text:
    A13A2071.
    McNEAR v. THE STATE.
    (755 SE2d 844)
   Boggs, Judge.

Alphonso McNear was indicted for malice murder, but a jury found him guilty of the lesser included offense of voluntary manslaughter. On appeal, McNear contends that insufficient evidence supports his conviction, that the trial court committed various errors, and that he received ineffective assistance of counsel. For the reasons explained below, we affirm.

1. When reviewing 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.

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

So viewed, the record shows that on October 30, 2009, around 4:00 a.m., a police officer was called to McNear’s home, where EMS personnel expressed concerns “about a suspicious dead body,” identified as that of 53-year-old Sandra Stell. McNear, who was present when the police officer arrived, told the officer that around 8:00 p.m., he began drinking alcohol with Stell, his live-in girlfriend of eight years. He explained that he fell asleep and awoke a few hours later to discover Stell “lying at the foot of the bed.” He called for the police when he could not awaken her.

When the officer went into the bedroom, he saw the victim lying at the foot of the bed face up with her head propped up on a couch cushion and her eyes closed. He “noticed that... her shirt was pulled up, her pants were pulled halfway down. There was bruising around her neck, some blood just below her nose that was going down toward her mouth.” A medical examiner with the GBI testified that Stell died from strangulation. In the last of three video-recorded interviews given to police on the same day, McNear admitted that he choked Stell after she kicked him in “the privates” during a physical altercation.

The State also presented evidence showing that four years earlier, McNear stomped on Stell’s right foot causing an old injury to begin bleeding again. A certified copy of McNear’s guilty plea to battery in connection with this incident was admitted into evidence.

McNear asserts that “the State’s circumstantial evidence did not exclude the hypothesis that [he] was acting in self-defense when he accidentally caused the death of Sandra Stell.” See former OCGA § 24-4-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”). “The difficulty with this argument is that the evidence is not entirely circumstantial but includes the very direct evidence of appellant’s confession. . ..” Cooper v. State, 256 Ga. 234, 236 (3) (347 SE2d 553) (1986). See also Luke v. State, 324 Ga. App. 531 (2) (751 SE2d 180) (2013). Because McNear’s conviction does not rest entirely upon circumstantial evidence, we find no merit in this assertion of error.

2. McNear claims that the trial court erred when it concluded that his statements to police were voluntary and admissible. McNear asserts that his statements were not voluntary because they were made over a six-hour period of time while he was “exhausted and still inebriated” from an evening of heavy drinking. In support of this claim, McNear points to an alleged erroneous finding of fact in the trial court’s written order on the voluntariness of his confession.

The trial court determines the admissibility of a defendant’s statement under the preponderance of the evidence standard considering the totality of the circumstances. On appeal, we accept the trial court’s findings on disputed facts and credibility of witnesses unless clearly erroneous, but independently apply the legal principles to the facts.

(Citation and punctuation omitted.) Thomas v. State, 292 Ga. 429, 433 (3) (738 SE2d 571) (2013). And, “[t]he mere fact that a defendant was intoxicated at the time of the statement does not render it inadmissible. [Cit.]” Frazier v. State, 311 Ga. App. 293, 296 (1) (715 SE2d 712) (2011). “If the evidence is sufficient to establish that the defendant’s statement was the product of rational intellect and free will, it may be admitted even if the defendant was intoxicated when he made the statement.” Screws v. State, 245 Ga. App. 664, 665 (1) (538 SE2d 547) (2000).

The record in this case shows that after conducting an evidentiary hearing and reviewing the three video-recorded interviews, the trial court issued a seven-page order in which it concluded that McNear “was advised of each of his Miranda rights, he understood them, he voluntarily waived then, and he thereafter gave his statements freely and voluntarily without any hope of benefit or fear of injury.” With regard to McNear’s intoxication, the trial court made the following finding:

While Defendant contends that he was intoxicated at the beginning of his interview with the officers, Defendant’s intoxication did not prevent him from a making a rational, voluntary statement. Defendant was lucid, answered questions forthrightly, and recognized the nature of his detainment. Officers adequately explained to Defendant his rights several times throughout the interview, and Defendant clearly understood what the officers were telling him. Consequently, considering the totality of the circumstances, Defendant’s statements were voluntary in spite of his possible intoxication.

The trial court noted that

law enforcement officers questioned Defendant during three separate interview sessions over the span of six and a half hours. . . . There was a break in time in the video-recorded interview from 7:35 AM and 11:00 AM____The officers spent approximately two hours and fifty minutes actually questioning Defendant.

Based upon our review of the waiver form signed by McNear and the video-recordings of his interviews with the police officers, “we find that the trial court was authorized to conclude that, despite [McNear]’s possible intoxication [and lack of sleep], he gave a voluntary statement and made a knowing and intelligent waiver of his Miranda rights.” (Citations and punctuation omitted.) Adams v. State, 276 Ga. App. 319, 321-322 (3) (623 SE2d 525) (2005). Accord Bryant v. State, 286 Ga. App. 493, 497 (2) (649 SE2d 597) (2007).

3. McNear contends that the trial court erred “when it admitted duplicate photographs of the decedent’s injuries, because the photographs were more prejudicial than probative.” We disagree.

The transcript shows that McNear objected to the admission of three out of eight autopsy photographs (Exhibits 24, 26, and 27) of the victim on the grounds that they were “basically just the exact same picture and would be more prejudicial than probative and would have the risk of inflaming the jury.” The State responded that the photographs were necessary to show multiple signs of hemorrhage to prove that the victim died from strangulation. Following the admission of the photographs, the medical examiner testified about the anatomy shown in each photograph, as well as the bleeding or hemorrhage suffered by the victim internally. In its order denying McNear’s motion for new trial, the trial court found that

the photographs in question depicted various injuries the victim suffered. The first picture showed the victim’s internal neck structures, including a portion of the tongue and one side of the larynx. The second picture displayed the internal neck structure, specifically showing an area of muscular hemorrhage. The third picture showed an overall view of the upper portion of the skin and soft tissue of the victim’s upper chest.
Having reviewed the pictures, this Court finds that the photographs Defendant objects to were not duplicative: the pictures showed varying stages of [the] autopsy of the victim. ... Here, the State bore the burden of proving beyond a reasonable doubt that Defendant was guilty of murder. The autopsy photos demonstrated physical damage to the victim’s throat and neck area. Thus, the photographs were relevant, and any prejudice from the photographs did not substantially outweigh the pictures’ probative value.

“When a trial court is faced with the challenge that the probative value of evidence is outweighed by its tendency to unduly prejudice the jury, it must exercise its discretion in determining admissibility. [Cit.]” Woods v. State, 265 Ga. 685, 687 (3) (461 SE2d 535) (1995). “A photograph which depicts the victim after autopsy incisions are made will not be admissible unless necessary to show some material fact which becomes apparent only because of the autopsy.” (Citation and punctuation omitted.) Felder v. State, 273 Ga. 844, 847 (5) (545 SE2d 918) (2001).

In this case, the post-incision autopsy photographs were material and relevant to show the multiple internal hemorrhages in the victim’s neck that supported the medical examiner’s conclusion that the victim died from strangulation. See Thomas v. State, 281 Ga. 550, 552 (2) (640 SE2d 255) (2007). The trial court did not abuse its discretion by admitting the photographs into evidence. Felder, supra, 273 Ga. at 847 (5).

4. We find no merit in McNear’s argument that the trial court violated the continuing witness rule by allowing the jury to watch his third interview with police in open court during their deliberations. The continuing witness rule is violated when the jury is allowed to bring recorded statements into the jury room during deliberations. In this case, the trial court followed “the standard practice [, which] is to bring the jury back into open court to rehear recorded evidence.” Bridges v. State, 279 Ga. 351, 353 (2) (613 SE2d 621) (2005). “The trial court has discretion to allow the jury to rehear recorded statements, if it is done in open court.” Summage v. State, 248 Ga. App. 559, 561 (1) (546 SE2d 910) (2001).

5. While conceding that evidence of his prior difficulty with the victim four years before her death was admissible, McNear contends that the trial court nonetheless erred by also admitting into evidence a certified copy of his battery conviction arising from that prior difficulty. We disagree. McNear cites no authority in support of this claimed error, and our courts have approved the use of a certified copy of a conviction as evidence of prior difficulties between the defendant and the victim. See Brown v. State, 278 Ga. 810, 811 (4) (607 SE2d 579) (2005); May v. State, 287 Ga. App. 407, 408 (2) (651 SE2d 510) (2007).

6. In his remaining enumeration of error, McNear contends he received ineffective assistance of counsel because his attorney failed to investigate and introduce evidence that the victim stabbed him two months before her death. McNear also asserts that defense counsel should have emphasized to the jury that the State failed to introduce into evidence the shirt worn by McNear at the time of the victim’s death that McNear claimed had his blood, not the blood of the victim, on it. According to McNear, this evidence could have helped convince the jury to acquit him, or at most, convict him of involuntary manslaughter as opposed to voluntary manslaughter.

In ruling on a claim of ineffective assistance,

[u]nder the two-part test established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), [McNear] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.

(Citation and punctuation omitted.) Harrison v. State, 313 Ga. App. 861, 865 (3) (722 SE2d 774) (2012).

Making that showing requires that [McNear] rebut the strong presumption that his lawyer’s conduct falls within the wide range of reasonable professional assistance. As a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. We will not reverse a trial court’s findings regarding either the deficiency or prejudice prong of the Strickland test unless clearly erroneous.

(Citations, punctuation and footnotes omitted.) Lott v. State, 303 Ga. App. 775, 783-784 (3) (694 SE2d 698) (2010). “The decision not to pursue a defense is one of trial strategy with which we will not generally interfere. Trial strategy and tactics do not equate with ineffective assistance of counsel.” (Citations and punctuation omitted.) Smith v. State, 231 Ga. App. 677, 684 (6) (499 SE2d 663) (1998).

In the hearing on McNear’s motion for new trial, trial counsel testified that he reviewed the police report, which included a neighbor’s hearsay statement about another neighbor telling him that McNear had been stabbed by the victim two months earlier. Defense counsel acknowledged that he did not do any follow-up investigation to determine if the victim had previously stabbed McNear. He explained that while he discussed self-defense with McNear, their defense from the beginning “was that Mr. McNear was not guilty of anything.” In his conversations with trial counsel, McNear “never expressed . . . that it was a self-defense case. He had always expressed to me complete innocence.” Their trial strategy was to assert innocence, not self-defense. With regard to injuries to McNear’s hands, trial counsel testified, “The only thing I independently recall, a conversation about injuries to him, was he had, I believe, some marks on his hands or something like that that he indicated came from working in the yard or doing yardwork.”

McNear testified in the motion for new trial hearing that he asked trial counsel to raise a claim of self-defense, but was told it was not a good idea because of his recorded statements to the police. He testified that the victim stabbed him before he choked her, that she stabbed him in the hand two months before her death, and that she disfigured his hands in 2005 when she hit them with an iron tray. He testified that the blood observed on his shirt by the detective during his recorded interview was his blood, not that of the victim. At the hearing, McNear did not introduce any evidence to support his theory of self-defense other than his testimony. While he testified that he wanted to assert self-defense at trial, he never claimed that he would have testified at trial to support such a defense.

McNear explained that he did not testify at trial because his trial counsel told him that it was in his best interest not to do so. He admitted that it was his decision not to testify, but that he made that decision based upon trial counsel’s advice. The record shows that when the trial court informed McNear about his right to testify at trial, it stated:

I will add that it’s always important and the smart thing to do to seriously consider your lawyer’s opinion before you make your decision. But, ultimately, you’re the one that has to make that decision. Your lawyer cannot make you testify, and he cannot keep you from testifying if you want to.

In his opening statement, trial counsel acknowledged that McNear admitted to police that he placed his hands around the victim’s neck, but explained

that’s not the whole story. There’s going to be more than that. ... I want you to pay attention to the lack of evidence because there’s not going to be any physical evidence that ties Mr. McNear to this crime.... [Yjou’re not going to hear anyone come in here and get up on the witness stand and say that they saw Mr. McNear do anything to Ms. Stell. There’s no eyewitness to this. And while you’ll hear about his confession, what you’ll also hear is that... this came after three hours, three hours of questioning by detectives. ... I just want you to pay attention to everything that’s off in this case. . . . Mr. McNear is not guilty.

In his closing statement, trial counsel again emphasized the lack of physical evidence against McNear, including the State’s failure to test for blood on McNear’s clothes and failure to test for McNear’s DNA under the victim’s fingernails. He also pointed out that McNear called 911. With regard to McNear’s confession, trial counsel went over in detail the amount of time he spent in police custody and argued that McNear confessed and told the police what they wanted to hear only after hours of interrogation.

Decided March 6, 2014.

J. Timothy Lewis, for appellant.

K. David Cooke, Jr., District Attorney, MyraH. Tisdale, John A. Regan, Assistant District Attorneys, for appellee.

The trial court denied McNear’s claim of ineffective assistance of counsel, concluding, “Although other attorneys might have chosen to put forth a self-defense argument on behalf of Defendant, trial counsel’s strategy did not fall below an objective standard of reasonableness.” We agree with the trial court’s conclusion.

Faced with McNear’s video-recorded confession, trial counsel had to consider a defense based upon (1) the assertion that McNear’s confession was the result of prolonged interrogation by police and the lack of physical evidence showing he committed the crime; or (2) admitting that McNear killed the victim but was justified in doing so based upon self-defense. McNear’s prior battery conviction involving the victim presented difficulties for both defenses. In the motion for new trial hearing, McNear presented no evidence but his own testimony supporting a claim of self-defense. Trial counsel testified that McNear insisted that he was innocent and told him that the old injuries to his hands happened while he was doing yard work. “[Cjounsel is entitled to base the defense on the veracity of the client’s assertions.... [I]t [i]s reasonable for the defense lawyer to rely on [a defendant’s] claim of complete innocence.” Sparks v. State, 277 Ga. 72, 74-75 (3) (586 SE2d 645) (2003). “It is within the trial court’s discretion to resolve conflicting testimony between trial counsel and a defendant at a hearing on motion for new trial.” (Citation and punctuation omitted.) Reid v. State, 286 Ga. 484, 486 (3) (a) (690 SE2d 177) (2010). The trial court was authorized to conclude from the conflicting evidence presented at the motion for new trial hearing that trial counsel’s strategic defense decision did not amount to ineffective assistance of counsel.

Judgment affirmed.

Doyle, R J., and McFadden, J., concur.

       In the portion of its order assessing the totality of the circumstances, the trial court noted that in addition to affording McNear ‘bathroom breaks, food, and drink,” the “[o]fficers also allowed Defendant to make a phone call to his family.” While the video of McNear’s second interview shows that the officers did allow him to telephone his family, McNear contends that the trial court’s order relies upon an erroneous assumption of fact, because another officer denied his first request to use the same telephone because it did not work. The video of the first interview shows that the officer picked up the receiver when McNear asked to use the telephone and then denied the request because there was “no cord” connecting the receiver to the telephone base. The officer testified in the motion for new trial hearing that he did not realize at the time he denied McNear’s request that the telephone in the interview room could place calls while in speaker mode. A different officer in the second interview allowed McNear to use the phone in speaker mode. Based upon this evidence, the trial court’s order does not contain an erroneous finding of fact.

       The record before us does not include the photographs, but instead contains black and white photocopies of the photographs.

       In his video-recorded statements, the defendant did not tell the police that the victim stabbed him the night she was killed or at any other time.

       He did not present any DNA evidence, police reports, medical records, arrest records, or testimony by neighbors who may have witnessed prior incidents between him and the victim. He also failed to introduce evidence about the instrument used by the victim to stab him the night of her death.


source: Caselaw Access Project

author: BOGGS, Judge.

license: Public Domain

text:
    A13A2145.
    DRUMM CORP. v. WRIGHT et al.
    (755 SE2d 850)
   BOGGS, Judge.

We granted the application for interlocutory review filed by Drumm Corp. f/k/a Drumm Investors, LLC (“Drumm”) following the trial court’s denial of its motion to dismiss for lack of personal jurisdiction. Because Drumm does not have sufficient “minimum contacts” with the State of Georgia, we reverse.

“A motion to dismiss for lack of personal jurisdiction must be granted if there are insufficient facts to support a reasonable inference that the defendant can be subjected to the court’s jurisdiction.” (Citation and footnote omitted.) Sol Melia, SA v. Brown, 301 Ga. App. 760, 760-761 (688 SE2d 675) (2009). Drumm, as the defendant moving to dismiss, bears the burden of proving lack of jurisdiction. Id. And “to the extent that defendant’s evidence controverts the allegations of the complaint, plaintiff may not rely on mere allegations, but must also submit supporting affidavits or documentary evidence.” (Citation omitted.) Yukon Partners, Inc. v. Lodge Keeper Group, 258 Ga. App. 1, 2 (572 SE2d 647) (2002).

Where as here, the motion was decided on the basis of written submissions alone, any disputes of fact in the written submissions supporting and opposing the motion to dismiss are resolved in favor of the party asserting the existence of personal jurisdiction, and the appellate standard of review is nondeferential.

(Citation omitted.) Crossing Park Properties v. JDI Fort Lauderdale, 316 Ga. App. 471 (729 SE2d 605) (2012).

The record reveals that Billy Wright suffered a fall that led to his death while a resident of a nursing home in Rome, Georgia. His widow, as administrator of his estate and as representative of “the wife and children of Billy Wright” (hereinafter “Wright”), filed a personal injury action against the nursing home, an employee of the nursing home, seven other entities, including Drumm, ten unidentified entities, and ten “John Does.” The complaint alleged corporate negligence, ordinary negligence, violation of OCGA § 31-8-100 et seq. (“Bill of Rights for Residents of Long-term Care Facilities”), medical malpractice, fraud, and wrongful death. Drumm answered the complaint and moved to dismiss on the ground of lack of personal jurisdiction. The trial court denied the motion, but certified its order for immediate review. We granted Drumm’s application for interlocutory review.

On appeal, Drumm asserts that it has no contacts with Georgia, that any contacts any of its subsidiaries have with Georgia cannot be attributed to Drumm because it does not completely control the subsidiaries, that the exercise of jurisdiction would offend traditional notions of fair play and substantial justice, and that the trial court’s ruling is “factually unsupported and legally incorrect.”

Under Georgia’s Long Arm Statute:

A court of this state may exercise personal jurisdiction over any nonresident or his or her executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he or she were a resident of this state, if in person or through an agent, he or she:
(1) Transacts any business within this state;
(2) Commits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act;
(3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
(4) Owns, uses, or possesses any real property situated within this state [.]

OCGA § 9-10-91 (1)-(4). In this case, the plaintiff asserts personal jurisdiction only under subsection (1). Our courts construe this subsection “as reaching only ‘to the maximum extent permitted by procedural due process.’” (Citations omitted.) Innovative Clinical & Consulting Svcs. v. First Nat. Bank of Ames, 279 Ga. 672, 675 (620 SE2d 352) (2005). We must apply the following three-part test in determining the limits of due process:

Jurisdiction exists on the basis of transacting business in this state if (1) the nonresident defendant has purposefully done some act or consummated some transaction in this state, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice.

(Citations and punctuation omitted.) Crossing Park Properties, supra, 316 Ga. App. at 475. This court considers

the first two factors to determine whether a defendant has established the minimum contacts with the forum state necessary for the exercise of jurisdiction. If such minimum contacts are found, we move to the third prong of the test to consider whether the exercise of jurisdiction is reasonable — that is, to ensure that it does not result solely from random, fortuitous or attenuated contacts.

(Citation and punctuation omitted.) Id. Our Supreme Court has held that “nothing in subsection (1) [of the Long Arm Statute] requires the physical presence of the nonresident in Georgia or minimizes the import of a nonresident’s intangible contacts with the State.” Innovative Clinical, supra, 279 Ga. at 675. “Moreover, a single event may be a sufficient basis if its effects within the forum are substantial enough. Such a result may obtain whether or not the non-resident is physically present in the state.” (Citation and punctuation omitted.) Crossing Park Properties, supra.

In its motion to dismiss, Drumm presented the affidavit of Milton Patipa, the senior vice president of Fillmore Strategic Investors LLC (“FSI”), which is the sole member and shareholder of Drumm. Patipa averred that Drumm is a Delaware entity with its principal place of business in California, and that no shareholder or member of Drumm resides in Georgia. He averred further that: “Drumm is a parent company of GGNSC Holdings, LLC, which is the parent company to Golden Gate National Senior Care LLC, which is the parent company to GGNSC Equity Holdings LLC, which is the parent company to GGNSC Rome LLC d/b/a Golden Living Center Rome”; Drumm’s sole business is holding investments in healthcare companies including GGNSC Holdings LLC; Drumm has never and does not own, lease, or possess real property in Georgia; Drumm does not and has never had an office, address, telephone number, or bank account in Georgia; Drumm does not have and has never had employees or agents who work in Georgia; Drumm files a Georgia franchise tax return on behalf of several flow-through subsidiaries and pays a franchise tax, but not income tax; Drumm does not have a website or IP address; Drumm has never entered into any contract with Wright or any member of his family, has never committed a tort against Wright in Georgia, and has never committed any purposeful act or consummated any transaction in Georgia with Wright; Drumm has never and does not solicit business in Georgia; Drumm does not derive substantial revenue from goods used or services rendered in Georgia; Drumm has never and does not own or operate any nursing home facilities in Georgia, has never and does not make any decisions with regard to the care provided to residents of nursing home facilities in Georgia, has never and does not operate or have a direct ownership interest in GGNSC Rome LLC d/b/a Golden Living Center Rome, and does not exercise control over the day-to-day operations of that facility.

Wright asserts that Drumm has “direct connection to Georgia by involvement with the facility at issue in this matter,” because it pays a franchise tax in Georgia and because of statements made by Patipa in a deposition taken in a West Virginia civil case in 2011. Wright points to Patipa’s statement in that deposition that Drumm’s vice presidents were “somewhat involved” in “healthcare operations.” Wright argues further that Drumm’s connection to Georgia is also established by Patipa’s testimony that the operating budgets of the subsidiaries are reviewed by Drumm’s board.

While we have found no cases directly addressing whether the filing of a consolidated Georgia tax return by a parent company on behalf of its subsidiaries is alone sufficient to establish minimum contacts for purposes of personal jurisdiction, other jurisdictions have held that it is not. While this authority is not controlling, it is persuasive. See, e.g., Madison County Communications Dist. v. Century-link, Inc., 2012 U.S. Dist. LEXIS 180066 (II) (C) (N.D. Ala. 2012); Newman v. Motorola, Inc., 125 FSupp.2d 717, 723 (D. Md. 2000). And Patipa’s testimony in the West Virginia case, considered in context, does not rebut his affidavit in this case that Drumm is the holding company and does not exercise control over its subsidiaries. With regard to Drumm’s vice presidents, Patipa explained that some of the Drumm officers’ “responsibilities” in “healthcare operations” are by virtue of their employment with the subsidiary itself. And with regard to the subsidiaries’ budgets, Patipa explained: “the operating entities below Drumm do prepare budgets, and I presume but do not have specific knowledge those budgets are at some consolidated level reviewed by the board.” Even if this presumption were correct, Drumm’s review of a consolidated budget of its subsidiaries does not mean that Drumm approved or provided input concerning the budgets to the extent that it exercised control over the nursing home. See, e.g., Doe v. Unocal Corp., 248 F3d 915, 926 (II) (B) (3) (b) (i) (9th Cir. 2001) (“[A] parent corporation may be directly involved in the activities of its subsidiaries without incurring liability so long as that involvement is ‘consistent with the parent’s investor status.’Appropriate parental involvement includes: ‘monitoring of the subsidiary’s performance, supervision of the subsidiary’s finance and capital budget decisions, and articulation of general policies and procedures.’”) (citations omitted).

We have held that

neither the Due Process Clause nor traditional notions of fair play and substantial justice preclude the exercise of personal jurisdiction over a parent corporation if the parent’s control over the subsidiary’s activities is so complete that, the subsidiary is, in fact, merely a division or department of the parent.

(Citations, punctuation and footnote omitted.) Sol Melia, SA, supra, 301 Ga. App. at 767 (2).

So long as a parent and subsidiary maintain separate and distinct corporate entities, the presence of one in a forum state may not be attributed to the other. Generally, our cases demand proof of control by the parent over the internal business operations and affairs of the subsidiary in order to fuse the two for jurisdictional purposes. The degree of control exercised by the parent must be greater than that normally associated with common ownership and directorship. All the relevant facts and circumstances surrounding the operations of the parent and subsidiary must be examined to determine whether two separate and distinct corporate entities exist.

(Citation and punctuation omitted.) Vogt v. Greenmarine Holding, LLC, 2002 U.S. Dist. LEXIS 21013 (II) (A) (1) (N.D. Ga. 2002). Drumm presented evidence that it maintained a separate and distinct corporate entity from the nursing home which was three parent companies removed from Drumm, and that it had no control over the internal business operations and affairs of the nursing home; and Wright failed to point to “affidavits or documentary evidence” showing otherwise. Jurisdiction over Drumm therefore does not exist as there is no evidence that Drumm has “purposefully avail[ed] [itself] of the privilege of doing some act or consummating some transaction with or in the” state, and therefore no evidence that the causes of action raised by Wright are connected with such an act or transaction. See, e.g., Yukon Partners, supra, 258 Ga. App. at 5-8.

Decided March 6, 2014.

Brinson, Askew, Berry, Seigler, Richardson & Davis, J. Anderson Davis, Samuel L. Lucas, Lee B. Carter, for appellant.

McHugh Fuller, James B. McHugh, Michael J. Fuller, Jr., D. Bryant Chaffin, Hawkins, Parnell, Thackston & Young, David C. Marshall, Christian J. Lang, for appellees.

Because Drumm has met its burden of showing a lack of minimum contacts needed to support the exercise of personal jurisdiction, and Wright has presented no evidence showing the contrary, the trial court erred in denying Drumm’s motion to dismiss. This conclusion is consistent with authority in other jurisdictions holding that ownership of a resident nursing home subsidiary by an out-of-state parent corporation without more is insufficient to obtain jurisdiction of the parent corporation. See Schwartzberg v. Knoblock, 98 S3d 173, 181 (VI) (Fla. Dist. Ct. App. 2012) (“For plaintiffs in nursing home litigation, basic principles of personal jurisdiction limit their ability to obtain jurisdiction of nonresident, upstream owners of nursing homes and the nonresident officers and employees of such entities.”); Walker v. THI of New Mexico, 801 FSupp.2d 1128, 1158-1162 (III) (D. N.M. 2011) (parent company’s sole shareholder status of subsidiary, its filing of “Income and Information Return for Pass-Through Entities,” and “sponsorship of an employee benefit plan under ERISA to benefit employees of its subsidiaries are not, alone or together, sufficient minimum contacts with [the state and] reflect only a general and typical relationship between a parent corporation and its subsidiaries”).

Judgment reversed.

Doyle, P. J., and McFadden, J., concur.

       Wright also relies on Patipa’s deposition testimony that “there is a Drumm hoard of directors. They operate and are responsible for the healthcare entity.” But Patipa refers to Drumm’s status as the holding company for the healthcare entity investment, and explained that FSI, as the sole member and shareholder of Drumm, has some oversight at some level with respect to Drumm, but that he had no knowledge regarding “any of the facility administration level operations authority” below Drumm. Wright claims that an annual nursing home questionnaire shows that Drumm exerts control over the nursing home, but that questionnaire is not part of the record here on appeal.


author: DOYLE, Presiding Judge.

text:
    A13A1716.
    HICKS v. THE STATE.
    (755 SE2d 855)
   DOYLE, Presiding Judge.

Rakeen Rayneil Hicks was convicted of armed robbery, attempted armed robbery, burglary, four counts of aggravated assault, and fleeing or attempting to elude a police officer. Hicks appeals, arguing that (1) the evidence was insufficient; (2) the trial court erred by making improper comments to the jury pool; (3) the trial court erred by allowing the State to administer the oath to the bailiffs in the presence of the jury pool; and (4) he received ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia.[] This same standard applies to our review of the trial court’s denial of [the defendant’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the record shows that on or about midnight on April 10, 2010, Sharita Jones arrived home from work and was assaulted at the door of her home by Travis Brown and Eungen Hunter, who brandished handguns. The men, who knew Jones’s name, threw Jones down, dragged her into her home, and held her, her sister Chandra, and her sister’s children at gunpoint, while they demanded money. The men took approximately $2,000 from Jones’s bedroom and fled; thereafter, the victims called police. Chandra and her son testified that one of the men wore a mask, and the other man had dreadlocked hair. Chandra later identified Brown from a photographic lineup.

Two officers responded to the scene, and Officer Julian Dews noticed a silver or grey Ford Expedition on the left side of the street near Jones’s home. Officer Dews saw a male approach the vehicle on the passenger side and occupants of the vehicle yell and point that the perpetrators had run in a certain direction. Officer Dews stated to the other officer that he believed that the men in the vehicle were involved in the incident, and he maneuvered his patrol car to get a better position on the vehicle; the vehicle left, beginning a long high-speed chase. During the chase, the occupants of the Expedition threw objects out of the vehicle, reached speeds of 100 miles per hour, and failed to obey traffic signs. Officer Dews’s vehicle became stuck in a field during the chase, and Officer Joseph Owens proceeded to chase the vehicle. Officer Dews, however, retraced his route after ending his chase, and he retrieved a number of items that had been thrown out of the vehicle, including clothing and a half-ton floor jack.

Officer Owens testified that he began chasing the vehicle, which contained three individuals at the beginning of the chase. The officer continued to pursue the Expedition until its tires were deflated on spike strips, after which time the driver lost control and crashed into a ditch. The driver exited the vehicle and continued into a wooded area, and Officer Owens pursued him on foot, while another officer chased the two passengers who fled in the opposite direction. Eventually, other officers with search dogs located Hicks, whom Owens recognized as the driver of the vehicle, in the woods in the area where Officer Owens saw him flee. When taken into custody, Hicks stated first that he was not driving the vehicle, and then he stated that he was forced to drive the vehicle. The passengers were not located at that time.

Hicks explained to officers that he was made to drive the others to Jones’s house to get the money and that he was not involved with the robbery other than having been forced to drive them; later, Hicks changed his statement to say that he was called to the location by the other men and panicked and fled when the police arrived at the scene. Hicks told officers that an individual named Hunter was involved. Officers also found a cell phone at the scene, which belonged to Brown, and were able to determine Brown’s identity based on the phone’s content.

Officers also discovered in the vehicle a wallet with Hicks’s driver’s license, a business card with Hunter’s name on it with Hicks’s license, and credit and debit cards with Hicks’s name. Hunter’s wallet was also recovered from the vehicle. The vehicle was determined to belong to Hunter’s sister, and Hunter and Brown were arrested approximately a month later and a year later, respectively.

1. Hicks first argues that the evidence was insufficient because no direct evidence showed that he committed any of the crimes except for fleeing or attempting to elude officers.

[A] participant to a crime may be convicted although he is not the person who directly commits the crime. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime. The question of whether [a defendant is] a party to [a crime is] for the jury to resolve.
Conduct which discloses a common design, even without proof of an express agreement between the parties, may establish a conspiracy. Presence, companionship and conduct before and after the commission of the alleged offenses may be considered by the jury and are circumstances which may give rise to an inference of the existence of a conspiracy.

The evidence as stated above was sufficient for a reasonable jury to conclude that Hicks was a party to the crime. Accordingly, this enumeration is without merit.

2. Next, Hicks contends that the trial court erred by making improper comments to the jury venire, which remarks consisted of the following:

We, prior to today, have asked these folks, these [defendants, to he here on numerous occasions, hopefully to be able to resolve their case with the district attorney. These folks that are on my calendar here were not able to do that prior to today, but a majority of them now have decided that they need to go ahead and resolve their case before you’re selected to try the case. So[,] I reckon what I’m trying to say is that we’ve done all we could do to resolve the case before we brought you here today. But on certain occasions, there are cases that we have to bring you here before those folks will decide if they need to go ahead and do something to resolve their case and they have.
Now we have two other cases hopefully that we’re going to be able to select today, and then that will conclude the business that we would have for you today. Now, what we intend to do today is to impanel two juror — two twelve-member jury panels that will be back here on a day certain for the actual trial of these cases. We’re certain that we’re probably going to be able to select one of them, but we’re not certain about the second one. We’re going to see what we can do, but we will go ahead and select the first one.

(a) Hicks’s attorney failed to object to the statements or move for a new venire or new trial. Although the State contends that Hicks has waived the issue, we review the trial court’s comment for a violation of OCGA § 17-8-57, independent of Hicks’s failure to object to the statement or move for a mistrial. The Supreme Court of Georgia has

clarified that a violation of OCGA § 17-8-57 will always constitute “plain error,” meaning that the failure to object at trial will not waive the issue on appeal. On appeal, the issue is simply whether there was such a violation. If so, it is well established that... a violation . . . requires a new trial.

Here, although the trial court’s comments may have come close to commenting on Hicks’s guilt or innocence had they been made only to his jury panel immediately prior to trial, in the context in which they were made, approximately three weeks prior to trial and before the entire jury venire rather than an individual panel, the comments constituted an explanation to the jury pool of the procedure leading up to their service as jurors and were not the type of comments to attach any potential negative connotation to Hicks.

(b) Nevertheless, Hicks maintains that even if he waived his right to challenge the court’s remarks by failing to object at trial, he should receive a new trial because his trial counsel was ineffective for failing to lodge an objection to the statements and move to strike the venire or for a mistrial.

To prevail on a claim of ineffective assistance under the two-pronged test set forth in Strickland v. Washington, [] [Hicks] must show that counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.

Hicks’s trial counsel testified at the motion for new trial hearing that she did not believe the court’s statements were a comment on Hicks’s guilt or innocence because the court did not use words like “plea” or “guilty” and merely constituted an explanation to the jury pool of the procedure leading up to their service as jurors. Pretermitting whether Hicks’s attorney was ineffective for failing to object to the court’s statements, based on our conclusion in Division 2 (a) that the court’s comments did not violate OCGA § 17-8-57, this claim is without merit.

3. Hicks also contends that the trial court erred by allowing the prosecutor to administer the oath to the bailiffs in the presence of the jury pool.

(a) Hicks failed to object to the act at trial, and therefore, he has waived the issue on appeal.

(b) Hicks also maintains that his trial counsel was ineffective for failing to object at trial when the trial court instructed the prosecutor to swear the bailiffs in before the jury panel. At the motion for new trial hearing, trial counsel testified that it was normal practice in the circuit, and she believed it was permissible. Hicks contends that because the trial court allowed the prosecutor to swear in the bailiffs before the jury pool, it established a bias toward the State. Pretermitting whether it is error for the trial court to allow the prosecutor to administer the oath to the bailiffs, and thus, whether trial counsel was deficient for failing to object, Hicks has not established prejudice as a result. The alleged error occurred approximately three weeks prior to trial, when the trial court was addressing the jury pool before striking a jury for the case. Thus, it is unlikely that this singular act occurring in the midst of various procedural tasks resulted in bias of the jurors in favor of the State at the trial three weeks later. Moreover, this act was not the expression of an improper opinion about the case on the part of the court or an intimation of whether Hicks was guilty or innocent, and therefore, it did not constitute a violation of OCGA § 17-8-57. Hicks has therefore failed to establish that his counsel’s performance was ineffective.

4. Finally, Hicks argues that counsel was ineffective for failing to call unspecified witnesses. Hicks does not provide any citation or information regarding the identity of the witnesses or any specific testimony Hicks anticipated they would provide beyond his statement that “[t]he witnesses could have provided more insight into where [Hicks] was during the crime and his participation in the matter.”

At the motion for new trial hearing, counsel testified that Hicks presented a list of character witnesses, and other than Hicks’s wife, counsel was unaware that any of the witnesses could testify about the facts of the events or provide exculpatory testimony. As for Hicks’s wife, trial counsel interviewed her several times and did not believe that she could offer any exculpatory testimony. Trial counsel subpoenaed several of the character witnesses, and two of those individuals appeared at court on the day of trial. One of the character witnesses decided not to testify because he had pending drug charges and had been shot by one of Hicks’s co-defendants, and trial counsel relayed this information to Hicks prior to trial. Trial counsel testified that she and Hicks had agreed he would testify in order to present his defense, and then she would call the remaining character witness; however, at trial, Hicks decided not to testify, so she could not call the character witness. Although Hicks contended at the motion for new trial hearing that he wanted to testify and was strong-armed into remaining silent by his attorney, he did not provide any insight or proffer as to facts to which the witnesses would have testified in support of his contention that trial counsel was ineffective for failing to call the witnesses. Accordingly, Hicks has failed to establish the prejudice prong of his claim of ineffective assistance of counsel.

Decided March 7, 2014

Gregory A. Futch, for appellant.

Richard A. Mallard, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-8-41 (a).

       OCGA §§ 16-4-1; 16-8-41 (a).

       OCGA § 16-7-1 (b).

       OCGA § 16-5-21 (a) (1), (a) (2).

       OCGA § 40-6-395 (b) (5).

       443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       (Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

       The jury also viewed the video from Officer Owens’s vehicle dash camera showing the vehicle crashing and the occupants fleeing in opposite directions.

       (Citation and punctuation omitted.) Hines v. State, 320 Ga. App. 854, 857 (1) (740 SE2d 786) (2013), quoting Jordan v. State, 281 Ga. App. 419, 422 (1) (636 SE2d 151) (2006).

       (Punctuation omitted.) Hines, 320 Ga. App. at 858 (1) (c), quoting Heard v. State, 287 Ga. 554, 559-560 (5) (697 SE2d 811) (2010) and Burnette v. State, 241 Ga. App. 682, 683-684 (1) (527 SE2d 276) (1999).

       See Thornton v. State, 292 Ga. 87, 88 (2) (734 SE2d 393) (2012) (evidence was sufficient to prove appellant was a party to the crime of armed robbery and burglary because he drove the getaway vehicle); Buruca v. State, 278 Ga. App. 650, 652-653 (1) (629 SE2d 438) (2006) (jury could find that defendant was the getaway driver and therefore a party to the crime); Jackson v. State, 274 Ga. App. 279, 281 (617 SE2d 249) (2005) (because getaway driver waited for his co-defendant to return to the vehicle, evidence was sufficient to find the driver guilty of crimes directly committed by co-defendant); Head v. State, 261 Ga. App. 185, 187 (1) (582 SE2d 164) (2003) (affirming defendant’s conviction as a party to the crime of burglary because defendant drove the perpetrator to the premises, served as the getaway driver, and sped away from the scene after the burglary was committed).

        See Bowden v. State, 237 Ga. App. 204, 205 (515 SE2d 178) (1999). See also Edmonds v. State, 196 Ga. App. 190, 194 (1) (395 SE2d 566) (1990).

       See Ledford v. State, 289 Ga. 70, 85 (14) (709 SE2d 239) (2011) (disapproving again oases in which waiver of OCGA § 17-8-57 was found for failure to object); State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010).

       (Citation and punctuation omitted.) Gardner, 286 Ga. at 634.

       See Hufstetler v. State, 274 Ga. 343, 344-345 (2) (553 SE2d 801) (2001) (“Under these circumstances, no reasonable juror would have interpreted the trial court’s remark as the expression of an opinion on any issue to be decided in the case.”).

       466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

       (Punctuation omitted.) Pitts v. State, 323 Ga. App. 770, 773 (3) (747 SE2d 699) (2013).

       Cf. Hale v. State, 310 Ga. App. 363, 369 (2) (714 SE2d 19) (2011) (holding that while the trial court’s “evidentiary preview” to the jury discussing how the court earlier threw out the State’s evidence of a blood test was improper, any effect of comment on the guilt or innocence of the defendant was harmless in light of the overwhelming evidence of the defendant’s intoxication at trial); Wax v. State, 293 Ga. App. 365, 365-367 (1), (2) (667 SE2d 192) (2008).

       Cf. Gilreath v. State, 247 Ga. 814, 824-825 (4) (279 SE2d 650) (1981) (defendant waived challenge to trial court’s alleged error of allowing the prosecutor to administer the oath to the jury by failing to object at trial).

       Cf. Ates v. State, 155 Ga. App. 97, 98 (2) (270 SE2d 455) (1980) (reversing conviction when the trial court allowed the prosecutor to administer the oath to the jury because OCGA § 15-12-139 requires administration of the oath by a judge or clerk). We note that no such requirement limiting administration of the bailiff oath to a judge or clerk appears in the Code section at issue here. See OCGA § 15-12-140.

       See Taylor v. State, 264 Ga. App. 665, 666 (1), 668 (3) (592 SE2d 148) (2003) (no presumption of actual prejudice when defendant failed to timely object to administration of incorrect jury oath, and therefore, no showing of ineffective assistance of counsel for failing to object). Compare with Ates, 155 Ga. App. at 97 (presumption of prejudice when prosecutor was allowed to administer juror oath in direct contradiction of the statutory language).

       Cf. Osterhout v. State, 266 Ga. App. 319, 322-323 (3) (596 SE2d 766) (2004). See also Anthony v. State, 282 Ga. App. 457, 459 (2) (638 SE2d 877) (2006) (“Counsel’s failure to make a meritless objection . . . does not constitute ineffective assistance.”).

       To the extent that Hicks states that his trial counsel was ineffective for waiving a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964), he provides no argument in support of the contention, and therefore, the alleged error is waived. See Court of Appeals Rule 25 (c) (2). See also Wilkie v. State, 153 Ga. App. 609 (1) (266 SE2d 289) (1980) (holding that enumerations were abandoned by the appellant for failure to support them by citation of authority or argument beyond “[a] mere statement of what occurred at trial... and the contentions of the appellant”).

       See McDaniel v. State, 279 Ga. 801, 802 (2) (a) (621 SE2d 424) (2005) (trial court authorized to accept trial counsel’s testimony over the defendant’s testimony).

       See, e.g., Mingledolph v. State, 324 Ga. App. 157, 161-162 (2) (749 SE2d 757) (2013) (“Given that [the defendant] presented no evidence showing that the missing witnesses would have offered testimony that supported his theory of [mere presence], 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.”).


author: Miller, Judge. Ray, Judge,

text:
    A13A2074.
    PEEBLES v. CLAXTON.
    (755 SE2d 861)
   Miller, Judge.

This case arises from Dissie Claxton’s motion seeking to hold Jinny Peebles in contempt for violating an ex parte temporary protective order (“TPO”), which the superior court issued on February 12, 2013 pursuant to OCGA §§ 16-5-94 and 19-13-4 (d). The superior court held a hearing on Claxton’s motion for contempt after the TPO lapsed and subsequently entered an order requiring both parties to comply with their agreement to settle all pending issues in this case. Peebles appeals from that order.

1. Peebles contends that the superior court erred in holding a hearing to extend the TPO after it stood dismissed as a matter of law.

This case presents serious concerns regarding an ongoing dispute between next-door neighbors. As a result, we regret that we must reverse the superior court’s ruling. We find that, pursuant to OCGA §§ 16-5-94 and 19-13-3 (c), the TPO stood dismissed by law more than ten days before Claxton even filed his March 25, 2013 motion for contempt.

OCGA § 16-5-94 pertinently provides:

(a) A person who is not a minor who alleges stalking by another person may seek a restraining order by filing a petition alleging conduct constituting stalking as defined in Code Section 16-5-90. . . .
(c) Upon the filing of a verified petition in which the petitioner alleges witb specific facts that probable cause exists to establish that stalking by the respondent has occurred in the past and may occur in the future, the court may order such temporary relief ex parte as it deems necessary to protect the petitioner or a minor of the household from stalking. . . .
(e) The provisions of subsections (c) and (d) of Code Section 19-13-3, subsections (b), (c), and (d) of Code Section 19-13-4, and Code Section 19-13-5, relating to family violence petitions, shall apply to petitions filed pursuant to this Code section^.]

Pursuant to OCGA § 19-13-3 (c),

[wjithin ten days of the filing of the petition under this article or as soon as practical thereafter, but in no case later than 30 days after the filing of the petition, a hearing shall be held at which the petitioner must prove the allegations of the petition by a preponderance of the evidence as in other civil cases. In the event a hearing cannot be scheduled witb in the county where the case is pending within the 30 day period the same shall be scheduled and heard within any other county of that circuit. If a hearing is not held within 30 days, the petition shall stand dismissed unless the parties otherwise agree.

(Emphasis supplied.)

For purposes of this appeal, we reviewed the limited record in this case, which includes the TPO, the trial court’s order continuing the statutorily required TPO hearing, and Claxton’s motion for contempt. The record clearly shows that the TPO was issued on February 12, 2013, and that the superior court failed to hold the statutorily required hearing on the TPO within 30 days. Notably, the superior court entered an order on March 29, 2013, specifically stating that this matter was continued twice on March 13 and March 27. The superior court’s order also continued the TPO in full effect and set a new final hearing date of April 17, 2013.

Although the parties present conflicting arguments on appeal regarding whether Peebles agreed to an extension of the hearing date prior to the expiration of the 30-day period, nothing in the record shows that Peebles agreed to extend the March 13 hearing date because the judicial proceedings in this case, including the final hearing, which was not held until April 17, 2013, were not transcribed.

In the absence of a transcript, this Court cannot determine whether enumerations of error, which require consideration of the evidence, have any merit. Blue v. Blue, 279 Ga. 550 (1) (615 SE2d 540) (2005). The absence of a transcript in this case, however, does not prevent this Court from considering whether the superior court lacked statutory authority to enforce the TPO. Since nothing in the record supports Claxton’s argument that Peebles agreed to an extension of the TPO, we are constrained to hold that the TPO stood dismissed as a matter of law on March 14, 2013. See OCGA § 19-13-3 (c). After that date, the superior court lacked the power to enforce the TPO. See OCGA § 19-13-4 (d); Norman v. Doby, 321 Ga. App. 126, 130 (2), n. 1 (741 SE2d 293) (2013) (once a protective order is no longer valid, the superior court retains no power to enforce that order). Since the TPO was no longer in effect at the time Claxton filed his motion for contempt alleging that the TPO was violated, the superior court lacked authority to issue its April 26,2013 order requiring the parties to comply with their agreement to settle all pending issues in this case.

Decided March 7, 2014.

R. Edward Furr, Jr., Penny D. Furr, for appellant.

Marnique W. Oliver, for appellee.

2. In light of our holding in Division 1, we need not address Peebles’s remaining enumerations of error.

Judgment reversed.

Barnes, P. J., concurs. Ray, J., concurs specially and in judgment only.

Ray, Judge,

concurring specially and in judgment only.

While I concur in judgment only with the majority’s decision in the case, I write separately simply to emphasize that the majority’s opinion herein does not constitute binding precedent of the Court, but merely serves as physical precedent only.

       The record shows that in December 2012 a dispute arose between the parties after Claxton shot and killed Peebles’s dog. In his petition for a TPO, Claxton alleged that Peebles placed numerous signs in her yard referring to him by name and that she threatened to harm him. Claxton also alleged that Peebles threatened his livelihood, and created a Facebook petition demanding his punishment for the incident involving the dog.

       Peebles apparently requested an extension of the March 27 hearing date due to an illness in her family.


author: Branch, Judge.

text:
    A13A2098.
    In the Interest of B. K., a child.
    (755 SE2d 863)
   Branch, Judge.

We granted the State’s application for a discretionary appeal to consider whether a juvenile court’s order removing B. K, a child, from the custody of the Georgia Department of Human Services, but requiring the Department to continue to make random checks of the child at the home of the new custodian, was in violation of former OCGA § 15-11-55 (c) and (d). Because the juvenile court didnothave authority to order the Department to make such visits after the child was removed from its custody, we reverse and remand for further proceedings.

We review a juvenile court’s application of law to undisputed facts de novo. See In the Interest of N. C., 293 Ga. App. 374, 375, n. 4 (667 SE2d 181) (2008). The record shows that B. K. was born on November 11, 2007, in the physical and legal custody of his biological father. In a shelter care order filed on July 27, 2012, the Hart County juvenile court noted the arrest of the father and his girlfriend (not the child’s mother) for possession of methamphetamines, which were found in the home, awarded temporary physical custody of the child to the Department, and approved placement in foster care. At the 72-hour hearing on July 30, 2012, the child’s paternal grandfather proposed that he get custody of the child, and the juvenile court ordered a home study. On August 6, 2012, the Department filed a deprivation petition and moved for the appointment of a guardian ad litem. The petition alleged that the child came into the Department’s custody after the father and his girlfriend were arrested on charges of methamphetamine possession and incarcerated in Hart County. The child’s mother’s whereabouts were not known to the Department. On August 17, 2012, the juvenile court found probable cause to conclude that the child was deprived and again confirmed the award of temporary custody to the Department.

On August 20, 2012, the child’s paternal grandfather moved to intervene in the proceedings for the purpose of gaining custody of the child. After a hearing on August 23, 2012, the juvenile court found that (1) the father had consented to the change in custody; (2) continued custody with the father “would be contrary to the welfare of the child”; (3) the paternal grandfather’s home was “suitable and safe” for the child; and (4) custody with the paternal grandfather would be “more stable” than continued custody with the Department, which had “fail[ed] to maintain family contact for the benefit of the child.” The juvenile court then awarded physical and legal custody of the child to the paternal grandfather, but noted as it did so that the Department “shall make random visits to the [grandfather’s] home for well checks” on the child “as well as [for the purpose of] determining compliance with visitation provisions.” Finally, the juvenile court dismissed the Department’s deprivation petition on the ground that the grant of custody to the paternal grandfather mooted any deprivation proceedings.

On appeal, the Department argues that the juvenile court ordered the Department to exceed its authority when it simultaneously removed B. K. from the Department’s custody and ordered it to continue to make visits to the child’s new home. We agree.

The Department is the state agency charged with investigating complaints of the “deprivation, abuse, or abandonment of children,” former OCGA § 49-5-8 (a) (2) (B), and with providing “[s]ervices to courts, upon their request,... for casework services and care [of] all children and youths whose legal custody is vested in the department by the court.” (Emphasis supplied.) Former OCGA § 49-5-8 (a) (3) (A). More specifically, former OCGA § 15-11-55 (c), which was effective at the time the juvenile court entered its order, provides:

Notwithstanding any other provision of law, the court after transferring temporary legal custody of a child to the Division of Family and Children Services within the Department of Human Services may at any time conduct sua sponte a judicial review of the current placement plan being provided to said child. After its review the court may order the division to comply with the current placement plan, order the division to devise a new placement plan within available division resources, or make any other order relative to placement or custody outside the Department of Human Services as the court finds to be in the best interest of the child. Placement or a change of legal custody by the court outside the Department of Human Services shall relieve the department of further responsibility for the child so placed.

(Emphasis supplied.) Former OCGA § 15-11-55 (d) likewise notes that “[placement or a change of legal custody by the court outside the Department of Human Services shall relieve the department of further responsibility for the child so placed.” (Emphasis supplied.)

The Supreme Court of Georgia has held that former OCGA § 15-11-55 (c)

sets forth the clear and unambiguous legislative intent that, although a trial court may determine that it is in the best interests of a child to initially place that child outside the custody of DFACS or to change custody from DFACS to another party after DFACS had already been given custody, either of these acts will eradicate DFACS’responsibility for a child not in its custody.

(Emphasis supplied.) In the Interest of A. N., 281 Ga. 58, 61 (636 SE2d 496) (2006).

In light of the Legislature’s clearly expressed legislative intent to relieve the Department of responsibility for a child no longer in its custody, the juvenile court erred when it ordered the Department to continue to make random visits to a child that the court’s same judgment removed from the Department’s custody. Former OCGA § 15-11-55 (c) and (d); In the Interest of A. N., 281 Ga. at 61; In the Interest of J. N. T., 212 Ga. App. at 500. We therefore reverse the juvenile court’s judgment and remand for entry of a final order under the former statute consistent with this opinion.

Decided March 7, 2014.

Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny L. Hannah, Assistant Attorney General, Nadine D. Bailey, for appellant.

Kimberly W. Higginbotham, for appellee.

Judgment reversed and case remanded with direction.

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

       See Ga. L. 2013, p. 294, § 5-1, which notes that the new Juvenile Code “shall become effective on January 1, 2014, and shall apply to all. . . juvenile proceedings commenced on or after such date.”

       For the analogous provisions in the new Juvenile Code, see OCGA§§ 15-11-212 (d) (“Placement or a change of custody by the court outside DFCS shall relieve DFCS of further responsibility for [a] child [adjudicated as dependent] except for any provision of services ordered by the court to ensure the continuation of reunification services to such child’s family when appropriate.”); 15-11-215 (f) (“Placement or a change oflegal custody by the court outside DFCS shall relieve DFCS of further responsibility for a child adjudicated as a dependent child except for any provision of services ordered by the court to ensure the continuation of reunification services to such child’s family when appropriate.”).


text:
    A13A2267.
    ROBINSON v. THE STATE.
    (755 SE2d 865)
   DOYLE, Presiding Judge.

Following a jury trial, Nekia Shorlet Robinson appeals from her conviction of aggravated assault and possession of a firearm during the commission of a felony, contending that (1) the evidence was insufficient to support the verdict, and (2) the trial court erred by finding that she knowingly, intelligently, and voluntarily waived her right to counsel in connection with a custodial interrogation. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that Robinson was with a group of friends on the front porch of an apartment, playing a dice game with Armón Tucker. A dispute over a $5 bet arose between Robinson and Tucker, and they began arguing. The argument escalated, and they moved off the porch into the front yard, where Tucker said he did not want to “fight her because she was a girl[,] and he just wanted the money.” Robinson replied, “you got to do what you got to do,” while her hand was concealed in her pocket. Tucker then hit Robinson two or three times in the back of her head, and Robinson fired a .25 caliber pistol she had concealed in her pocket, hitting Tucker in the neck, but not fatally.

Based on these events, Robinson was charged with aggravated assault and possession of a firearm during the commission of a felony. A jury found her guilty, and following the denial of her motion for new trial, Robinson filed this appeal.

1. Robinson contends that the evidence was insufficient to support the verdict because the State failed to disprove her justification defense beyond a reasonable doubt. We disagree.

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.

With respect to the justification defense

[u]nder Georgia law, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony. Whether the evidence shows that a person had a reasonable belief that deadly force was necessary in self-defense is a question for the jury. The jury’s resolution of this question will not be reversed on appeal when the defendant’s challenge merely points to conflicts in the evidence and questions witness credibility, matters which are to be determined exclusively by the jury.

Here, there was evidence that Robinson invited Tucker to physically fight her after a verbal dispute arose over a $5 dice bet. Tucker was unarmed, and Robinson had concealed her firearm in her pocket. After two or three punches were thrown, Robinson shot Tucker in the neck. This Court has held that “[t]he evidence showing that the victim was unarmed at the time of the incident authorized the jury to conclude beyond a reasonable doubt that [the defendant] was not justified in using deadly force.” Under the facts of this case, we discern no error.

2. Robinson also contends that the trial court erred by admitting her custodial interrogation because she did not knowingly and intelligently waive her right to counsel. We disagree.

In ruling on the admissibility of an in-custody statement, a trial court must determine whether, based upon the totality of the circumstances, a preponderance of the evidence demonstrates that the statement was made freely and voluntarily. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of the defendant’s statement at a Jackson v. Denno[] hearing will be upheld on appeal.

The record shows that Robinson was 20 years old, and she appeared to be “in her right mind,” “clear headed,” and suffering no ill effects from the physical altercation. She was unconfined during the interview, which took place in an unlocked conference room at 8:30 p.m. She had completed the eleventh grade, but initially appeared to have trouble spelling her middle name. An officer then told her, “Nekia, prior to speaking with you, I have to read you something, ok? It’s called a Miranda[] warning.” He then read her a Miranda warning card, concluding by telling her that “you can decide at any time to exercise these rights and not answer any questions or make any statements. Do you understand what I read you?” Robinson replied, “yes, sir.” He then provided her with a written Miranda waiver form and explained that it contained what he just read her. He then read a portion of it to her and allowed her to review it and initial each line. During her review of the waiver form, Robinson asked an officer, “What [does] this mean, like attorney, like a lady or something?” The officer re-read the form with her and explained that she had the right to speak to an attorney before making a statement or while making a statement, concluding by saying, “Do you understand that?” Robinson said, “It’s saying... like, I could have someone in the room with us talking?” The officer nodded and replied, “If you want an attorney present, yes you can.” Robinson appeared satisfied with that answer and resumed silently reading the waiver form. After she concluded reviewing each provision in the form, she signed the written waiver at the bottom. Based on these facts, Robinson argues that she was confused about the waiver process and her waiver was therefore not knowing and intelligent.

We discern no error. The video showed no evidence of coercion or enticement by the interviewing officer. Robinson’s rights were explained to her orally and in a written form, which she reviewed, initialed, and signed. The officer answered her questions plainly and waited for her to review the form at her own speed. She gave no indication of further confusion or questions upon reading the form. Further, “[a] defendant must make a request for counsel sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” The trial court did not err by concluding that the question was not a request for counsel, rather for clarification, which the officer provided by explaining that Robinson could have an attorney present before or during questioning. The

[testimony showed that at the time [of her interrogation, Robinson] knew where [s]he was and what [s]he was doing, that [s]he made appropriate responses to questions asked by the officers, and that [s]he did not appear to be under the influence of any intoxicant or drug.

Based on the record before us, we discern no clear error in the trial court’s ruling.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

Decided March 7, 2014.

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, John H. Cranford, Jr., Assistant District Attorney, for appellee.

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-11-106 (b) (1).

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

       See generally Diaz v. State, 270 Ga. 421, 421-422 (510 SE2d 529) (1999) (“When a defendant produces evidence that he was justified in using deadly force, the burden is on the State to disprove that affirmative defense of justification beyond a reasonable doubt.”).

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

       (Citations and punctuation omitted.) Thomas v. State, 296 Ga. App. 231, 232-233 (1) (674 SE2d 96) (2009). See also OCGA § 16-3-21 (a).

        Thomas, 296 Ga. App. at 233 (1).

       See id. See also Hutto v. State, 320 Ga. App. 235, 237 (1) (739 SE2d 722) (2013) (evidence that defendant invited unarmed victim to fight and then stabbed the victim authorized jury to reject justification defense).

       378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       (Punctuation omitted.) Humphreys v. State, 287 Ga. 63, 73 (6) (694 SE2d 316) (2010).

        Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       (Punctuation omitted.) Stacey v. State, 292 Ga. 838, 844 (6) (741 SE2d 881) (2013).

       Our own review of the video confirms this. See Clay v. State, 290 Ga. 822, 825, n. 1 (725 SE2d 260) (2012) (“This Court owes no deference to a trial court’s factual findings gleaned from a review of a videotape that are not the subject of testimony requiring the trial court’s weighing of credibility or resolving of conflicts in the evidence.”).

        Davis v. State, 292 Ga. App. 782, 785 (2) (a) (666 SE2d 56) (2008).

       See Simon v. State, 269 Ga. 208, 210 (3) (497 SE2d 231) (1998); Raulerson v. State, 268 Ga. 623, 627 (2) (b) (491 SE2d 791) (1997) (below normal intelligence and poor reading skills do not, absent other factors, render confession inadmissible).


text:
    A13A2487.
    THE STATE v. ROBINSON.
    (755 SE2d 869)
   Branch, Judge.

The State brings this appeal from an order of the trial court granting in part Paris Robinson’s motion to suppress statements he made to police during a custodial interview. As grounds for its appeal, the State asserts that the trial court erred when it found that a portion of Robinson’s police interview was inadmissible because it was induced by a statement of the interviewing officer which implied that Robinson would receive a lighter sentence if he cooperated with police. For reasons explained below, we find no error and affirm.

The relevant facts are largely undisputed, and the record shows that in August 2011, the Savannah-Chatham Metropolitan Police Department was investigating a series of armed robberies targeting Hispanic males at or near apartment complexes on the south side of Savannah. As part of the investigation, police began conducting stakeouts at various apartment complexes in the southern part of the city. During a stakeout on the night of August 5, 2011, an officer encountered a group of men, including Robinson, running away from one of the apartment complexes; the men were being followed by a large group of Latino men. The officer saw Robinson raise a pistol upward and heard a shot fired. After briefly investigating the incident, police arrested Robinson and two other individuals. During a search of Robinson’s person, police found a wallet and car keys that had been stolen from one of the men in the pursuit group. Police subsequently conducted an identification showup at the scene, and one of the victims identified Robinson and at least one other individual as having been involved in a robbery that evening.

Following his arrest, Robinson was interviewed at the police station by a detective with the robbery unit. Robinson’s interview was recorded, and a copy of that interview was introduced into evidence and reviewed by the trial court. The detective read Robinson his Miranda rights and reviewed a waiver of rights form with him. Robinson waived his rights, signed the waiver form, and agreed to talk with police without his attorney present. Robinson answered the detective’s questions regarding the robbery that evening, admitting that he was present at the scene, but denying any direct involvement. When the officer began taking notes, Robinson offered to write down his statement, and the detective accepted that offer.

After Robinson completed his written statement, the detective questioned him about what he had written. The officer then told Robinson it was important for Robinson to be honest, expressed that he thought Robinson was lying, and asked Robinson to tell the police “what really happened” with respect to the robbery. When Robinson offered no further information, the officer told him, “When this goes to court, and you know this is gonna go to court, right? ... The only... and your only card in this whole entire thing is to cooperate. That’s the only thing. The person that cooperates is the person that gets help.” The officer then asked if Robinson had ever been arrested before, and Robinson responded that he had not. The detective stated, “It would behoove you beyond all reason. You will think about the conversation you and I are having right now. You’ll think about it for a long time later on if you don’t [tell the truth].... It behooves you to be honest.” Following these statements by the officer, Robinson began to provide more details about that evening’s robbery, and admitted his involvement in the crime. Robinson also went on to provide police with information regarding some of the other, similar robberies that were under investigation.

Robinson and a co-defendant were subsequently indicted on four counts of armed robbery, five counts of possession of a firearm during the commission of a crime, one count of aggravated assault, and one count of obstruction. Prior to trial, Robinson moved to suppress his interview with police on the grounds that it was not voluntary. F olio wing an evidentiary hearing on this motion, the trial court found that, under the circumstances of this case, the detective’s statement that “[t]he person that cooperates is the person that gets help” induced Robinson to talk further with police because it implied that if Robinson (as opposed to his co-defendant) cooperated with police, he would receive a lighter or reduced sentence. The trial court therefore suppressed that part of the police interview which occurred after the detective made the statement at issue. The State now appeals that order.

Under Georgia law, an incriminating statement will be considered involuntary, and will therefore be inadmissible, if it was “induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-8-824. The State bears the burden of proving that a defendant’s statement was voluntary, and in determining whether the State has met its burden, “the trial court must consider the totality of the circumstances.” (Citation and punctuation omitted.) Martin v. State, 271 Ga. 301, 304 (2) (518 SE2d 898) (1999). When reviewing a trial court’s decision as to the voluntary or involuntary nature of a defendant’s statement, we must construe the evidence “most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” (Citation and punctuation omitted.) Stringer v. State, 285 Ga. 842, 843 (2) (684 SE2d 590) (2009). When the relevant facts are undisputed, however, we review de novo the trial court’s application of the law to those facts. Taylor v. State, 274 Ga. 269, 272 (1) (553 SE2d 598) (2001). Bearing these guiding principles in mind, we turn to the State’s claim of error.

“The promise of a benefit that will render a confession involuntary under OCGA § [24-8-824] must relate to the charge or sentence facing the suspect,” and the “hope of benefit” to which the statute refers has been consistently construed as a hope of lighter punishment. (Citations and punctuation omitted.) Foster v. State, 283 Ga. 484, 485 (2) (660 SE2d 521) (2008) (and cases cited therein). The Supreme Court of Georgia has repeatedly held that “merely encouraging a suspect to tell the truth does not amount to the hope of benefit so as to render the suspect’s inculpatory statement involuntary and therefore inadmissible.” Gilliam v. State, 268 Ga. 690, 691-692 (3) (492 SE2d 185) (1997), citing Henry v. State, 265 Ga. 732, 736 (4) (c) (462 SE2d 737) (1995). Thus, encouraging a suspect to “help herself by telling the truth” does not offer hope of a lighter punishment. (Footnote omitted.) Taylor, 274 Ga. at 273 (2). See also Wilson v. State, 285 Ga. 224, 228 (3) (675 SE2d 11) (2009) (“[a]n interrogator’s statement to an arrestee to ‘help yourself out’ is an encouragement to tell the truth and does not constitute an impermissible hope of benefit”) (citations omitted); Lee v. State, 270 Ga. 798, 800 (2) (514 SE2d 1) (1999) (police officer did not offer hope of benefit when, in response to defendant’s question if defendant should make a recorded statement, the officer stated, “ ‘[t]hat’s up to you,... [a]ll you’re going to do is help yourself out’ ”); Fowler v. State, 246 Ga. 256, 258 (4) (271 SE2d 168) (1980) (defendant’s statement not rendered involuntary by fact that officer told him it would “ ‘behoove him if he shot straight [with] us’ ”) (citation omitted). Nor is a statement rendered involuntary because the police tell a suspect that the trial judge or prosecutor might look favorably on the suspect’s truthful cooperation with law enforcement. Wilson, 285 Ga. at 228 (3) (“[t]elling a suspect that truthful cooperation might be considered by others does not render a statement involuntary”) (citation omitted); Gilliam, 268 Ga. at 692 (3) (“telling a suspect that his cooperation will be made known” to the prosecutor or trial judge “does not amount to the hope of benefit”) (citations omitted); Taylor, 274 Ga. at 273 (2).

Decided March 7, 2014.

Meg E. Heap, District Attorney, Michael K. Dennard, Assistant District Attorney, for appellant.

Amy L. Ihrig, Falen O. Cox, for appellee.

Relying on the foregoing principles, the State argues that the statement at issue represented nothing more than an admonition to Robinson to tell the truth and did not offer Robinson a hope of benefit if he continued to talk with police. Having carefully reviewed the video recording of Robinson’s police interview, however, we are not persuaded by the State’s argument. As the trial court found, this is not a case where Robinson was merely encouraged to “help himself” by telling the truth. Rather, the officer told Robinson that “[t]he person that cooperates is the person that gets help.” At the time the officer made this statement, Robinson had been arrested with at least two accomplices, and the video shows that Robinson was aware that these individuals were in custody and at the police station. Thus, viewing the officer’s statement under the totality of the circumstances, as the trial court was obligated to do, that statement does appear to offer Robinson some hope of benefit — i.e., it indicates that if Robinson cooperated truthfully with police, he would get a lighter sentence than his accomplices. See Askea v. State, 153 Ga. App. 849, 851 (3) (267 SE2d 279) (1980) (“the interrogating officer’s remark that ‘it (i.e., telling the truth) would probably help [the defendant] in court’ holds out at least some hope for reward by special consideration if the suspect cooperates”); Robinson v. State, 229 Ga. 14, 14-15 (1) (189 SE2d 53) (1972). Accordingly, we find no error by the trial court in granting Robinson’s motion to suppress that part of his police interview that occurred after the officer improperly induced Robinson to talk further.

Judgment affirmed.

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

       Prior to January 1, 2013, this statutory language was found in OCGA § 24-3-50.


text:
    A13A1694.
    HARPER v. AMERIS BANK.
    (755 SE2d 872)
   DOYLE, Presiding Judge.

Allen C. Harper, one of the personal guarantors of a promissory note secured by property comprised of approximately 110 lots in a subdivision known as Southbridge at Berwick Plantation, Phase III, near Savannah, Georgia, appeals the trial court’s confirmation of the foreclosure of the property by Ameris Bank (“Ameris”). Harper argues (1) that the trial court erred by confirming the sale because (a) Ameris failed to file the post-sale deed under power within the time prescribed by OCGA § 44-14-160; and (b) Ameris failed to correctly advertise the sale; and (2) that the trial court abused its discretion by denying his motion to exclude Ameris’ experts’ testimony pursuant to former OCGA § 24-9-67.1.

The record establishes that Darby Bank & Trust (“Darby”) issued a loan for $6,548,000 to SB Partners, LLC. The promissory note was secured by a deed to the property, as well as the personal guaranties of Charles K. Werk, Harper, and Roy S. Shiver, Jr. SB Partners also entered into a Lot Purchase Agreement with D. R. Horton, Inc., under which D. R. Horton would purchase 40 lots — 20 lots during the year after closing the agreement for $59,000 per lot, and 20 thereafter for at least $62,540 per lot. After Darby failed in November 2010, and its assets were seized by the Federal Deposit Insurance Corporation, Ameris was appointed as receiver for Darby’s assets, including the note and guaranties at issue.

Finding that SB Partners was in default on the note, Ameris foreclosed on the property in August 2011. Prior to the sale, Ameris procured two appraisals of the property, which valued the property at $2.1 million and $2.81 million. Ameris, however, purchased the property at the sale for $3,372,000, which consisted of a 20 percent increase of the highest appraisal. Thereafter, Ameris filed the instant confirmation petition.

At the hearing, Ameris presented the testimony of its appraisers, including Joel Crisler, who appraised the property in April 2011 and August 2011. Harper moved to exclude the expert testimony on the ground that it violated former OCGA § 24-9-67.1 (b). Specifically, Harper argued that Crisler’s conclusion that four of the lots were unbuildable due to flooding was impermissible testimony because he was unqualified to testify regarding this issue, and Crisler’s failure to rely on the lot purchase agreement with D. R. Horton as evidence of value rendered unreliable his opinion as to the value of the property. The trial court, however, denied the motion; and thereafter, it entered an order confirming the sale.

1. Harper first argues that the trial court erred by confirming the sale because Ameris failed to file the deed under power within the time prescribed by OCGA § 44-14-160. We disagree.

OCGA § 44-14-160 states:

Within 90 days of a foreclosure sale, all deeds under power shall be recorded by the holder of a deed to secure debt or a mortgage with the clerk of the superior court of the county or counties in which the foreclosed property is located. The clerk shall write in the margin of the page where the deed to secure debt or mortgage foreclosed upon is recorded the word “foreclosed” and the deed book and page number on which is recorded the deed under power conveying the real property; provided, however, that, in counties where the clerk keeps the records affecting real estate on microfilm, the notation provided for in this Code section shall be made in the same manner in the index or other place where the clerk records transfers and cancellations of deeds to secure debt.

This Court has not addressed whether this Code section provides any remedy for a debtor; however, the plain language of the statute, as the trial court found below, provides for post-foreclosure procedures that would not affect the debtor in any way and instead would provide protection for future buyers.

In any event, this Court has explained that “[a] confirmation proceeding is a limited statutory proceeding. . . ” “Its purpose is to pass upon the notice, advertisement and regularity of the sale and to re-insure that the property was sold for a fair value. It provides debtors with formidable protection against gross deficiency judgments.” The failure by Ameris to timely file the deed does not fall within those categories, and thus, to the extent that any claim is available to a debtor under OCGA § 44-14-160, the appropriate vehicle would be a wrongful foreclosure action and not a confirmation proceeding.

2. Harper also argues that the trial court erred by allowing Crisler to testify as to the valuation of the property in violation of Daubert v. Merrell Dow Pharmaceuticals, andformerOCGA § 24-9-67.1 (b) because he was not qualified as an engineer or scientist who could testify regarding buildability of lots, and his opinion was unreliable as it failed to take into account the lot-purchase agreement when calculating the value of the property.

[Q]uestions concerning the admissibility of expert opinion generally are committed to the sound discretion of the trial courts, and questions of the admissibility of expert opinions under [former] OCGA § 24-9-67.1 are no different. Whether an expert opinion ought to be admitted under [former] OCGA § 24-9-67.1 is a question that is especially fit for resolution by a trial court because it requires a consideration of the facts and data upon which the opinion is based, whether the opinion is a product of reliable principles and methods, and whether the opinion was reached by a reliable application of those principles and methods to the facts of the case.

In WCI Properties, Inc. v. Community & Southern Bank, this Court addressed a similar argument regarding the admission of an appraiser’s testimony in the face of a Daubert motion. This Court explained that

[a] party seeking to confirm a nonjudicial foreclosure sale is under no obligation to present an expert appraisal of the property. Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer but may testify as to its value if he has had an opportunity for forming an opinion. Of course, the opinions of experts as to the true market value of property are admissible, and provide sufficient evidence of value to support a trial court’s order of confirmation. As this Court has recently held, moreover, a court sitting as the trier of fact in a confirmation hearing is not required to subject expert testimony as to value to a Daubert hearing.

Here, Crisler prepared two valuation reports for Ameris, one in April 2011 and one in August 2011. Crisler contacted a D. R. Horton representative, who testified that the company was not performing under the contract, as well as an engineer to survey the four questionable lots, and both individuals supported his conclusions, which were not offered to show that the lots were buildable or that the contract had to be followed, but rather to provide an opinion as to the value of the homes. Crisler is certified as an appraiser in Georgia, has extensive experience performing as such, and his conclusions as to the lot purchase agreement and buildability of certain lots and the effect of those conclusions on his final analysis of the value of the property was subject to thorough and sifting cross-examination. The issues go to the weight, not the admissibility of Crisler’s testimony, and the trial court did not abuse its discretion by allowing it.

3. Finally, Harper contends that Ameris’ failures in the advertisement required the trial court to deny confirmation of the sale. Specifically, Harper contends that Ameris’ advertisement of the property incorrectly included two lots that later were released from the security deed prior to the sale.

This Court addressed a similar argument in Dan Woodley Communities, Inc. v. SunTrust Bank, in which this Court found that the legal description in the advertisement correctly stated the metes and bounds and the book and page number of the plat as well as a notation “that it was sold ‘subject to the following items which may affect the title to said property,’ including liens, special assessments, ‘all restrictive covenants, easements, rights of way and any other matters of record superior to said Security Deed,’ ” which is the same language that appears in the advertisement here. This Court also noted that “[t]he excepted units were identified on the courthouse steps at the time of the sale,” which is also what occurred in this case.

Decided March 10, 2014.

Bloom Sugarman Everett, Simon H. Bloom, Stephanie A. Everett, Ariel D. Zion, for appellant.

Ellis, Painter, Ratterree & Adams, Quentin L. Marlin, Kimberly C. Harris, for appellee.

Not every irregularity or deficiency in a foreclosure advertisement will void a sale. [Harper] has not shown [he] was harmed in any way by the inclusion of two unavailable lots in the foreclosure ad’s property description. ... As the trial court noted, [Harper] failed to show in any particular how the end result would have been different had [Ameris] not included in the advertisement descriptions of the lots which had already been sold.

Accordingly, the trial court did not err by granting the petition for confirmation over Harper’s argument.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       Only Harper is a party to the appeal.

       We note that the legislature revised the statute in 2009 and had the opportunity to pass a version of the statute enacting fines for late filing under this Code section; however, the measure failed. See Ga. L. 2009, p. 614, § 1/SB 141.

        River Walk Farm v. First Citizen Bank & Trust Co., 321 Ga. App. 173, 174-176 (1) (741 SE2d 165) (2013) (providing a summary of those claims applicable to confirmation hearings and those applicable to wrongful foreclosure actions).

       (Punctuation omitted.) Howser Mill Homes v. Branch Banking & Trust Co., 318 Ga. App. 148, 151 (1) (733 SE2d 441) (2012) (citing OCGA § 44-14-161 (c) which states that the trial court shall pass upon the validity of the advertisement at the confirmation hearing).

       Cf. id.

       Although Harper argues that Ameris’ other expert testimony should have been excluded for similar reasons, we address only Crisler’s testimony because the trial court relied on it when confirming the sale. For the same reasons, however, the trial court did not abuse its discretion by allowing Ameris’ other expert to testify.

       509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993).

       (Citations and punctuation omitted.) WCI Properties v. Community & Southern Bank, 320 Ga. App. 671, 672 (740 SE2d 686) (2013).

       (Citations and punctuation omitted.) Id. at 674 (1).

       “[DJisputes as to an expert’s credentials are properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility.” (Punctuation omitted.) Village at Lake Lanier v. State Bank & Trust Co., 314 Ga. App. 498, 502 (2) (b) (724 SE2d 806) (2012). See WCI Properties, 320 Ga. App. at 675 (2).

       See id.

       310 Ga. App. 656 (714 SE2d 145) (2011).

       Id. at 657.

       Id.

       (Footnotes omitted.) Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369, 372 (1) (601 SE2d 842) (2004) (holding that an ad showing the incorrect plat book number did not void the sale because the error did not contribute to chilling the sale price or voiding the advertisement), citing Oates v. Sea Island Bank, 172 Ga. App. 178, 179 (2) (a) (322 SE2d 291) (1984).