author: MCMlLLIAN, Judge.

text:
    A14A2141.
    EARLY et al. v. MIMEDX GROUP, INC.
    (768 SE2d 823)
   MCMlLLIAN, Judge.

We granted this interlocutory appeal to determine whether a provision in a Consulting Agreement that requires a designated employee of the Consultant to “devote her full working time” to the performance of the Consultant’s duties under the Agreement constitutes an illegal and unenforceable restraint of trade, and if not, whether the provision is enforceable against the employee named in the Agreement, even though she did not expressly agree to be bound by the provision at issue. We answer the first question in the affirmative and thus need not reach the second question.

Pertinent to these issues, the record shows that appellee MiMedx Group, Inc. (“MiMedx”) develops, manufactures, and markets patent protected biomaterial-based products, including bioimplants made from human amniotic membrane. Appellant Ryanne Early was experienced in this field, and had worked for a “now defunct emerging competitor of MiMedx.” Sometime around January 2011, MiMedx and Early entered into negotiations about a possible “business relationship,” and later that month MiMedx and Early, as founder and president of ISE Professional Testing & Consulting Services, Inc. (“ISE”), entered into a “Mutual Confidentiality and Nondisclosure Agreement” (“Nondisclosure Agreement”) prohibiting Early from disclosing trade secrets and confidential information, which might be revealed to her during negotiations with MiMedx.

A short time later, MiMedx and ISE entered into a Consulting Agreement whereby ISE, as the named “Consultant,” would provide product, research and development consulting services to MiMedx related to its amnion products. Paragraph 2 of the Consulting Agreement named Early as the ISE employee who would provide consulting services to MiMedx, and further specified that Early would “devote her full working time (not less than forty (40) hours per week) to [the] performance of Consultant’s duties hereunder” (“full-working-time provision”).

MiMedx terminated the Consulting Agreement in December 2011, and subsequently filed a verified complaint against, inter alia, Early and ISE (collectively referred to as “appellants”) seeking damages, specific performance and injunctive relief under the Consulting Agreement and the separate Nondisclosure Agreement. Although the complaint set out numerous causes of action against both ISE and Early and specifically alleged that Early had failed to devote her full working time to the performance of the consulting duties under the Consulting Agreement, it did not set out a separate cause of action for breach of that Agreement.

Appellants answered and filed a counterclaim seeking payment for the consulting services which were rendered in December 2011. A short time later, MiMedx filed an amended complaint asserting a cause of action against ISE and Early for breach of the Consulting Agreement. Although MiMedx did not specifically allege which provisions of the Consulting Agreement had been breached, the amended complaint again alleged that Early had failed to devote her full working time to the performance of the consulting duties under the Consulting Agreement and had instead misappropriated MiMedx’s trade secret and confidential information to start a rival company.

Appellants subsequently filed a motion for judgment on the pleadings, contending, among other things, that the full-working-time provision of the Consulting Agreement was void and unenforceable as either a general or partial restraint of trade. Following a hearing, the trial court denied appellants’ motion for judgment on the pleadings without explanation, and appellants filed an application seeking interlocutory review of that order in this Court. We granted appellants’ application, and this appeal followed. As more fully set forth below, we now reverse.

It is well settled that,

[o]n a motion for judgment on the pleadings, we treat all well-pled material allegations by the nonmovant as true and all denials by the movant as false. Although such motion is, by definition, limited to the pleadings, a trial court may also consider exhibits that have been incorporated into the pleadings. If, in reviewing these documents, there is a complete failure by the plaintiff to state a cause of action, then the defendant is entitled to judgment as a matter of law.

(Footnotes omitted.) Printis v. Bankers Life Ins. Co., 256 Ga. App. 266, 266 (568 SE2d 85) (2002). However, we are mindful that “[a] motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment.” (Citation and punctuation omitted.) Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88, 90 (701 SE2d 472) (2010).

1. Before turning to the merits of this appeal, we must first address MiMedx’s contention that appellants are barred from challenging the enforceability of the Consulting Agreement because they failed to raise this issue by way of a responsive pleading below, and because appellants admitted that the Consulting Agreement was valid and enforceable in their counterclaim seeking payment for the consulting services that were rendered in December 2011.

(a) MiMedx first asserted its claim for breach of the Consulting Agreement in its amended complaint, but did not specify which provision of the Agreement was allegedly breached. Appellants did not file an answer to the amended complaint, but raised the issue of the enforceability of Paragraph 2 of the Consulting Agreement by way of a motion for judgment on the pleadings. This was sufficient. As we have held on numerous occasions, a defendant “is not required to file an answer to an amended complaint unless the trial court itself has affirmatively ordered such answer.” (Citation and punctuation omitted.) Hiner Transport, Inc. v. Jeter, 293 Ga. App. 704, 705 (667 SE2d 919) (2008). See also OCGA § 9-11-12 (a). “This is consistent with the statement in OCGA § 9-11-8 (d) that averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.” (Citations and punctuation omitted.) Nat. City Mtg., Inc. v. Point Center Financial, Inc., 306 Ga. App. 655, 656 (703 SE2d 113) (2010). Moreover, although MiMedx cites OCGA § 9-11-8 (c) for the proposition that affirmative defenses such as illegality must always be raised by way of a responsive pleading, our precedent clearly establishes that this rule is not as inflexible as MiMedx contends.

The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleadedf,] it is generally held that the defense is waived, but if it is raised by motion, or by special plea in connection with the answer or by motion for summary judgment there is no waiver.

Hardy v. Ga. Baptist Health Care Systems, Inc., 239 Ga. App. 596, 596-597 (1) (521 SE2d 632) (1999), and cites. Cf. First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 816-817 (3) (285 SE2d 203) (1981) (affirmative defense of illegality waived when it was neither included in a defensive pleading nor raised by written motion).

Moreover, by failing to raise this issue in the trial court, MiMedx itself has waived this issue on appeal. See Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 347 (2) (b) (173 SE2d 723) (1970) (“The lack of pleading, if such there was, was not raised in the trial court and that issue is not properly before us. The question was not submitted to the trial court, was not passed upon by that court, and thus under the law of this State cannot be considered by this court.”) (citations and punctuation omitted). Roberts v. Farmer, 127 Ga. App. 237, 240-241 (5) (193 SE2d 216) (1972) (contention not made in the trial court cannot be considered on appeal).

(b) MiMedx also contends that appellants are barred from asserting this defense because they themselves sought to enforce the Consulting Agreement in their counterclaim and specifically pled that the Agreement was valid and enforceable. Again, however, MiMedx has waived the right to raise this contention by failing to raise it below. E.g., Crippen v. Outback Steakhouse Intl., 321 Ga. App. 167, 170 (1) (741 SE2d 280) (2013).

Moreover, this contention fails on the merits. First, MiMedx had not asserted its claim for breach of the Consulting Agreement at the time appellants made this allegation in their counterclaim, and thus it would be incongruous to say that they had admitted to a claim that had not yet been pled.

Additionally, the Consulting Agreement contains the following severability clause:

If any provision of this Agreement shall be declared invalid or illegal for any reason whatsoever, then notwithstanding such invalidity or illegality, the remaining terms and provisions of this Agreement shall remain in full force and effect in the same manner as if the invalid or illegal provision had not been contained therein.

It is well settled that the intent of the parties determines whether a contract is severable such that the remaining contract provisions will survive even if one or more provisions of the contract are void. Capricorn Systems, Inc. v. Pednekar, 248 Ga. App. 424, 428 (2) (d) (546 SE2d 554) (2001). And “[a] severability clause indicates the intent of the parties where the remainder of the contract can exist without the void portion.” Id. Accordingly, “[v]oid restrictive covenants, which cannot be blue-penciled out of the contract, do not void the entire contract when the contract contains a severability clause.. .. [Cits.] [T]he other contract terms survive the void terms, provided that the contract is severable.” Id. Applying these principles here, we find that appellants were not foreclosed from seeking to enforce parts of the Consulting Agreement while challenging other severable parts of that Agreement as unenforceable.

2. We now turn to the primary issue on appeal — whether the full-working-time provision is enforceable — and begin our analysis with Paragraph 2 of the Consulting Agreement which provides:

Duties. In conjunction with designated MiMedx staff and under the direction and control of John Daniel, the Consultant shall provide consulting services to MiMedx. The nature and scope of the consulting services relate to product and research and development management related to amnion products. Ryanne [Early] shall devote her full working time (not less than forty (40) hours per week) to [the] performance of Consultant’s duties hereunder.

(Emphasis supplied.)

Appellants contend that the full-working-time provision prohibits Early from performing any kind of work during the term of the agreement other than for MiMedx, and thus is an illegal restraint of trade. MiMedx, on the other hand, asserts that this is a simple breach of contract action in that they paid ISE for 100 percent of Early’s working time and that ISE (and Early) breached the Consulting Agreement by failing to deliver what they had promised. Moreover, MiMedx argues that the provision is no different from loyalty or best effort provisions requiring an employee to devote her time on the job to her employer’s business.

We must begin our analysis by construing the full-working-time provision and what is required therein. That analysis has been aided in this case because the parties essentially agree on what the clause means — ISE contracted that Early would devote any working time to MiMedx’s business, whether or not that working time was related in any way to the type of enterprise in which MiMedx is engaged. We see no reason to construe the contract in a different or narrower way given that the parties agree on its terms. See Head v. Scanlin, 258 Ga. 212, 214 (1) (367 SE2d 546) (1988).

Next, we turn to the question of whether a contract between a company and its customer that requires an employee to spend all her working time on the customer’s business is an illegal restraint of trade or merely a loyalty provision. Atlanta Bread Co. Intl., Inc. v. Lupton-Smith, 285 Ga. 587, 589 (2) (679 SE2d 722) (2009) (“Atlanta Bread Co. II”), is particularly instructive. In that case, our Supreme Court considered whether an in-term covenant in a franchise agreement prohibiting the franchisee from operating competing stores was a loyalty provision or restraint of trade, and held that “[a] plain reading of the clause shows that it prohibits the [contractor] from engaging in a certain type of business during the terms of the parties’ agreement and, thus, it is a partial restraint of trade designed to lessen competition.” Id.

Here, the full-working-time provision is in one sense broader than the clause in Atlanta Bread Co. II in that Early is prohibited from doing any work whether in competition with MiMedx or not, and yet is narrower in that any other ISE employee could perform work directly in competition with MiMedx. But MiMedx’s breach of contract claim, as pled, is not seeking to prohibit other ISE employees from competing; rather, MiMedx is seeking damages from ISE for not requiring Early to conform to the terms of the contract. Thus, our analysis must focus on whether ISE can enforce the full-working-time provision against Early because if ISE is prohibited from requiring Early to spend any and all working time on consulting for MiMedx, we fail to see how MiMedx can base a breach of contract claim on the same conduct. See Dougherty, McKinnon & Luby, P.C. v. Greenwald, Denzik & Davis, P.C., 213 Ga. App. 891, 892 (1) (447 SE2d 94) (1994) (“[I]t is the legal effect of a contractual provision, not the parties’ specified manner of enforcement of the provision, that determines enforceability vel non of a contract.”) (citation and punctuation omitted); OCGA § 13-8-2 (a) (2) (contracts which are deemed contrary to public policy, including contracts in general restraint of trade, are unenforceable).

When viewed in that light, it is clear that under Atlanta Bread Co. II, the full-working-time provision is a restraint of trade, rather than a loyalty provision. Although MiMedx cites several cases that it contends demonstrate that this Court routinely reviews and upholds best effort, full-time, or similar “loyalty” provisions without regard to their anti-competitive effect, it appears that in none of those cases was this Court confronted with the issue presented here. It is well settled that “[qjuestions neither brought to the attention of the Court nor ruled upon will not be considered as precedent.” BIK Assocs. v. Troup County, 236 Ga. App. 734, 738 (4) (513 SE2d 283) (1999). As our appellate courts have

repeatedly cautioned[,] our decisions stand only for the points raised by the parties and decided by the court. Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.

(Citations and punctuation omitted.) Holton v. Physician Oncology Svcs., 292 Ga. 864, 869-870 (2) (742 SE2d 702) (2013). Accordingly, we agree with appellants that none of these cases preclude us from analyzing the full-time-working provision as a restrictive covenant when the terms of the provision, as agreed by the parties, would preclude Early from engaging in any work apart from the contract with MiMedx, which restriction would clearly have an anti-competitive effect. See Dougherty, 213 Ga. App. at 892-893 (1) (analyzing liquidated damages provision as a restrictive covenant due to its anti-competitive effect).

In analyzing restrictive covenants, Georgia courts have distinguished between general and partial restraints of trade. See W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992); Atlanta Bread Co. II, 285 Ga. at 588 (1). While “contracts that generally restrain trade are void against public policy,” id., covenants in partial restraint of trade are upheld “if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public.” (Citation omitted.) W. R. Grace & Co., 262 Ga. at 465 (1).

Appellants argue that because the full-working-time provision is designed to completely prohibit Early from working in any marketplace, it should be viewed as a general restraint of trade and declared void without further analysis. Pretermitting whether the provision is a general or partial restraint of trade, we find that even if viewed as a partial restraint of trade, the provision would be unenforceable. A partial restraint of trade is enforceable only if it is reasonable as to time, territory, and scope. Murphree v. Yancey Bros. Co., 311 Ga. App. 744, 747 (716 SE2d 824) (2011). In making this determination, “ ‘a court may consider the nature and extent of the business, the situation of the parties, and all other relevant circumstances.’ [Cit.] The reasonableness of the restraints imposed is a question of law.” Id. at 747 (1). In addition, Georgia courts have applied different levels of scrutiny based on the type of agreement that contains the restrictive covenant. Swartz Investments, LLC v. Vion Pharmaceuticals, Inc., 252 Ga. App. 365, 368-369 (2) (556 SE2d 460) (2001). And it is important to note that although cases distinguish post-term restrictive covenants from in-term restrictive covenants, at least factually, courts “have made no distinction as to the level of scrutiny applied based on whether the restraint occurs during the term of the agreement or after the agreement has been terminated.” Atlanta Bread Co. II, 285 Ga. at 590 (3). See also Atlanta Bread Co. Intl. v. Lupton-Smith, 292 Ga. App. 14, 17-18 (1) (663 SE2d 743) (2008) (‘Atlanta Bread Co. I”).

Decided February 10, 2015

Erika C. Birg, for appellants.

Berman Fink Van Horn, Benjamin I. Fink, Neal F. Weinrich, Collin L. Freer, for appellee.

Given the procedural posture, we lack the information necessary to determine the precise level of scrutiny which should be applied in this case; but it is not necessary for us to make that determination, because the full-working-time provision, which contains no limitation at all concerning either scope or territory, fails as a matter of law under any level of scrutiny. See Atlanta Bread Co. I, 292 Ga. App. at 18-19 (2) (in-term provision that would prevent franchisee from working in any capacity in the deli/bakery business, even as a janitor, was unreasonable and overbroad). See also Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 184 (2) (236 SE2d 265) (1977) (post-term covenant that restricts an employee from engaging in employment “in any capacity,” is unreasonable and unenforceable); Uni-Worth Enterprises, Inc. v. Wilson, 244 Ga. 636, 639 (1) (261 SE2d 572) (1979) (restrictive covenant that fails to specify the business activities the employee is forbidden to engage in after his employment is unreasonable and unenforceable). Atlanta Bread Co. II, 285 Ga. at 591 (3) (a covenant that is not limited as to territory will be invalidated).

Accordingly, we find that the trial court erred in denying appellants’ motion for judgment on the pleadings on the breach of contract claim based on an alleged violation of Paragraph 2 of the Consulting Agreement.

3. Based on the foregoing, it is unnecessary for us to consider appellants’ remaining contention that the provision is unenforceable against Early as the alter ego of ISE.

Judgment reversed.

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

       This case comes to us from the denial of a motion for judgment on the pleadings. Accordingly, our view of the record is limited to the pleadings and exhibits that have properly been incorporated into the pleadings. See Printis v. Bankers Life Ins. Co., 256 Ga.App. 266 (568 SE2d 85) (2002).

       At the time the parties negotiated and executed the Consulting Agreement, Early was known by the last name Hernandez. However, she married in January 2012, and changed her name to Early. Although the Consulting Agreement, initial pleadings and other documents in the record bear the name Hernandez, the notice of appeal was filed under the name Ryanne Early and the parties refer to her as such. Thus, to maintain clarity and for ease of reference, we will use the name Early throughout this opinion.

       The Consulting Agreement states it was executed February 7, 2010, but it appears undisputed that it was executed in 2011, not 2010.

       The Consulting Agreement also contained confidentiality provisions.

       OCGA § 9-11-12 (c) provides that “[a]fter the pleadings are closed hut within such time as not to delay the trial, any party may move for judgment on the pleadings.”

       Appellants indicated at the hearing on the motion that they had gleaned from discovery that MiMedx’s claim was that ISE and Early had breached the full-working-time provision by misappropriating confidential and proprietary information to set up a rival company while the Consulting Agreement remained in effect. As stated above, this allegation also appears in the pleadings.

       The Agreement did not contain explicit post or in-term noncompetition or nonsolicitation provisions.

       MiMedx asserted the following claims in its original complaint: Count I — Action for Specific Performance of the Confidentiality Agreement against ISE; Count II — Action for Specific Performance of the Consulting Agreement against ISE and Hernandez; Count III — Action for Injunction to Enforce Confidentiality Agreement against ISE; Count IV — Action for Injunction to Enforce the Consulting Agreement against ISE and Early; Count V — Action for Damages for Breach of the Confidentiality Agreement against ISE; Count VI — Action for Damages for Breach of the Confidentiality Agreement against ISE and Early; Count VII — Action for Misappropriation of Trade Secrets against Defendants; Count VIII — Action for Fraud in the Inducement against Early and ISE; Count IX —Action for Fraud against ISE and Early; Count X — Action for Fraudulent Business Expenses against ISE and Early; Count XI — Tortious Interference with Contractual Relations against Defendants; Count XII — Tortious Interference with Business Relations against Defendants; Count XIII — Conversion against Early and ISE; Count XIV •— Unjust Enrichment against Early and ISE; and Count XV — Action against all Defendants for Imposition of a Constructive Trust.

       We note that in 2011, our General Assembly amended OCGA § 13-8-53 to permit blue-penciling, provided that “the modification does not render the covenant more restrictive with regard to the employee than as originally drafted by the parties.” OCGA § 13-8-53 (d). However, the amendment applies to contracts entered into on or after May 11,2011. Murphree v. Yancey Bros. Co., 311 Ga. App. 744, 747, n. 10 (716 SE2d 824) (2011).

       For example, at oral argument and in the trial court, MiMedx asserted that Early would be prohibited from babysitting on the weekends or working in a bookstore.

       For example, in Crippen v. Outback Steakhouse Intl., the employee signed an employment agreement which contained a traditional noncompete provision that prevented him from holding an ownership interest in any other restaurant. The agreement also contained a provision very similar to the one at issue here, pursuant to which the employee promised to “ ‘devote one hundred percent (100%) of (his) full business time, attention, energies, and effort to the business affairs of the Company.’ ” 321 Ga. App. at 169 (1). But we did not address whether the restrictive covenant was illegal, finding that the employee had waived this contention by failing to raise it below. Id. at 169-170 (1). See also Coffee System of Atlanta v. Fox, 226 Ga. 593, 594 (176 SE2d 71) (1970) (although factual recitation referred to contract provision requiring employee to “ ‘use his best efforts to the exclusion of all other employment,’ ” the Supreme Court did not analyze the provision, nor does it appear that the employee challenged it); McMurray v. Bateman, 221 Ga. 240 (144 SE2d 345) (1965) (violation of a posi-employment restrictive covenant, and not the “devote your full time” provision); Ross C. Shaw, Jr., Inc. v. Reynolds, 221 Ga. App. 548 (472 SE2d 125) (1996) (appeal in a wrongful termination case where the only issue concerned whether certain evidence had been properly excluded); Nikas v. Hindley, 99 Ga. App. 194, 196-197 (108 SE2d 98) (1959) (wrongful termination in which there was no contention that the employee had violated the full-time provision and that provision was mentioned in the context of whether the contract lacked mutuality).

       We further note that even if we view this contract as one for services by an independent contractor instead of an employee, “ ‘contracts for services by independent contractors’ should be treated like ‘employee covenants ancillary to employment contracts.’ ” (Citation omitted.) Paragon Technologies, Inc. v. InfoSmart Technologies, Inc., 312 Ga. App. 465, 467 (718 SE2d 357) (2011).

       In so ruling, we emphasize that we do not express any opinion as to the other remaining claims in the case, which are not the subject of this appeal.


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A14A2200.
    BROOKS v. THE STATE.
    (768 SE2d 830)
   MCFADDEN, Judge.

Alvin Lamond Brooks appeals from his convictions for robbery by intimidation and aggravated assault, arguing that the evidence was insufficient to support the convictions and that the trial court erred in failing to merge the convictions for sentencing. The evidence was sufficient, and the convictions did not merge because each offense required proof of a fact the other did not. Accordingly, we affirm.

1. Sufficiency of the evidence.

When a defendant challenges the sufficiency of the evidence supporting his criminal convictions, “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.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original).

So viewed, the evidence showed that on December 29, 2011, Brooks accosted Martin Rueda in an apartment complex. He held a box cutter against Rueda’s stomach, cutting him, and demanded to know the whereabouts of another man, whom Brooks apparently believed had been involved in a recent burglary of Brooks’s apartment. Rueda was scared. Brooks then reached into Rueda’s pocket, took his cell phone, said he would return the phone if Rueda brought the other man to him, and left.

Later that day, as Rueda was walking in the apartment complex, Brooks pulled up next to him in a car and parked, nearly striking Rueda in the process. He got out of the car, approached Rueda, called him a delinquent, and tried to strike him with a belt. Brooks then returned to his car and drove away.

Rueda called 911 and described Brooks and his car to the responding law enforcement officers. Shortly thereafter, the officers saw Brooks returning to the apartment complex in the car and stopped him. They found Rueda’s cell phone and a box cutter in the car and a second box cutter in Brooks’s front pocket.

This evidence authorized the jury to find Brooks guilty of robbery by intimidation, which a person commits when, “with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another.” OCGA § 16-8-40 (a) (2). This evidence also authorized the jury to find Brooks guilty of aggravated assault, which a person commits when he assaults another with “any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (b) (2). Although Brooks argues that the evidence was insufficient because he “denied pulling the box cutter on Rueda,” the jury was entitled to believe otherwise. “It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence.” Stills v. State, 327 Ga. App. 767, 768 (761 SE2d 159) (2014) (citation omitted).

Decided February 10, 2015.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Jennifer G. Hendee, Assistant District Attorney, for appellee.

2. Merger.

Brooks argues that the trial court should have merged his convictions for sentencing. To determine whether convictions merge, we apply the “required evidence” test, under which we “examine whether each offense requires proof of a fact which the other does not.” Long v. State, 287 Ga. 886, 888 (2) (700 SE2d 399) (2010) (citation and punctuation omitted). Applying this test, the offenses for which Brooks was convicted do not merge for sentencing, because the offense of robbery by intimidation required proof that Brooks took Rueda’s cell phone by intimidation, and the offense of aggravated assault required proof that Brooks assaulted Rueda with the box cutter. See generally Elamin v. State, 293 Ga. App. 591, 593 (1) (667 SE2d 439) (2008) (finding that convictions for robbery by intimidation and aggravated assault did not merge). We find no merit in Brooks’s argument that we should base our merger analysis on the greater offense of armed robbery, for which he was indicted, rather than the lesser offense of robbery by intimidation, for which he was convicted.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


author: Dillard, Judge.

text:
    A14A2270.
    EMORY UNIVERSITY v. DUVAL.
    (768 SE2d 832)
   Dillard, Judge.

In this workers’ compensation action, claimant Sandra Stennett Duval sought benefits from her former employer, Emory University, for what she claimed was aggravation of a compensable right-shoulder injury. The administrative-law judge (“ALJ”) awarded benefits to Duval, but the Appellate Division of the State Board of Workers’ Compensation (the “Board”) reversed, finding that the aggravation of the right-shoulder injury was not work-related. The superior court then reversed and remanded to the Board, ordering it to address why it did not accept the evidence relied upon by the ALJ in awarding benefits. We granted Emory University’s application for discretionary review and, because the superior court applied the incorrect standard of review in reversing the Board’s award, we reverse.

The record reflects that Duval was employed with Emory University Hospital Midtown as a nurse from October 2008 until she was terminated in January 2013. Duval worked in the telemetry unit with cardiac patients when, on December 3,2010, it is undisputed that she suffered a compensable injury to her right shoulder while lifting a patient. At that moment, Duval felt an “immediate pop” in her right shoulder.

Thereafter, in January 2011, Duval sought treatment from an approved workers’ compensation doctor (who was an orthopaedic surgeon). This doctor administered a steroid injection to the right shoulder, and Duval returned to full-time work in the telemetry unit approximately one week later. Then, in February 2011, Duval returned to the orthopaedic surgeon because she was experiencing pain in her left shoulder, and she received a steroid injection in that shoulder before continuing to perform her regular job duties.

Nevertheless, Duval returned to the orthopaedic surgeon in March 2011, and he ordered an MRI of her left shoulder. The surgeon then recommended that Duval undergo surgery to her left shoulder to repair a rotator-cuff tear, which she did in November 2011. Duval never returned to work after the surgery to her left shoulder.

Following surgery, Duval was unable to use her left arm for eight weeks, and she testified that it was difficult and painful to solely rely upon her right arm. Therefore, in February 2012, Duval returned to the orthopaedic surgeon, and she received two more steroid injections to her right shoulder that year. When those injections failed to alleviate Duval’s pain, the doctor ordered an MRI and then recommended surgery to repair a rotator-cuff tear in the right shoulder.

Thereafter, Duval requested a workers’ compensation hearing, seeking (1) additional medical benefits for her December 3, 2010 compensable right-shoulder injury, including the surgery recommended by the orthopaedic surgeon; (2) a determination that her left-shoulder condition was a compensable injury causally related to her 2010 right-shoulder injury; (3) temporary total-disability benefits from November 18, 2011, and beyond, based upon both shoulder injuries; and (4) assessed attorney fees for bad-faith refusal to pay. Emory contended that Duval’s 2010 right-shoulder injury was temporary and had resolved after appropriate medical treatment, and that her left-shoulder injury was unrelated to her employment.

Following a hearing at which Duval and a benefits case manager for Emory testified, and following review of the medical records entered into evidence, the ALJ concluded that Duval’s left-shoulder injury was not a compensable work-related injury but that her current right-shoulder injury was an aggravation of her compensable December 2010 injury. These findings were made in reliance upon the medical records from the orthopaedic surgeon.

But on appeal, the Board concluded, based upon other medical records that demonstrated a history of shoulder pain predating the December 2010 injury and the conclusions reached by an expert for Emory after his review of the orthopaedic surgeon’s records, that the December 2010 right-shoulder injury and the current right shoulder injury were unrelated. More specifically, based on these records, the Board found that the December 2010 injury had resolved itself one year prior to the reemergence of complaints related to the right shoulder, which occurred after Duval discontinued working to undergo surgery on her left shoulder. Accordingly, the Board reversed the ALJ’s award of temporary total-disability benefits and the award of past and continuing medical treatment of the current right-shoulder injury.

Duval appealed the Board’s reversal to the superior court, which reversed the Board’s decision and remanded to the Board, noting that the Board could not “reject a finding of fact made in the trial division if that finding is supported by a preponderance of competent and credible evidence contained within the records.” As such, the superior court remanded for the Board to address what the superior court deemed to be a discrepancy in the Board’s reversal of the ALJ’s award, notwithstanding the AL J’s finding that the orthopaedic surgeon’s records were more credible. Thus, the superior court ordered the Board “to either accept [the ALJ’s] finding of fact... or provide rational [e] of why the treating physician’s undisputed opinion was rejected.” Emory now challenges the superior court’s order, asserting that the court did not give proper deference to the Board’s findings. We agree and reverse the superior court’s order.

To begin with, we note that when the Board reviews an ALJ’s grant or denial of workers’ compensation benefits, the Board is authorized “to vacate an ALJ’s findings of fact and conclusions of law as unsupported by a preponderance of the competent and credible evidence, and to substitute its own alternative findings.” And in so doing, the Board is also authorized to “assess witness credibility, weigh conflicting evidence, and draw different factual conclusions from those reached by the [ALJ] who initially heard the dispute.” Additionally, the Board may “disregard factual inferences drawn by the ALJ and... substitute its own in place of those inferences.” And our Supreme Court has noted that “if after assessing the evidence of record, the [Board] concludes that the award does not meet [OCGA § 34-9-103 (a)’s] evidentiary standards, the [Board] may substitute its own alternative findings for those of the ALJ, and enter an award accordingly.”

In stark contrast, however, neither this Court nor the superior court “has any authority to substitute itself as a factfinding body in lieu of the [Board] ,” Indeed, as a reviewing court, “our role is not to return to the findings of the ALJ and examine whether that decision was supported by a preponderance of the evidence, but is instead to review the Board’s award for the sole purpose of determining whether its findings are supported by any record evidence.” If this Court answers that question in the affirmative, “the Board’s findings are conclusive and binding, regardless of whether we would have reached the same result if given the opportunity to weigh the evidence in the first instance.”

Here, within the context of this deferential legal framework, it is clear that the superior court erred in reversing the Board’s ruling when there is record evidence to support it. Although the ALJ found the medical records provided by Duval’s treating orthopaedic surgeon more credible, the Board found more credible medical records establishing a history of shoulder pain predating the December 2010 compensable injury and the conclusion of Emory’s expert (based upon his review of the orthopaedic surgeon’s records). Specifically, Emory’s expert concluded that the compensable December 2010 injury resolved when Duval made no additional complaints as to her right shoulder until January 2012, which was after Duval was forced to exclusively rely upon her right arm while recovering from surgery for a non-compensable left-shoulder injury and after she ceased working in November 2011 to undergo the surgery. Thus, while the orthopaedic surgeon concluded that the current right-shoulder injury was the result of a tear in December 2010 because he believed Duval was too young to suffer from a degenerative condition, Emory’s expert concluded that the current injury was attributable to a chronic impingement condition as opposed to “a traumatic event, some time prior.”

In sum, because there was evidence to support the Board’s substitute findings, its decision should have been affirmed by the superior court. Accordingly, we reverse the superior court’s judgment.

Decided February 10, 2015.

Drew, Eckl & Farnham, H. Michael Bagley, for appellant.

Hilley & Frieder, Ronald L. Hilley, Mia I. Frieder, for appellee.

Judgment reversed.

Doyle, P. J., and Miller, J., concur.

       More specifically, Emory makes this assertion in three separate enumerations of error, contending that the superior court erred by (1) substituting its findings of fact for findings made by the Board, which were supported by evidence, (2) remanding to the Board when there was no evidence of a factual error or any contention that evidence was improperly admitted, and (3) failing to construe the evidence in a way most favorable to the party that prevailed before the Board.

        Master Craft Flooring v. Dunham, 308 Ga. App. 430, 433 (708 SE2d 36) (2011) (punctuation omitted); accord Owens-Brockway Packaging v. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495) (1997); see OCGA § 34-9-103 (a) (“The findings of fact made by the [ALJ] in the trial division shall he accepted by the [Board] where such findings are supported by a preponderance of competent and credible evidence contained within the records.”); Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997) (“Under the new standard, [t]he findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.” (punctuation omitted)).

        Master Craft Flooring, 308 Ga. App. at 434 (punctuation omitted); accord Lowndes County Bd. of Comm’rs v. Connell, 305 Ga. App. 844, 844 (701 SE2d 227) (2010); see Bankhead Enterprises, 267 Ga. at 507 (“[T]he appellate division must weigh the evidence and assess the credibility of witnesses and if it determines that the award of the ALJ is supported by a preponderance of admissible evidence, it will be accepted.”).

        Master Craft Flooring, 308 Ga. App. at 434 (punctuation omitted); see also Medders v. Smith, 245 Ga. App. 323, 325 (1) (537 SE2d 153) (2000) (“The [Board] is a factfinder, and as such, it is authorized to draw a different inference from that of the ALJ.”).

        Bankhead Enterprises, 267 Ga. at 507.

        Master Craft Flooring, 308 Ga. App. at 434 (punctuation omitted); accord Medders, 245 Ga. App. at 326 (1).

        Master Craft Flooring, 308 Ga. App. at 434 (first emphasis supplied); see Owens-Brockway Packaging, 227 Ga. App. at 111 (“If the [Board’s] reweighing of the evidence led to a conclusion different from that reached by the ALJ, the superior court is obligated to affirm it if there is any evidence to support it.”); Risner v. Bulk Equip. Mfg., Inc., 229 Ga. App. 529, 531 (494 SE2d 304) (1997) (Beasley, J., concurring specially) (“[Wjhether or not a later appellate court would view the ALJ’s findings as supported by a preponderance, the [Board’s] substituted findings must be accepted if there was evidence to support them.” (citation and punctuation omitted)).

        Master Craft Flooring, 308 Ga. App. at 434; see Georgia-Pacific Corp. v. Wilson, 240 Ga. App. 123, 124-25 (1) (522 SE2d 700) (1999) (“When supported by any evidence, findings of fact by the Board are conclusive and binding on reviewing courts, and judges lack authority to set aside an award based on disagreement with the Board’s conclusions.”).

        See Master Craft Flooring, 308 Ga. App. at 435 (holding that superior court erred in reversing Board’s award/reversal of ALJ decision when there was evidence to support the Board’s award); see also United Family Life Ins. Co. v. Sasser, 224 Ga. App. 871, 871 (482 SE2d 491) (1997) (“Regardless of what our findings would be if we were the factfinders, upon appeal to the superior court and this Court, the evidence will be construed in a light most favorable to the party prevailing before the [B]oard, and every reasonable factual inference and presumption of validity of award should he indulged in by the reviewing court.” (citation and punctuation omitted)).

        See Bankhead Enterprises, 267 Ga. at 508 (“The appellate division is clearly authorized under [OCGA § 34-9-103 (a)] ‘to make findings of fact and conclusions of law.’And if there was evidence to support the appellate division’s substitute findings, its decision should have been affirmed by the superior court.” (citation omitted)); see also Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 139 (1) (473 SE2d 166) (1996) (“In this case, the [Board] has reviewed the testimony of conflicting medical experts and determined that the testimony of one is entitled to more credit and weight than that of the other. This is a function the [Board] is currently authorized to perform. Although there is evidence supporting the ALJ’s finding that the testimony of one of the experts is entitled to greater credit and weight, there is evidence supporting the [Board’s] alternative finding. Therefore, the latter’s award must be affirmed, as it is not the function of either the superior court or this court to weigh the evidence.”).


author: Ray, Judge.

text:
    A14A2073, A14A2074.
    HOWELL v. THE STATE (two cases).
    (769 SE2d 98)
   Ray, Judge.

In two indictments, Thaddeus Octavius Howell was charged with various offenses involving acts of domestic violence. The indictments were later joined by consent and tried together in a single jury trial. Howell was convicted of false imprisonment (OCGA § 16-5-41), family violence battery (OCGA § 16-5-23.1 (a), (f)), interference with a 911 call (OCGA § 16-10-24.3), simple battery on a police officer (OCGA § 16-5-23 (a), (e)), and obstruction of a law enforcement officer (OCGA § 16-10-24) under the first indictment, and he was convicted of family violence battery (OCGA § 16-5-23.1 (a), (f)), aggravated assault (OCGA § 16-5-21 (b) (2)), and false imprisonment (OCGA § 16-5-41) under the second indictment. Howell now brings two identical appeals from the trial court’s denial of his motion for new trial, contending that the trial court erred (1) in permitting the court reporter to testify at the trial over his objection and (2) in charging the jury on aggravated assault. Finding no reversible error, we affirm Howell’s convictions in Case No. A14A2073 and dismiss the identical appeal as redundant in Case No. A14A2074.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to support the jury’s verdict. Weeks v. State, 316 Ga. App. 448, 449 (729 SE2d 570) (2012).

The evidence showed that on the morning of December 4, 2010, Dawn Cloud was preparing to leave her house when Howell, who was Cloud’s li've-in boyfriend at the time, came home and an argument ensued. When Cloud asked Howell to leave, he struck Cloud in the back of her head, put her in a headlock, and choked her to the point that she could no longer breathe. Cloud attempted to call 911, but Howell snatched the phone away from her and broke it into pieces on the floor. After Cloud pressed the panic button on her car keys to activate her vehicle’s horn alarm, Howell picked her up and “body-slammed” her onto the floor, wresting the keys from her hands. Cloud attempted to get away, but Howell physically restrained her and said “you’re not going anywhere.” During the incident, Cloud sustained visible injuries, including scratches to her hands and arms and red marks on her neck.

Cloud was later allowed to leave the residence, and she immediately called the police. The police officers who responded to the scene observed Cloud’s injuries and obtained statements from both of the parties. Howell admitted that he and Cloud had been in a physical altercation that morning, but he could not explain how Cloud had received her injuries. When the officers advised Howell that he was under arrest, Howell resisted and got into a physical altercation with the officers, eventually kicking one of them. The officers were able to subdue Howell with a taser, and he was handcuffed and placed under arrest.

The evidence at trial further showed that in January 2012 Howell became involved in a romantic relationship with Lauren Holloway, eventually moving in with her. Although Holloway later ended the relationship, she maintained contact with Howell, and Howell kept a key to her residence.

On the night of April 19, 2012, Holloway accompanied Howell to a memorial service for one of his friends who had died in a motorcycle accident. Afterwards, they returned to Holloway’s residence. In the early morning hours of April 20, 2012, Holloway informed Howell that she did not want to be with him anymore; she told him to gather the rest of his clothing and personal effects that remained in the residence and to get out. Howell became upset and pushed her, chased her through the house, pushed her into a wall, grabbed her and threw her on the floor, and punched her in the face with his fist.

After Howell left, Holloway called the police to report the attack. When the responding officers arrived, Holloway told them what had happened, and the officers took photographs of her injuries.

Howell knew that Holloway had contacted the police, and he sent several text messages to Holloway to tell her that he loved her. He later contacted Holloway to ask her what she had told the police.

On the morning of April 30, 2012, Holloway was asleep on the couch in her home when she awoke to find Howell on top of her. When Holloway got up to use the bathroom, Howell stood outside the bathroom door and asked her what she was doing, specifically asking her if she was calling the police. When she opened the door, Howell again asked her “What did you do? Did you call the police?”

Holloway then went to her living room to look for her keys so that she could leave. As she was opening the front door, Howell came up behind her and struck her on the side of her head with a handgun, knocking her down. Howell then grabbed her, pushed her onto the couch, put the gun to her head, and told her not to scream. After the situation calmed down, Holloway was able to get up and go to the bathroom to check on her head wound, which was swollen and bleeding. Howell followed Holloway to the bathroom to apologize, and Holloway begged him to “please get out before you kill me for real.”

Howell eventually left the residence, and Holloway immediately went to the police station to report the attack. Photographs were taken of her head injury, which were admitted into evidence at trial. Following this incident, Howell continued to contact her to tell her that he loved her.

In a subsequent incident, Howell was following Holloway in his vehicle when he pulled up alongside Holloway’s car, pointed a gun at her, and demanded that she pull over. Holloway slammed on her brakes, turned her car around, and drove away in the opposite direction. Howell managed to catch up to Holloway and side-swiped her car. After blocking her car to prevent her from driving away, Howell began shooting at Holloway’s car. Although Holloway was not struck by any of the bullets, she did sustain injuries from the broken glass. Howell then drove away in his vehicle, and Holloway called 911. Photographs depicting her injuries and her damaged car were introduced at trial. Although Holloway obtained a protective order against Howell the day after this incident, he continued to call her from jail to profess his love for her.

In addition to the above evidence, the State introduced similar transaction evidence from three other women to establish that Howell had a pattern of committing violence against women.

1. During the trial, the trial court took a recess during Holloway’s testimony. Before the jury came back into the courtroom to continue with her testimony, the court reporter observed Howell silently “mouth” the words “I love you” to Holloway, who was sitting on the witness stand. Later, during cross-examination of Howell, the State asked him if he had done so, and Howell denied it. The trial court then allowed the State to call the court reporter to testify as a rebuttal witness over Howell’s objection. On appeal, Howell argues that the trial court erred when it permitted the court reporter to testify for the State. Specifically, he contends that (i) the court reporter’s testimony constituted improper impeachment on a collateral matter, and (ii) that allowing the court reporter to testify impacted the integrity and impartiality of the proceedings. We find his arguments to be unpersuasive.

(a) As an initial matter, we note that Howell raised in his brief the additional argument that the State’s questioning of Howell with regard to his silent gesture to Holloway during the recess was improper because it exceeded the scope of cross-examination. However, Howell did not raise this issue as an enumeration of error on appeal. Therefore, to the extent he is challenging the State’s cross-examination, his argument provides no basis for appellate review. See Brown v. State, 310 Ga. App. 835, 835, n. 1 (714 SE2d 395) (2011) (providing that a party cannot expand his enumerations of error through argument or citation in his brief, and claims not enumerated as error will not be reviewed).

(b) Howell contends that the trial court erred in allowing the court reporter to testify as a rebuttal witness, arguing that the testimony constituted improper impeachment on a collateral matter. We disagree.

Although a witness may not be impeached because of a discrepancy in his testimony regarding a matter that is wholly irrelevant to the case, a witness may be impeached about a collateral issue that is indirectly material to the case. See Moody v. State, 279 Ga. App. 440, 445 (5) (631 SE2d 485) (2006). If the jury believed that Howell told Holloway that he loved her just before she resumed her testimony, the jury could infer that Howell had intended to influence her testimony. It is well settled that “evidence of a defendant’s attempt to influence or intimidate a witness can serve as circumstantial evidence of guilt.” (Citations omitted.) Kell v. State, 280 Ga. 669, 671 (2) (a) (631 SE2d 679) (2006). Under the particular circumstances presented in this case, the issue of whether Howell made such a gesture to Holloway was not merely collateral, but was arguably relevant to the issue of guilt. Therefore, the court reporter’s testimony on this issue was not improper.

Howell also argues the court reporter’s impeachment testimony was inherently prejudicial because he was precluded by law from calling the judge and/or the bailiff as witnesses to rebut the court reporter’s testimony. However, Howell has failed to establish prejudice because he has not shown that the judge or the bailiff possessed knowledge of facts that could have refuted the court reporter’s testimony. Moreover, Howell has not shown that there were no other witnesses in the courtroom who could have testified or that he was precluded from calling any other witnesses in rebuttal.

(c) Lastly, Howell contends that allowing the court reporter to testify on behalf of the State eradicated the integrity and fundamental fairness of the trial. We find no reversible error.

Howell cites Slakman v. State, 272 Ga. 662 (533 SE2d 383) (2000), for the proposition that a court reporter should not be allowed to testify as a witness in any proceeding in which she is also serving as the official transcriber of witness testimony because the jury would automatically perceive her as a credible witness. However, our Supreme Court’s holding in Slakman did not paint this issue with such a broad brush.

In Slakman, the defendant, who was on trial for murdering his wife, made an alleged confession outside the presence of the jury during a recess in the proceedings. Although the defendant’s statement was not transcribed, it was overheard by the court reporter and captured on her audiotape. As there was a legitimate factual dispute about the contents of the defendant’s statement, the court reporter was permitted to testify as to the inculpatory version of the defendant’s statement which she personally heard, and she then testified that her audiotape “verified” that version. Thereafter, the audiotape was playedfor the jury. Id. at 664-665 (2). In reversing the defendant’s conviction, our Supreme Court found that “because there was an audiotape of [the defendant’s] statement from which the jury could make its own determination of what had been said, the court reporter should not have been permitted to testify [as] to what she heard or to testify that the audiotape ‘verified’ her testimony.” (Footnote omitted.) Id. at 665 (2). The Court further found that the error was not harmless, considering the jury’s perspective of the capacity in which the court reporter served at the trial in conjunction with the trial court’s utter failure “[to] instruct the jury that it was to determine for itself what was recorded on the audiotape or the manner in which it was to resolve any discrepancies between the court reporter’s testimony and the contents of the audiotape.” Id. at 665-666 (2).

Here, by contrast, there was no recording of Howell’s gesture to Holloway for the jury to evaluate. Furthermore, the court reporter did not improperly bolster her own testimony; she merely testified that she had observed Howell “mouth” the words “I love you” to Holloway during the recess. Most importantly, the trial court instructed the jury that it was to determine the credibility of the court reporter on the same basis as any other witness. Based on these facts, we believe that the trial court acted properly within its discretion in allowing the court reporter to testify. Even if it was error to allow the testimony, such error was harmless in light of the overwhelming evidence of Howell’s guilt.

2. Howell contends that the trial court erred in charging the jury on aggravated assault when it instructed the jury that a handgun is a deadly weapon as a matter of law and failed to instruct the jury that the issue of whether the handgun constituted a deadly weapon in this case was solely a matter for its consideration. As Howell’s trial counsel did not raise an objection to the trial court’s charge, “the matter is subject only to plain error review on appeal.” (Citations omitted.) Givens v. State, 294 Ga. 264, 266 (2) (751 SE2d 778) (2013) (citations omitted). See OCGA § 17-8-58 (b).

In order to reverse on the basis of plain error in this case, Howell must satisfy the burden of establishing all of the following elements: that the charge (or the failure to charge) was erroneous; that the error was obvious; and that the error likely affected the outcome of his trial. See Johnson v. State, 295 Ga. 615, 617-618 (2) (759 SE2d 837) (2014); Shaw v. State, 292 Ga. 871, 873 (2) (742 SE2d 707) (2013); State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011). If Howell establishes all of these elements, we have the discretion to reverse “if the error seriously affects the fairness, integrity, or public reputation of the proceedings below.” (Citation omitted.) Id. As our Supreme Court has noted, “[satisfying all four prongs of this standard is difficult, as it should be.” (Citation and punctuation omitted.) Id.

In this case, the aggravated assault count of the indictment accused Howell of committing an assault “with a deadly weapon, a handgun, when he struck Lauren Holloway in the head with [the] handgun[.]” In its instruction to the jury, the trial court correctly charged that the State had the burden of proving the material element that the assault was made with a deadly weapon, as alleged in the indictment. However, the trial court further charged the jury that “[a] handgun[,] when used as such[,] is a deadly weapon as a matter of law.” Thus, it is argued, the later portion of the charge relieved the State of its burden to prove that the handgun, when it was used to strike Holloway, constituted a deadly weapon.

In Byrd v. State, 325 Ga. App. 24 (752 SE2d 84) (2013), a case in which the defendant was similarly charged with aggravated assault for striking the victim in the head with a handgun, we found that the defendant’s trial counsel was ineffective for failing to object to the jury instruction that “ ‘(a) firearm, when used as such, is a deadly weapon as a matter of law.’ ” Id. at 27-28 (2) (a). In so holding, we found that the charge was not applicable to the facts of the case because the handgun was not alleged to have been used in the ordinary manner in which a gun is used — i.e., by pointing the gun or using it to shoot at someone; it was alleged to have been used as an object to strike the victim. Id. at 28 (2) (a). In reversing the aggravated assault conviction, we found that there was a reasonable probability that, but for counsel’s error, the outcome of the trial would have been different because there was absolutely no evidence to support a conclusion that the handgun had been used as a deadly weapon — i.e., no evidence of degree of force used, injury, likelihood of injury, or apprehension of injury. Id.

Here, by contrast, there was overwhelming evidence to establish that the handgun constituted a deadly weapon. The evidence was undisputed that Holloway was struck on the side of her head with the handgun so violently that it knocked her down and that the blow she sustained caused the side of her head to swell and bleed. Moreover, Holloway’s perception of the degree of force that Howell had used against her was apparent because she immediately begged him to “please get out before you kill me for real.” See generally Ortiz v. State, 292 Ga. App. 378, 381 (2) (665 SE2d 333) (2008) (where the evidence showed, without conflict, that defendant struck the victim so hard with a handgun that it caused the victim’s head and face to bleed and victim testified that he feared he would be killed, the handgun was per se a deadly weapon).

Although we agree that the trial court’s charge would have been error if it had stated that the use of a gun in committing an assault would always constitute an aggravated assault, this it did not do. The jury was told that the State must prove that the assault was with a deadly weapon and that a handgun could be one, depending on how it was used. The jury was free to decide either way. In any event, even if these instructions were erroneous, Howell has failed to establish that such error likely affected the outcome of his trial. Kelly, supra at 33 (2) (a). In other words, Howell has failed to show that, had the correct charges been given, it was likely the jury would have acquitted him of the aggravated assault charge. Moreover, in light of the overwhelming evidence of Howell’s guilt, we find that the error did not seriously affect the fairness, integrity or public reputation of the proceedings. Id.

Decided February 11, 2015.

Tyler R. Conklin, James C. Bonner, Jr., for appellant.

Tracy Graham-Lawson, District Attorney, Brian K. Ross, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

As Howell has failed to satisfy the third and fourth prongs of the plain error analysis set forth in Kelly, supra and its progeny, we find no reversible error.

3. In Case No. A14A2074, Howell asserts the same errors as those asserted in Case No. A14A2073. We therefore dismiss Case No. A14A2074 as redundant. See First Southern Bank v. C & F Services, Inc., 290 Ga. App. 305, 309 (5) (659 SE2d 707) (2008).

Judgment affirmed in Case No. A14A2073. Appeal dismissed in Case No. A14A2074.

Andrews, P. J., and McFadden, J., concur.

       Photographs of her visible injuries were admitted into evidence at trial.

       In the trial at issue here, Howell was not being prosecuted for any offenses that occurred during this incident.

       Another court reporter was called in to take down this testimony.

       We recognize that a person’s use of the phrase “I love you” does not necessarily mean that the person has an ominous or ulterior motive for making such a statement. Indeed, this type of gesture is a show of affection that is typically well received. However, because Howell denied making such a seemingly innocuous gesture, a reasonable inference could be drawn that he had an ulterior motive for making it — i.e., that he had intended to influence her testimony.

       As Justice Hunstein similarly pointed out in her dissent in Slackman, supra at 673, it was (the Defendant’s) own behavior in uttering the statement in (the court reporter’s) presence which caused her to be a witness.

       “Unlike a harmless-error analysis, where the appellee bears the burden of showing that an error did not likely affect the outcome below, a plain-error analysis requires the appellant to make an affirmative showing that the error probably did affect the outcome below.” (Citation omitted.) Wagner v. State, 311 Ga. App. 589, 594, n. 3 (716 SE2d 633) (2011) (Blackwell, J., concurring specially). “[T]he hurdle to establishing plain error is high, . .. and . .. the failure to specifically articulate how the alleged error satisfies this high standard increases the likelihood that. .. claims in this regard will he rejected.” Kelly, supra at 32 (1), n. 2.


text:
    A14A2107.
    THOMAS v. BUTLER et al.
    (769 SE2d 104)
   Ray, Judge.

We granted Kameelah Thomas’s application for discretionary review of the denial of her claim for unemployment benefits after she was discharged from her job as a cashier at a Dollar General store. After her discharge, Thomas appealed below and was heard by an administrative hearing officer, who determined she was disqualified from benefits under OCGA § 34-8-194 (2) (A). The Georgia Department of Labor’s Board of Review (the “Board”) adopted the hearing officer’s findings and affirmed the decision; the Board’s decision then was affirmed by the superior court. On appeal, Thomas contends that the superior court erred in its decision because (1) there was no evidence in the record showing that she was legally at fault in the incident that triggered her discharge and (2) because the superior court wrongly affirmed her disqualification based upon the “totality of the circumstances.” For the reasons that follow, we reverse.

Under Georgia law, when a superior court reviews a decision by the Board, the findings of the Board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. OCGA § 34-8-223 (b). Thus, the factual determinations of the board must be affirmed if there is any evidence to support them. And the superior court is not authorized to weigh the evidence and substitute its factfindings for those of the administrative trier of fact.

(Citations and punctuation omitted.) Case v. Butler, 325 Ga. App. 123, 125 (1) (751 SE2d 883) (2013).

Thomas was working as a cashier at a Dollar General store on the evening of May 3, 2013. She was helping some customers, who did not appear to speak English, make their purchases. The customer who was attempting to pay apparently did not understand how to use the credit card pin pad, and Thomas was trying to help him. She told him repeatedly that he needed to pay. However, even though Thomas did not indicate that the transaction was complete, the customer’s wife wheeled the shopping cart and merchandise out of the store despite Thomas’s telling her not to remove the cart. Because the customer who was attempting to pay was still at the register, Thomas thought he would pay and did not immediately follow the wife into the parking lot. However, the customer who was attempting to pay then also left the store. Thomas, realizing that the credit card transaction was not complete, followed the customers into the parking lot in an attempt to retrieve the merchandise, but could not overtake them as their car had already pulled into oncoming traffic. Not wanting to leave the cash register unattended, she returned to the store and immediately reported what had happened. She specifically testified that she did not give the customers permission to leave.

The employer’s representative, Legina Toussaint, a store manager for Dollar General, testified that this incident caused the register to come up about $34 short, although she could not recall the exact amount. This shortage was considered “mishandling company funds” under Dollar General’s policy, which provided that an employee be automatically terminated if the shortage exceeded $24.99.

As an initial matter, we note that neither appellee has filed a brief in the instant case. As a result, we accept Thomas’s statement of facts “as prima facie true and decide the case on the basis of this statement and the evidence cited and quoted in support thereof.” (Punctuation and footnote omitted.) Daniel v. Allstate Ins. Co., 290 Ga. App. 898, 900 (1) (660 SE2d 765) (2008).

1. Thomas first contends that the trial court erred in upholding the Board’s decision to disqualify her because there was no evidence in the record that Thomas was at fault in her discharge. We agree.

Under OCGA § 34-8-194 (2) (A), an individual shall be disqualified for unemployment benefits if he or she was discharged “for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner [of Labor] according to the circumstances in the case.”

However, OCGA § 34-8-194 (2) (B) provides:

An individual shall not be disqualified for benefits under subparagraph (A) of this paragraph if, based on the rules and regulations promulgated by the Commissioner, the Commissioner determines: (i) The individual made a good faith effort to perform the duties for which hired but was simply unable to do so; (ii) The individual did not intentionally fail or consciously neglect to perform his or her job duties[.]

(Emphasis supplied.)

The employer bears the burden of showing that the termination was caused by “the deliberate, conscious fault” of the employee before she may be disqualified from receiving unemployment benefits. (Citation and punctuation omitted.) Case, supra at 126 (2). Thus, “ ‘ [f ] ault’ means more than mere failure to perform one’s work duties.” (Citation and punctuation omitted.) Id.

This is in keeping with the strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own. OCGA § 34-8-2. Disqualification is an exception to the statutory scheme for unemployment benefits and the employer must show by a preponderance of the evidence that disqualification is appropriate.

(Citations and punctuation omitted; emphasis in original.) Barron v. Poythress, 219 Ga. App. 775, 776 (466 SE2d 665) (1996). Although we are bound to apply the any evidence standard, “[w]hether there is fault assignable to [a] claimant, which is a legal requirement for disqualification, often requires a legal conclusion.” (Citation omitted.) Id. at 777. An administrative decision is reversible if there is an error as listed in OCGA § 50-13-19 (h) (l)-(6).

Here, Toussaint testified that she did not believe Thomas’s action was intentional. She testified that Thomas made “an honest mistake.” She also testified that Thomas was a “great employee.” Thomas testified that her actions were neither intentional nor a conscious neglect of her duties. She testified that during the incident in question, she followed and went beyond the standards the employer set for cashiers. She acknowledged that she did everything she could to prevent the customers from leaving the store.

The evidence shows Thomas triggered Dollar General’s automatic dismissal policy by mishandling funds of more than $24.99. On appeal, she argues that her violation of that policy resulted from an incident that was beyond her control despite her best efforts, rather than from any conscious neglect or intentional acts. Thus, she argues, her disqualification was not justified under OCGA § 34-8-194 (2) (B) (i)> (ü).

In a similar case, this Court reversed a superior court’s affirmation of a Board decision affirming an administrative hearing officer’s decision that disqualified a claimant for benefits. The claimant, a Kroger cashier, was terminated for having cash register shortages and overages in excess of $2. Lamb v. Tanner, 178 Ga. App. 740, 740 (344 SE2d 534) (1986). Although it was uncontroverted that the overages and shortages violated Kroger policy, this Court reversed the claimant’s disqualification, finding that there was no evidence that the violations resulted from the claimant’s conscious neglect rather than from mere inability to perform her duties. Id. at 741.

Thus, although the “any evidence” rule applies to findings of fact by the administrative tribunal, there is no evidence contrary to Thomas’s contention that she neither intentionally mishandled the funds nor consciously disregarded her duties such that the mishandling resulted. Dollar General, through Toussaint, expressly denied that Thomas acted intentionally. There is no evidence that, given the circumstances, Thomas was capable of complying with Dollar General’s policy under the circumstances. Nor is there evidence contrary to Thomas’s contention that the mishandling of funds occurred despite her best efforts on the job. Lamb, supra; Daniel, supra.

2. Thomas also argues that the superior court erred in affirming the Board’s decision based on the “totality of the circumstances.”

The administrative hearing officer determined that Thomas was “substantially at fault” given the “totality of the circumstances.” These circumstances, according to the administrative decision, included not only the subject incident but also prior incidents about which Thomas “was adequately warned her job was in jeopardy due to her mishandling of company funds.”

Decided February 11, 2015.

Lorraine E. Quesada, Charles R. Bliss, David A. Webster, for appellant.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Assistant Attorney General, Fisher & Phillips, Anderson B. Scott, for appellees.

However, at the hearing at issue here, Toussaint testified that the sole reason for Thomas’s termination was the May 3, 2013, incident, and that “[n]othing in the past had anything to do with that day at all.”

Thus, Thomas argues, the superior court erred in its affirmation of the Board, given that the Board attributed fault to Thomas for prior incidents not at issue in the instant case. Thomas is correct. Because it is uncontroverted that Thomas’s termination was not based on those prior infractions and where, as we determined in Division 1, Thomas was not at fault in the incident that did trigger termination, the superior court erred in affirming her disqualification for benefits. See Glover v. Scott, 210 Ga. App. 25, 25 (435 SE2d 250) (1993) (where employee was warned about prior attendance issues but it was undisputed that she was terminated for the last absence only — an absence which was protected by law — the trial court’s finding that the employee was terminated in part for prior attendance problems was unsupported by any evidence).

As a result, because the evidence does not support the Board’s findings, we reverse the superior court with direction that the case be remanded to the Board for a decision consistent with this opinion. Lamb, supra; Daniel, supra.

Judgment reversed.

Andrews, P. J., and Barnes, P. J., concur.


author: ELLINGTON, Presiding Judge.

text:
    A14A1882.
    PALMER v. THE STATE.
    (769 SE2d 107)
   ELLINGTON, Presiding Judge.

Willie Lee Palmer, Jr., appeals his convictions for family violence battery, OCGA § 16-5-23.1 (f), and two counts of cruelty to children in the third degree, OCGA § 16-5-70 (d) (2). Palmer contends that the trial court erred in (i) not giving his written request to charge on his sole defense of justification, (ii) limiting cross-examination of a witness, (iii) denying his motion for a mistrial, (iv) denying his motion to strike a prospective juror for cause, (v) refusing to admit into evidence a photograph showing his injuries, and (vi) denying his motion for new trial because he received ineffective assistance of trial counsel. We affirm for the reasons set forth below.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on May 9, 2011, while Palmer, his wife, and their four children were having dinner, Palmer and his wife began having a “discussion” about the shirt he was wearing. Palmer’s wife had not seen the shirt before, and she asked him about it because he had previously “cheated” on her. Palmer did not answer her questions about the shirt, and Palmer’s wife could tell that Palmer was getting angry. After Palmer’s wife took the children upstairs to prepare for bed, she and Palmer began arguing. After several minutes, Palmer’s wife heatedly demanded that he leave the house.

After Palmer refused to go, Palmer’s wife grabbed a dresser drawer containing some of Palmer’s clothes and dumped the clothes over the upstairs bannister. Palmer, while holding their young son, came up the stairs, and Palmer’s wife held the drawer between them and again asked him to leave. According to Palmer’s wife, Palmer put the child down after climbing the stairs, and he then came toward her, “popped” the drawer out of her hands, and pushed her back onto the sofa while she grabbed his shirt. Palmer straddled his wife on the sofa, and she could not breathe. She reached up and tried to scratch, pinch, or bite Palmer, and “whatever she could do to get up out of that.” Palmer punched his wife two times in the head and then, after she called out for help, he punched her again. Palmer’s wife’s daughter heard the commotion, and she came into the room and saw Palmer hit her mother with a closed fist as he stood over her.

After the altercation, Palmer left the house, and Palmer’s wife called the police. The responding deputy testified that Palmer’s wife reported being assaulted by Palmer, and he saw that her right eye was swollen and bruised, her upper lip was split on the inside, her lower lip was split, there were marks on her throat and the back of her neck, and her lip was still bleeding. Palmer testified in his defense and said that he did not punch his wife.

1. Palmer contends that the trial court erred in failing to charge the jury on his sole defense of justification. Palmer’s trial counsel filed a written request that the trial court instruct the jury on the affirmative defense of justification. During the charge conference the trial court announced its decision not to give the charge. The trial court explained that the defense of justification was not raised by the evidence inasmuch as the indictment specified that Palmer punched his wife, but Palmer testified that he did not punch his wife. Defense counsel agreed with the trial court that Palmer’s defense was not that “I punched her and I was trying to defend myself,” but asked that the trial court reserve ruling on whether to give the charge until after closing argument “in case closing argument goes down a totally different road.” Following the conclusion of closing argument, and after the trial court instructed the jury, defense counsel expressly represented that she had no exceptions to the charge as given, that is, without any instruction on the affirmative defense of justification. As Palmer acquiesced to the trial court’s decision not to charge on justification, the issue of the trial court’s refusal to give the requested charge is waived on appeal. See Gunter v. State, 316 Ga. App. 485, 487-488 (2) (729 SE2d 597) (2012) (finding that appellant acquiesced to trial court’s decision not to give the jury charge). And because Palmer denied punching the victim, he cannot show that the trial court was required to charge justification as his sole defense irrespective of whether he ultimately requested the charge. See Benefield v. State, 204 Ga. App. 87 (418 SE2d 447) (1992) (finding that although “[fjailure to give a charge on a defendant’s sole defense is error regardless of whether the defendant requested a charge on the defense,” the trial court did not err in failing to charge on self-defense because the defendant denied that he stabbed the victim) (citation omitted).

2. Palmer contends that the trial court erred in limiting his cross-examination of the responding deputy. “The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him.” (Punctuation and footnote omitted.) Farley v. State, 314 Ga. App. 660, 665 (3) (725 SE2d 794) (2012). However, the trial court may restrict cross-examination to the extent the inquiry is not relevant or material, “and such restriction lies within the discretion of the trial court which will not be disturbed on appeal unless manifestly abused.” (Citation and punctuation omitted.) Stevens v. State, 213 Ga. App. 293, 294 (2) (444 SE2d 840) (1994).

The deputy who spoke with Palmer’s wife testified that there are additional forms that are to be filled out in the context of a domestic violence report. In reference to the forms, defense counsel asked:

[T]here’s an additional form where it talks about the evidence that is collected and whatnot and that sort of thing, and I think there’s a thing that talks about domestic violence. And in this case, do you recall checking the box that says both parties had a history of prior domestic violence?

The trial court sustained the prosecutor’s objection to the question, noting that “you really don’t get to slander the victim’s character.” “[A] victim’s character is rarely relevant for any purpose in a criminal trial.” (Citation and punctuation omitted.) Miller v. State, 325 Ga. App. 764, 769 (3) (754 SE2d 804) (2014). See former OCGA § 24-2-2 (“The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”). The trial court could conclude that a description of Palmer’s wife as having a “history” of domestic violence addressed the victim’s general character and was not relevant to the proceeding. Further, Palmer failed to make a prima facie showing of justification such that his wife’s general reputation for violence was relevant. See Chambers v. State, 308 Ga. App. 748, 750 (1) (708 SE2d 651) (2011) (victim’s general reputation for violence admissible if “the defendant claims he or she justifiably used force in self-defense, to show that the defendant was in a state of reasonable fear at the time of the alleged offense against the victim”) (citations omitted). We find no abuse of the trial court’s wide range of discretion in controlling cross-examination. See Stevens v. State, 213 Ga. App. at 294 (2).

3. Palmer claims that the trial court erred in denying his motion for a mistrial after Palmer’s wife testified that Palmer had sold illegal drugs. During direct examination of Palmer’s wife, the prosecutor established that Palmer was not working and then asked if she was the sole provider for the family. Palmer’s wife responded no, and stated Palmer was the provider. The following exchange then occurred:

Q: How was [Palmer] providing for you, if he wasn’t working?

A: He sold drugs.

Palmer objected and moved for a mistrial. The trial court ruled that he would instruct the jury to disregard Palmer’s wife’s response, but that he would reserve ruling on the motion for mistrial. The trial court then instructed the jury that it should disregard Palmer’s wife’s last answer. The trial court also informed the jury that “[t]here’s no allegation in this case that it involves any sort of illegal narcotics.” Following the conclusion of the State’s case, Palmer’s counsel, after conferring with Palmer, announced that he was not going to renew his motion for mistrial. Because Palmer did not renew his motion for mistrial after the trial court took curative action with regard to the victim’s testimony, this claim of error is not preserved for purposes of appeal. See, e.g., Izzo v. State, 265 Ga. App. 143, 144 (2) (592 SE2d 915) (2004) (holding that defendant’s failure to renew either objection or motion for mistrial after trial court’s curative action waived enumeration of error on appeal).

4. Palmer also claims that the trial court erred in denying his motion to strike a juror for cause. The individual questions and responses as to the prospective juror at issue, Ms. M., were not transcribed. The transcript of the bench conference upon Palmer’s motion to strike the juror shows that something “awful” had happened to Ms. M. According to Palmer’s argument, Ms. M. had “twice said that she wouldn’t be able to put it aside, while listening to the evidence, and coming to a decision.” The prosecutor responded that Ms. M. “said [that] she could give [Palmer] a fair trial and that she could listen to the evidence in this case,” and that, while she could never forget the “awful thing,” the prospective juror would listen to the evidence and make a decision based on the facts. The trial court then denied the motion to strike.

For a potential juror to be excused for cause, it must be shown that he or she holds an opinion “so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” (Citation and punctuation omitted.) Mosely v. State, 269 Ga. 17, 19 (2) (495 SE2d 9) (1998). The decision to strike a juror for cause is within the trial court’s discretion and will not be set aside absent a manifest abuse of that discretion. See Brown v. State, 295 Ga. 804, 808 (4) (764 SE2d 376) (2014). As we cannot find from the limited record that Palmer established that Ms. M. would not be able to decide the case based upon the evidence or the court’s charge on the evidence, Palmer does not show that the trial court abused its discretion in denying his motion to strike Ms. M. for cause.

5. Palmer further maintains that the trial court erred in denying the admission into evidence of a photograph detailing his injuries. “As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” (Citation omitted.) Sullivan v. State, 242 Ga. App. 839, 840-841 (3) (531 SE2d 367) (2000).

Palmer testified that he left his house on the night of the incident and went to his mother’s home where a picture was taken of him. Palmer then presented for identification a photograph of the upper torso of a man, with the face partially excluded, showing scratches to the chest. The prosecutor objected to the introduction of the photograph because, among other things, she had not seen the photograph until that day. Defense counsel represented that the photograph had not been served on the State because she also had not had the photograph in her possession until that day. Rather, defense counsel said, Palmer “had it with him at the jail this whole time.” The trial court found that the photograph “should have been served.” Defense counsel responded, “I agree.” The trial court ruled that the photograph would not be admitted.

It appears from this exchange that the trial court refused to admit the photograph because Palmer, having opted into reciprocal discovery, had not made it available to the State at least five days before trial as required by OCGA § 17-16-4 (b) (l), and that the trial court sanctioned the defense by excluding the evidence under authority of OCGA § 17-16-6. Palmer argues that the trial court erred because there was no basis for the trial court to exclude the photo-

graph under OCGA § 17-16-6 in that the State made no showing that it had been prejudiced or that Palmer had acted in bad faith. See Ware v. State, 298 Ga. App. 232, 234 (2) (679 SE2d 797) (2009) (Under OCGA § 17-16-6, “the sanction of exclusion is reserved for instances in which the trial court finds prejudice to the state and bad faith by the defense.”) (citations and punctuation omitted). In this case, we conclude that any error by the trial court in excluding the photograph was harmless. The photograph is cumulative of both Palmer’s testimony that his wife scratched him as well as of the testimony of Palmer’s wife that she tried to scratch Palmer. See, e.g., Brown v. State, 268 Ga. App. 24, 27-28 (2) (601 SE2d 405) (2004) (Because a witness’s letters were cumulative of the witness’s trial testimony, the trial court’s erroneous exclusion of the letters as a discovery sanction was harmless.).

6. Lastly, Palmer contends that the trial court erred in denying his motion for new trial because he received ineffective assistance of trial counsel. “In order to succeed on his claim of ineffective assistance, [Palmer] 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.” (Citation omitted.) Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). In reviewing the trial court’s decision, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

(a) Palmer claims that his trial counsel was ineffective because she did not object to the trial court’s reading of the unredacted indictment to the jury. The record shows that the trial court read the indictment to the jury, including that Palmer was charged “with the offense of battery, Family Violence Act, second or subsequent offense.” OCGA § 16-5-23.1 (f) (2) provides for misdemeanor punishment for the first conviction of family violence battery and felony punishment for the second or subsequent conviction. The indictment was properly worded because, where “the nature of the offense changes from a misdemeanor to a felony through repetition,... the indictment must reflect the maximum punishment to which the defendant can be sentenced.” (Punctuation and footnote omitted.) White v. State, 265 Ga. App. 302, 303 (1) (596 SE2d 9) (2003). However, the recidivism allegation was not an element of the crime of family violence battery, and “it is error for the jury to be made aware of the prior convictions during the guilt/innocence phase of the trial where there is no other legal basis for the consideration thereof.” (Punctuation and footnote omitted.) White v. State, 265 Ga. App. at 304 (1) (finding that the trial court erred in reading the indictment to the jury without redacting the references to the appellant’s prior convictions).

Here, the State notified Palmer before trial that it intended to introduce evidence of a prior incident in which he had pushed and held his wife down, thereby causing bleeding and scratching on her face. The State and Palmer agreed at the pre-trial conference that the incident was admissible as a prior difficulty. See Thompson v. State, 295 Ga. 96, 101-102 (3) (b) (757 SE2d 846) (2014) (finding that under Georgia’s old Evidence Code, a defendant’s prior acts toward the victim were admissible). Palmer’s wife then testified to a previous occasion in which Palmer had held her on the ground and hit her, causing her face to bleed. She further testified that Palmer pled guilty and was convicted of family violence battery arising out of that incident, and a certified copy of the conviction was entered into evidence. See Brown v. State, 278 Ga. 810, 811 (4) (607 SE2d 579) (2005) (approving use of certified copy of conviction as evidence of prior difficulties between the defendant and the victim). Because the jury was legitimately made aware that Palmer had previously been convicted of family violence battery, there is no reasonable probability that the outcome of the trial would have been different if trial counsel had objected to the trial court’s reading of the unredacted indictment to the jury. See Favors v. State, 182 Ga. App. 179, 180 (1) (355 SE2d 109) (1987) (the trial court’s failure to redact indictment’s reference to prior convictions “was of little if any consequence” where the jury was legitimately made aware of the prior convictions). As Palmer cannot show prejudice, his trial counsel was not ineffective as alleged.

(b) Palmer also claims that his trial counsel was ineffective in failing to comply with the reciprocal discovery provisions of OCGA § 17-16-1 et seq. because she did not ensure that the photograph showing scratches on Palmer’s torso, as discussed in Division 5, supra, was properly provided to the State before trial. Even if we assume, without deciding, that defense counsel was deficient in failing to ensure that the photograph was served on the State as alleged, photographic evidence that Palmer had been scratched was cumulative of the testimony of both Palmer and his wife. There is no reasonable probability that but for defense counsel’s alleged error the outcome of the trial would have differed. See Schofield v. Holsey, 281 Ga. 809, 814 (II) (642 SE2d 56) (2007) (holding that the defendant was not prejudiced by the omission of “largely cumulative” evidence).

(c) Palmer argues that his trial counsel was deficient in that she failed to object to the trial court’s failure to charge the jury on justification. But such an objection would have had no merit, and defense counsel was not ineffective in failing to pursue it. See Bradley v. State, 292 Ga. 607, 614 (5) (740 SE2d 100) (2013) (noting that “the failure to make a meritless objection cannot amount to ineffective assistance”).

To authorize a requested jury instruction, there need only be slight evidence supporting the theory of the charge. See Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998). “Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” (Citation omitted.) Id. Palmer testified that he did not punch his wife, but that he tried to push her away and hold her off. Although the jury was entitled to believe Palmer’s wife’s testimony that he punched her repeatedly in the face, her testimony showed that he did so while he was straddling her on the sofa and she was struggling to escape. Under no construction of the evidence could the jury conclude that if Palmer punched his wife he did so in self-defense. “[I]t is not error to refuse a justification charge where there is no evidence to support it.” (Citation omitted.) Reese v. State, 289 Ga. 446, 447 (2) (711 SE2d 717) (2011).

(d) Even assuming that trial counsel’s performance was deficient in more than one respect, we conclude that trial counsel’s alleged errors, taken together, do not show a reasonable probability that, but for counsel’s errors, the results of the proceedings would have differed. See Owens v. State, 324 Ga. App. 198, 206 (3) (749 SE2d 783) (2013).

Decided February 12, 2015.

James K. Luttrell, for appellant.

Brian K. Fortner, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (99 SCt 2781, 61 LE2d 560) (1979).

       OCGA § 16-3-21 (a) provides, in part, that “[a] person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful forcej.j”

       See, e.g., Calhoun v. State, 318 Ga. App. 835, 838 (2) (a) (734 SE2d 809) (2012) (if an indictment charges a defendant with committing a crime in a particular manner, then “the proof must show it so”) (punctuation and footnote omitted).

       This case was tried under the old Evidence Code. Under the new Evidence Code, which applies to trials beginning on or after January 1, 2013, the relevance of character evidence is generally governed by OCGA § 24-4-404.

       Palmer then testified in his defense, following which the State introduced into evidence Palmer’s prior conviction for the sale of cocaine.

       See OCGA § 17-16-2 (a).

       OCGA § 17-16-4 (b) (1) provides:
      The defendant... no later than five days prior to trial. . . shall permit the prosecuting attorney at a time agreed to by the parties or as ordered by the court to inspect... photographs ... which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in the defense’s case-in-chief or rebuttal at the trial.

       OCGA § 17-16-6 provides, in applicable part:
      ... If at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of [the reciprocal discovery law], the court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed[.]

       Palmer also suggests that the trial court erred in refusing to admit the photograph because it was properly authenticated. It does not appear, however, that the trial court excluded the photograph for lack of a proper foundation.

       “If the offense of battery is committed between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household, then such offense shall constitute the offense of family violence batteryf.]” OCGA § 16-5-23.1 (f).

       “Under the new Evidence Code, which applies to trials beginning on or after January 1, 2013, the admissibility of . . . ‘(e)vidence of other crimes, wrongs, or acts’ is governed by OCGA § 24-4-404 (b).” Thompson v. State, 295 Ga. at 102 (3) (b), n. 5.

       See Hicks v. State, 287 Ga. 260, 261-262 (2) (695 SE2d 195) (2010) (as no evidence supported a finding that the appellant acted in defense of self or others, the trial court properly-refused his request to charge the jury on justification under OCGA § 16-3-21 (a)); Broussard v. State, 276 Ga. 216, 217 (2) (576 SE2d 883) (2003) (although the jury could disbelieve the appellant’s statement that he did not fire any weapon and credit the prosecution’s evidence identifying appellant as the shooter, no construction of the evidence would support a finding that he shot in self-defense, and the trial court did not err in refusing to give an instruction on that issue).