Blackwell, Judge.

Northeast Atlanta Bonding Company appeals from a final judgment of forfeiture on three appearance bonds for which it is the surety. When an appearance bond is forfeited because the principal has failed to appear, OCGA § 17-6-71 (a) requires the court in which the bond is forfeited to promptly set a hearing on the forfeiture, and it requires the clerk to serve notice of this hearing upon the surety within ten days of the failure to appear. Until recently, the statute did not specify the consequence of a failure to comply with its notice requirement. And in the absence of explicit statutory direction, our Court held in several cases that the failure to give notice within the specified time following a failure to appear does not relieve the surety of liability for subsequent failures to appear. In other words, according to these decisions, each failure to appear affords a renewed opportunity to comply with the statutory notice requirement, and the absence of timely notice following the failure of the principal to appear on one court date does not affect the power of the court to forfeit the bond for a failure to appear on a later date. See Griffin u. State of Ga., 194 Ga. App. 624, 625 (2) (391 SE2d 675) (1990); see also Troup Bonding Co. v. State ofGa., 292 Ga. App. 5, 6-7 (663 SE2d 734) (2008); Easy Out Bonding u. State of Ga., 224 Ga. App. 706, 707 (1) (481 SE2d 834) (1997). The trial court in this case relied on this principle when it entered a final judgment of forfeiture.

We now revisit this principle and consider whether it still is viable in the light of legislation enacted in 2009, in which the General Assembly amended OCGA § 17-6-71 (a) and, for the first time, provided that, if the required notice is not timely served, “the surety shall be relieved of liability on the appearance bond.” We conclude that the principle set out in Griffin and its progeny is inconsistent with the plain meaning of the amendment, and the amendment, therefore, effectively abrogated these earlier decisions. Nevertheless, we conclude for other reasons that the trial court did not err in this case when it entered a final judgment of forfeiture, and for this reason, we affirm thé judgment below.

In January 2009, Jorge Aurelio Cordova-Bastidas was arrested on three felony warrants in Gwinnett County. Later that month, Cordova-Bastidas was released from custody after Northeast Atlanta Bonding posted bonds to secure his appearance. Cordova-Bastidas subsequently filed several pretrial motions, and the trial court set a hearing for November 20, 2009 at which Cordova-Bastidas was required to appear. For reasons that are not clear from the record, Northeast Atlanta Bonding was not served with notice of this hearing pursuant to OCGA § 17-6-70 (b). When Cordova-Bastidas failed to appear at the hearing, the trial court announced that the appearance bonds would be forfeited. The trial court, however, did not set a date for an execution hearing on the forfeiture, and the clerk did not serve notice of any execution hearing upon Northeast Atlanta Bonding.

The State subsequently realized that Northeast Atlanta Bonding had not been provided notice of the November 20 hearing at which Cordova-Bastidas failed to appear, and it asked the trial court to set another hearing on his pretrial motions, so that Northeast Atlanta Bonding could be afforded proper notice and would have an opportunity to secure the principal’s attendance. The hearing on the pretrial motions was rescheduled for December 9, 2009, and timely notice of this hearing was given to Northeast Atlanta Bonding. Cordova-Bastidas failed to appear on December 9, and the trial court announced again that the appearance bonds would be forfeited. This time, the trial court promptly scheduled an execution hearing, at which Northeast Atlanta Bonding would have an opportunity to show cause why judgment should not be entered on the forfeiture of the bonds. The clerk timely served Northeast Atlanta Bonding on December 14, 2009 with notice of the execution hearing.

Following the execution hearing, the trial court entered a final judgment of forfeiture against Northeast Atlanta Bonding, apparently relying on the principle that a failure to give timely notice of an execution hearing following the forfeiture of a bond for an initial failure to appear does not affect the power of the court to forfeit the bond for a subsequent failure to appear. The trial court found that, although the clerk failed to serve Northeast Atlanta Bonding with notice of an execution hearing within ten days of the first failure to appear on November 20, the clerk did serve such notice within ten days of the second failure to appear on December 9. Northeast Atlanta Bonding appeals from this judgment. On appeal, Northeast Atlanta Bonding urges that the trial court was required to set an execution hearing and serve it with notice of the execution hearing within ten days after the first failure to appear and that, because it failed to do so, Northeast Atlanta Bonding was thereafter relieved of liability on the bonds. In response, the State cites Griffin and its progeny as authority for the principle on which the trial court apparently relied. We, therefore, turn first to the continuing viability of Griffin and its progeny.

1. When an appearance bond is forfeited for the failure of the principal to appear, OCGA § 17-6-71 (a) requires that an execution hearing be set and that the surety be served with notice of the hearing within ten days of the failure to appear, but before the enactment of the 2009 amendment, the statute was silent about the consequence of a failure to give such notice:

The judge shall, at the end of the court day, upon the failure of the principal to appear, forfeit the bond and order an execution hearing not sooner than 120 days but not later than 150 days after such failure to appear. Notice of the execution hearing shall be served within ten days of such failure to appear by certified mail or statutory overnight delivery to the surety at the address listed on the bond or by personal service to the surety within ten days of such failure to appear at its home office or to its designated registered agent. Service shall be considered complete upon the mailing of such certified notice.

OCGA § 17-6-71 (a) (2008). In the absence of explicit statutory direction, this Court identified — in the course of several cases and many years — three principles that governed whether a failure to comply with the statutory notice requirement entitled the surety to relief and, if so, the nature of the relief. First, strict compliance with the statutory notice requirement was not necessary, we said, and substantial compliance denied the surety any relief. See, e.g., Northeast Atlanta Surety Co. v. Perdue, 294 Ga. App. 32, 33-34 (1) (668 SE2d 508) (2008); Classic City Bonding Co. v. State of Ga., 256 Ga. App. 577, 578 (568 SE2d 834) (2002); AAA Bonding Co. v. State of Ga., 192 Ga. App. 684, 685 (2) (386 SE2d 50) (1989). Second, a surety was entitled to relief, we said, only if he could affirmatively show harm from the failure to comply with the notice requirement. See, e.g., Northeast Atlanta Surety, 294 Ga. App. at 34 (2); Troup Bonding, 292 Ga. App. at 7; Griffin, 194 Ga. App. at 625 (2).

We set out the third principle — the one on which the trial court in this case apparently relied — in Griffin. The principals on the appearance bonds in Griffin failed to appear for a particular court date, and the State initiated proceedings to forfeit the bonds, but proper notice was not given. The trial court then set another date on which the principals were required to appear, and when they again failed to do so, the State reinitiated proceedings to forfeit the bonds. This time, the clerk gave notice to the surety within 72 hours of the second failure to appear, and the trial court ultimately entered judgment on the forfeiture. 194 Ga. App. at 624-625 (2). The surety appealed, contending that the time in which notice must be given ran from the date of the initial failure to appear, not a subsequent failure to appear. We disagreed:

The triggering dates for the applicable statutory notice and hearing provisions [are] not limited to calculation from the date of a principal’s initial time of required appearance and failure to appear. Rather, we interpret the statute as allowing initiation of the notice and hearing procedures after any time of required appearance and failure to appear thereat. In this regard, had the legislature intended that the statutory triggering dates for notice and hearing were to commence only from the initial date of required court appearance and failure to appear, this easily could have been expressed within the statute.

Id. at 625 (2) (emphasis in original). Implicit in our Griffin decision is the notion that, although a failure to comply with the statutory notice requirement after the principal fails to appear for a particular court date might entitle the surety to avoid the entry of a judgment of forfeiture for that failure to appear, it does not relieve the surety of its continuing obligations under the bond to ensure the appearance of the principal at later dates or its continuing liability for its failure to do so. We reaffirmed this principle in Easy Out Bonding, 224 Ga. App. at 707 (1), and Troup Bonding, 292 Ga. App. at 6-7.

In 2009, the General Assembly amended OCGA § 17-6-71 (a) and added, as pertinent here, these provisions: “Such ten-day notice shall be adhered to strictly. If notice of the execution hearing is not served as specified in this subsection, the surety shall be relieved of liability on the appearance bond.” See Ga. L. 2009, p. 688, § 2. Only last term, we acknowledged that this amendment abrogated the principles that a surety is entitled to no relief from forfeiture when there was substantial, but not strict, compliance with the notice requirements or when the surety cannot demonstrate harm as a result of the failure to comply. A. A. Professional Bail v. Perdue, 306 Ga. App. 72, 73-74 (l)-(2) (701 SE2d 542) (2010). Today we consider whether the 2009 amendment also abrogated the third principle described above.

The continuing viability of Griffin and its progeny depends, we think, on the answer to this question: What does it mean that a surety is “relieved of liability on the appearance bond”? If it means only that the surety is entitled to avoid liability for the principal failing to appear on a particular date — that is, that no judgment can be entered for the failure of the surety to ensure the appearance of its principal on that date — then Griffin and its progeny can be reconciled with the 2009 amendment. But if it means that the surety is forever relieved of all its continuing obligations and liabilities under the appearance bond, Griffin and its progeny cannot survive. That is so because, if the continuing obligations and liabilities of the surety on the bond have been extinguished altogether by the failure to give timely notice after an earlier forfeiture — if the surety has been effectively discharged — then it no longer has any obligation under the bond to ensure the appearance of the principal at a later date, and its failure to do so cannot form a basis for a forfeiture. In our view, the latter construction is the one that is most consistent with the plain meaning of the 2009 amendment, and it is, therefore, the one we are compelled to adopt.

We begin with the well-settled principle that, “[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). And when we search for this intention, we always must presume that the General Assembly means what it says and says what it means. As our Supreme Court has instructed, the search for legislative intent must begin with the words of the statute, and if those words are clear and unambiguous, the search also must end there. See Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010) (“When a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly.”) (citation omitted); see also Frazier v. Southern R. Co., 200 Ga. 590, 593 (2) (37 SE2d 774) (1946) (“Courts of last, resort must frequently construe the language of a statute, but such courts may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to change the meaning.”).

In our view, the clear and unambiguous meaning of the 2009 amendment is that, upon a failure to give timely notice following a forfeiture of the bond for the failure of the principal to appear, the surety is released and discharged of any further obligation to ensure the appearance of the principal and any further liability on the bond. To “relieve” someone means “to release [him] from a. . . duty,” Black’s Law Dictionary, p. 1292 (6th ed. 1990), “[t]o clear [him] from a legal obligation,” Webster’s New International Dictionary, p. 2105 (2d ed. 1959), and “[t]o free or clear [him] from an obligation.” The Compact Oxford English Dictionary, p. 1552 (2d ed. 1991). Under OCGA § 17-6-71 (a), as amended in 2009, the “duty” or “obligation” from which the surety is “released,” “cleared” and “freed” is its “liability on the appearance bond,” that is, its continuing liability to pay the amount of the bond upon the happening of a certain contingency, the failure of the principal to appear when required. A release of “liability on the appearance bond” is not the same as an avoidance of a particular liability for a particular failure to appear. See OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words, except terms of art or words connected with a particular trade or subject matter. . . .”). If the legislature had meant only to relieve the surety of its particular liability for a particular failure to appear, rather than its “liability on the appearance bond” generally, surely it would have said so.

The meaning of the phrase “relieved of liability on the appearance bond” seems clear and unambiguous, but even if it were not, our understanding of the relevant statutory language is confirmed by an examination of OCGA § 17-6-72 (b) and (c), both of which, like OCGA § 17-6-71 (a), relate to the forfeiture of appearance bonds. As our Supreme Court has explained,

[i]t is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes “in pari materia,” are construed together, and harmonized whenever possible, so as to ascertain the legislative intendment and give effect thereto.

Ryan v. Commissioners of Chatham County, 203 Ga. 730, 731-732 (1) (48 SE2d 86) (1948); see also Butterworth v. Butterworth, 227 Ga. 301, 303-304 (3) (a) (180 SE2d 549) (1971) (same). OCGA § 17-6-72 (b) and (c) demonstrate that the General Assembly understands that relieving a surety of its liability for a particular failure to appear, on the one hand, and relieving a surety of its continuing liability under the bond generally, on the other, are not the same thing and that the General Assembly knows how to write a statute that distinguishes between the two.

Both subsections contain language that is nearly identical to that found in the 2009 amendment of OCGA § 17-6-71 (a), and both also contain different language that unambiguously relieves a surety of particular liability for a particular failure of the principal to appear. OCGA § 17-6-72 (b) provides that

[n]o judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court that the principal on the bond was prevented from attending because he or she was detained by reason of arrest, sentence, or confinement in a penal institution or jail in the State of Georgia, or so detained in another jurisdiction, or because he or she was involuntarily confined or detained pursuant to court order in a mental institution in the State of Georgia or in another jurisdiction.

(Emphasis supplied.) That subsection goes on to provide that, in the event the principal is involuntarily confined in a prison, jail, or mental institution, the surety may make a demand of the clerk, prosecutor, and sheriff that a detainer or hold be placed on the principal, and if no detainer or hold is placed within 15 days, “the surety shall then be relieved of the liability for the appearance bond.” Id. (emphasis supplied). Likewise, OCGA § 17-6-72 (c) provides that ‘ jnjo judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court that prior to the entry of the judgment on the forfeiture the principal on the bond is in the custody of the sheriff or other responsible law enforcement agency.” (Emphasis supplied.) In that event as well, the surety may demand that a detainer or hold be placed on the principal, and if no detainer or hold is placed within 15 days, “the surety shall then be relieved of the liability for the, appearance bond.” Id. (emphasis supplied).

We know that this distinction was not lost upon the General Assembly when it passed in 2009 upon the Act that amended OCGA § 17-6-71 (a), Ga. L. 2009, p. 688. Section 2 of the Act provides for the amendment of OCGA § 17-6-71 (a), adding the provision that, upon a failure to comply with the statutory notice requirements, the surety “shall be relieved of liability on the appearance bond.” Section 2A of the same Act provides for an amendment of OCGA § 17-6-72, adding a provision that “[n]o judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court that the principal on the bond was prevented from attending because he or she was deported by federal authorities,” And even the caption of the Act reflects an awareness of the distinction:

An Act [t]o amend Chapter 6 of Title 17 of the Official Code of Georgia Annotated, relating to bonds and recognizances, so as ... to relieve a surety from liability under certain circumstances; [and] to add a provision relating to conditions not warranting forfeiture of bond for failure to appear. . . .

Ga. L. 2009, p. 688.

It seems clear to us that the 2009 amendment of OCGA § 17-6-71 (a), properly construed, works a complete discharge of a surety from all its obligations and liabilities under an appearance bond whenever there is a failure to give timely notice of a forfeiture for the failure of the principal to appear, rather than a mere avoidance of a particular liability for a particular failure to appear. The legislative intent being clear, we are bound to construe the statute in a way that gives effect to it, rather than frustrates it. Because the principle set forth in Griffin and its progeny is incompatible with the statute as amended, our precedents must yield to the statute. We must acknowledge, therefore, that the principle set forth in Griffin and its progeny no longer is an accurate statement of the law.

2. Notwithstanding our holding in Division 1, we nevertheless conclude that the trial court in this case properly entered a judgment of forfeiture against Northeast Atlanta Bonding. Because the 2009 amendment abrogated the principle set forth in Griffin and its progeny, if notice to Northeast Atlanta Bonding was required following the first failure of Cordova-Bastidas to appear on November 20, the failure of the clerk to serve notice within ten days thereafter forever discharged Northeast Atlanta Bonding of its obligations under the bond. We conclude, however, that the failure of Cordova-Bastidas to appear on November 20 — because Northeast Atlanta Bonding had no notice of the November 20 appearance and the bonds, therefore, could not properly be forfeited at that time — did not trigger any requirement that notice of an execution hearing be served upon the surety. In the absence of any requirement to serve notice, the failure to do so had no legal consequence whatsoever. For this reason, we must conclude that the first occasion for the satisfaction of the notice requirement arose after December 9, when Cordova-Bastidas failed for a second time to appear. Because notice was given within ten days of December 9, there was strict compliance with the statutory notice requirement, and the judgment below must be affirmed.

As we understand OCGA § 17-6-71 (a), the requirements that an execution hearing be set and that notice of the execution hearing be served on the surety are triggered not merely by the failure of the principal to appear, but instead by a forfeiture of the bond as a result of the failure of the principal to appear. To be sure, if OCGA § 17-6-71 (a) were read in isolation, it would suggest that a mere failure to appear triggers the requirements of the statute: “The judge shall, at the end of the court day, upon the failure of the principal to appear, forfeit the bond and order an execution hearing. ...” (Emphasis supplied.) But OCGA § 17-6-70 (b) must be considered too, and it provides that “[a]n appearance bond shall not be forfeited unless the clerk of court gave the surety at least 72 hours’ written notice, exclusive of Saturdays, Sundays, and legal holidays, before the time of the required appearance of the principal.” (Emphasis supplied.)

Decided March 18, 2011.

Baggett & Dominguez, Niria D. Baggett, for appellant.

Thurbert E. Baker, Attorney General, Daniel J. Porter, District Attorney, Stephen A. Fern, Assistant District Attorney, for appellee.

We do not give an absurd construction to a statute. Haugen v. Henry County, 277 Ga. 743, 746 (2) (594 SE2d 324) (2004). And in a case in which OCGA § 17-6-70 (b) absolutely prohibits forfeiture, it would be absurd to interpret. OCGA § 17-6-71 (a) as nevertheless requiring the court to attempt to forfeit a bond that cannot be forfeited, to set an execution hearing on a forfeiture on which judgment cannot be entered, and to serve the surety with notice of an utterly unnecessary and purposeless execution hearing. “People would laugh at the law if it required any such thing.” Fletcher Guano Co. v. Vorus, 10 Ga. App. 380, 382 (73 SE 348) (1912). We conclude, therefore, that OCGA § 17-6-71 (a) requires service of notice upon a surety only when a failure to appear supplies proper grounds for the forfeiture of the bond.

Here, the record reflects that Northeast Atlanta Bonding was not given, at least 72 hours before the appearance of its principal was required on November 20, written notice of the required appearance. For this reason, the bond could not properly be forfeited on November 20, notwithstanding that the principal failed to appear. Consequently, no notice of an execution hearing was required within ten days of November 20, and the failure to serve such notice did not exonerate Northeast Atlanta Bonding of its liability under the bond.

Judgment affirmed.

Barnes, E J., and Dillard, J., concur.

       OCGA § 17-6-70 (b) provides that “[a]n appearance bond shall not be forfeited unless the clerk of the court gave the surety at least 72 hours’ written notice, exclusive of Saturdays, Sundays, and legal holidays, before the time of the required appearance of the principal.”

        AAA Bonding was decided under an even earlier version of OCGA § 17-6-71, which required notice within 72 hours of a failure to appear. Nevertheless, as we explained in Classic City Bonding, the change from seventy-two hours to ten days did not affect our understanding of the consequence of a failure to comply. 256 Ga. App. at 578.

       The 2009 amendment also clarified that the “clerk of the court in which the bond forfeiture occurred” is the person responsible for serving notice upon the surety and substituted electronic transmission for statutory overnight delivery as an acceptable means of service. Ga. L. 2009, p. 688, § 2.

       In cases involving contractual provisions by which someone is “relieved of liability” on an instrument, the Georgia courts have said that the provisions mean that the person was released of liability under the instrument. See, e.g., Ansley v. Atlanta Suburbia Estates, 230 Ga. 630, 630 (198 SE2d 319) (1973) (contractual provision that sellers “shall be relieved of liability from the existing . . . note” meant that sellers were released from liability on the note); Stone Mountain Abstract Co. v. Alcovy Realty Co., 141 Ga. App. 875, 876 (2) (234 SE2d 705) (1977) (same). These cases are instructive here.

       “[T]he intention of the General Assembly in the passage of a law is derivable as well from the caption of the act as from the body of the enactment itself.” Wimberly v. Ga. Southern &c. R. Co., 5 Ga. App. 263, 265 (63 SE 29) (1908). See also Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 707 (10 SE2d 375) (1940) (where statute is ambiguous, its title may properly be considered in ascertaining legislative intent).

       We are mindful of the admonition that “courts should construe statutes in connection and harmony with existing judicial decisions where possible.” Parker v. Lee, 259 Ga. 195, 198 (4) (378 SE2d 677) (1989) (emphasis supplied). But harmonizing a statute with inconsistent judicial decisions is not possible when we can readily ascertain the intent of the General Assembly, and when a construction of the statute that comports with this legislative intent brings the statute into irreconcilable conflict with those existing judicial decisions. Because the intent of the 2009 amendment is clear, and because it cannot be reconciled with Griffin and its progeny, the notion that the statute should be construed “in connection and harmony with” Griffin and its progeny must yield to the legislative intent as expressed in the plain meaning of the statute.


author: Doyle, Judge.

text:
    A10A2150.
    In the Interest of V H., a child.
    (708 SE2d 544)
   Doyle, Judge.

The father of a seven-year-old girl, V H., appeals from a juvenile court order finding the child to be deprived. In his single enumeration of error, the father contends that the court erred by allowing a law enforcement officer to testify about the father’s purported unwillingness to speak to the officer and by drawing a negative inference from the father’s exercise of his right to remain silent. For the reasons that follow, we affirm.

A deprived child is one who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals. In determining whether a child is deprived, the court focuses on the needs of the child rather than parental fault. And a temporary loss of custody is not authorized unless the deprivation resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. On appeal from a finding of deprivation, we review the evidence in the light most favorable to the juvenile court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived and whether, under the circumstances, the court properly awarded temporary custody of the child.

So viewed, on April 21, 2009, V H. was removed from her home. That day, V H. seemed very lethargic to her current elementary school teacher, and V H. told the teacher it was because the father “had kept her up all night messing with her.” V H. also told her teacher that she had urinated on herself in the classroom and was sent to the school nurse, who collected the child’s underwear. The teacher reported the incident to the principal, and school officials notified authorities.

The principal testified that school officials had contacted the Department of Family and Children Services (“the Department”) on other occasions regarding V H. based on evidence of physical punishment and rat bites that were discovered to be the result of rats the family kept to feed their snakes. The principal also recounted the behavioral difficulties and hygiene issues that the school had experienced with V H. Additionally, V H.’s teacher from the prior year testified that the child acted in a sexually provocative manner in class, which the teacher addressed with the father, who replied that V H. was getting started early learning how to be a stripper.

An officer with the Henry County Police Department Crimes Against Children Unit testified that she interviewed V H. on the day of the incident and forwarded the child’s soiled underwear to the Georgia Bureau of Investigation for forensic examination. An initial screen indicated that the underwear tested positive for the presence of semen; however, at the time of the deprivation hearing, the results of a DNA analysis were not available to show whether or not the father’s DNA matched the DNA of the semen on the clothing.

Two days later, a certified pediatric nurse at Children’s Healthcare of Atlanta completed a physical examination of V H., concluding that she had sustained a healed injury to her hymen that was “diagnostic for sexual abuse.” A psychologist who interviewed Y H. on May 7, 2009, testified that in her opinion the child had “a history of some kind of abuse” and recommended that the child not have contact with the father until after a final determination on whether any abuse had occurred could be made. She testified that many of Y. H.’s behaviors and beliefs were consistent with those of children who had been sexually abused.

A psychologist who performed a sexual trauma evaluation of V H. on May 7, 2009, testified that although the child did not make an outcry during the evaluation, V H. (1) was difficult to manage and easily distracted; (2) became anxious when asked any question regarding sex; (3) stated the father loved and played with her, but would not be specific about the kind of play in which they engaged; (4) exhibited abnormal anger and aggression as well as sexual behaviors common in sexually abused girls; and (5) exhibited distorted sexual beliefs. The psychologist opined that V H. was the victim of sexual abuse by an authority figure, and she advised that the child be kept out of the father’s or the mother’s care.

Y H.’s adult brother testified that he, his girlfriend, and his children had previously lived in the father’s home, and he had witnessed several instances of physical abuse by the father against Y. H., including slapping her in the face, and he observed the child with numerous bruises. Moreover, he had experienced physical abuse at the hands of the father, and he eventually moved out of the father’s home after the father sent him several text messages implying that the father had committed acts of sexual abuse against him when he was a child.

The brother’s girlfriend also testified about her experience living in the father’s house, stating that she witnessed various acts of physical abuse by the father and the mother against V H., including the father hitting the child with a paddle and constant bruising on the child. The brother and his girlfriend lived in the father’s house until March or April 2009, and they did not report the ongoing abuse for fear that the father would report their family to the Department.

The father contends that the juvenile court erred by allowing evidence through the testimony of a law enforcement officer that the father was uncooperative with the officer’s investigation, that he retained an attorney, and that he refused to submit to a DNA test until officers obtained a search warrant. He argues that he was under no duty to cooperate and that the evidence was inadmissible because it constituted prejudicial, inadmissible commentary on the father’s exercise of his right against self-incrimination. The father contends that the admission does not amount to harmless error because there was no evidence of an outcry of abuse made by V H., no evidence of DNA to support the allegation of abuse, and no other direct evidence that the father sexually abused V H.

As an initial matter, we note that because the deprivation determination was made by a juvenile court judge, we proceed under the presumption that, “in the absence of a strong showing to the contrary,” the judge has “sift[ed] the wheat from the chaff, ignoring illegal evidence and considering only legal evidence.” “Moreover, in all proceedings involving custody of a child, all information helpful in determining the questions presented . . . may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.” With this presumption in mind, and based on the amended order (which lacks reference to the evidence at issue), the elicitation of the testimony at issue does not constitute reversible error. Not considering the statements concerning the father’s failure to cooperate, the admissible evidence presented to the juvenile court supports the finding that the father committed sexual abuse of the child as well as numerous acts of physical abuse against her. The evidence as stated above, including testimony regarding the child’s statements and physical appearance on the date of removal, the father’s previous statements to and interactions with teachers and with V H.’s older brother, the findings of the psychological and physical evaluations performed on the child, and related expert opinions that those evaluations suggested that the child was a victim of sexual abuse, supports the juvenile court’s determination that the father deprived the child by committing sexual abuse against her.

Accordingly, the father’s argument is without merit, and we affirm the trial court’s deprivation order.

Decided March 18, 2011.

J. Scott Key, for appellant..

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Kathryn A. Fox, Assistant Attorney General, E. Suzanne Whitaker, Michelle R. Clark, for appellee.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       (Citations and punctuation omitted.) In the Interest ofM. K., 288 Ga. App. 71 (1) (653 SE2d 354) (2007). See also OCGA § 15-11-2 (8) (A).

       The brother did not recall being sexually abused by the father.

       (Punctuation and emphasis omitted.) Jennings u. State, 296 Ga. App. 767 (675 SE2d 623) (2009). See also Carroll v. Carroll, 307 Ga. App. 143, 144, n. 3 (704 SE2d 450) (2010) (presumption applied in appeal of a child custody hearing).

       (Punctuation omitted.) In the Interest of T. A. M., 280 Ga. App. 494, 499 (3) (634 SE2d 456) (2006). See OCGA § 15-11-56 (a).

       See In the Interest of J. R. N, 291 Ga. App. 521, 525 (1) (662 SE2d 300) (2008). Cf. In the Interest of T. A. M., 280 Ga. App. at 499 (3) (“the Georgia Supreme Court has held that a trial court’s consideration of hearsay . . . will not constitute reversible error [if] the evidence introduced at the hearing, not considering the [hearsayl, was sufficient to support the findings and conclusions of” the court) (punctuation omitted).

       See In the Interest of M. K., 288 Ga. App. at 73 (1).


author: Adams, Judge.

text:
    A10A2364.
    FLOOR PRO PACKAGING, INC. v. AICCO, INC.
    (708 SE2d 547)
   Adams, Judge.

The sole issue in this appeal is whether the trial judge erred in not allowing Floor Pro Packaging, Inc., to question potential jurors about any affiliation they may have had with American International Group, Inc. (“AIG”) during voir dire in Floor Pro’s suit against AICCO, Inc. Floor Pro asserts on appeal that AICCO is an AIG subsidiary and thus it should have been allowed to inquire in voir dire as to any “potential financial relationship jurors may have currently or in the past with AIG to determine whether any of the juries [sic] may have prejudice against Floor Pro.” We find no error.

This case stems from a fire loss Floor Pro suffered in April 2005 that was not covered by liability insurance because the policy had been cancelled for nonpayment. Following the fire, Floor Pro brought a breach of contract action against “AICCO, Inc. d/b/a Imperial A. I. Credit Companies” and other named defendants. AICCO was the insurance premium finance company through which Floor Pro financed its liability policy. The complaint alleged that AICCO breached the parties’ finance agreement by failing to credit its account in a timely fashion with $2,100 in refunded premiums from a workers’ compensation insurance policy that never went into effect.

Although Floor Pro listed AICCO as “AICCO d/b/a Imperial A. I. Credit Companies” in the caption of its complaint, it apparently changed the caption in a later pleading to refer to AICCO as “AICCO, d/b/a Imperial A. I. Credit Companies; a member of American International Group, Inc. (AIG).” (Emphasis supplied.) In response, AICCO filed a motion in limine to preclude Floor Pro from “mentioning irrelevant corporate affiliations of AICCO during the course of the trial” in any address to the jury. AICCO asserted that Floor Pro’s caption change was “a thinly veiled attempt to exploit the public’s negative perception of [AIG].” In the motion, AICCO asserted that its corporate relationship with AIG was as follows: “AICCO, Inc. (DE) is a subsidiary of AIG Credit Corp.[,] which is a subsidiary of AIG Capital Corp. which is a subsidiary of [AIG].” Floor Pro does not dispute that relationship.

The trial court heard argument on the motion in limine on the first day of trial. Floor Pro’s counsel represented that she intended to refer to AIG only during voir dire to explore whether any juror was a shareholder, officer, director or was involved in management, risk management or “anything associated with AIG.” After considering the parties’ argument, the trial court granted AICCO’s motion, directing Floor Pro that it would not be allowed “to ask any questions during voir dire about any affiliation with AIG.”

The parties proceeded to trial and the jury returned a defense verdict. Floor Pro filed a motion for new trial asserting that the trial court erred in granting the motion in limine. Floor Pro sought a new trial under OCGA § 5-5-23, which permits a new trial upon the discovery of material evidence related to new and material facts discovered after a verdict has been rendered and OCGA § 5-5-25, which allows a trial court to grant a new trial in its discretion on other grounds. In support of the motion, Floor Pro attached, inter alia, a copy of AIG’s 2008 Form 10K filing with the United States Securities and Exchange Commission and an article from the Wall Street Journal from March 30, 2009.

Floor Pro noted that the SEC form reflected that AIG was a holding company and that its ability to meet its financial obligations was dependent upon payments from its various subsidiaries, including AICCO. Because AICCO had no indemnity insurer, Floor Pro asserted that any loss suffered by the finance company would affect AIG’s revenue sources. The company argued that a juror might have known of the relationship between AICCO and AIG and if that juror had a financial relationship with AIG, the juror could have “ ‘blamed’ ” Floor Pro “as one of many debtors that were [sic] late in loan repayments or defaulted on loans as responsible, at least in part, for losses in investment portfolio with AIG.” Alternatively, “[o]ther jurors could be angry with the taxpayer bailout of AIG and hold debt defaults as responsible.” Floor Pro noted, for example, that the foreman of the jury was a consultant for Hewlett-Packard, a company that Floor Pro contends had a “close relationship” with AIG “involving] hundreds of millions dollars in business,” citing the Wall Street Journal article, which reflected that the IRS had disallowed a tax credit claimed by Hewlett-Packard through an entity financed in part by AIG.

“The purpose of voir dire is to allow both parties an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination.” (Punctuation and footnote omitted.) Williams v. State, 259 Ga. App. 742, 744 (2) (578 SE2d 128) (2003). “A trial court exercises its discretion when limiting those questions that may be asked of prospective jurors during voir dire, and we will not interfere with such discretion absent manifest abuse.” (Footnote omitted.) Id. Moreover, a trial court does not err in “limiting repetitive, misleading, and irrelevant questions.” Gissendaner v. State, 272 Ga. 704, 709 (4) (532 SE2d 677) (2000).

The only limitation placed on voir dire was a prohibition against asking “any questions . . . about any affiliation with AIG.” Thus, Floor Pro was not prohibited from asking more general questions that could have ferreted out the potential bias it now claims was so critical. For example, Floor Pro questioned jurors about any affiliation they or their family may have had with insurance companies in general. And AICCO’s counsel questioned the jurors regarding their views as to a debtor’s obligation to repay its debts. But Floor Pro made no attempt to question the jurors, for example, as to whether they owned stock in any insurance companies or whether they blamed defaulting debtors for the current economic climate or any ensuing government bailouts. Thus the company failed to explore other avenues open to it for detecting juror bias. Having reviewed the voir dire in this case, we conclude that it “was broad enough to ascertain the fairness and impartiality of the prospective jurors.” (Citation and punctuation omitted.) Gissendaner, 272 Ga. at 709 (4).

This case is distinguishable from the cases cited by Floor Pro involving indemnity insurers, where the Georgia appellate courts have held that presumption of harmful error arises when the trial court fails to qualify jurors as to any relationship with a defendant’s insurer and a defense verdict results. See Atlanta Coach Co. v. Cobb, 178 Ga. 544 (174 SE 131) (1934); Reynolds v. Satterfield, 86 Ga. App. 816 (72 SE2d 811) (1952). Where a corporation is not an insurer, “no presumption of harmful error arises absent an affirmative showing to the trial court by the proponent of such qualification that there is a strong probability that insurance companies that are not insurers of the parties have a direct, demonstrable financial stake in the outcome of the case.” (Citations omitted.) Wallace v. Swift Spinning Mills, 236 Ga. App. 613, 615 (1) (511 SE2d 904) (1999). Here, AIG was not AICCO’s insurer, and Floor Pro did not provide the trial court with proof of any direct, demonstrable financial stake by AIG in the case’s outcome. See id. (court not required to qualify as to noninsurers and proof of indemnity obligation not established by allegation that noninsurers share common parent corporation with insurer).

Decided March 18, 2011.

Genevieve L. Frazier, for appellant.

Holland & Knight, Cynthia G. Burnside, for appellee.

Moreover, Floor Pro never asked that the jurors be “qualified” as to AIG and, in fact, conceded that qualification was not available because the company was not a party to the litigation. Rather, the company consistently maintained that it only sought to explore the issue of any bias in connection with AIG. Under these circumstances, Floor Pro had an obligation to show the trial court at least some relevance for the proposed line of questioning, and because Floor Pro failed to make that showing, we find that the trial court acted within its discretion in granting AICCO’s motion in limine. Accordingly, the trial court properly denied Floor Pro’s motion for new trial on this ground.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       Floor Pro also asserted claims for negligence, material misrepresentation, bad faith and punitive damages.

       Nor did Floor Pro establish any actual harm arising from the jury foreman’s employment as a consultant with Hewlett-Packard by merely referencing a newspaper article reflecting that the company, at least at one time, did business with AIG.


author: MILLER, Presiding Judge.

text:
    A10A2353.
    IN THE INTEREST OF D. M., a child.
    (708 SE2d 550)
   MILLER, Presiding Judge.

A juvenile court adjudicated D. M., age 15, delinquent for acts which, if committed by an adult, would have constituted aggravated assault (OCGA § 16-5-21 (a) (1)). D. M. appeals, contending that the evidence was insufficient to support his adjudication of aggravated assault and that his trial counsel was ineffective. Finding that the evidence was insufficient to support D. M.’s adjudication of aggravated assault but sufficient to support an adjudication of the lesser included offense of simple battery, we vacate the judgment and remand.

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.

(Footnote omitted.) In the Interest ofM. C. A., 263 Ga. App. 770 (589 SE2d 331) (2003).

So viewed, the evidence shows that D. M. and the victim, D. B., were both students at Clarkston High School. On January 30, 2009, D. M. approached D. B. in the hallway, stuck his hands in D. B.’s pockets, and said, “What’s in them pockets?” D. B., who was not previously acquainted with D. M., was “scared” and did not resist or fight back. D. B. later explained that he was scared that D. M. would take his cell phone, MP3 player, and money, which were in his pocket. While D. B. told D. M. “to get his hands out of my pockets; [D. M.] still wouldn’t.” A few minutes later, D. M. walked away without taking anything.

The victim immediately reported the incident to a security officer at the school and identified D. M. as his assailant. The security officer testified that the victim was upset and “almost in tears.”

At the adjudicatory hearing, D. B. was questioned about the details of the incident, D. M.’s conduct, and his own reaction. D. B. testified as follows:

Q: Did you ask anybody to stop?
A: No, ma’am.
Q: Did you, ah, scream for help?
A: No, ma’am.
Q: And ... he didn’t threaten you with violence, did he?
A: No, ma’am.
Q: Okay. He didn’t make any gestures towards you, lift his fists or anything like that?
A: No, ma’am.
Q: He didn’t threaten you, verbally? I’m going to do so and so to you?
A: No, ma’am.
Q: Okay. You didn’t see any weapons, did you?
A: No, ma’am.
Q: And you didn’t push him away?
A: No. ma’am.

Other than putting his hands into his pockets, D. B. testified, “[D. M.] didn’t touch me.”

1. D. M. argues that the evidence was insufficient to support his adjudication of delinquency for aggravated assault because the State failed to prove that he placed the victim in reasonable apprehension of immediately receiving a violent injury. We agree.

(a) Here, the delinquency petition charged D. M. with the offense of aggravated assault in that D. M. “did make an assault upon the person of [D. B.] with the intent to then and there rob said victim, by demanding the victim’s money and MP3 player and reaching into his pockets searching for his property.”

Under Georgia law, a person commits the offense of aggravated assault with the intent to rob when he assaults with the intent to rob. OCGA § 16-5-21 (a) (1). “Central to the offense of aggravated assault is that an assault as defined in OCGA § 16-5-20 be committed on the victim.” (Citations and punctuation omitted.) Chase u. State, 277 Ga. 636, 637 (1) (592 SE2d 656) (2004). Under OCGA § 16-5-20, “[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) [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” An assault under OCGA § 16-5-20 (a) (2) is complete “if the assailant has made such a demonstration of violence, coupled with an apparent ability to inflict injury so as to cause the person against whom it is directed reasonably to fear the injury unless he retreats to secure his safety.” (Citations and punctuation omitted.) Bearden v. State, 291 Ga. App. 805, 806-807 (662 SE2d 736) (2008).

Here, the evidence is insufficient to show that D. M. assaulted D. B. by “attempting] to commit a violent injury to the person of another.” OCGA § 16-5-20 (a) (1). Since an assault is an attempted battery, “the state must show that [D. M.] made a ‘substantial step’ toward committing the battery.” (Punctuation and footnote omitted.) In the Interest of D. B., 284 Ga. App. 445, 447 (1) (644 SE2d 305) (2007). See also OCGA § 16-5-23.1 (a) (“A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.”). Significantly, there is no evidence that D. M. displayed a weapon or other object that might have been used to inflict a violent injury upon D. B. Compare Williams v. State, 299 Ga. App. 345, 347 (682 SE2d 586) (2009) (presence of knife in defendant’s hand, coupled with victim’s actions after observing the knife, sufficed to show that the victim was placed in reasonable apprehension of an imminent violent injury). Nor is there any evidence that D. M. demonstrated violence through physical acts or gestures, such as raising his fist at D. B., as if to hit him. Compare In the Interest ofD. B., supra, 284 Ga. App. at 446 (simple assault was shown based on evidence that juvenile took off his sweatshirt and his watch, emptied his pockets, squared his shoulders, balled up his fists as if to strike the victim, and asked the victim when they were confined in a room, “Now what are you going to do?”). Further, there is no evidence that D. M. demonstrated violence through verbal threats such that D. B. would reasonably fear injury unless he retreated to secure his safety. Compare Lewis v. State, 253 Ga. App. 578, 581 (560 SE2d 73) (2002) (before defendant left the scene, he threatened to harm and kill the victims while standing only inches away from them). And other than intruding into the victim’s pockets, D. M. did not touch the victim.

Nor, as D. M. claims, was the evidence sufficient to show that he assaulted D. B. by “[c]ommit[ing] an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (2). “The focus of a reasonable apprehension of harm . .. under OCGA § 16-5-20 (a) (2), is on the apprehension of the victim.” Maynor v. State, 257 Ga. App. 151,154 (570 SE2d 428) (2002). Although the State contends that D. B.’s testimony that he was scared during the incident was sufficient to show that he had been placed in reasonable apprehension of receiving a violent injury, we have routinely held that “[reasonable apprehension of injury is not the same as simple fear[.]” (Citations and punctuation omitted.) Bates v. State, 275 Ga. 862, 865 (4) (572 SE2d 550) (2002). Here, D. B.’s fear was based on a concern that D. M. would take his personal property, not an apprehension of injury.

We likewise reject the State’s assertion that D. B.’s reasonable apprehension of imminent injury was shown by his testimony that he did not want to fight. During direct examination, when asked why he did not fight back, D. B. simply explained that he “[did not] want to fight and it was during school” and that he was not a “fighter.” Such testimony is insufficient to show the required fear of imminent injury.

Absent any evidence that D. M.’s act of putting his hands in the victim’s pockets was a forcible act or accompanied by an angry or threatening demeanor such as to convey the potential for imminent harm, the State failed to show a demonstration of violence, coupled with an apparent present ability to inflict injury upon D. B., necessary to complete a simple assault under OCGA § 16-5-20 (a) (2). See Bearden, supra, 291 Ga. App. at 806-807 (“Th[e] offense [of simple assault] is complete if the assailant has made such a demonstration of violence, coupled with an apparent ability to inflict injury so as to cause the person against whom it is directed reasonably to fear the injury unless he retreats to secure his safety.”) (Citations and punctuation omitted.) Lawson v. State, 275 Ga. App. 334, 338 (620 SE2d 600) (2005).

It thus follows that the evidence was insufficient to show that D. M. committed acts, which, if committed by an adult, would have constituted aggravated assault with the intent to rob. OCGA § 16-5-21 (a) (1); see Johnson v. State, 158 Ga. App. 432, 432-433 (280 SE2d 856) (1981) (evidence that defendant raised his hand and shook his finger at the victim while saying, “We are going to get you,” was insufficient to establish that defendant had present ability to inflict a violent injury as he was not within arm’s length of the victim and made no overtly threatening gesture with any observable weapon). Compare Daniels v. State, 298 Ga. App. 736, 737-738 (681 SE2d 642) (2009) (defendant’s conduct of shouting at victim in an agitated and angry manner, while standing in close proximity to her and blocking her movement in a narrow hall constituted a demonstration of violence and an apparent present ability to inflict injury); In the Interest of D. B., supra, 284 Ga. App. at 447-448 (1).

(b) Here, the evidence was sufficient to find D. M. delinquent of the lesser included offense of simple battery. During closing argument, D. M.’s counsel argued that the evidence was insufficient to prove the delinquent act of aggravated assault, but if the juvenile court concluded that the incident occurred, he requested that it find D. M. “guilty of. . . battery for going in [the victim’s] pockets.”

“A person commits the offense of simple battery when he. . . [i]ntentionally makes physical contact of an insulting or provoking nature with the person of another.” OCGA § 16-5-23 (a) (1). Here, D. M.’s act of placing his hands in the victim’s pockets despite the victim’s protests to remove his hands was a prohibited act under OCGA § 16-5-23 (a) (1). See Lawson v. State, 274 Ga. 866, 867 (2) (561 SE2d 72) (2002) (“simple battery encompasses all forms of prohibited contact and is not limited like battery to contact that causes substantial or visible harm”).

In light of the foregoing, we vacate the juvenile court’s judgment and remand the case with direction that an adjudication of delinquency and a disposition be entered against D. M. for committing an act which would have supported an adjudication for the misdemeanor offense of simple battery. See OCGA § 16-5-23 (b); In the Interest of J. S., 296 Ga. App. 144, 151 (3) (673 SE2d 645) (2009).

2. D. M. further contends that his trial counsel was ineffective in that she was unprepared for trial. Specifically, he argues that trial counsel failed to investigate and present testimony from an investigator and the victim’s friend, T. T., who allegedly would have contradicted the victim’s description of the incident at trial.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. In Strickland v. Washington, [466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984),] the U. S. Supreme Court stated that the question of ineffectiveness, including both the performance and prejudice prongs, is a mixed question of law and fact. . . . [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.

(Punctuation and footnotes omitted.) Suggs v. State, 272 Ga. 85, 87-88 (4) (526 SE2d 347) (2000). Applying these principles, we conclude that D. M. failed to establish his ineffectiveness claim in this case.

At the motion for new trial hearing, the only evidence introduced in support of the ineffectiveness claim was the testimony of D. M.’s trial counsel. Trial counsel testified that an investigator had spoken to the victim twice prior to trial and that the victim’s trial testimony describing the incident differed from his account given to the investigator. Trial counsel also testified that she was aware that the victim’s friend, T. T, had been present during the encounter and that T. T.’s perception of the incident would have been relevant to the case. Trial counsel stated that she failed to further inquire or call the investigator and T. T as trial witnesses because she did not expect to be on trial at that time.

Significantly, however, the investigator and T. T. did not testify at the hearing, and D. M. failed to introduce any legally recognized substitute for their testimony to show that it would have been relevant and favorable to his defense. To the extent that D. M. relied upon trial counsel’s testimony to establish the investigator’s and T. T.’s expected statements and to prove that trial counsel’s performance was deficient for failing to explore their testimony, such evidence was hearsay and had no probative value. See Dickens v. State, 280 Ga. 320, 322-323 (2) (627 SE2d 587) (2006) (defendant cannot use his counsel’s testimony about what an uncalled witness had been expected to say in order to establish the truth of that uncalled witness’s testimony, because such evidence is hearsay). Nor did D. M. make a proffer of either witness’s testimony at the hearing to support his claims. Consequently, D. M. failed to make “an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.” (Citations and punctuation omitted.) Mahoney v. State, 296 Ga. App. 570, 572 (2) (c) (675 SE2d 285) (2009). As a result, ineffective assistance of counsel has not been shown. Dickens, supra, 280 Ga. at 322-323 (2).

Decided March 21, 2011.

Ford & Harrison, Sarah L. Fuson, Stephen M. Reba, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Margaret S. Robinson, Sherd C. Grant, Assistant District Attorneys, for appellee.

Judgment vacated and case remanded with direction.

Phipps, P. J., and McFadden, J., concur.

       Notwithstanding our reversal of the adjudication for the aggravated assault offense, we consider D. M.’s ineffective assistance claim to the extent that it would affect our conclusion in Division 1 (b) above that an adjudication of delinquency can be entered for the offense of simple battery.


author: BARNES, Presiding Judge.

text:
    A10A1782.
    HIGHT v. THE STATE.
    (708 SE2d 555)
   BARNES, Presiding Judge.

Alfred J. Hight, pro se, appeals from the order denying, among other things, his extraordinary motion for new trial. In 1974, Hight was convicted of rape, aggravated sodomy, and kidnapping with bodily injury, and sentenced to three consecutive life sentences. Hight declined representation at trial, and following his conviction, did not file a motion for new trial or appeal. In December 2008, he, pro se, filed an “extraordinary motion for new trial; motion to correct void illegal sentences; and motion for an order expunging blank and untried indictments from defendant’s files.” He also filed a separate motion for appointment for counsel. Without holding a hearing, the trial court denied the motions on April 30, 2009, and Hight filed a notice of appeal in the Supreme Court on May 14, 2009. He subsequently filed an application for discretionary appeal in this Court on June 30, 2009, which this Court dismissed as untimely. The Supreme Court transferred the first appeal to this Court, and it was docketed in this Court on May 6, 2010.

1. Although Hight contends as error the trial court’s denial of his extraordinary motion for new trial, we do not agree. Pursuant to OCGA § 5-5-41 (a), “[w]hen a motion for a new trial is made after the expiration of a 30 day period from the entry of judgment, some good reason must be shown why the motion was not made during such period, which reason shall be judged by the court.” “Normally, of course, the good reason necessary to permit the filing of an extraordinary motion for new trial consists of newly discovered evidence. However, the late filing of a motion for new trial may also be predicated on circumstances other than newly discovered evidence.” Franz v. State, 208 Ga. App. 677, 678 (3) (432 SE2d 554) (1993).

Hight, in essence, asserted in his extraordinary motion for new trial that he was forced to proceed at trial without the assistance of counsel, and not apprised of the “disadvantages and dangers of self-representation.” The record belies this contention as it reflects that when Hight’s private counsel withdrew from the case, the trial court appointed Hight a public defender, but Hight refused representation. The public defender was permitted to withdraw before trial, but the trial court directed that a public defender remain with Hight during the trial and be “available to advise [him].” Here, clearly Hight’s failure to file a motion for new trial was a circumstance created entirely by his refusal to accept appointed counsel. See Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985) (A convicted party may, by his own conduct, forfeit his right to appeal by sleeping on his rights.).

Thus, Hight has not demonstrated a sufficiently good reason to grant an extraordinary motion for new trial, and the trial court did not err in denying such.

2. Regarding Hight’s contention that the trial court erred in denying his motion to correct his “illegal” sentence, the three consecutive life sentences for his convictions for rape, kidnapping, and aggravated sodomy were within those allowed by the law in 1974, when Hight was sentenced. See Ga. L. 1968, pp. 1282, 1283, 1299.

3. Hight also contends that the trial court erred in denying his “motion for an order expunging blank and untried indictments from defendant’s files.” He also appears to argue that the trial court erred in admitting into evidence the untried indictments. However, the procedure for expungement of criminal records is set forth in OCGA § 35-3-37 (c), and there is no indication in the record that Hight complied with its requirements. To the extent he argues that it was error for the trial court to admit the untried indictments, the record reflects that during the sentencing phase, the State introduced five prior convictions in aggravation of punishment. Hight entered guilty pleas in each of the convictions. Hight did not object to the admission of the evidence, and thus “any argument as to this issue [is] waived.” (Citation omitted.) Henderson v. State, 285 Ga. 240, 245 (7) (675 SE2d 28) (2009). See Thomas v. State, 305 Ga. App. 801, 803 (2) (701 SE2d 202) (2010).

Decided March 22, 2011.

Alfred J. Hight, pro se.

Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Daniel J. Quinn, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

       Hight also filed a petition for certiorari in the case this Court dismissed which was denied on February 1, 2010. Hight v. State, Case No. S10C0038.

       The State maintains that Hight’s appeal should be dismissed for lack of jurisdiction because his application for discretionary appeal was dismissed as untimely, and “filing a second appeal with the Supreme Court... on the same issue in the same case . . . does not make [Hight’s] appeal become timely or convey jurisdiction to this Court.” Contrary to the State’s argument, jurisdiction in this Court was based on the May 14, 2009 notice of appeal that was timely filed in the Supreme Court, after which the appeal was transferred to this Court. Because the trial court’s order was final for purposes of OCGA § 5-6-34 and the denial of a motion for appointment of post-conviction counsel is directly appealable to this Court, having jurisdiction over that matter we can then address “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below.” OCGA § 5-6-34 (d). See Regent v. State, 306 Ga. App. 616, 617 (1) (703 SE2d 81) (2010).


text:
    A10A1832.
    W RAY CAMP INC. v. CAVALRY PORTFOLIO SERVICES, LLC.
    (708 SE2d 560)
   BARNES, Presiding Judge.

W. Ray Camp, Inc. (“Camp”) appeals from the denial of its motion for relief from a default judgment. It asserts as error the trial court’s finding that Camp had actual notice of the entry of judgment against it as required by OCGA § 18-4-91. Following our review, and upon finding that the notice requirement of OCGA § 18-4-91 was satisfied, we affirm.

The relevant facts below establish that in August 2008, Cavalry Portfolio Services, LLC (“Cavalry”) obtained a default judgment for $27,799 when Camp failed to answer a summons and continuing garnishment. On January 12, 2009, Camp filed a motion for relief from the default judgment pursuant to OCGA § 18-4-91, seeking to have the default judgment modified and paying accrued court costs of $2,451.87.

OCGA § 18-4-91 permits a garnishee to seek relief from a default judgment by filing a motion within 60 days from receiving notice of the judgment and paying all court costs. The garnishee may have the judgment modified based on the amount of the debtor’s money or property that came into the garnishee’s possession from the time the garnishment was served until the last day on which an answer could have been made.

Cavalry responded that Camp’s motion was untimely because it was filed outside the statutory 60-day period after Camp received notice of the judgment. The trial court held an evidentiary hearing to establish when Camp received actual notice of the default judgment. At the hearing, Camp argued that its first notice of the default judgment was on December 26, 2008 when it received a letter from Cavalry’s attorney. The letter stated in part that Cavalry had “obtained judgment against [Camp]” and was “entitled to levy the business assets and property on behalf of [Cavalry].” Camp filed its motion for relief from the judgment on January 12, 2009, which Camp asserted was well within the statutorily prescribed period of 60 days after its first notice of the default judgment against it.

Cavalry responded that on October 6, 2008, it transmitted a copy of the judgment to Camp via certified mail, return receipt requested, and the judgment was received by Camp on October 9, 2008. The return receipt reflected that it was signed by an employee at Camp’s business address. Camp acknowledged that it received the October 9 document, but argued that because the stamped “filed” date on the judgment was illegible the mailing did not constitute actual notice of the entry of judgment, as required by OCGA § 18-4-91. It asserted that the faint, illegible “filed” stamp did not provide actual notice that the judgment had been filed with the clerk of court. The judge denied Camp’s motion without explanation, and following this Court’s grant of Camp’s application for discretionary review, it appeals.

OCGA § 9-11-58 (b) provides that “[t]he filing with the clerk of a judgment, signed by the judge, . . . constitutes the entry of the judgment, and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of the same. ...” Similarly, OCGA § 5-6-31 provides “[t]he filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of [the appellate practice act].” Notice to the garnishee by certified mail of the entry of a default judgment is “sufficient notice as required in this Code section.” OCGA § 18-4-91.

Here, the copy of the judgment Camp received is dated August 26, 2008 and is signed by the state court judge. There are initials beside the judge’s signature and the word “ok.” The file stamp is not legible at all, although there are what appear to be ink remnants of the stamp near the bottom of the order. On the original order, which is included in the record, the stamp, “filed in office Aug 28, 2008,” is traced over the ghost markings in ink. There is no argument that the order was actually filed. The only issue is whether the photocopy of the document that Camp received with ghost markings of the file stamp provided actual notice of the default judgment per OCGA § 18-4-91, sufficient to put Camp on notice that the 60-day statutory period in which it could seek to modify the judgment was running.

When the issue is a question of law, “we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). Per OCGA §§ 9-11-58 (b) and 5-6-31, the entry of judgment occurs when it is signed by the judge and filed by the clerk, both of which happened in this case. With regard to the actual notice requirement, we have held that

[i]n determining whether notice required under a specific statute must be received, the language of the particular statute in issue must be interpreted in accordance with recognized principles of construction, in each case keeping in mind that the cardinal rule is to seek diligently the intention of the legislature and effectuate the statute’s purpose. Statutes must be construed as well so as to square with common sense and sound reasoning. It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.

(Citation and punctuation omitted.) Five Star Steel Contractors v. Colonial Credit Union, 208 Ga. App. 694, 696 (431 SE2d 712) (1993). In analyzing the notice requirement of OCGA § 18-4-91, we note that in addition to authorizing a plaintiffs use of an inexpensive, efficient means of notifying a garnishee of the entry of a default judgment — certified mail — the statute is clearly remedial.

It provides a second chance for a garnishee who, having been personally served with a summons of garnishment, ignored its call for an answer. A limited window of opportunity is afforded such a garnishee through which it can reduce a debt imposed by its initial inaction.

Decided March 22, 2011.

William W. Broadfoot III, for appellant.

Sherwin P. Robin, for appellee.

Five Star, 208 Ga. App. at 696.

In Five Star we found that a garnishee receives actual notice of the default judgment even if it “fails or refuses to claim a notice by certified mail given under OCGA § 18-4-91.” Id. at 696. We held that “the 60-day period in which the garnishee may move for modification of a default judgment begins to run on the date of the first attempted delivery of such notice, provided the notice is correctly addressed and contains adequate postage.” Id. at 696-697. Similarly in Brassell v. Coventry Holding Group, 228 Ga. App. 827 (492 SE2d 687) (1997), we held that per OCGA § 18-4-91, “the 60-day period in which the garnishee may move for modification of a default judgment also begins to run on the date an agent of the addressee signs for the certified mail notice.”

So too here, we will not enlarge the statutory window contemplated in OCGA § 18-4-91 to include inquiries into the legibility of the file stamp. The record reflects that the default judgment was sent by certified mail to Camp at the correct business address, and a certified mail return receipt reflects that it was signed by Camp’s agent on October 9, 2008, which is when the 60-day period within which Camp was entitled to petition the court to modify the default judgment began running. It did not file such a motion until January 12, 2009, well outside the 60-day window. No further inquiry into the actual notice is required in this case.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

       When a judgment is rendered against a garnishee, ... on a motion filed not later than 60 days from the date the garnishee receives actual notice of the entry of the judgment against him, he may, upon payment of all accrued costs of court, have the judgment modified so that the amount of the judgment shall be reduced to an amount equal to the greater of $50.00 or $50.00 plus 100 percent of the amount by which the garnishee was indebted to the defendant from the time of service of the summons of garnishment through and including the last day on which a timely answer could have been made for all money . . . belonging to the [debtor] which came into the garnishee’s hands [during that] time.
      OCGA § 18-4-91.


text:
    A10A2203.
    CITIZENS BANK OF EFFINGHAM v. ROCKY MOUNTAIN ENTERPRISES, LLC.
    (708 SE2d 557)
   BARNES, Presiding Judge.

Following the dismissal of its petition pursuant to OCGA § 44-14-161 for confirmation of a foreclosure sale on certain property in Effingham County, Citizens Bank of Effingham (“the Bank”) appeals, contending that the trial court erred in finding that, by filing the application with the clerk of the court rather than with the superior court judge, the Bank failed to comply with the requirements of OCGA § 44-14-161 (a). For the reasons set forth below, we affirm.

“The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them.” (Citation omitted.) Nash v. Compass Bank, 296 Ga. App. 874, 875 (676 SE2d 28) (2009). We apply a de novo standard of review to any questions of law decided by the trial court. Washington u. Harrison, 299 Ga. App. 335, 336 (682 SE2d 679) (2009).

The record shows that Rocky Mountain Enterprises, LLC (“Rocky Mountain”) gave the Bank a deed to secure debt on certain property located in Effingham County. When the company defaulted on the underlying note, the Bank foreclosed on the property in accordance with the terms of the power of sale contained in the deed. The property was sold on the courthouse steps on May 5, 2009 to the Bank, who thereafter filed a petition for confirmation of sale and a notice of hearing with the clerk of the superior court. An order setting the hearing for May 28, 2009 was filed in the court on May 14, 2009, although it was not signed by the clerk or a superior court judge.

Rocky Mountain’s attorney filed an entry of appearance and motion for continuance on May 18, 2009, which the trial court granted on May 26, 2009. At the July 2, 2009 confirmation hearing, Rocky Mountain moved to dismiss the application for confirmation of the sale, contending that the Bank did not present the application directly to a superior court judge, and thus failed to comply with the requirements of OCGA § 44-14-161. The Bank countered that the clerk had acted as a delegated authority of the superior court judge, and also that Rocky Mountain had acknowledged the propriety of the application by requesting a continuance rather than attacking the application.

The trial court granted the motion and dismissed the application for confirmation with prejudice. In its order the trial court held that

a clerk’s authority to accept papers under authority of the court does not in any way implicate the process by which a foreclosure sale is confirmed. Unlike a “civil action,” which is initiated by the filing of a complaint with the clerk of court, a confirmation proceeding can only be initiated by presenting the creditor’s report of the sale to the superior court judge. ... In the case at bar, the record shows that the Application and Notice of Hearing were not presented to and signed by a superior court judge or anyone else with proper legal authority as required by law.

The procedure for confirmation of nonjudicial foreclosure sales is set forth in OCGA § 44-14-161, which provides:

(a) When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.

(Emphasis supplied.) “The [confirmation] proceeding... is not a ‘suit’ but an application to the ‘Judge of the Superior Court.’ ” Jonesboro Investment Trust Assn. v. Donnelly, 141 Ga. App. 780, 783 (1) (234 SE2d 349) (1977) (physical precedent only).

1. The Bank first contends that even if the trial court did not sign the application, the application and report of the sale were brought to the attention of the superior court when it was presented with the motion for a continuance within the 30-day statutory period. It argues that the motion for continuance referenced the application for confirmation, and thus the sale was reported to the Court within 30 days as required by OCGA § 44-14-161. We do not agree.

In Goodman v. Vinson, 142 Ga. App. 420 (236 SE2d 153) (1977), the appellants contended that their filing the petition with the clerk and his entry on the calendar of a rule nisi, both having taken place within 30 days of sale, constituted the requisite reporting of the confirmation pursuant to the statute. We held that

what appellants did was not a fulfillment of the report requirement, [and] we now find meritless their contention that the legislature did not intend that a report be made to the judge but their intent was to require petitioners to take action within thirty days of sale so as to give debtors notice that a deficiency judgment might be sought against them.

Id. at 421.

Our holding in Bridges v. CB&T Bank of Middle Ga., 306 Ga. App. 277 (701 SE2d 898) (2010), does not mandate a different result. In Bridges, the trial court found that the reporting requirement in OCGA § 44-14-161 had been accomplished when the attorney for CB&T sent a letter to the superior court judge within 30 days which, among other things, expressly stated that the letter was meant to comply with the reporting requirement of OCGA § 44-14-161. Id. at 278. There, unlike the circumstances here, the trial judge expressly found no evidence to dispute that he was notified about the sale. We held:

[T]he trial court did not require any further verification of the attorney’s statement in his place that he had notified the court via the letter. Rather, the judge specifically found “that there really is no evidence to dispute that in fact I was notified, as required by the statute, and I certainly don’t dispute that I have.” While Bridges’ attorney challenged the report on the ground that he had not previously seen it, there is no requirement that the debtor be notified of such a report. “The plain language of the statute does not impose this requirement for service of the report on the debtor within the thirty days. The thirty-day report to the judge is not intended to give notice to the debtor. (Cit.)”

Id. at 278.

Thus, this enumeration fails.

2. The Bank also contends that the clerk of the court was a proper legal authority under the statute. It maintains that in a previous case, its attorney had presented a petition for confirmation “in open court” and the same superior court judge assigned to the present case had instructed him to file the petition with the clerk of court, thus “authorizing” this manner of filing, which it followed in this case.

An application for confirmation pursuant to OCGA § 44-14-161 is a special statutory proceeding and not a complaint which initiates a civil action or suit in the ordinary meaning of those terms. Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 297 (430 SE2d 732) (1993). The statutory procedure requires that, before the Bank was entitled to file an action to obtain a deficiency judgment against Rocky Mountain, it must within 30 days report the foreclosure sale and seek confirmation of the sale in the Effingham County Superior Court, where the foreclosed land was located, by showing that the sale was lawfully conducted and brought at least the fair market value of the land on the date of the sale. McCain v. Galloway, 267 Ga. App. 505 (600 SE2d 449) (2004).

In Bentley v. North Ga. Production Credit Assn., 170 Ga. App. 361 (317 SE2d 339) (1984), which the trial court cited in its order, we held that OCGA § 44-14-161 prohibits any action to obtain a deficiency judgment after a foreclosure sale

unless the person instituting the foreclosure proceedings reports the sale to the judge of the superior court within 30 days after it takes place. This statute is in derogation of common law and must be strictly construed. The judge himself, not the clerk of court, is the one to whose attention the report of sale and its particulars must be brought. Absent compliance with the reporting requirement, the petition for confirmation is subject to dismissal.

(Citations omitted.) Id. at 362 (1).

Likewise, in John Alden Life Ins. Co. v. Gwinnett Plantation, 220 Ga. App. 846 (470 SE2d 482) (1996), Alden’s counsel stated via affidavit that he personally filed the application with the clerk of court’s office and was told that the application was assigned to a specific judge. Alden took no further action to report the sale to a superior court judge, and Gwinnett Plantation moved to dismiss the application. Id. at 847. The trial court granted the motion, concluding that Alden failed to report the sale to a judge as required by OCGA § 44-14-161. We affirmed, finding that because the petition was not presented by Alden to the office of the superior court judge in any manner, he “clearly failed to comply with OCGA § 44-14-161.” Id. Cf. Cornelia Bank v. Brown, 166 Ga. App. 68 (303 SE2d 171) (1983) (The petition for confirmation of sale was presented at the chambers of the superior court judge, and because the judge was not present his secretary, acting upon authority given to her by the judge, stamped the judge’s signature to the order scheduling a hearing on the petition.).

As noted earlier, OCGA § 44-14-161 imposes the requirement for service of the report on the judge within 30 days of the sale. See Bridges v. CB&T Bank of Middle Ga., 306 Ga. App. at 278. We can find no cases, nor does the Bank cite any, where we have imputed notice to a superior court judge who has not acknowledged that it gave someone else the authority to receive notice on its behalf.

Although the Bank argues that in a previous case, its attorney had presented a petition for confirmation “in open court” and the same superior court judge assigned the present case had instructed him to file the petition with the clerk of court, that circumstance is distinguishable because in that case the trial judge, after being notified in court of the petition, directed the Bank to file the document with the clerk. No such direction was given in this case. Absent evidence showing, at the very minimum, that the trial judge delegated authority to another individual to receive the report pursuant to OCGA § 44-14-161, we decline to ascribe notice to a trial court who denies receiving it, especially as “[njothing in [that Code section’s] language imposes an evidentiary or procedural requirement that any such report to the superior court be formally tendered. ...” Stepp v. Farm &c. Life Ins. Co., 222 Ga. App. 257, 258 (1) (474 SE2d 108) (1996).

Decided March 22, 2011.

Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Benjamin J. Colson, R. Edward Reddick, Jr., for appellant.

Ratchford & Rafter, Richard R. Rafter, for appellee.

Accordingly, the trial court did not err in dismissing the petition for confirmation of the foreclosure sale.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.