author: ANDREWS, Presiding Judge.

text:
    A13A1624.
    THE STATE v. COHRON.
    (749 SE2d 416)
   ANDREWS, Presiding Judge.

The State appeals following the trial court’s grant of Michael Cohron’s special demurrer and motion to quash the indictment. For the following reasons, we reverse.

The record shows that Cohron was arrested after engaging in chat sessions, including a webcam video in which he masturbates, with an undercover officer who identified himself to Cohron as D’anea, a 14-year-old girl with a screen name of “absolutelyordinary14.” Cohron was subsequently arrested and charged with three counts of obscene Internet contact with a child (OCGA § 16-12-100.2 (e) (1)).

When Cohron filed his first motion to quash the indictment, the State did not oppose the motion, announcing its intention to reindict. The State filed a subsequent indictment, identifying the victim with more specificity but declining to include the name of the undercover officer. Cohron filed another special demurrer and motion to quash, which the trial court granted.

In ruling on the motion, the trial court relied on two cases, State v. Grube, 315 Ga. App. 885 (729 SE2d 42) (2012), which is almost directly on point, and Dennard v. State, 243 Ga. App. 868 (534 SE2d 182) (2000). After the trial court issued its ruling, the Supreme Court of Georgia overruled Grube, and distinguished Dennard. See State v. Grube, 293 Ga. 257 (744 SE2d 1) (2013).

In determining the constitutional sufficiency of an indictment, the test

is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

State v. English, 276 Ga. 343, 346 (578 SE2d 413) (2003). “Where a defendant challenges the sufficiency of an indictment by the filing of a special demurrer before going to trial, he is entitled to an indictment perfect in form.” Grube, 293 Ga. at 259.

1. Cohron argued, and the trial court held, that the indictment did not sufficiently identify the victim. The indictment charged that Cohron unlawfully and intentionally had “contact with someone he believed to be a child under the age of sixteen (16) years, to wit: a person identified as a fourteen (14) year old female named D’anea with a screen name of absolutelyordinaryl4, via a computer Internet service.” This identification was sufficient.

“The requirement that an indictment identify the victim of a crime against a person ... does so best when it provides the full and correct name of the victim.” Grube, 293 Ga. at 260. “Because this cannot be accomplished in every circumstance, however, our cases allow for identification of the victim by the name by which he or she is generally known, always keeping in mind that the constitutional purpose for identifying the victim is to apprise the defendant of the charges against him.” Id.

Application of these criteria is not altered, but is informed, by the fact that a defendant’s criminal conduct is revealed through the use of an Internet “sting” operated by law enforcement. In such cases, the undercover officer may be the person against whom a defendant’s conduct is directed, but the defendant knows the officer only by the fictitious persona, alias, or on-line moniker created for purposes of the investigation. A requirement that the officer’s true identity be included in the indictment would do nothing to further the goal of apprising the defendant of what he must be prepared to meet at trial. Rather, meaningful notice of the specific conduct forming the basis of the criminal charges in such cases is provided if the victim is identified by the alias or name by which he or she is known to the defendant.

Id. at 261. Thus, the Supreme Court held that the indictment identifying the victim as “ ‘Tiffany,’ a person he believed to be a 14-year-old girl,” was sufficient. Id. at 258.

Likewise, the indictment in this case informs Cohron of the essential elements of the charges against him, identifies the victim by the name known to him, and informs him that D’anea is someone he “believed to be a 14-year-old girl.” “That the victim may also have been a fictitious persona created by an undercover officer is a fact to be proved at trial, and its absence from the indictment is not a material defect.” Grube, 293 Ga. at 262.

2. The Supreme Court in Grube also held that the indictment did not violate the second criteria, protecting a defendant from double jeopardy in a subsequent proceeding.

The second criterion of a valid indictment, protecting a defendant from double jeopardy in a possible future proceeding, is similarly met by the instant indictment. Because the indictment not only informs Grube that the charges arise out of conduct directed toward Tiffany but also sets out the dates on which the alleged conduct took place and with respect to counts two and three, informs him with some precision of the content of the alleged communications, it cannot reasonably be argued that he is not protected from the dangers of double j eopardy. This is especially true because Grube will be free to use other parts of the record in this case to distinguish charges brought against him in a potential future proceeding.

Decided October 4, 2013.

Daniel J. Porter, District Attorney, Karen M. Harris, Charles W. Grimsley III, Assistant District Attorneys, for appellant.

Crawford & Boyle, Eric C. Crawford, for appellee.

Id. at 262.

The Supreme Court also distinguished Dennard v. State, stating that “[t]he Court of Appeals reversed, finding the indictment deficient because it charged Dennard with attempting to commit various crimes against an actual unnamed victim, and nothing in the indictment put him on notice of who that victim is.” (Punctuation omitted.) Grube, 293 Ga. at 263. Further, “nothing in the indictment indicated that the intended victim was in fact an undercover officer as opposed to an actual child.” Id.

Therefore, because the indictment in Dennard “failed to identify the victim by any means and failed to inform the defendant, explicitly or implicitly, that the victim was not an actual child or person,” it did not apply in Grube and does not apply in this case. Grube, 293 Ga. at 263.

Accordingly, Cohron’s indictment is not subject to special demurrer, and the trial court erred in granting his motion to quash.

Judgment reversed.

Dillard and McMillian, JJ., concur.

       OCGA § 16-12-100.2 (e) (1):
      Aperson commits the offense of obscene Internet contact with a child if he or she has contact with someone he or she knows to he a child or with someone he or she believes to be a child via a computer wireless service or Internet service, including, but not limited to, a local bulletin board service, Internet chat room, e-mail, or instant messaging service, and the contact involves any matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse that is intended to arouse or satisfy the sexual desire of either the child or the person, provided that no conviction shall he had for a violation of this subsection on the unsupported testimony of a child.


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A13A1221.
    SINGLETON v. THE STATE.
    (749 SE2d 753)
   Phipps, Chief Judge.

A jury found Alajuwon Singleton and his co-defendant, David Raesham Milam, guilty of armed robbery and possession of a firearm during the commission of a crime. Convicted of these crimes, Singleton contends in this appeal that the trial court erred in denying his motion to suppress evidence of the armed robbery victim’s pretrial and trial identifications of him as one of the two perpetrators. Singleton also contends that the trial court erred by impaneling and swearing a jury to try his case, positing that the record does not show that he was ever arraigned. Finding no reversible error, we affirm.

The trial evidence showed that, during the renovation of residences within a housing project, a construction superintendent was robbed at gunpoint in his company’s office trailer at the construction site. The superintendent provided the following account. At about 9:30 a.m. on August 21, 2008, two men came into the trailer, where the superintendent was working alone. The superintendent was facing the men as they approached him. One of the men put a handgun to the superintendent’s head. The men forced the superintendent to lean over the desk as they removed the contents of his pockets, including his billfold and cell phone. As they turned to leave, they dropped his billfold, but took with them cash and a credit card from his billfold, as well as his cell phone. The two robbers fled on foot, and the superintendent observed the route they took. The superintendent summoned the police, who arrived at the scene by 9:40 a.m.

Upon obtaining from the superintendent descriptions of the assailants and the direction in which they had fled, the police immediately issued a be on the lookout for the perpetrators, and law enforcement officers canvassed the area indicated by the superintendent. Reports from community bystanders led police to a certain residence within the housing project, where they found Singleton and Milam. Singleton was in an upstairs bedroom, sitting on a bed and holding a video game controller; the television was on; and on the floor, about three feet from him, was a loaded gun magazine. A subsequent search of that bedroom yielded the superintendent’s cell phone, which had been disassembled, and the superintendent’s credit card, which was found stashed amongst clothing in the bedroom closet. Milam was discovered in the closet of another upstairs bedroom. According to the officer who found Milam, “He was just standing there.”

Police took Singleton and Milam into custody, then transported them in separate cars to the office trailer to determine whether the superintendent recognized either of them. The superintendent immediately identified Singleton and Milam as the two individuals who had taken his belongings from him at gunpoint. Again, in court, the superintendent identified Singleton and Milam as the armed robbers.

1. Singleton challenges the admissibility of the superintendent’s pretrial and trial identifications of him. He claims that the trial court erred in denying his motion to suppress that evidence, maintaining that the showup procedure employed by the police was impermissibly suggestive. Singleton points out that he was displayed to the superintendent stepping out of a police car and while he was in handcuffs. Singleton points out further that when he was apprehended by police, he was not wearing clothing that matched the superintendent’s description of the clothing worn by the perpetrators.

“Although a one-on-one showup is inherently suggestive, identification testimony produced from the showup is not necessarily inadmissible.”

We must apply a two-part test to determine whether the showup was impermissibly suggestive, and, if the showup was impermissibly suggestive, we then consider the totality of the circumstances to determine whether a very substantial likelihood existed of irreparable misidentification.

If the answer to the first question is negative, we need not consider the second question; conversely, we may immediately proceed to the second question and, if the answer thereto is negative, we may entirely pretermit the first question. Thus, even if we were to assume without deciding that “the circumstances surrounding [Singleton’s] identification rendered the showup impermissibly suggestive, the evidence is inadmissible only if under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification.”

At the pretrial hearing on Singleton’s motion to suppress evidence of his identification by the superintendent, a law enforcement officer testified that the showup was conducted between 11:00 and 11:25 a.m., which was immediately after Singleton and Milam were taken into custody. When Singleton stepped out of the patrol car, the superintendent identified him as one of the two perpetrators. When Milam stepped out of a different patrol car, the superintendent identified him as the other perpetrator, distinguishing further that Milam had been the one holding the gun.

The superintendent testified at the pretrial hearing that the criminal episode had lasted about one minute, during which time, he had noted that both assailants were wearing white tee-shirts, that one assailant was wearing red pants, and that the other was wearing black pants. The assailants had worn nothing covering their faces, and the superintendent discerned them as black males, about 21 years old. Additionally, he noted that they were approximately six feet tall and with slim builds. And he continued to observe them after they exited the office trailer. About an hour and a half after the armed robbery, the superintendent recalled, he identified Singleton and Milam as his assailants.

Prior to so identifying Singleton and Milam, the superintendent recounted further at the hearing, police had shown him other suspects. About 30 to 45 minutes after the armed robbery, police brought two individuals to the superintendent, but he determined that neither had perpetrated the crimes. Thereafter, police took the superintendent to a nearby location and asked him whether a specified individual there had been involved; that third individual, the superintendent determined, had not been involved. With respect to those three individuals, the superintendent recalled at the pretrial hearing, “They all met the clothes description and the general description of— that I had given the first officer.” But after studying the faces of those individuals, the superintendent testified, he concluded, “[I]t wasn’t the people.”

The evidence thus showed that, when the perpetrators entered the office trailer that morning, their faces were not covered, and the superintendent noted their facial features, discerning each intruder’s gender, race, and age. The two intruders were clad in tee-shirts and pants and stood close enough to the superintendent to put a gun to his head and remove property from his pockets; he noted each man’s height and build. When the robbers exited the office trailer, the superintendent continued to observe them as they ran away. The superintendent rejected initial individuals presented to him for possible identification, based on their facial features, despite clothing similarities. And the superintendent’s identification of Singleton (and Milam) took place within two hours of the armed robbery. Although Singleton points to discrepancies between the robbers’ clothing and his clothing at the time he was apprehended by police, “the existence of some inconsistencies did not render [the superintendent’s] testimony inadmissible, but rather [presented] a matter for the jury.”

As identity is a question for the trier of fact, the credibility of the witness making such identification is not to be decided by this [c] ourt where a witness identifies a defendant. Instead, the witness’s credibility as well as the weight given his testimony on the perpetrator’s identity were issues for the jury.

Under the totality of circumstances presented here, the trial court was authorized to find that the showup procedure employed by police here did not give rise to a substantial likelihood of irreparable misidentification. The trial court, therefore, did not err in concluding that the superintendent’s identifications were sufficiently reliable to be admitted at trial.

Consequently, Singleton’s evidentiary challenge affords him no relief from his judgment of conviction.

Decided October 7, 2013.

Edgar A. Callaway, Jr., for appellant.

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

2. Singleton contends that the trial court erred “by impaneling and swearing a jury to try [him] prior to arraignment.” Singleton points out that the record contains no plea of not guilty and no waiver of arraignment, and thus posits, “Therefore the issue of [his] guilt was never joined and it was reversible error to place him in jeopardy and try him before a jury.”

It has long been held, however, that a defendant who has been indicted is presumed to waive formal arraignment “by his silent acquiescence, if, before the case is submitted to a jury on its merits, he does not bring to the attention of the court that he has not been formally called upon to enter a plea to the indictment.” Singleton makes no assertion that he objected to the (alleged) lack of an arraignment either before the case was submitted to the jury or before the guilty verdicts were returned; and our review of the record reveals no such objection. Furthermore, Singleton makes no claim that he was unaware of the charges against him. Given the foregoing, this contention provides Singleton no relief from his judgment of conviction.

Judgment affirmed.

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

        Butler v. State, 290 Ga. 412, 414 (3) (721 SE2d 876) (2012) (citation and punctuation omitted).

        Tucker v. State, 316 Ga. App. 119, 121 (728 SE2d 764) (2012) (citation and punctuation omitted). See generally McBride v. State, 291 Ga. 593, 594-595 (2) (732 SE2d 757) (2012) (enumerating factors to be considered in answering the question whether there was a very substantial likelihood of irreparable misidentification), citing Neil v. Biggers, 409 U. S. 188, 199 (III) (93 SCt 375, 34 LE2d 401) (1972).

        Butler, supra at 415 (3); Tucker, supra.

        Butler, supra (citations omitted); see Tucker, supra.

        Butler, supra; see Tucker, supra at 122 (determining that clothing discrepancies were issues for the jury).

        Butler, supra (citation and punctuation omitted); Tucker, supra (citation and punctuation omitted).

       See Butler, supra at 414-416 (3) (trial court could conclude that a substantial likelihood of irreparable misidentification did not arise from a one-on-one showup, such that victim’s testimony about his pretrial identification of defendant at the showup was admissible at trial, where victim had opportunity to view the attacker’s face and focused his attention thereon, less than one hour elapsed between the crime and the showup, and victim’s description of the attacker was fairly complete); Mercer v. State, 268 Ga. 856, 857 (3) (493 SE2d 921) (1998) (concluding that one-on-one showup that was conducted immediately after defendant was apprehended did not give rise to substantial likelihood that eyewitness to assault mistakenly identified defendant as one of the two assailants, where witness had observed assailants for more than 30 minutes, less than 24 hours prior to showup, and positively identified defendant); Jones v. State, 258 Ga. 25, 27 (3) (365 SE2d 263) (1988) (rejecting claim that in-court identification was impermissibly tainted by pretrial showup identification, where witness testified that he observed the defendant at the victim’s home for “three or four seconds” in a well-lighted area and was able to give an accurate and detailed description of the appellant to officers who arrested appellant based on this description and where witness testified that his in-court identification of the appellant was based solely on his observations at the scene of the crime); Tucker, supra at 121-122 (rejecting claim that showup created risk of substantial likelihood of irreparable misidentification, where crime occurred in daylight, eyewitness observed both suspects approach and ultimately enter victims’ home after investigating methods of entry, eyewitness followed suspects after they exited home, description eyewitness provided to police was detailed and matched defendant and defendant’s passenger who were stopped by police soon afterward, and showup occurred within one-half hour after crime).

        Butler, supra at 415-416 (3); see Tucker, supra.

        Hudson v. State, 117 Ga. 704 (1) (45 SE 66) (1903) (reasoning that a party who goes into court “practically on a plea of not guilty should not, after verdict, he permitted to assign as a reason for setting aside the verdict that he was not asked to say whether he was guilty or not guilty before the trial”) (citation omitted); see Bunn v. State, 150 Ga. App. 294, 295 (3) (257 SE2d 364) (1979) (“The law of this State is well settled that a defendant may waive arraignment and plea by failure to call the attention of the court to this defect in the proceedings at the proper time, and when it does not appear that he made any mention of the fact until after verdict he is conclusively presumed to have done so.”).

       Accord Gomillon v. State, 236 Ga. App. 14, 18 (3) (d) (512 SE2d 640) (1999) (“Waiver of arraignment provides no basis for a claim of ineffective assistance of counsel when [defendant] does not claim he was unaware of the charges against him, which is the purpose of arraignment.”) (citation omitted).

       See Hudson, supra; Gomillon, supra; Bunn, supra.


author: Branch, Judge.

text:
    A13A1513.
    REMBERT v. THE STATE.
    (749 SE2d 744)
   Branch, Judge.

Craig Renard Rembert, Jr., was tried by a Houston County jury and convicted of a single count of armed robbery. He now appeals from the denial of his motion for a new trial, arguing that the trial court erred in denying his motion for a continuance and instead excluding his alibi evidence. Rembert also claims that the trial court erred in admitting testimony that a witness had identified him from a video recording of the robbery, in admitting similar transaction evidence, and in denying his motion for a mistrial. Additionally, because the trial judge had served as the prosecutor in the case resulting in the similar transaction conviction, Rembert contends that the judge should have recused herself sua sponte from the current case. Finally, Rembert asserts that he received ineffective assistance of counsel. We find no merit in any of these claims of error and therefore affirm the denial of Rembert’s new trial motion.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that on the evening of January 9, 2011, Heather Jacobs was working at Seanna’s Lucky Cabin, a business that operated a game room and gift shop. The entrance to the business was always locked, and to gain admittance patrons had to ring the doorbell. An employee would admit prospective customers only if they were known to the employee or could provide the employee with a reference — i.e., the name of another known customer who had referred them to the business. On the night in question, Jacobs admitted a man she later identified as Rembert to Seanna’s. She admitted the man because, even though she did not know him by name, she had seen him in the business before and recognized him as a customer. The man waited until he was the only customer in the business and then approached Jacobs and asked her if she could change a $20 bill. When Jacobs opened the cash register to make change, the man pulled out a gun and told her to give him all the money in the register. After Jacobs complied with the man’s demand, he took her cell phone and forced her into the shop’s restroom. Following the incident, Jacobs used the cell phone of an arriving customer to report the robbery.

The robber was captured on video by the security cameras in the business. Seanna Milam, the business owner, provided police with a copy of videos taken by two different cameras and she also kept a copy of the videos for herself. The day after the robbery Milam watched the videos with her daughter and her daughter’s boyfriend, Christopher Daly. Daly, who had gone to high school with Rembert, thought he recognized Rembert on the video. Daly located a picture of Rembert in his high school yearbook, which Daly’s girlfriend then e-mailed to Jacobs. Jacobs recognized the picture as being that of the robber and provided Rembert’s name to the investigating officer. Police then prepared a photographic lineup for Jacobs, using the photograph from Rembert’s driver’s license and the photographs of five other individuals who resembled Rembert. When shown the pictures, Jacobs “immediately” pointed to Rembert’s picture and identified him as the man who robbed her. Based on this identification, Rembert was arrested and charged with armed robbery.

Prior to trial, the State served a discovery request on defense counsel in which it asked that Rembert provide the State with notice of any alibi evidence he intended to present no later than five days prior to trial. Defense counsel did not respond to this request. On the morning of trial, before the jury was struck, Rembert’s lawyer requested a continuance, stating that Rembert had just informed him that Rembert had an alibi. The attorney explained that Rembert’s mother and brother would serve as alibi witnesses, as both claimed that Rembert was with them at the mother’s home at the time of the robbery. Rembert’s lawyer further stated that Rembert’s mother had apparently sent the lawyer an affidavit setting forth facts in support of her son’s alibi, but that he had never received it. According to the lawyer, he had been unable to have significant contact with Rembert prior to trial because the current case had led to the revocation of Rembert’s probation on a different charge, and Rembert had been removed from the county jail and sent to prison.

In a subsequent discussion with the trial judge, Rembert admitted that he did not tell his attorney about his alibi until the morning of trial. Rembert also stated that this was because he only met with his attorney on two occasions: at the probation revocation hearing and the morning of trial. Rembert also claimed that he had tried to talk to his defense counsel at the probation revocation hearing about a number of issues, including his alibi, but the lawyer had told him that such information would “matter” only at trial.

The judge denied the motion for a continuance, noting that the current charge had served as the basis for the revocation of Rembert’s probation; that the lawyer had represented Rembert at the probation revocation hearing; that the hearing was a full evidentiary hearing; and that no mention of an alibi was made at that hearing. The trial court subsequently granted the State’s motion to exclude Rembert’s alibi evidence, based on Rembert’s failure to provide timely notice of his intent to present such evidence.

Also prior to trial, the State provided notice that it would be presenting similar transaction evidence. Following a hearing, the trial court ruled that it would allow the evidence, finding that it was probative both as to Rembert’s bent of mind and course of conduct. The State then pointed out that the trial judge had served as the prosecutor in the case that resulted in the similar transaction conviction. The trial judge expressed that she had been unaware of this fact, stating: “I will note for the record ... I have zero independent recollection about [Rembert’s earlier] case, except Mr. Rembert’s name was vaguely familiar to me.”

Following his conviction, Rembert filed a motion for a new trial. At the hearing on that motion, Rembert presented evidence regarding his alibi defense and whether his attorney was or should have been aware of that defense prior to trial. Rembert testified that he gave his attorney the information related to his alibi on the day of his probation revocation hearing, several weeks in advance of trial. He reminded his attorney of his alibi on the morning of trial, at which point the lawyer made the unsuccessful motion for a continuance. Rembert also introduced the signed, notarized affidavits of both his mother and his brother, each of which was dated July 14, 2011, and in which both the mother and the brother averred that at the time of the robbery Rembert was with them, at the mother’s home. Both the mother and the brother testified at the hearing and confirmed the information set forth in their respective affidavits. Rembert’s mother also testified that she gave the affidavits to Rembert’s trial lawyer several weeks before trial, and that the attorney then instructed her to have the affidavits notarized. The affidavits were notarized within a week after the mother’s conversation with the attorney and the notarized copies were then sent to him.

Rembert’s trial counsel testified that the notarized affidavits of the mother and brother were in his case file, and that he received them in his office on July 18, 2011, the day of jury selection. Specifically, the attorney returned to his office following jury selection and found the affidavits in his in-box. Although he could not remember the precise date he first learned of Rembert’s alibi, the attorney was sure that he had no knowledge of the alibi at the probation revocation hearing. Additionally, there was nothing in the attorney’s file to indicate he had any information concerning Rembert’s alibi until the morning of jury selection, and he could not recall any conversation with Rembert’s mother prior to that time in which she mentioned an alibi. The attorney further testified that if he had been informed of the alibi in advance of trial, he would have followed his standard practice of providing alibi notice to the State and subpoenaing the necessary witnesses. His file, however, reflected that he had done neither of these things.

The trial court denied Rembert’s new trial motion, and this appeal followed.

1. We first address Rembert’s claim that the trial court erred in denying his motion for a continuance and granting the State’s motion to exclude his alibi evidence. Under Georgia law, a defendant is required, upon demand by the State, to provide written notice of his intent to rely upon alibi evidence, and such notice must be provided no later than ten days prior to trial. OCGA § 17-16-5 (a). Where a defendant fails to provide such notice, a trial court

may order the defendant to permit the discovery or inspection [of the evidence or] interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed.

OCGA § 17-16-6. The choice of what sanction, if any, to impose forthe defendant’s discovery violation, including a failure to provide the State with notice of his alibi, is within the discretion of the trial court. Theophile v. State, 295 Ga. App. 517, 520 (1) (672 SE2d 479) (2009). Here, Rembert contends that the trial court abused its discretion in excluding his alibi evidence because there was no showing that Rembert acted in bad faith or that the State was prejudiced by his failure to disclose this evidence in a timely fashion. We disagree.

When excluding evidence based on a party’s discovery violation, a trial court is not required to make specific findings of fact regarding bad faith and prejudice. Theophile, 295 Ga. App. at 520 (1). Rather, “[i]mplicit in the trial court’s decision to exclude [the evidence] is the determination that prejudice and bad faith were shown.” (Punctuation and footnote omitted.) Id. And on appeal, we will affirm the trial court’s implicit findings of bad faith and prejudice so long as there is some evidence to support them. Id.

With respect to the element of prejudice, a court may infer that the State is prejudiced when the prosecution “does not have the full ten days to investigate alibi evidence.” (Citations omitted.) Huckabee v. State, 287 Ga. 728, 732 (3) (699 SE2d 531) (2010). This is because where “[t]he State is denied the ten days authorized by law in which to investigate and refute the alleged alibi,... the development of... evidence [to refute the alibi] is clearly hampered, if not rendered impossible.” (Citations and punctuation omitted.) Freeman v. State, 245 Ga. App. 384, 385 (2) (537 SE2d 776) (2000). Thus, the fact that the State did not learn of Rembert’s alleged alibi until the morning of jury selection supports the trial court’s implicit finding that the prosecution was prejudiced by Rembert’s failure to comply with the State’s discovery request.

Additionally, Rembert presumably knew of his alibi at the time of his arrest in March 2011. Yet by his own admission, he failed to mention that alibi to the arresting officer or the investigating officer. Nor did he assert his alibi at the evidentiary hearing held on the issue of his probation revocation, and he admitted that he did not inform his attorney of his alibi until the morning of trial. Moreover, during the approximately six months that elapsed between Rembert’s arrest and trial, neither of his alibi witnesses (who were his mother and his brother) came forward to inform either the prosecution or Rembert’s lawyer that Rembert was with them at the time of the robbery. These facts support a finding that Rembert acted in bad faith when he failed to provide the State with timely notice of his alibi. See Freeman, 245 Ga. App. at 385 (2) (bad faith shown where defendant “presumably knew about the alleged alibi witness but failed to disclose her name to defense counsel until the day before trial, and the only excuse defense counsel offered for [his client’s] failure to notify him of the witness was that [the client] had ‘been in the system’ ”); Huckabee, 287 Ga. at 732 (3) (defendant acted in bad faith where “[d]uring the ten or eleven months” that lapsed between the defendant’s arrest and his trial, “he never advised his attorneys he had an alibi, and none of his proposed alibi witnesses came forward to say [defendant] was somewhere else at the time of the crime [,]” and defendant “provided no justification or valid excuse for his failure to disclose his alibi at an earlier time”); Sullivan v. State, 242 Ga. App. 839, 841 (4) (531 SE2d 367) (2000) (fact that belatedly disclosed alibi witnesses were the defendant’s relatives, friends, neighbors, co-workers, and employers supported the trial court’s finding that defendant acted in bad faith in failing to identify those witnesses in a timely fashion).

As the foregoing discussion demonstrates, there is some evidence supporting the trial court’s implicit findings that in failing to come forward earlier with information concerning his alibi, Rembert acted in bad faith and that his conduct prejudiced the State. Accordingly, the trial court did not abuse its discretion when it denied Rembert’s motion for a continuance and instead excluded Rembert’s alibi evidence.

2. Rembert argues that the trial court erred in allowing Christopher Daly to testify that, upon viewing the video of the robbery, he believed he recognized Rembert. As Rembert acknowledges in his brief, however, he did not object to Daly’s testimony at trial. He nevertheless contends that this alleged error may be considered under a “plain error” analysis. This argument is incorrect.

Under Georgia law, plain error review in criminal cases is limited to alleged error occurring “in three circumstances: the sentencing phase of a trial resulting in the death penalty, a trial judge’s expression of opinion [as to what the evidence has shown], and a jury charge affecting substantial rights of the parties.” (Citation omitted.) Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012). Thus, because “plain error review does not currently apply to allegations regarding the improper admission of evidence,” (citations omitted) id., and because Rembert failed to object to the testimony at issue, this claim of error is not properly before this Court. Jackson v. State, 292 Ga. 685, 689 (3) (740 SE2d 609) (2013).

Nevertheless, because Rembert also argues that trial counsel was ineffective in failing to object to Daly’s testimony, we will review the admission of that testimony in the context of Rembert’s ineffective assistance of counsel claim. See Division 6 (a), infra.

3. At trial, the State introduced similar transaction evidence relating to Rembert’s previous conviction for robbery by force and on appeal, Rembert contends that the admission of this evidence was error. We disagree.

The State may introduce similar transaction evidence after first demonstrating that it seeks to use the evidence of an independent offense or act for an appropriate purpose, such as to show motive, intent, bent of mind or course of conduct; that sufficient evidence establishes that the defendant committed the prior act; and that the similarities between the independent offense or act and the crime charged are such that proof of the former tends to prove the latter. Cherry v. State, 299 Ga. App. 194, 196 (1) (682 SE2d 150) (2009). “A trial court’s determination that similar transaction evidence is admissible will not be disturbed absent an abuse of discretion.” (Citation, punctuation and footnote omitted.) Id.

At trial, the State presented the testimony of the victim of Rembert’s previous crime, who testified that at the time of the incident she was working at a local skating rink; that as the business was closing Rembert came in with two other men; and that Rembert pointed a gun at her and demanded money. The victim further explained that although Rembert’s face was partially concealed by a bandana, she recognized Rembert because he had been a “frequent patron of the skating rink for many years.”

The trial court admitted the similar transaction evidence for the purpose of showing Rembert’s bent of mind and course of conduct. Rembert argues that the admission of this evidence constitutes error, because the above-referenced testimony, which showed that Rembert worked with accomplices and wore a mask, demonstrated that the prior incident lacked a sufficient degree of similarity with the current crime. This argument is without merit.

“To be admissible, a similar transaction need not be identical to the crime charged in every respect. This is particularly true where, as here, the evidence is offered to prove something other than identity.” (Citation and footnote omitted.) Cherry, 299 Ga. App. at 197 (1). Thus, “[w]hen considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.” (Citation and punctuation omitted.) Phillips v. State, 287 Ga. 560, 564 (4) (697 SE2d 818) (2010). In both incidents at issue, the victims were women who worked at a local business that Rembert patronized. Each of the robberies was timed so that the female employee was alone in the business, and in both instances the robber pulled a gun, pointed it at the victim, and demanded money. Given these similarities, and because the jury was allowed to consider this evidence only in determining Rembert’s bent of mind and course of conduct rather than his identity as the robber, the trial court did not abuse its discretion in admitting the similar transaction evidence. See Grimes v. State, 280 Ga. 363, 364-365 (2) (628 SE2d 580) (2006) (trial court did not err in admitting evidence of defendant’s prior act of armed robbery, which occurred nearly 20 years earlier, “because, like the present crime, it involved the robbery of the proceeds of a business establishment through the use of a handgun and was, therefore, sufficiently similar to the current armed robbery charges”) (citation omitted); Guyton v. State, 272 Ga. 529, 532 (3) (531 SE2d 94) (2000) (sufficient similarity between prior incident and crime for which defendant was being tried where “[bjoth offenses involved attacks upon women who were alone in which a silver handgun was pointed at the victims and they were ordered to relinquish their property”).

4. During the victim’s testimony at trial, she was asked how many times she had seen the video of the robbery and she responded, “I saw it for the first time during the parole revocation hearingf,] as I explained what was happening.” Defense counsel then moved for a mistrial based on the witness’s reference to the parole revocation hearing. The trial court denied that motion, and Rembert challenges this ruling on appeal. We find no error.

“Whether to grant a mistrial is a matter within the discretion of the trial court, and that discretion will not be interfered with on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” (Punctuation and footnote omitted.) Jackson v. State, 316 Ga. App. 128, 131 (2) (728 SE2d 774) (2012). When deciding whether, in denying a motion for a mistrial, the trial court abused its considerable discretion, we consider, inter alia, the other evidence in the case. See Russell v. State, 308 Ga. App. 328, 330 (707 SE2d 543) (2011). Here, as the trial court pointed out, the crime for which Rembert was on probation was presented to the jury as a similar transaction. And the jury instruction on similar transaction made clear that the jury could consider evidence that Rembert had previously committed another crime only for the limited purpose of determining Rembert’s bent of mind or course of conduct. As the jury was already aware that Rembert had committed a prior crime, the mere mention of a “parole” revocation hearing supplied no new information to the jury. Accordingly, a mistrial was not essential to the preservation of Rembert’s right to a fair trial. Under these circumstances, we find no abuse of discretion by the trial court in denying Rembert’s motion for a mistrial.

5. Rembert acknowledges that he did not move to recuse the trial judge, but nevertheless contends that the trial judge should have recused herself sua sponte and that her failure to do so constitutes reversible error. Again, we disagree.

The only basis for recusal asserted by Rembert is that the judge had served as the assistant district attorney who prosecuted him with respect to the similar transaction. Under Georgia law, however, “the fact that a judge[,] in the judge’s previous capacity as district attorney!,] prosecuted the defendant on another charge not currently pending before the judge, is not, standing alone, a ground for disqualification.” (Citations omitted; emphasis in original.) Leverette v. State, 291 Ga. 834, 835 (1) (732 SE2d 255) (2012). See also Brown v. State, 307 Ga. App. 99, 105 (3) (a) (ii) (704 SE2d 227) (2010) (“a judge is not automatically disqualified from sitting or acting in criminal cases merely on the ground that the judge, in prior employment, has previously prosecuted the defendant in unrelated criminal proceedings”) (punctuation and footnote omitted). Accordingly, the trial judge’s failure to recuse herself presents no basis for reversal.

6. Rembert argues that trial counsel was ineffective in failing to object to the testimony of Christopher Daly; in failing to move for the recusal of the trial judge; and in failing to consult with Rembert and adequately investigate his case. To prevail on an ineffective assistance claim, Rembert must prove both that his lawyer’s performance was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If Rembert cannot meet his burden of proving either prong of the Strickland test, then we need not examine the other prong. Causey v. State, 319 Ga. App. 841, 842 (738 SE2d 672) (2013).

With respect to the first prong of the Strickland test, deficient performance, Rembert must show that his attorney performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in light of prevailing professional norms. Strickland, 466 U. S. at 687-688 (III) (A). To demonstrate that he suffered prejudice as a result of his attorney’s performance, Rembert must prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694 (III) (B). “This burden, though not impossible to carry, is a heavy onq” Arnold v. State, 292 Ga. 268, 270 (2) (737 SE2d 98) (2013), citing Kimmelman v. Morrison, 477 U. S. 365, 382 (II) (C) (106 SCt 2574, 91 LE2d 305) (1986).

(a) Rembert contends trial counsel should have objected to Daly’s testimony that he recognized Rembert on the video of the robbery because it is “improper to allow a witness to testify as to the identity of a person in a video or photograph when such opinion evidence tends only to establish a fact which average jurors could decide thinking for themselves and drawing their own conclusions.” (Punctuation and footnote omitted.) Grimes v. State, 291 Ga. App. 585, 590 (2) (662 SE2d 346) (2008). Pretermitting whether trial counsel’s failure to object to Daly’s testimony on these grounds constituted deficient performance, Rembert cannot show that this testimony prejudiced him.

The victim testified that she was familiar with Rembert, having seen him on at least one prior occasion at Seanna’s Lucky Cabin, a month or two before the robbery; that she saw the robber’s face multiple times on the night in question; that several times that evening she was within two feet of the robber; and that the room in which she observed the robber was “pretty well lit,” as additional lighting had just been added. The evidence also showed that when shown a photographic lineup that included pictures of Rembert and five other men that resembled him, the victim “immediately” identified Rembert as the robber. Moreover, the victim identified Rembert at trial, and she testified that the man seen on the video was the man who robbed her. The video was played for the jury, and in it the robber’s face can be seen from several different angles. Given the overwhelming evidence identifying Rembert as the robber, he cannot show a reasonable probability that, in the absence of Daly’s testimony, the outcome of his trial would have been different.

Decided October 7, 2013.

Russell K. Walker, for appellant.

George H. Hartwig III, District Attorney, Daniel P. Bibler, Assistant District Attorney, for appellee.

(b) Rembert also contends that trial counsel should have moved to recuse the trial judge, based on the fact that she had previously prosecuted Rembert. As explained in Division 5, supra, however, the judge’s previous prosecution of Rembert, in an entirely separate case, does not by itself constitute grounds for the judge’s recusal. Because a motion to recuse the trial judge would have been meritless, Rembert can show neither that his trial counsel performed deficiently nor that he suffered prejudice as a result of that performance. Williams v. State, 273 Ga. App. 213, 218 (3) (b) (614 SE2d 834) (2005).

(c) Rembert argues that if trial counsel “had adequately consulted with [Rembert] or investigated, he would have learned of. . . Rembert’s alibi sooner” and provided the required notice to the State, and Rembert would have been able to present his alibi evidence at trial. Regardless of whether trial counsel performed deficiently in this regard, Rembert cannot show that he was prejudiced by the exclusion of his alibi evidence, which consisted only of the testimony of his mother and brother. The evidence identifying Rembert as the robber, however, which included eyewitness testimony and a video showing the robber, was overwhelming. “Under these circumstances, [Rembert] cannot show a reasonable probability that the outcome of the trial would have been different had counsel met the notice requirements of OCGA § 17-16-5(a) and presented the alibi defense.” (Footnote omitted.) Jones v. State, 266 Ga. App. 679, 683-684 (2) (598 SE2d 65) (2004).

For all of the reasons set forth above, we affirm the trial court’s denial of Rembert’s motion for a new trial.

Judgment affirmed.

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

       OCGA § 16-8-41 (a).

       The photograph from Rembert’s driver’s license was taken approximately ten years after the photograph from the high school yearbook.

       The conviction was the result of a negotiated plea agreement, pursuant to which Rembert, who had been charged with armed robbery, pled guilty to the lesser offense of robbery by force. At the time of the prosecution and plea agreement, the trial judge was serving as an assistant district attorney, and she signed the plea agreement on behalf of the State.

       Jury selection occurred on July 18, 2011 and trial began on July 19.

       As noted supra, at the motion for new trial hearing, Rembert contradicted his earlier statements and testified that he had informed his attorney of his alibi at the probation revocation hearing. Defense counsel, however, disputed Rembert’s assertion, testifying that he had no knowledge of the purported alibi at the time Rembert’s probation was revoked. The trial court clearly credited Rembert’s statements at the pre-trial hearing and the testimony of defense counsel over Rembert’s testimony at the hearing on his motion for a new trial. “And on appeal, we must accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous.” (Citation and punctuation omitted.) Hughes v. State, 323 Ga. App. 4, 13 (4) (b) (746 SE2d 648) (2013). The record here reveals no such error.

       Again, although Rembert’s mother and brother testified at the motion for new trial hearing that they provided defense counsel with their affidavits attesting to Rembert’s alibi several weeks in advance of trial, that evidence was not undisputed. Trial counsel testified that he did not receive the affidavits until after jury selection had occurred, and the dates on the affidavits themselves reflect that they were executed less than a week before trial. Given this conflicting evidence, the trial court, sitting as the finder of fact, “was authorized to believe the testimony of trial counsel and reject any conflicting testimony from [Rembert’s mother and brother].” (Citation and punctuation omitted.) Hughes, 323 Ga. App. at 13 (4) (b).

       Nor do we find any merit in Rembert’s assertion that the State waived any objection to his discovery violations when it failed to move for a continuance. The case upon which Rembert relies for this argument, Dickerson v. State, 241 Ga. App. 593 (526 SE2d 443) (1999), stands for the proposition that where a party seeks to assert on appeal an error based upon the opposing party’s discovery violations, the appealing party must have sought a remedy for those violations in the trial court. Thus, because Dickerson had failed to seek a continuance to investigate information about a prosecution witness that was not disclosed prior to trial, he had waived his right to argue that, in light of the discovery violation, the trial court erred in admitting the witness’s testimony. Id. at 595 (2). In this case, however, the State was not the party that engaged in the discovery violation and it is not asserting any error on appeal. Rather, the State complained of the violation below and received the relief it requested.

       Georgia’s new Evidence Code, which applies to cases tried after January 1, 2013, allows a court to consider “plain errors affecting substantial rights although such errors were not brought to the attention of the court.” OCGA § 24-1-103 (d). Because Rembert was tried in July 2011, however, this Code section is inapplicable to the current case.

       For trials occurring after January 1,2013, the new Evidence Code permits the admission of similar-transaction evidence for the purpose of proving “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” but not for the purpose of proving “course of conduct” or “bent of mind.” OCGA § 24-4-404 (b). See generally Harvey v. State, 292 Ga. 792, 794 (741 SE2d 625) (2013).

       Although the victim referred to the proceeding as a parole revocation hearing, it appears that it was in fact a probation revocation hearing.

       The trial court offered to provide a curative instruction, but defense counsel declined, stating that he would rather have the issue “left alone.”


text:
    A13A0948.
    MINGLEDOLPH v. THE STATE.
    (749 SE2d 757)
   Branch, Judge.

Dennis Mingledolph was tried by a Richmond County jury and convicted of voluntary manslaughter, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He now appeals from the denial of his motion for a new trial, asserting that the evidence was insufficient to sustain his conviction for voluntary manslaughter and that he received ineffective assistance of counsel. We find no error and affirm.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that Mingledolph’s convictions arise out of the accidental shooting death of Johnny Walter Davis on June 30, 2008. Approximately one year before Davis was killed, Willie Coe stole $2,400 worth of marijuana from one of Mingledolph’s associates, Donte Simmons. On the day of Davis’s death, Mingledolph told Simmons he had just seen Coe in their neighborhood. Simmons’s girlfriend then drove Mingledolph, Simmons, and a man known only as “Block” through the area in search of Coe. When they located Coe, Mingledolph handed Simmons a 9-millimeter pistol, and all three men exited the girlfriend’s car and robbed Coe at gunpoint. During the robbery, Mingledolph encouraged Simmons to shoot Coe, but Simmons instead allowed Coe to leave.

Coe ran off in the direction of Luckey Street. When he arrived on that street, he got into the car of his close friend and associate, Lewis Harmon, who was parked on the curb. An agitated Coe reported to Harmon and Harmon’s girlfriend that he had just been robbed and threatened by Mingledolph and Simmons.

After Coe left the scene of the robbery, Mingledolph, Simmons, and Block returned to the car in which they were riding and began to drive back to the apartment of Simmons’s girlfriend. En route, the group drove down Luckey Street, where they saw and recognized Harmon’s white Suburban. Knowing that Harmon was a friend of Coe’s, Block indicated that the group should drive away from the area, to avoid any additional confrontations. Mingledolph, however, asked to be let out of the car; before Mingledolph left the vehicle, Simmons.returned the 9-millimeter pistol to him. As Mingledolph exited the automobile, Simmons’s girlfriend noticed that Mingledolph was holding his hand over his back pocket, in an apparent attempt to conceal his gun from view.

When Mingledolph got out of the car in which he was riding, Harmon stepped out of his own vehicle to greet Mingledolph. Fearing that there would be further trouble between Mingledolph and Coe, Harmon told Mingledolph that narcotics officers were nearby and indicated that Mingledolph might want to leave the area. During this time, it appeared that Mingledolph was attempting to see through the Suburban’s windows to determine what passengers were in the vehicle. Because of the vehicle’s tinted windows, however, its rear passengers were not readily visible. According to Harmon’s girlfriend, as Mingledolph was attempting to look into the Suburban’s windows, Coe was in the back of the car attempting to conceal himself from view.

Mingledolph walked away from the Suburban and toward some empty houses across the street. Harmon then went into a nearby house to purchase marijuana. After a few minutes had passed, Coe armed himself with Harmon’s 10-millimeter pistol and left the car to see why it was taking Harmon so long to complete his transaction. Shortly after Coe exited the Suburban, he and Mingledolph became engaged in a gun battle. According to Harmon’s girlfriend, who was the only eyewitness to testify at trial, the battle began when Mingledolph saw Coe and fired at him; Coe then returned fire. During their exchange of gunfire, Mingledolph was positioned at the back of a pickup truck owned by Johnny Davis, which was parked on the curb. Coe was positioned at the front of the vehicle, and both men were using the truck to shield themselves as they fired bullets at one another. The gunfight ended when Mingledolph fled the scene.

Davis, who was in his truck at the time, was struck in the head by a bullet and killed. Although numerous shell casings and bullets from both weapons were recovered at the scene, no bullet was recovered from Davis’s body. Thus, investigators were unable to determine whether the bullet that killed Davis came from Mingledolph’s or Coe’s gun.

A grand jury indicted both Mingledolph and Coe on charges of malice murder, felony murder while in the commission of aggravated assault, and possession of a firearm during the commission of a felony; in separate counts, each man was also charged with possession of a firearm by a convicted felon. The two men were tried together. At trial, none of the four witnesses Mingledolph’s lawyer had subpoenaed to testify on his behalf appeared. Thus, after his lawyer called those witnesses to the stand and then announced they were not present, the attorney rested without presenting any witnesses or other evidence on Mingledolph’s behalf.

The jury found Coe guilty of malice murder and all remaining charges. With respect to the malice murder charge, the jury found Mingledolph guilty of the lesser included offense of voluntary manslaughter; it also found him guilty of all remaining charges.

1. Mingledolph first contends that the evidence is insufficient to sustain his conviction for voluntary manslaughter. In addressing this enumeration of error we ask whether, when viewed in the light most favorable to the jury’s verdict, “the record contains some competent evidence to prove each element of the crime [ ] of which the defendant was convicted.” (Citation and punctuation omitted.) Lee v. State, 320 Ga. App. 573, 576 (1) (740 SE2d 307) (2013). If the record does contain such evidence, then we must uphold the conviction. Id.

Mingledolph’s challenge to the sufficiency of the evidence is based on Georgia’s self-defense statute, OCGA § 16-3-21. That statute provides, in relevant part:

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

OCGA § 16-3-21 (a).

In support of his self-defense argument, Mingledolph points out that although Harmon’s girlfriend testified at trial that Mingledolph fired the first shot, this statement was contradicted by the statement the girlfriend gave to police shortly after the incident. In that statement, which was introduced at trial, the girlfriend told police that it looked as though Coe left the Suburban and then attempted to “sneak up on” Mingledolph; that Coe fired the first shot at Mingledolph; and that Mingledolph then returned fire. Additionally, in his statement to police following the incident, Harmon also reported that Coe left the Suburban and tried to “sneak up on” Mingledolph. Mingledolph contends that this evidence supports the conclusion that Coe was the aggressor and that he was justified in returning Coe’s fire. And given that the evidence supported his theory of self-defense, Mingledolph reasons that the evidence could not support his conviction for voluntary manslaughter. We disagree.

Mingledolph’s argument fails because it does not acknowledge subsection (b) of the self-defense statute. That subsection, on which the jury was charged, states that a defendant is not entitled to claim self-defense where the evidence shows that the defendant “[initially provoke [d] the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant,” or where the defendant “[w]as the aggressor.” OCGA § 16-3-21 (b) (1), (b) (3). In this case, the evidence was sufficient to support the State’s theory of the case, which was that Mingledolph provoked Coe’s use of force against him. That evidence included the fact that Mingledolph participated in the armed robbery of Coe, during which he encouraged Simmons to shoot Coe. Additionally, rather than leaving Luckey Street to avoid an additional confrontation with Coe, as his friends did, Mingledolph armed himself and asked to be left on Luckey Street. And he apparently did so with the hope of encountering Coe, given that he attempted to determine if Coe was hiding in Harmon’s Suburban. Finally, when Mingledolph could not ascertain whether Coe was in Harmon’s vehicle, he positioned himself as if to wait for Coe. Taken together, these actions support the conclusion that Mingledolph provoked Coe into using force against him, and that he did so intending to return that force. See Wade v. State, 305 Ga. App. 819, 821 (701 SE2d 214) (2010) (in determining the sufficiency of the evidence, we consider not only the evidence presented at trial, but also the logical inferences that can be derived from that evidence).

Additionally, this same evidence also supports the conclusion that Mingledolph was the “aggressor” in his confrontation with Coe. OCGA § 16-3-21 (b) (3). Specifically, this evidence shows that Mingledolph pursued Coe and then lay in wait for him. And the conclusion that Mingledolph was the aggressor was further supported by the trial testimony of Harmon’s girlfriend, who stated that Mingledolph fired the first shot in the confrontation with Coe. Although contradicted by her previous statement to police, the girlfriend’s testimony is nevertheless sufficient to support a finding that Mingledolph was the aggressor. See Jackson v. State, 301 Ga. App. 863, 865 (690 SE2d 195) (2010) (where conflicting evidence is presented at trial, it is for the jury, not the appellate court, to resolve the conflict); Culver v. State, 290 Ga. App. 321, 322 (659 SE2d 390) (2008) (even where contradicted, the testimony of a single witness is generally sufficient to establish a fact).

In light of the foregoing, we find that the evidence supports the jury’s verdict as to voluntary manslaughter.

2. Mingledolph also contends that he received ineffective assistance of counsel based upon his lawyer’s failure to call any witnesses or present any evidence in his defense at trial. Alternatively, Mingledolph contends that his lawyer was ineffective because, after discovering that none of the four witnesses in question was present, the lawyer failed to ask for a continuance.

To prevail on his ineffective assistance claim, Mingledolph must prove both that his lawyer’s performance was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If Mingledolph cannot meet his burden of proving either prong of the Strickland test, then we need not examine the other prong. Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011). Here, we find that Mingledolph has failed to establish that he was prejudiced by this performance.

To demonstrate that he suffered prejudice as a result of his attorney’s failure to secure the presence of the four witnesses at issue, Mingledolph was required to prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694 (III) (B). To meet this burden, Mingledolph needed to present evidence at the hearing on his motion for a new trial showing both the substance of the missing witnesses’ testimony and that such testimony would have been favorable to his defense. Grell v. State, 291 Ga. 615, 620 (4) (b) (732 SE2d 741) (2012). Mingledolph, however, failed to present any such evidence. Rather, the only testimony he presented at the motion for new trial hearing was that of his trial lawyer. That attorney testified he recalled that there were potential defense witnesses who, although subpoenaed, did not appear at trial. And although he could not say definitively, trial counsel assumed that those persons had witnessed, and could therefore testify as to, either the armed robbery of Coe or the shootout between Coe and Mingledolph. The lawyer could not recall, however, what the substance of the witnesses’ testimony would have been or if it would have been helpful to the defense.

Given that Mingledolph presented no evidence showing that the missing witnesses would have offered testimony that supported his theory of self-defense, he failed to show a reasonable probability that the result of his trial would have been different had trial counsel been successful in securing the testimony of these witnesses. Boatwright v. State, 281 Ga. App. 560, 561-562 (2) (636 SE2d 719) (2006) (given his failure to call the missing trial witness at the motion for new trial hearing, or otherwise prove what the witness would have testified to, the defendant did not meet his burden of establishing the prejudice prong of an ineffective assistance claim).

Decided October 8, 2013.

On appeal, Mingledolph attempts to overcome this deficiency in his case by pointing to the pretrial discovery produced by the State. That discovery includes summaries compiled by the investigating officers of their interviews with the four witnesses in question. According to these summaries, two of these witnesses told police that Coe fired the first shot in the confrontation with Mingledolph. Thus, Mingledolph contends that these summaries are sufficient to prove that he was prejudiced by counsel’s failure to secure the testimony of the four witnesses at issue. This argument, however, is not supported by relevant law.

Our Supreme Court has held that where a defendant’s ineffective assistance claim is based on trial counsel’s failure to call one or more witnesses to testify on the defendant’s behalf, the defendant must either call the witness to testify at the motion for new trial hearing or present some legally acceptable substitute for their testimony to prove the prejudice prong of the Strickland test. Dickens v. State, 280 Ga. 320, 322 (2) (627 SE2d 587) (2006). See also Reaves v. State, 292 Ga. 545, 550 (4) (739 SE2d 368) (2013); Grell, 291 Ga. at 620 (4) (b). The investigative summaries relied upon by Mingledolph, however, do not constitute a legally acceptable substitute for sworn testimony. This is because such summaries contain hearsay, and “[h]earsay evidence cannot be used . . . under the second Strickland prong to establish that the defense was prejudiced by counsel’s deficient performance.” Dickens, 280 Ga. at 322 (2). See also Grell, 291 Ga. at 620 (4) (b). Thus, Mingledolph cannot rely on these investigative summaries to establish the prejudice prong of his ineffective assistance claim and, accordingly, that claim must fail.

Judgment affirmed.

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

James S. V. Weston, for appellant.

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

       OCGA § 16-5-2 (a).

       OCGA § 16-11-106.

       OCGA § 16-11-131.

       Coe is not a party to this appeal, and his conviction was recently affirmed by the Supreme Court of Georgia. See Coe v. State, 293 Ga. 233 (748 SE2d 824) (2013).

       The trial court merged the felony murder count with the voluntary manslaughter count.

       Aperson commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.
      OCGA § 16-5-2 (a).

       We emphasize that these are not statements made and signed by the witnesses themselves; rather, they are case notes prepared by the investigating officers, in which the officers summarized the content of their interviews with various witnesses.


author: DOYLE, Presiding Judge.

text:
    A13A1583.
    SPARROW v. THE STATE.
    (748 SE2d 518)
   DOYLE, Presiding Judge.

Following a bench trial, Henry Lee Sparrow appeals his conviction of burglary, contending that (1) the evidence was insufficient to support a finding of guilt, (2) the trial court erred by considering his confession, and (3) his trial counsel was ineffective for not moving to exclude the confession prior to trial. Because the record supports the trial court’s finding that the confession was voluntary, and the evidence supported the verdict, we affirm.

Construed in favor of the verdict, the record shows that Sparrow, after consuming alcohol, decided to break into an out-of-town neighbor’s house. Sparrow, either alone or with the assistance of an accomplice, broke a back window and entered the house. He stole a computer monitor from a desk and left the house through the front door. When another neighbor noticed the broken window, the neighbor called the homeowner, who instructed him to call the police. The police responded and found the front door unlocked. It was determined that the only item taken was the monitor.

A day or two later, Detective Shane Mann arrived at the residence to investigate the burglary, and upon exiting his vehicle, he saw Sparrow leaving his residence. Sparrow’s name had come up during Mann’s preliminary investigation, so Mann introduced himself and asked Sparrow where the monitor was. Sparrow replied that he did not take it, but he knew where it was; Mann ultimately recovered the monitor from that location. Mann then asked Sparrow to accompany him to the police station for an interview. Sparrow agreed, and Mann gave him a ride in the front seat of his vehicle. Sparrow was not handcuffed or under arrest.

At the station, Mann conducted a videotaped interview of Sparrow, in which Sparrow ultimately admitted to breaking into his neighbor’s house and taking the monitor. Sparrow waived his right to a jury trial, and following a bench trial at which the videotaped confession was played, the trial court found him guilty.

1. Sparrow contends that the evidence was insufficient to support a finding of guilt. But in light of Sparrow’s pre-confession statement to Mann that he knew the location of the stolen monitor and his confession to stealing the monitor, this enumeration is belied by the record. When an appellate court reviews 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Based on the record before us, the evidence supports a finding that Sparrow committed a burglary.

2. The heart of Sparrow’s appeal is his contention that the confession was inadmissible because it was involuntary under former OCGA § 24-3-50, and the trial court erred by considering it.

A statement given by an accused to law enforcement is admissible against him only if the statement was voluntary, and in Georgia, that means that the statement must not have been induced by “hope of benefit,” among other things. [] As we have explained before, a “hope of benefit” arises from promises related to reduced criminal punishment—a shorter sentence, lesser charges, or no charges at all. A promise not relating to charges or sentences, including a promise regarding release after questioning, has been held to constitute only a collateral benefit[,] and even if it induces a confession, it does not require the automatic exclusion of that evidence. When a court considers whether a statement was voluntary, it must look to the totality of the circumstances, and at trial, the State bears the burden of proving by a preponderance of the evidence that a statement was, in fact, voluntary. On appeal, when we review the denial of a motion to suppress a statement, we owe no deference to the way in which the trial court resolved questions of law, but we generally accept its findings about questions of fact and credibility unless clearly erroneous.

Here, Sparrow was interviewed without handcuffs in an unlocked interview room, and he was not under arrest. Mann initially asked Sparrow how he had come into possession of the monitor, and Sparrow denied taking it, but stated that he bought it from an acquaintance for $25. Mann, knowing that Sparrow had a history of drug use, then asked Sparrow when the last time was that he “smoked dope.” Sparrow denied using any drugs, but after Mann asked again for Sparrow to answer honestly, Sparrow admitted to smoking one “rock” and asked “[W]ill I get in trouble for this?” Mann responded, “[T]his is between you and me... I’m not parole.” Sparrow said, “I don’t even want my sister [with whom Sparrow lived] to know.” Mann assured Sparrow that “I ain’t gonna tell your sister nothing.” Mann asked if that was why Sparrow took the monitor, and Sparrow again denied taking it. Mann then explained that Sparrow’s story was inconsistent with the story of other people he had interviewed, including a woman living where the monitor was recovered. Mann then stated: “Like I said, you’re not under arrest. As soon as we get done here, bro, I will put you right back in that car[,] and I will take you right back over to [your house]. Ok? I mean that’s just as clear and honest as I can be.” At that point, Sparrow stated, “I made a mistake.” Mann again asked Sparrow if he took the monitor, and Sparrow repeated, “I made a mistake.” Mann explained that he needed a direct answer to the question, “to get all other doubts aside,” and Sparrow admitted that he took the monitor.

After speaking with Sparrow further, Mann said that he would still need to check with the burglary victim about what would happen next, and he called Sparrow’s parole officer, who asked to speak with Sparrow. Sparrow handed the phone back to Mann, who then, apparently at the request of the parole officer, arrested Sparrow. He explained to Sparrow that “this is for parole ... I will call the [victim] and... see what he wants to do----[I]f he doesn’t want to do nothing, I don’t have charges. I want you to understand that ... I am not charging you right now. This is for parole. I have to call them. I don’t have any choice in the matter.” The interview ended with Sparrow in handcuffs awaiting processing for parole.

On appeal, Sparrow argues that the trial court erred by admitting his confession because it was not voluntary. He points to Mann’s promises of secrecy and that he would take Sparrow home after the interview if Sparrow was honest with him. But based on our review of the videotape, it is clear that Mann did not promise anything with respect to prosecution for the burglary. Mann had told Sparrow that he still needed to speak with the victim of the crime to determine what would happen next; thus, Mann’s promise was merely that he would take him home after questioning and not that Sparrow would be free from future charges. A promise to take the suspect home after questioning — not relating to ultimate charges or sentences for the suspected crime — is merely a collateral benefit that does not require automatic exclusion of the confession. Further, former OCGA § 24-3-51 explicitly states that a promise of secrecy shall not require exclusion of the statement, so Mann’s promise not to tell Sparrow’s sister or his parole officer about the drug use does not render Sparrow’s statement involuntary. Based on the totality of the circumstances, the record supports the trial court’s determination that Sparrow’s statements were not subject to exclusion under former OCGA § 24-3-50.

3. Sparrow argues that his trial counsel was ineffective for waiting to object to the court’s consideration of his confession until his motion for directed verdict. Pretermitting the efficacy of counsel’s objection at that point, Sparrow cannot meet his burden under Strickland v. Washington in light of our ruling in Division 2.

Decided October 8, 2013.

Russell K. Walker, for appellant.

George H. Hartwig III, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-7-1 (b).

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

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

       See OCGA § 16-7-1 (b) (“A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another . . . .”).

       See former OCGA §§ 24-3-50 (“To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.”); 24-3-51 (“The fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it.”).

       (Citations and punctuation omitted.) Edenfield v. State, 293 Ga. 370, 373-374 (2) (744 SE2d 738) (2013).

       See Brown v. State, 290 Ga. 865, 869 (2) (b) (725 SE2d 320) (2012) (citing Brown v. State, 278 Ga. 724, 728 (609 SE2d 312) (2004); In the Interest of D. T., 294 Ga. App. 486, 489 (2) (669 SE2d 471) (2008) (holding that an officer’s promise to a juvenile suspect that he would “drive [him] home” once he gave a statement, “even if this could be construed asthepromiseofa benefit for [the suspect]’s confession, was only a collateral benefit that would not implicate the provisions of [former] OCGA § 24-3-50”); Smith v. State, 269 Ga. App. 133, 140 (3) (603 SE2d 445) (2004) (holding that former OCGA § 24-3-50 did not require exclusion where the defendant told an officer that he just wanted to go home, and the officer replied, “let’s straighten this out and we’ll see about getting you home,” because the officer did not offer the hope of lighter or no charges or a shorter sentence in return for the defendant’s confession)).

       See White v. State, 266 Ga. 134, 135 (3) (465 SE2d 277) (1996) (“The promise of a benefit that will render a confession involuntary under [former] OCGA § 24-3-50 must relate to the charge or sentence facing the suspect.”).

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

       See Porter v. State, 292 Ga. 292, 294 (3) (a) (736 SE2d 409) (2013) (“failure to make a meritless objection cannot constitute evidence of ineffective assistance”).


author: Dillard, Judge.

text:
    A13A1070.
    TAYLOR et al. v. THUNDERBIRD LANES, LLC.
    (748 SE2d 308)
   Dillard, Judge.

In this premises-liability action, Janyce Taylor sued Thunderbird Lanes, LLC (“Thunderbird”), which operates several bowling alleys in Georgia under the name Stars and Strikes Family Entertainment Center and Bowling Alley, alleging that Thunderbird negligently breached a duty it owed her as an invitee when she slipped while bowling at one of its facilities and suffered injuries as a result. Thunderbird filed a motion for summary judgment, which the trial court granted. Taylor now appeals, arguing that genuine issues of material fact exist as to whether (1) Thunderbird’s negligence created a hazardous condition that caused her to slip and fall, and (2) Thunderbird had superior knowledge of the alleged hazard. For the reasons noted infra, we affirm.

Viewed in the light most favorable to Taylor (i.e., the nonmoving party), the record shows that in September 2008, Taylor and her husband, both of whom resided in Florida at the time, were visiting their adult son and his wife (Taylor’s daughter-in-law) in Dallas, Georgia. On the morning of September 14, 2008, Taylor, her son, and her daughter-in-law decided to visit the local Stars and Strikes to go bowling. They arrived at the bowling alley around 10:15 a.m., which was not long after the facility opened, and Taylor and her daughter-in-law rented bowling shoes while Taylor’s son, who was not interested in bowling, walked to another section of the bowling alley to look around.

After renting their shoes, Taylor and her daughter-in-law went to their assigned lane, and Taylor—who was an experienced bowler and had participated in several bowling leagues—entered their names in the lane’s scoring computer console. And as the computer started, it displayed the following message: “Welcome to Stars and Strikes! Do not cross the foul line. Please report any spills. We do not assume liability from injury. Bowl at your own risk. We are not responsible for damage to bowling balls.” Based on her experience, Taylor was aware that although the approach to the lane’s foul line should be free from debris, beyond the foul line, the lane is cleaned and oiled so that the ball travels smoothly en route to the bowling pins.

Taylor’s daughter-in-law bowled at least one ball first, did so without incident, and did not indicate that she noticed any problem in the approach area of the lane. Taylor went next. But as she made her approach to the foul line to bowl her first ball, her feet slipped out from under her, and she landed on her back with her head nearly four feet past the foul line and her legs pointing toward the pins. Taylor’s son quickly came to his mother’s aid and noticed a significant amount of oil in the lane where Taylor had landed. As a result of her fall, Taylor suffered several injuries, including a fractured left ankle.

Thereafter, Taylor sued Thunderbird to recover damages for the injuries she suffered as a result of her slip and fall at its bowling alley. Thunderbird answered, and discovery ensued. In her deposition testimony, Taylor stated that she did not know why she fell and that she did not see any oil in the approach area before the foul line because she was not looking down. Nevertheless, she testified that she believed that there must have been oil in the approach area, which caused her to slip. Similarly, in their respective depositions, both Taylor’s son and her daughter-in-law testified that they did not notice any oil in the approach area of the bowling lane. Additionally, in response to one of Taylor’s interrogatories regarding steps taken by the facility to prevent oil from collecting on the patron/approach side of the foul line, Thunderbird averred that the lane oiling machine “is never placed on the patron side of the foul line and is pre-set to not begin applying oil until it has gone 4-6 inches away from the foul line.” In slight contrast, a manual for the machine produced by Thunderbird in response to a discovery request suggested that the machine begin oiling in 6-inch increments past the foul line.

After discovery concluded, Thunderbird filed a motion for summary judgment, arguing that it could not be held liable for Taylor’s injuries because she failed to create a genuine issue of material fact that its negligence created a hazard that caused her to slip and fall. Taylor responded, arguing that she had raised genuine issues of material fact regarding causation. But after holding a hearing on the matter, the trial court agreed with Thunderbird and granted summary judgment in its favor. This appeal follows.

1. Taylor contends that the trial court erred in granting summary judgment in favor of Thunderbird, arguing that genuine issues of material fact exist as to whether Thunderbird’s negligence created a hazardous condition that caused her to slip and fall. We disagree.

It is well established that summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” If summary judgment is granted by a trial court, it enjoys no presumption of correctness on appeal, “and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” Indeed, in our de novo review of a trial court’s grant of a motion for summary judgment, we are charged with “viewing the evidence, and all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant.”

With regard to premises-liability actions, Georgia law makes clear that while “an owner or occupier of land has a statutory duty to keep its approaches and premises in a reasonably safe condition for invitees,” an owner or occupier of land is “not an insurer of the safety of its invitees.” Accordingly, the threshold point of our inquiry in a slip-and-fall case is “the existence of a hazardous condition on the premises.” And it is well established that “[p]roof of a fall, without more, does not create liability on the part of a proprietor or landowner, because it is common knowledge that people fall on the best of sidewalks and floors.” Thus, when the plaintiff cannot show the existence of a hazardous condition, “she cannot prove the cause of her injuries and there can be no recovery because an essential element of negligence cannot be proven.”

In order to create a genuine issue of material fact regarding the existence of a hazardous condition, a plaintiff cannot “rely upon speculation and she must prove more than the existence of a slick or wet floor.” Indeed, guesses or speculation raising merely “a conjecture or possibility of a hazardous condition are not sufficient to create even an inference of fact for consideration on summary judgment.” Rather, the plaintiff must produce evidence of “what foreign substance, condition, or hazard caused her to slip and fall.” And when the plaintiff is unable to produce such evidence, “it is appropriate for the court to grant summary judgment to the defendant.”

Here, Taylor offers only conjecture to support her conclusion that oil on the approach side of the bowling lane’s foul line caused her to fall. In both her affidavit (which was drafted in response to Thunderbird’s motion for summary judgment), and her deposition, Taylor stated only that she believed she slipped on oil that had been wrongly applied to the approach side of the foul line. However, she conceded in her deposition that because she was concentrating on aiming at the pins, she did not notice oil or any other foreign substance on her approach and did not know for a fact that oil on the approach side of the foul line was the hazardous condition that caused her to fall.

Furthermore, while Taylor’s son noticed a significant amount of oil on the foul side of the bowling lane, neither he nor his wife (Taylor’s daughter-in-law) noticed any oil on the approach/patron side. And as previously noted, Taylor’s daughter-in-law bowled without incident only moments before Taylor slipped and did not indicate that the approach was slippery. Finally, although Taylor argues that Thunderbird’s interrogatory response indicating that the lane oiling machine could be set to start oiling at four inches from the foul line is inconsistent with the recommendation in the machine’s manual that it start oiling at six inches, this alleged inconsistency is not evidence that oil was applied to the approach side of the lane.

Given the foregoing circumstances, Taylor failed to create a genuine issue of material fact as to whether oil on the approach side of the bowling lane caused her to slip and fall. Accordingly, the trial court did not err in granting summary judgment in favor of Thunderbird.

Decided September 24, 2013

Reconsideration denied October 9, 2013.

Stephen D. Morrison, Jr., for appellants.

Scrudder, Bass, Quillian, Horlock, Taylor & Lazarus, Glenn S. Bass, for appellee.

2. In light of our holding in Division 1 that Taylor failed to create a genuine issue of material fact as to causation, we need not address her contention that Thunderbird possessed superior knowledge of the alleged hazardous condition.

Judgment affirmed.

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

        See, e.g., McCaskill v. Carillo, 263 Ga. App. 890, 890 (589 SE2d 582) (2003) (“On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.”).

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

        Benefield v. Tominich, 308 Ga. App. 605, 607 (1) (708 SE2d 563) (2011) (punctuation omitted); see also Mairs v. Whole Foods Mkt. Group, 303 Ga. App. 638, 638 (694 SE2d 129) (2010).

        Glynn-Brunswick Mem’l Hosp. Auth. v. Benton, 303 Ga. App. 305, 307 (693 SE2d 566) (2010) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted); accord Pinckney v. Covington Athletic Club & Fitness Ctr., 288 Ga. App. 891, 893 (655 SE2d 650) (2007).

        Benton, 303 Ga. App. at 307 (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Pinckney, 288 Ga. App. at 893 (punctuation omitted).

        See H. J. Wings & Things v. Goodman, 320 Ga. App. 54, 56 (1) (739 SE2d 64) (2013) (holding that plaintiff failed to show existence of a hazardous condition in a slip-and-fall action when, although plaintiff speculated that she fell because the floor was heavily waxed, as it appeared slippery, plaintiff conceded that she did not actually see any foreign substance); Willingham Loan & Realty Co. v. Washington, 311 Ga. App. 535, 536 (716 SE2d 585) (2011) (holding that plaintiff failed to show the existence of a hazardous condition on the exterior staircase of her apartment complex, even though there was an accumulation of ice and plaintiff previously complained about loose steps, because plaintiff did not know specifically what caused her fall); Benton, 303 Ga. App. at 307-08 (reversing denial of hospital’s motion for summary judgment because plaintiff’s testimony that she slipped on a slick floor but did not know why the floor was slick only amounted to conjecture and did not create a genuine issue of material fact regarding causation); Pinckney, 288 Ga. App. at 893-94 (affirming summary judgment because plaintiff’s belief that algae on a pool deck caused her fall was only speculation and did not create a genuine issue of fact as to the existence of a hazardous condition); Flagstar Enters., Inc. v. Burch, 267 Ga. App. 856, 858 (600 SE2d 834) (2004) (reversing denial of summary judgment to defendant because plaintiff’s conjecture that a “damp film” on a restaurant floor somehow caused his fall was nothing more than mere speculation); Shadburn v. Whitlow, 243 Ga. App. 555, 556-57 (533 SE2d 765) (2000) (holding that a hotel was entitled to summary judgment when witnesses “believed” plaintiff fell on loose carpeting at the top of a stairwell, but also admitted that they were not certain what caused the fall). Compare J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 468-69 (1) (a) (522 SE2d 749) (1999) (reversing grant of summary judgment to defendant because plaintiff’s assumption that she slipped on grape skins found on a grocery store floor where she fell created a genuine issue of material fact as to the existence of a hazardous condition).

        See Goodman, 320 Ga. App. at 57 (2) (holding that it was unnecessary to address plaintiff’s superior-knowledge argument given decision that plaintiff failed to create a genuine issue of material fact regarding causation).