text:
    A13A0517.
    A13A0625.
    PEACH COUNTY SCHOOL DISTRICT v. AUSTIN. AUSTIN v. CLARK et al.
    (745 SE2d 293)
   McFadden, Judge.

Donna Austin filed a complaint seeking recovery for personal injuries allegedly sustained when she fell on a sidewalk as she was leaving a graduation ceremony at Peach County High School. She filed the lawsuit against the Peach County School District; Susan Clark, the superintendent of Peach County Schools; C. B. Mathis, the assistant superintendent of facilities of Peach County Schools; Bruce Mackey, the principal of Peach County High School; and Chad Sanders, the director of maintenance of Peach County Schools. The defendants filed a joint motion to dismiss the complaint, asserting that the claims against the school district are barred by the doctrine of sovereign immunity and that the claims against the individual defendants are barred by the doctrine of official immunity. The trial court denied the motion to dismiss as to the school district, but granted the motion as to the individual defendants. In Case No. A13A0517, the school district appeals from the denial of its motion to dismiss; and in Case No. A13A0625, Austin appeals from the grant of the individual defendants’ motion to dismiss. Because the claims against the school district are barred by the doctrine of sovereign immunity and the claims against the individual defendants are barred by the doctrine of official immunity, we reverse the judgment of the trial court in Case No. A13A0517 and affirm its judgment in Case No. A13A0625.

Case No. A13A0517

1. Sovereign immunity.

The Georgia Constitution provides that “sovereign immunity extends to the state and all of its departments and agencies.” Ga. Const. 1983, Art. I, Sec. II, Par. IX (e); Gilbert v. Richardson, 264 Ga. 744, 746-747 (2) (452 SE2d 476) (1994). This immunity extends to county school districts, like Peach County School District, because they are political subdivisions of the state. Harper v. Patterson, 270 Ga. App. 437, 438 (1) (a) (606 SE2d 887) (2004); Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995).

Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the [s]tate, and the waiver must be established by the party seeking to benefit from the waiver.

Bomia v. Ben Hill County School Dist., 320 Ga. App. 423, 424 (740 SE2d 185) (2013) (citation omitted).

In this case, Austin argues that the Peach County School District waived its sovereign immunity by purchasing liability insurance. However, this very argument that “by having liability insurance the school district has waived sovereign immunity has been decided adversely to [Austin].” Dollar v. Dalton Public Schools, 233 Ga. App. 827, 828 (1) (b) (505 SE2d 789) (1998) (citations omitted).

The Georgia Tort Claims Act provides for a limited waiver of the state’s sovereign immunity for the torts of its officers and employees, but it expressly excludes school districts... from the waiver.... Although the 1991 amendment to Art. I, Sec. II, Par. IX does not restrict the legislature’s authority to waive sovereign immunity to the Georgia Tort Claims Act, any such waiver must be by a legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver. We cannot find and appellant [ ] [does] not cite us to any promulgated legislative act which specifically provides that the sovereign immunity of school systems has been waived and the extent of such waiver. Moreover, the provisions of OCGA § 20-2-991, authorizing the purchase of liability insurance by the board of control or education of various school systems and related educational institutions, do not provide for a waiver of sovereign immunity as contemplated by the 1991 constitutional amendment. There has been no waiver of [sovereign] immunity by the mere existence of the school system’s liability policy.

Crisp County School System v. Brown, 226 Ga. App. 800, 801 (1) (487 SE2d 512) (1997) (citations and punctuation omitted). See also Coffee County School Dist., supra at 296 (since there was no legislative act specifically providing that the sovereign immunity of the school district was waived and the extent of such waiver, school district was protected from suit by sovereign immunity). Because Austin has failed to carry her burden of establishing that there was a waiver of sovereign immunity by the Peach County School District, the trial court erred in refusing to dismiss the claims against the school district on the basis of sovereign immunity. See Upper Oconee Basin Water Auth. v. Jackson County, 305 Ga. App. 409, 412 (1) (699 SE2d 605) (2010) (motion to dismiss asserting sovereign immunity is based upon the trial court’s lack of subject matter jurisdiction rather than merits of the complaint).

Case No. A13A0625

2. Official immunity.

Austin contends that the trial court erred in finding that the claims against the individual defendants are barred by official immunity. We disagree.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure.

Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001) (citations omitted). It is undisputed that the doctrine of official or qualified immunity applies to the employees of county-wide school districts. Cosby v. Lewis, 308 Ga. App. 668, 671 (1) (708 SE2d 585) (2011). Moreover, qualified immunity is an entitlement not to stand trial, rather than a mere defense to liability, and “courts must consider the issue of a government employee’s qualified immunity from liability as the threshold issue in a suit against the officer in his [or her] personal capacity.” Cameron, supra at 124 (1).

Austin alleges in her complaint that she was on school district property when she stepped from a sidewalk into a roadway and her leg became lodged in an opening on the curb where water drains from the roadway. Austin argues that the individual defendants negligently performed the ministerial duties of inspecting, maintaining and repairing the sidewalk and road where she fell. Thus, the threshold issue that must be determined is whether the alleged duties to inspect, maintain and repair school district property were ministerial or discretionary.

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.

Decided June 20, 2013.

Page, Scranton, Sprouse, Tucker & Ford, David A. Siegel, Smith, Welch, Webb & White, A. J. Welch, Jr., John B. Garland, Lindsay M. Hodgson, for Peach County School District and Clark et al.

Whitfield v. Brown, 318 Ga. App. 391, 392 (734 SE2d 98) (2012) (citations omitted).

Contrary to Austin’s argument that the alleged duties were ministerial, it has previously been “held that absent a specific and clear procedure or method for dealing with hazards on school property, the methods used to eliminate or avoid a hazard are left to the discretion of the school district employees.” Scott v. Waits, 306 Ga. App. 860, 865 (703 SE2d 419) (2010). In this case, Austin has pointed to no specific and clear procedures or methods for dealing with the purported hazard created by the drainage opening on the curb. Under such circumstances,

we [have] recognized that school administrators or teachers having responsibility for inspecting school property for hazards, deciding what constitutes a hazard, selecting appropriate methods for correction of hazards, and creating priorities and a schedule for corrections are involved in the exercise of discretionary functions.

Golden v. Vickery, 285 Ga. App. 216, 220 (645 SE2d 695) (2007) (citation omitted). Because the alleged duties involved here were discretionary, the trial court correctly dismissed the negligence claims against the individual defendants on the basis of their official immunity. See Hemak v. Houston County School Dist., 220 Ga. App. 110 (469 SE2d 679) (1996) (school officials entitled to official immunity for discretionary acts related to the repair of a storm drain grate in a roadway).

Judgment affirmed in Case No. A13A0625. Judgment reversed in Case No. A13A0517.

Doyle, P. J., and Boggs, J., concur.

Childs & Noland, Frank H. Childs, Jr., Lumley & Howell, Jerry A. Lumley, for Austin.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A13A0627.
    OVERCASH v. THE STATE.
    (745 SE2d 286)
    Decided June 20, 2013.

      Johnny R. Pannell, for appellant.
   McFadden, Judge.

At a bench trial at which he represented himself, Ernest Arthur Overcash was convicted of speeding. He appeals the conviction, arguing that the record does not show that he voluntarily, knowingly, and intelligently waived his right to a jury trial. We agree and therefore reverse his conviction.

“Because the right to a jury trial is a fundamental constitutional right, the burden is on the [sjtate to show that [Overcash] made a knowing, intelligent and voluntary waiver of that right.” Balbosa v. State, 275 Ga. 574, 575 (1) (571 SE2d 368) (2002) (citations omitted). The state argues that it has satisfied its burden by showing that Overcash indicated by check mark on the arraignment form a request for a nonjury trial. This document does not satisfy the state’s burden. It is not clear from this document that Overcash himself made the check mark, and it certainly is not clear that any waiver was knowing, intelligent and voluntary. Compare id. (“To ensure that [defendant] waived his right to a jury trial voluntarily, knowingly and intelligently, the trial court should have conducted a colloquy with [defendant] himself.”) (citation omitted); Jones v. State, 294 Ga. App. 169, 169-170 (1) (670 SE2d 104) (2008) (written pleading filed by attorney requesting nonjury trial insufficient in absence of any extrinsic evidence).

A harmless-error analysis cannot be applied to the issue of a waiver of the right to a jury trial. Balbosa, 275 Ga. at 575-576 (2). We therefore reverse Overcash’s conviction. Ealey v. State, 310 Ga. App. 893, 899 (714 SE2d 424) (2011). “Because our review of the evidence . . . shows that it was sufficient to support [Overcash’s] conviction[ ], he may be retried.” Id. at 894. We do not address Overcash’s remaining enumerations of error since they are not likely to recur on retrial.

Judgment reversed.

Doyle, P. J., and Boggs, J., concur.

Amy E. Smith, Solicitor-General, for appellee.


author: Miller, Judge.

text:
    A13A0664.
    GRAVES v. THE STATE.
    (745 SE2d 296)
   Miller, Judge.

Following a jury trial, Richard Graves was convicted of sexual battery (OCGA § 16-6-22.1 (b)) and aggravated sexual battery (OCGA § 16-6-22.2 (b)). Graves appeals from the denial of his motion for new trial, contending that the trial court erred in allowing the State to bolster the victim’s testimony with prior consistent statements, and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence.” (Citation omitted.) Fogerty v. State, 304 Ga. App. 546 (1) (696 SE2d 496) (2010).

So viewed, the evidence shows that Graves was the victim’s stepfather and the two resided in the same household. In February or March 2007, the victim was asleep in her bedroom when she awoke to find Graves next to her with his hand on her thigh. When the victim jumped, Graves promptly left the victim’s bedroom.

In April 2007, the victim again was sleeping in her bedroom when she was awakened by Graves. Graves’s hand was on her inner thigh on the outside of her pajamas and he began caressing and massaging her thigh. The victim moved in an attempt to show Graves that she was awake and was uncomfortable with his behavior. Graves briefly stopped before he resumed moving his hand along the victim’s thigh toward her vagina. When the victim moved away again, Graves got up and exited the victim’s bedroom. The victim was in disbelief for some time, but she eventually told her mother about the incident. Nothing was done at this time because the victim and her mother did not believe that Graves intended to abuse the victim.

In May 2007, the victim again found herself being woken up by Graves. Graves had his hand in the victim’s shorts and was attempting to get inside her underwear. When Graves reached under the victim’s underwear, he placed his hand over the victim’s vagina and moved his hand around. Graves then inserted a finger into the victim’s vagina. The victim testified that her body “shut down” and did not move because she was afraid that Graves might hurt her or that she would ruin things in her family. The victim stated that the entire incident lasted about 11 minutes.

When Graves finished and left the room, the victim used her cell phone to call the home phone to draw Graves toward the phone located in the kitchen. When Graves answered, the victim ran to her mother’s room, woke her mother up, and told her mother what had taken place. Her mother confronted Graves, and Graves stated that he was sorry. The victim’s mother told Graves to leave the house, and before he left, he apologized to the victim and stated that he did not intend to hurt her. The victim did not report the incident to law enforcement then because she did not want to “rock the boat” at that time.

The victim’s mother and Graves separated, and in February 2008, the victim learned Graves had a new girlfriend. The victim decided to report the sexual abuse at this time because she became concerned that Graves might commit similar actions against his girlfriend’s young children.

An investigating officer interviewed Graves over the telephone. Graves was then arrested and charged with the instant offenses. At trial, the State played a recording of the investigator’s interview with Graves. The jury convicted Graves of sexual battery and aggravated sexual battery.

1. Graves contends that the trial court erred in allowing the State to bolster the victim’s testimony with her prior statements given to the victim’s mother and the investigating officer. At trial, however, Graves objected to the challenged testimony only on grounds that the testimony was cumulative of the victim’s testimony and consisted of hearsay. Since Graves did not make an objection on the grounds he now asserts, he has waived his claim of improper bolstering. See Bradley v. State, 292 Ga. 607, 613 (4) (740 SE2d 100) (2013); Moore v. State, 280 Ga. App. 894, 897 (4) (635 SE2d 253) (2006).

2. Graves also contends that his trial counsel was ineffective for failing to object to the admission of recorded statements he made to the investigating officer. We disagree.

To prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. We need not address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either prong. The trial court’s finding that a defendant was afforded effective assistance of counsel must be upheld on appeal unless clearly erroneous.

(Citations and punctuation omitted.) Towry v. State, 304 Ga. App. 139, 143 (2) (695 SE2d 683) (2010).

At trial, Graves admitted that he went into the victim’s bedroom to retrieve an item in May 2007; he accidentally tripped and landed onto the victim’s bed; he touched the victim’s bottom; and he had trouble getting off the bed because of back problems. Graves’s friend also testified that Graves admitted to him that Graves had tripped and fell onto the victim’s bed, and that his hand went “you know where.” Graves’s friend testified that Graves stated that he lay in the victim’s bed for about ten minutes before leaving. This testimony was consistent with Graves’s statements during the police interview. In the interview, Graves admitted to touching the victim on two different occasions, including the May 2007 incident when he claimed to have tripped and landed on the victim’s bed, but stated that it was unintentional and was not sexual in nature. The investigating officer asked Graves about his attorney’s letter that included statements that Graves “briefly fondled” the victim, and Graves denied ever fondling the victim.

Graves argues that his attorney should have objected to the recorded interview because it included prejudicial hearsay statements that he fondled the victim. At the motion for new trial hearing, trial counsel stated that he did not initially object to the recorded interview because he was only thinking about the voluntariness of Graves’s statement, and he found nothing objectionable in this respect. Trial counsel admitted that he did not consider redacting the recording to omit the attorney’s reference to Graves’s admission.

Assuming that trial counsel was deficient by not moving to redact the recording to omit the investigating officer’s reference to the attorney’s letter, Graves has nevertheless failed to carry his burden of establishing prejudice. In light of Graves’s own trial testimony that he touched the victim’s bottom in May 2007, and the victim’s testimony about the incident, there is no reasonable probability that the outcome of the trial would have been different had the jury not heard the officer’s reference to the attorney’s letter. See Towry, supra, 304 Ga. App. at 146 (2) (c) (trial counsel’s failure to request redaction of recorded police interview not prejudicial where challenged statements went to test truthfulness of defendant’s statements and defendant elsewhere admitted to possibly touching victim in genital area); cf. Hames v. State, 278 Ga. 182, 184 (3) (598 SE2d 459) (2004) (failure to redact officer’s comments during interview, even if error, was harmless). Consequently, the trial court did not err in concluding that Graves failed to establish ineffective assistance of counsel.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

Decided June 20, 2013.

James P. Theodocion, for appellant.

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


author: McFADDEN, Judge.

text:
    A13A0803.
    WALKER et al. v. GOWEN STORES LLC.
    (745 SE2d 287)
   McFADDEN, Judge.

Gowen Stores LLC filed this action against Tammy Cisco Walker and Aletha Cisco Shave as executrices of the estate of Fairley Cisco and others. Walker and Shave moved to dismiss the complaint under OCGA § 9-11-12 (b) (6) for failure to state a claim. The trial court denied the motion, and we granted their application for interlocutory appeal.

Gowen alleges that Fairley Cisco’s unlawful scheme of rigging gas pumps and bribing state officials fatally damaged its businesses. Walker and Shave have not shown with certainty that Gowen would not be entitled to relief under any state of provable facts asserted in support of the allegations of the complaint. We therefore affirm.

Amotion to dismiss pursuant to OCGA § 9-11-12 (b) (6) will not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

State of Ga. v. Singh, 291 Ga. 525, 529 (3) (731 SE2d 649) (2012) (citation omitted). “[A] complaint need not set forth a cause of action in order to withstand a motion to dismiss but need only to set forth a claim for relief.” Koehler v. Massell, 229 Ga. 359, 361 (1) (191 SE2d 830) (1972). In fact, a plaintiff may sue on one theory and recover on another so long as the complaint adequately states a claim for relief. Rogers v. Carmike Cinemas, 211 Ga. App. 427, 430 (439 SE2d 663) (1993). See also Charles H. Wesley Ed. Foundation v. State Election Bd., 282 Ga. 707, 714 (654 SE2d 127) (2007) (Sears, C. J., dissenting) (“[A] complaint will not be dismissed under OCGA § 9-11-12 (b) (6) for requesting the wrong form of relief, or no relief at all, as long as the complainant is entitled to some legal remedy under the facts pled.”). The issue is not whether the complaint is perfectly pled “but whether it sufficiently gave [the defendant] fair notice of the claim and a general indication of the type of litigation involved.” Lathem v. Hestley, 270 Ga. 849, 850 (514 SE2d 440) (1999). We review the denial of a motion to dismiss de novo. Cobb County v. Jones Group P. L. C., 218 Ga. App. 149, 153 (6) (460 SE2d 516) (1995). “In the case sub judice, the order of the trial court does not recite the grounds upon which the motion to dismiss was [denied]; however, if the judgment is authorized for any reason, it must be affirmed.” Gillis v. American Gen. Life & Accident Ins. Co., 222 Ga. App. 891, 892 (476 SE2d 648) (1996) (citations and punctuation omitted).

With these principles in mind, our review of Gowen’s complaint as amended shows that Gowen alleged the following. Gowen owned two gas stations. Prior to his death, Fairley Cisco owned or controlled three gas stations. From 2000 until 2008, Cisco conspired with two employees and illegally rigged his gas pumps so that they would dispense less fuel than customers paid for. Cisco also bribed a state inspector to ignore the scheme and to tip him off before his fuel pumps were inspected. The pump-rigging scheme allowed Cisco to advertise gas prices well below the market rate. Gowen was unable to compete and lost business at both of its convenience store locations. The stores closed, and Gowen suffered multi-million dollar losses. The complaint further alleged that Cisco and his employees breached a duty not to engage in the pump-rigging scheme, that Gowen was a foreseeable victim of Cisco’s scheme and was damaged as a direct and proximate result of his tortious acts, and that Cisco’s acts constituted the criminal offenses of bribery and theft and therefore his estate is liable under a theory of negligence per se.

Georgia recognizes the cause of action of tortious interference with business relations, and we conclude that Gowen’s allegations fall squarely within its requirements. To establish such a claim, a plaintiff must demonstrate that the defendant “(1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.” Integrated Micro Systems v. NEC Home Electronics (USA), 174 Ga. App. 197, 200 (3) (329 SE2d 554) (1985) (citation and punctuation omitted). Cf. U. S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 299 (3) (443 SE2d 833) (1994) (“[B]elow-cost pricing by a single defendant is not improper in the absence of some other unlawful element and, thus, is not encompassed by the tort of intentional interference with business relations.”) (emphasis in original). The malice element of the cause of action “is broadly construed to encompass any unauthorized interference or any interference without legal justification or excuse.” Camp v. Eichelkraut, 246 Ga. App. 275, 278 (1) (539 SE2d 588) (2000).

Decided June 20, 2013

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Terry L. Readdick, Steven G. Blackerby, for appellants.

Savage, Turner, Pinson & Karsman, Brent J. Savage, for appellee.

Gowen alleged that Cisco and his employees acted improperly and without privilege or justification by illegally rigging their pumps and bribing government officials, enabling them to falsely advertise low prices. Gowen alleged that through their advertisement of falsely low prices, Cisco and his employees induced customers to come to their stations instead of Gowen’s, leading to Gowen’s inability to compete and business failure. These allegations sufficiently gave the defendants “fair notice of the claim and a general indication of the type of litigation involved,” Lathem, 270 Ga. at 850, so as to survive an OCGA § 9-11-12 (b) (6) motion to dismiss for failure to state a claim. “[W]e are unable to say with certainty that [Gowen] would not be entitled to relief under any state of facts which could be proved in support of [its] general allegations.” Day v. Brown, 207 Ga. App. 134, 135 (2) (427 SE2d 104) (1993).

We reject the argument that the complaint must be dismissed because damages are too remote to be proven. “[T]he speculative nature of damages alleged in a complaint may not afford a basis for the granting of a motion to dismiss wherein the allegations of a complaint are taken as true....” Little v. Fleet Finance, 224 Ga. App. 498, 500 (1) (481 SE2d 552) (1997).

The motion to dismiss was addressed to the entire complaint, but the complaint set forth at least one claim. The trial court therefore correctly denied the motion to dismiss. DeLoach v. Maurer, 130 Ga. App. 824, 827 (4) (204 SE2d 776) (1974) (“The motion to dismiss was addressed to the entire complaint and must be overruled where one of the counts sets forth a claim. We therefore do not specifically rule upon the second count. The trial judge correctly overruled the defendant’s motion to dismiss.”) (citation omitted).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


author: McMillian, Judge.

text:
    A12A0848.
    THE STATE v. RAMBERT.
    (745 SE2d 649)
   McMillian, Judge.

The State appeals the trial court’s order dismissing a burglary indictment filed against Calvin Rambert in response to Rambert’s motion in limine asking the court to disallow any third party witnesses (property managers or agents) from testifying on behalf of the property’s owner of record.

On March 18, 2011, a grand jury indicted Rambert on one count of burglary and one count of possession of tools for the commission of a crime in connection with the alleged theft of copper from the walls of a vacant building owned by Abraham Vaknin, a New York resident. The matter was originally set for trial in August 2011, but was continued at the request of the State because Vaknin was out of the country. The matter was rescheduled for October, but Vaknin was again unavailable when the case was called for trial, prompting Rambert’s motion in limine to prevent Karen Booker, Vaknin’s property manager, from testifying on his behalf. Although the prosecutor indicated that he had correspondence establishing that Booker was the manager for the subject property and the record indicates that she was the party who reported the crime, the trial judge ruled that Booker would not be allowed to testify, stating that he would not “let an agent testify” and would require the property owner to appear himself. The trial court then dismissed the indictment against Rambert with prejudice.

The State argues that the trial court erred in dismissing the indictment because Georgia law authorizes an agent to testify on behalf of a property owner in cases of burglary. We agree.

It is well settled that the State may establish a defendant’s lack of authority to enter a building through circumstantial evidence. Jones v. State, 258 Ga. 25, 27 (1) (365 SE2d 263) (1988); Ursulita v. State, 307 Ga. App. 735, 737 (1) (706 SE2d 123) (2011). And “[w]e have [repeatedly] held that the testimony of an agent or caretaker of the property is sufficient to show that an entry was unauthorized.” Abney v. State, 240 Ga. App. 280, 281 (1) (523 SE2d 362) (1999) (finding evidence sufficient to support burglary conviction where elderly homeowner’s son testified that defendant was without authority to enter vacant home). See also Casper v. State, 305 Ga. App. 540, 541 (699 SE2d 852) (2010) (property manager’s testimony could establish unauthorized entry for burglary in probation revocation hearing); Wilson v. State, 230 Ga. App. 271, 272 (1) (495 SE2d 894) (1998) (evidence supported burglary conviction where school maintenance worker testified that defendant had no authority to enter school even where worker had no comprehensive list of those authorized); Glisson v. State, 165 Ga. App. 342, 342-343 (3) (301 SE2d 62) (1983) (testimony of church deacon with responsibility for maintenance sufficient to establish defendant had no authority to enter church); Purdue v. State, 165 Ga. App. 466, 466-467 (302 SE2d 118) (1983) (conviction for burglary of abandoned apartment upheld without-testimony of former tenant and although housing authority, which owned apartment, did not know apartment had been abandoned). Accordingly, the trial court erred in dismissing the indictment on this ground.

Decided June 21, 2013.

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellant.

Anna J. Kurien, for appellee.

Additionally, we note that the trial court erred in dismissing the indictment with prejudice “[b]ecause a trial court may not impermissibly interfere with the State’s right to prosecute.” (Citations omitted.) State v. Aldridge, 259 Ga. App. 673, 674 (1) (577 SE2d 863) (2003). See State v. Brooks, 301 Ga. App. 355, 359 (687 SE2d 631) (2009) (trial court “abuses its discretion when it interferes with the State’s right to prosecute by dismissing an accusation without a legal basis to do so”) (citation omitted); State v. Luttrell, 207 Ga. App. 116 (427 SE2d 95) (1993) (“The Civil Practice Act . . . provides for dismissals with prejudice of civil cases, but the court knows of no statutory or case authority which permits such dismissals in criminal cases.”) (citation and punctuation omitted; emphasis in original).

Judgment reversed.

Andrews, P. J., and Dillard, J., concur.

       Rambert also argues that the State failed to present evidence at the hearing showing that Booker actually was Vaknin’s agent. But in dismissing the indictment, the trial court did not address the sufficiency of the State’s evidence; rather, the court ruled that it would not allow any agent to testify. Apccordingly, we will not address Rambert’s evidentiary argument. See Glover v. State, 291 Ga. 152, 153 (2) (728 SE2d 221) (2012) (failure to obtain ruling on issue leaves nothing for appellate court to review).


author: MCMILLIAN, Judge.

text:
    A13A0262.
    MUHAMMAD v. MASSAGE ENVY OF GEORGIA, INC. et al.
    (745 SE2d 650)
   MCMILLIAN, Judge.

Ali S. Muhammad appeals the trial court’s order dismissing his complaint against Massage Envy of Georgia, Inc.; Klemme, Inc.; Norman Klemmer a/k/a Norman John Klemmer a/k/a Norman J. Klemmer (“Klemmer”); Lynda Brooks; Pat Baker; and Michael D. Cross, Jr., arising out of an alleged overcharge of $78 on Muhammad’s bank account for massage services. Citing this Court’s opinion in Crane v. Cheeley, 270 Ga. App. 126 (605 SE2d 824) (2004), Klemme, Inc. moved to dismiss Muhammad’s complaint on the ground that he failed to pay $16,262 in attorney fees and costs awarded in a prior lawsuit filed against Massage Envy of Georgia, Inc. Because we find that the Crane case was wrongfully decided, we overrule that decision and reverse the trial court’s order dismissing Muhammad’s claims.

Muhammad originally filed a lawsuit solely against Massage Envy of Georgia, Inc. on December 15, 2009, in which he sought to recover the $78 plus $25,000 in punitive damages. The trial court ultimately granted summary judgment in favor of MEG, which had moved for relief on the ground that it was not the company that withdrew money from Muhammad’s bank account. MEG contended instead that Muhammad had contracted with a franchisee of the national Massage Envy franchisor, which had a similar name and which was responsible for the withdrawals. The trial court further granted MEG an award of costs and attorney fees for frivolous litigation under OCGA § 9-15-14 in the amount of $16,242.

The allegations in this action are based on the same events and massage service membership involved in the 2009 lawsuit, with additional allegations of fraud on the court by MEG and its attorney, Cross, during the litigation. As he did in his first complaint, Muhammad alleges that in addition to the loss of the $78, he was damaged in the amount of $25,000 for “embarrassment, and emotional pain and suffering” after his account was overdrawn. Although the current complaint is somewhat unclear, Count 1 appears to assert a fraud claim based on allegations that “Defendants” accepted his massage service contract, “well knowing” that they would be closing the Camp Creek location. Count 1 also alleges that during the 2009 litigation, MEG and Cross misrepresented that MEG was not part of the Massage Envy franchisee with which Muhammad contracted. Muhammad sought $150,000 in damages on this claim. The second count sought an award of attorney fees of not less than $46,000. Muhammad also sought $100,000 in punitive damages, for a total damage claim of $296,000.

The trial court granted Klemme’s motion to dismiss in reliance upon the Crane case. In that case, Crane filed suit against a number of defendants arising out of an alleged promise in a life estate. Crane had filed two prior actions against one of these defendants, and the trial court granted a motion to dismiss in one of the actions and summary judgment to the defendant in the other. The court later awarded attorney fees under OCGA § 9-15-14 (b) in each action. Crane, 270 Ga. App. at 126. After first confirming that “attorney fees and expenses oflitigation awardedunder OCGA § 9-15-14 (g) shall be treated as court costs with regard to the filing of any subsequent action,” the Court then determined that the “[c]ourt costs in the original action against a party must be paid first before commencing a subsequent action against that party,” citing OCGA § 9-11-41 (d). (Citation and punctuation omitted; emphasis in original.) Id. at 127. The Court then determined that the Cranes’ failure to pay the attorney fee awards in the first two actions barred their third suit. Id.

But OCGA § 9-11-41 addresses the dismissal of actions, and subsection (d) provides that “[i]f a plaintiff who has dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the plaintiff shall first pay the court costs of the action previously dismissed.” (Emphasis supplied.) In Crane, however, it was not the plaintiffs who dismissed the prior action; it was the trial court that dismissed one and adjudicated the other. By its terms, therefore, OCGA § 9-11-41 (d) had no application in Crane, and this Court erred in applying that statute to dismiss the Cranes’ suit for failure to pay the fee awards. Accordingly, we conclude that Crane was wrongly decided and we hereby overrule it.

Similarly, in this case, Muhammad did not dismiss the 2009 action; rather, the trial court granted summary judgment to MEG and then awarded it attorney fees. The trial court, therefore, erred in dismissing Muhammad’s subsequent complaint for failure to pay the fees awarded in the 2009 action pursuant to OCGA § 9-11-41 (d). Accordingly, we reverse the trial court’s order dismissing the complaint and remand for further proceedings.

Decided June 21, 2013.

Louise T. Hornsby, for appellant.

Briskin, Cross & Sanford, Michael D. Cross, Jr., for appellees.

Judgment reversed.

Ellington, C. J., Andrews, P. J., Barnes, P. J., Phipps, P. J., Doyle, P. J., Miller, Dillard, McFadden, Boggs, Ray and Branch, JJ., concur.

       Massage Envy of Georgia, Inc. was apparently the predecessor corporation of Klemme, Inc., so the two corporations, although named as separate parties, are essentially the same and will be referred to jointly as ‘MEG,” unless it is necessary to distinguish between the two corporate names.

       Muhammad filed the 2009 complaint pro se, but obtained his current legal representation during the course of that litigation.

       Muhammad filed an application for discretionary appeal of the attorney fee award, which this Court denied. This Court also denied Muhammad’s subsequent application for discretionary appeal in Massage Envy’s garnishment case to collect those fees, making this Muhammad’s third appearance before this Court for matters arising in connection with the $78 overdraft.

       Although MEG and Cross also argue that the complaint was subject to dismissal on the grounds of res judicata, the trial court stated that it was dismissing the complaint for the failure to pay costs in the prior action and that it was dismissing the claim “on that ground and that ground only.” Moreover, the trial court specifically denied MEG’s request for a bill of peace to prevent Muhammad from filing any additional complaints against MEG arising out of this matter. The trial court said that if Muhammad paid the $16,000 and filed another suit, the court would address the issues at that time. MEG did not cross-appeal the denial of its request for a bill of peace. In any event, we find that the appellate record before us is insufficient to consider the issue of res judicata.


text:
    A13A0332.
    GATES v. THE STATE.
    (750 SE2d 683)
   MCMILLIAN, Judge.

Brandon Keith Gates was convicted by a jury of one count of aggravated stalking and was sentenced to ten years in confinement. He appeals, arguing in his sole enumeration of error that the evidence was insufficient to support his conviction. We affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Gates] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Bradley v. State, 252 Ga. App. 293 (556 SE2d 201) (2001).

So viewed the evidence shows that on December 24, 2009, the victim was living with a female roommate in a house at 800 Vernon Ferry Road in Troup County. The victim and Gates had been engaged in an “on and off” dating relationship since 2005. The victim testified about several incidents where Gates became verbally or physically threatening or abusive. The victim attempted to end her relationship with Gates in 2006. He came to her residence and started knocking on her door and window; the victim was on the phone with her friend and told her to call 911. Gates kicked the door down, and the victim attempted to run out the door, but Gates pulled her back inside. The victim said that Gates also took her cell phone and keys so she could not leave.

The victim also testified about an incident in 2008 when Gates came to her place of employment and threatened to kill her. The victim said that she had to ask her co-workers to watch her go to her car and that her co-workers were scared to go to lunch with her because of the uncertainty over what Gates might do. The victim obtained a temporary protective order around the time of that incident; the protective order enjoined Gates from, among other things, having any contact with the victim “including but not limited to telephone . . . email, mail or any other means of communication,” approaching within 100 yards of the victim and engaging in harassing and intimidating acts toward the victim.

The victim also testified about another incident when Gates became angry with her because she did not want him to go with her to a cousin’s wedding. On that occasion, he choked her and hit her in the eye, leaving visible marks. A photograph showing the marks on the victim’s face was introduced into evidence at trial.

However, in July 2009, the victim agreed to go out to eat with Gates. The victim testified that she assumed Gates would not do anything to her since they were going to be in public, but then she realized that he wanted her to pick up food and go to his father’s house. The victim, who was driving, said she told Gates that she was not going to go to his father’s house, but he kept insisting that they go. Gates started hitting the victim, striking her five to seven times in her face and mouth. The victim stopped the vehicle and tried to run away, but Gates caught her, put her in a headlock and dragged her through traffic back across the street to the car. The victim first drove to Gates’ mother’s house but was subsequently able to get away after she convinced him that they should go to the store to get cigarettes and she escaped while he was in the store. Pictures of the injuries the victim suffered during this incident were also introduced into evidence at trial.

Following this incident, the victim obtained another protective order. Several months after the order was put into place, the victim’s cousin called her, and she agreed to let him come to her house to play cards. She said that Gates was with her cousins when they arrived, and she stopped Gates at the door and asked him what he was doing there. She said she realized Gates had initiated the idea to come to her house, and she told him he did not have permission to be there. Gates attacked her, and the victim, her two cousins and her roommate removed Gates from the house.

The victim also testified about the December 2009 incident, which gave rise to the charges in this case. She said that Gates sent her text messages and then called her trying to persuade her to let him come over to her house. She said that she tried to convince him not to come, and she hung up on him, but he called back. The victim also replied to Gates’ text messages and told him that she was already in bed and did not want him to come to her house.

The victim said after she fell asleep Gates came to her residence in the early morning hours and started banging on the door. The victim’s roommate went to the door and told Gates that the victim was asleep and would not let him in. Gates also knocked on the victim’s window. The roommate said she stayed in her bedroom, and the victim said that she remained in bed and called 911 but did not speak with anyone because she fell back asleep. The next morning, the victim and the roommate discovered that some of the tires on their vehicles had been flattened, and they called law enforcement.

On cross-examination Gates elicited testimony from the victim that she continued to see Gates after she obtained the protective order. Gates also elicited testimony from various defense witnesses to the effect that the victim came to Gates’ house and place of employment while the protective orders were in place and that she came to his house after the December 2009 incident. The victim testified she continued to see Gates so he would not come after her, but that she tried to avoid situations where she would be alone with him. The victim also reiterated during redirect that she did not give him permission to come to her house on the night of the December 2009 incident.

Pursuant to OCGA § 16-5-91 (a),

[a] person commits the offense of aggravated stalking when such person, in violation of a . . . temporary [or permanent] protective order . . . contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

The term “harassing and intimidating” is defined in OCGA § 16-5-90 (a) (1) as

a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety ... by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose. This Code section shall not be construed to require that an overt threat of death or bodily injury has been made.

Decided June 21, 2013.

Deepa M. Patel, Matthew W. Bridges, for appellant.

Peter J. Skandalakis, District Attorney, C. Jephson Bendinger, Assistant District Attorney, for appellee.

Gates points to the evidence showing that there were occasions when he and the victim had consensual contact and argues the evidence was insufficient because this evidence demonstrated that she did not feel harassed or intimidated by him. However, the evidence clearly showed that the victim did not consent to the contact for which Gates was prosecuted, and her actions in refusing to admit him once he arrived at her house against her express wishes and her attempt to call 911 showed that she was in reasonable fear for her safety. Thus, viewing this and the other evidence presented at trial in the light most favorable to the verdict, we find the evidence was sufficient to authorize Gates’ conviction of aggravated stalking under OCGA § 16-5-91 (a). E.g., Crane v. State, 297 Ga. App. 880 (678 SE2d 542) (2009) (finding evidence sufficient to support conviction for aggravated stalking notwithstanding that the victim had consensual contact with the defendant on other occasions after restraining or protective order was entered); Revere v. State, 277 Ga. App. 393, 394 (1) (a) (626 SE2d 585) (2006) (same); Littleton v. State, 225 Ga. App. 900, 903 (4) (485 SE2d 230) (1997) (same). Compare Wright v. State, 292 Ga. App. 673 (665 SE2d 374) (2008) (evidence insufficient to show that victim was in reasonable fear for her safety when there had been a recent pattern of consensual contacts and victim pursued defendant after he left the residence even though he had the hammer he had taken away from her).

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

       The jury acquitted Gates of two counts of criminal trespass.


author: Ray, Judge.

text:
    A13A0239.
    SPINKS v. THE STATE.
    (745 SE2d 653)
   Ray, Judge.

After a jury trial, Richard E Spinks, an alias for a man whose real name is Robert Earl Lee, was convicted of burglary and criminal trespass, OCGA §§ 16-7-1 and 16-7-21, respectively. He appeals the trial court’s denial of his motion for a new trial, contending in five enumerations of error that he received ineffective assistance of counsel, and in an additional enumeration that the trial court erred in admitting similar transaction evidence. For the reasons that follow, we affirm.

Although Spinks does not challenge the sufficiency of the evidence used to convict him, we recount it briefly for clarity. Construed most favorably to support the verdict, the evidence shows that on September 2, 2009, when the manager of a BP gas station in Marietta arrived at work, he noticed that slats on a louvered portion of his office door had been removed and damaged, and that his filing cabinet and drawers had been ransacked. The manager reviewed the store’s surveillance video and saw a man, later identified as Spinks, removing the slats from the door and entering restricted areas of the store, including a locked storeroom containing excess inventory and a computer. The video, which was played in color on a high definition 60-inch screen for the jury, showed Spinks wearing blue jeans and a black t-shirt with a large white circular design, as well as a black Coca-Cola ball cap. A police officer stopped Spinks about an hour later on an unrelated matter about two blocks from the BP station. The officer described Spinks as wearing or possessing the same clothing shown in the video, as did a police officer who later interviewed him at the station. Cameras that monitored the store’s outside area recorded images of a red GMC Jimmy vehicle in the parking area of the BP station, and when Spinks was stopped by police on the unrelated matter, he was driving a red GMC Jimmy. The officers who dealt with Spinks on the unrelated matter did not initially know about the BP burglary, but later connected Spinks to the BP burglary after viewing the surveillance video.

1. The evidence was sufficient to sustain the convictions under the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). See also Manning v. State, 137 Ga. App. 311, 311 (223 SE2d 503) (1976) (evidence sufficient to sustain conviction for burglary even though victim sustained no loss).

2. Spinks argues that the trial court erred in admitting evidence of two similar transactions showing he was involved in burglaries at other gas station convenience stores.

When reviewing the admissibility of similar transaction evidence,

[w]e review a trial court’s evidentiary rulings under an abuse of discretion standard . . . however, we accept a trial court’s factual findings unless they are clearly erroneous, and this is even more apparent where, as here, the purpose of those findings is the application of a mandatory test.

(Citations and punctuation omitted.) Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012). That mandatory test requires the State to show, as to each independent similar act, that it is seeking to admit the evidence for an appropriate purpose, that there is sufficient evidence to show that the accused committed the act, and that there is sufficient connection or similarity between the independent act and the crime charged such that the former tends to prove the latter. Long v. State, 307 Ga. App. 669, 672 (2) (705 SE2d 889) (2011).

At trial, after the court properly instructed the jury on similar transactions, evidence was admitted of a similar transaction that occurred at a convenience store attached to a Chevron station near the interstate, where an individual broke into a locked office and storeroom marked “employees only,” and stole cartons of cigarettes at about 7:30 p.m. Spinks was with that individual, and he created a diversion by spilling hot coffee on his hand and screaming, while another individual took the cigarettes out of the store in garbage bags, which were loaded into a vehicle. Spinks arrived at the Chevron and left in the same vehicle with the individual who took the cigarettes. The tag number on the vehicle was registered to Spinks’ alias Robert Earl Lee. Two Chevron employees identified Spinks in photo lineups.

The second similar transaction involved a burglary at the convenience store attached to a Pilot gas station right off the interstate. An employee who was stocking drinks at the store saw Spinks in a stockroom that is kept locked and is labeled for employees only, and had his manager call the police after Spinks claimed to be looking for a place to wash his hands. The door to a back stockroom containing electronics had been damaged, and two of the locks were partially broken. An employee who did not attend a lineup identified Spinks at trial. The jury also saw store surveillance video of Spinks in the storage room. Spinks left in a vehicle with a tag number registered to his alias Robert Earl Lee.

When examining whether transactions are sufficiently similar,

this Court must focus on the similarities between the two acts rather than the dissimilarities. While there must be proof of a sufficient similarity between the independent offense [s] and the instant crime charged, the... crimes need not be carbon copies of one another to be admissible.

(Citation omitted.) Reed, supra.

The testimony of the witnesses in the respective Chevron and Pilot incidents as to the type of store involved (a convenience store attached to a gas station), the presence of Spinks or his accomplice in employees-only areas where items such as cigarettes, drinks, and electronics were stored and could be taken, and the incidents taking place at a time of day when the stores were open and employees were present, all were relevant for the State’s proper purpose of showing bent of mind or intent, course of conduct, and common plan or scheme. Thomas v. State, 290 Ga. 653, 656 (2) (723 SE2d 885) (2012). Further, “these similarities are more than adequate to satisfy the State’s burden of showing a sufficient connection between the similar offense and the offense for which the accused is being tried such that proof of the former tends to prove the latter.” (Citation and punctuation omitted.) Kennedy v. State, 298 Ga. App. 372, 375-376 (2) (680 SE2d 478) (2009) (both offenses were smash-and-grab crimes committed at commercial establishments very near the interstate); Long, supra at 671 (1), 673 (2) (b) (transactions were similar where defendant entered residential areas he was not authorized to be in, and where evidence contradicted his innocent explanations as to why he was there). We find no error in the trial court’s admission of these similar transactions.

3. In five enumerations of error, Spinks argues that he received ineffective assistance of counsel.

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). “The likelihood of a different result must be substantial, not just conceivable.” (Citation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012). We are not required to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either one of them, and “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, supra at 697 (IV). There is a strong presumption that counsel’s conduct falls within the range of reasonable professional judgment. Id. at 689 (III) (A). In challenging counsel’s strategic decisions, a defendant must show “that no competent attorney, under similar circumstances, would have made [the same decision].” (Citation and punctuation omitted.) Davis v. State, 290 Ga. 584, 585-586 (2) (723 SE2d 431) (2012).

(a) Spinks argues that his trial counsel was ineffective for failing to object to hearsay testimony from a police officer who testified that she was not Georgia Crime Information Center certified, but had someone else run the vehicle tag number reported by a witness in the Chevron similar transaction and that the vehicle was registered to Spinks.

At the motion for new trial hearing, trial counsel testified that he made a strategic decision not to object, essentially in an attempt to confuse the jury over the different vehicles used in the Chevron similar transaction and in the instant case. The vehicle used in the Chevron similar transaction and registered to Spinks was a tan Buick, while the vehicle registered to Spinks in the instant case was a red GMC Jimmy. Trial counsel testified that the officer’s testimony “would help to lead the jury in another direction____I didn’t think that was bad testimony. It was a different type car my client was driving. As a defense attorney, you want things that might confuse a jury.” This decision not to object was a legitimate trial strategy that falls within the range of professional conduct. See Durham v. State, 292 Ga. 239, 241-242 (4) (a) (734 SE2d 377) (2012) (assistance not ineffective where trial counsel made strategic decision not to object to hearsay in order to avoid calling the jury’s attention to testimony he believed was not harmful to his client).

(b) Spinks argues that his trial counsel was ineffective in not objecting to testimony that allegedly placed his character at issue. The specific testimony at issue was elicited from police officers who stopped him on an unrelated matter shortly after the BP burglary, and Spinks alleges that this testimony indicated that he was in police custody on an unrelated charge. Spinks points to the testimony of two officers who interviewed Spinks after the burglary and who testified that Spinks was taken to the precinct, and who also testified, after watching a video of the BP incident, that Spinks was wearing the same clothing during their interviews, except for a baseball cap that was “in his property.” Spinks also argues that the prosecutor improperly placed his character into evidence during closing arguments by stating that the officers interviewed him in an unrelated case and that his photograph was taken.

First, Spinks elicited no testimony on this issue at the motion for new trial hearing. “[I]n the absence of testimony to the contrary, counsel’s actions are presumed strategic, and counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel.” (Footnotes omitted.) Swint v. State, 250 Ga. App. 573, 573 (552 SE2d 504) (2001). Further, given that such testimony and closing argument could refer to Spinks being interviewed as a potential witness — as opposed to being a suspect or being in custody — Spinks has failed to show how his counsel’s failure to object has prejudiced him. See Hill, supra.

(c) Spinks contends that trial counsel was ineffective in failing to object to leading questions the prosecutor asked of two witnesses. However, he elicited no testimony at the motion for new trial hearing on the issue of leading questions. In the absence of evidence to the contrary, trial counsel’s actions are presumed to be strategic, and there is no support for a claim of ineffective assistance of counsel. Swint, supra.

The allegedly leading questions at issue dealt generally with matters related to identity, and trial counsel testified throughout that he made strategic decisions not to object to identification-related testimony as a means of preserving credibility given that the video evidence was so strong. This enumeration lacks merit. See id.

(d) Spinks argues that trial counsel was ineffective in failing to object when the prosecutor asked a police officer if Spinks was the person depicted in the BP surveillance video, and the officer said yes. Spinks contends that identification of a perpetrator is an ultimate issue reserved for the jury. He argues that lay witness testimony on identity, as in the instant case, is appropriate only if there is some basis for concluding that the witness is more likely to identify the defendant correctly than the jury would be, for example, if the defendant’s appearance has changed. In support of his position, Spinks cites Grimes v. State, 291 Ga. App. 585, 590 (2) (662 SE2d 346) (2008), but this case is distinguishable because the trial counsel in Grimes testified that he did not object because he believed such testimony was permissible; it was not, and trial counsel’s decision was not strategic. Id. In the instant case, trial counsel made a strategic decision not to object, and testified about why at the motion for new trial hearing: “Based on my opinion, you lose credibility with the jury if you start going down those lines. They had a high definition video of [Spinks] in the same outfit he was pulled over in a half hour later.” Declining to object to testimony as a tactical matter in order to preserve credibility with the jury can be considered reasonable trial strategy. See Nichols v. State, 288 Ga. App. 118, 122 (3) (b) (653 SE2d 300) (2007). “Given [Spinks’] inability to demonstrate that trial counsel’s failure to object was anything other than trial tactics, he has not established an ineffective assistance claim.” Id.

(e) Spinks asserts that trial counsel was ineffective in failing to provide him with relevant evidence he needed to make an informed decision about whether to accept a negotiated plea. Spinks testified at the motion for new trial hearing that he did not see the surveillance video until it was played for the jury at trial. Spinks also testified that trial counsel did not tell him about the State’s similar transactions evidence until he attended a motions hearing on the issue 11 days prior to trial, and that trial counsel did not tell him he could face punishment as a recidivist until that hearing, when he had to decide whether to accept the State’s plea offer. Spinks testified that if he had seen the video and known about the similar transaction evidence earlier, he would have accepted the plea. However, Spinks’ trial counsel testified that he obtained the video from the prosecution and showed it to his client several months prior to trial, that he reviewed the State’s similar transactions notice with Spinks several months before trial and filed a motion to suppress it, and that he told Spinks he could face a recidivist sentence of 20 years if he lost at trial. Trial counsel further testified that he negotiated a plea of ten years with five to serve, but that Spinks was only interested in a plea of ten years with three to serve.

The above-described conflicting testimony raised a credibility issue for the trial court, and we accept the trial court’s credibility determinations unless they are clearly erroneous. Seabolt v. State, 279 Ga. 518, 520-521 (2) (616 SE2d 448) (2005). Here, the trial court chose to credit defense counsel’s testimony, and we cannot say that this decision was clearly erroneous. Id. (trial court not clearly erroneous in crediting defense counsel’s testimony over that of defendant and two other witnesses). Further, we also have recognized the “self-serving nature of a defendant’s post-conviction testimony regarding his intent with respect to a plea offer, [and] have required some further ‘objective evidence’ that defendant would have accepted a plea offer.” (Footnote omitted.) Childrey v. State, 294 Ga. App. 896, 899 (670 SE2d 536) (2009).

Decided June 24, 2013.

David D. Marshall, for appellant.

Patrick H. Head, District Attorney, Anna G. Cross, D. Victor Reynolds, Assistant District Attorneys, for appellee.

It is undisputed that Spinks, while at the similar transactions hearing, was informed by the prosecutor in open court — pretermitting whether he was previously informed by his counsel — of the plea offer and still rejected it. The conflict between this evidence coupled with his lawyer’s testimony, versus his testimony at the motion for new trial hearing, presents factual issues primarily for resolution by the trial court, and “supports a finding, implicit in the trial court’s ruling, that there was no reasonable probability that [Spinks] would have pled guilty but for counsel’s ineffectiveness.” (Punctuation and footnote omitted.) Id. at 901.

Spinks’ ineffective assistance claims, in toto, lack merit.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       Spinks is one of a number of aliases used by the appellant. Various names appear in documents in the record or in the trial transcript. Throughout this opinion, we will refer to him as Spinks.

       Spinks also points to the prosecutor’s statement during a motions hearing immediately prior to trial indicating that defense counsel did not obtain the BP surveillance video until the day before trial. Spinks did not call the prosecutor to testify to this at the motion for new trial hearing.


author: DOYLE, Presiding Judge.

text:
    A13A0010.
    PARDON v. THE STATE.
    (745 SE2d 658)
   DOYLE, Presiding Judge.

After a jury trial at which Anthony James Pardon proceeded pro se, Pardon was convicted of two counts of failure of a registered sex offender to report a change in residence prior to moving, two counts of first degree forgery, and a recidivist charge. Pursuant to OCGA § 17-10-7 (a), the trial court sentenced Pardon as a recidivist to thirty years, ten to serve in prison. The trial court denied his motion for new trial, and Pardon appeals, arguing that (1) he did not knowingly and voluntarily waive his right to counsel; (2) the evidence was insufficient to support his convictions; and (3) the trial court erred by sentencing him as a recidivist. For the reasons that follow, we affirm in part, reverse in part, and remand for resentencing.

Viewed in favor of the verdict, the evidence at trial showed that Pardon was indicted in 1981 in Ohio for aggravated robbery, attempted murder, aggravated assault, and rape, and on May 4, 1982, he pleaded guilty to and was convicted of those charges. On November 21,2006, after his release from prison for the 1982 conviction, Pardon reported to Detective Terry Wassmuth of the Franklin County, Ohio Sheriff’s Department at which meeting Wassmuth reviewed with Pardon the terms and conditions of sex-offender registration as well as Pardon’s future registration obligations. At that meeting, Pardon registered under the name of “Anthony James Pardon.” Pardon did not report to any Ohio agency to re-register 90 days thereafter as he was required to do. Sometime in late 2006 or early 2007, Pardon moved to Georgia.

In January 2007, Pardon and his girlfriend, Mauricia Pledger, applied to lease an apartment in the Heritage Point complex, at which time Pardon also applied for a position with the complex as their maintenance person. Pardon applied using the name “Anthony Bohanan” and presented a photocopy of a Georgia driver’s license that had a signature of “Anthony Bohanan” and contained a blank space rather than the normal typed name of the licensee over the address. After realizing the discrepancies with the identification, a Heritage Point employee contacted a police officer, who eventually took out a warrant for Pardon’s arrest.

On February 1, 2007, and again on February 7, 2007, Pardon received traffic citations, for which infractions he presented a Georgia driver’s license with the name “Tommy James Pardon” and signed the citations using the same name.

When the officer investigating “Anthony Bohanan’s” documents ran the driver’s license number, he found the February citations for “Tommy James Pardon,” and the social security number provided on the lease and employment applications returned “Anthony James Pardon,” who was a registered sexual offender in Ohio based on the 1982 conviction. The officer served the warrant on Pardon on February 14, 2007, and Pardon explained that he served time in Ohio for the 1982 conviction, that he could not find a job after his release from prison in 2006, and that he subsequently moved to Georgia.

After Pardon bonded out of jail on March 5, 2007, an officer testified that Pardon failed to register in Floyd County as a sex offender, and the officer was not able to locate Pardon at the address he provided upon leaving jail. Pardon was arrested in June 2007 in Ohio, and he was transported back to Georgia to face the instant charges.

Pardon was charged in two separate indictments that were consolidated for trial. The first indictment charged him with (1) Count 1: failure of a registered sex offender to report a change in residence prior to moving, alleging that Pardon failed to inform the sheriff of Floyd County of his new address within 72 hours of moving as of March 9, 2007; (2) Count 2: failure of a registered sex offender to report a change in residence prior to moving, alleging that Pardon failed to inform the sheriff of Floyd County of his new address within 72 hours of moving as of March 14, 2007; and (3) Count 3: providing false information regarding sex offender registration. The second indictment charged Pardon with (1) first degree forgery for applying for housing under the name Anthony Bohanan; (2) first degree forgery for making/altering/possessing a fraudulent driver’s license in the name of Anthony Bohanan; (3) two counts of making a false writing or statement by signing two February 9 traffic citations under the name Tommy James Pardon; (4) making a false statement or writing for signing a February 1 traffic citation under the name Tommy James Pardon; (5) failure of a registered sex offender to report, alleging that Pardon failed to inform the sheriff of Floyd County of his entry into the State of Georgia within 72 hours as of February 9, 2007; (6) recidivism pursuant to OCGA § 17-10-7 based on his 1982 conviction.

With regard to the first indictment, the jury found Pardon guilty of Count 2, failure to register within 72 hours of moving as of March 14, and the jury found him not guilty of the two other charges. As for the second indictment, the jury found Pardon guilty of the two forgery counts and of the failure to register count, but found him not guilty of the three counts of making a false writing or statement.

1. Pardon contends that he did not knowingly and voluntarily waive his right to counsel. We disagree.

As pronounced in Faretta v. California, [] a defendant has the right of self-representation. However, a defendant cannot exercise this right unless it is shown that he has adequately waived his right to counsel. Accordingly, the record should reflect a finding of the trial court that the defendant has validly chosen to proceed pro se and that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.

In this case,

[t]he trial court had repeatedly informed [Pardon] of the dangers of his self-representation, noting that [Pardon] did not know the court rules and procedures. Prior to [Pardon’s] election at trial, he also was advised of the nature of his charges and the possible punishment that he faced upon conviction.

It is clear that from the transcript of the waiver of rights hearing that Pardon

apprehen[ded] . . . the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.

Accordingly, this enumeration is without merit.

2. Pardon contends that the evidence was insufficient to support his convictions. We disagree.

(a) Failure to register.

Citing Eilers v. State, Pardon contends that the State failed to present sufficient evidence to establish that he was required to register as a sex offender under Ohio law for his 1982 rape conviction. Eilers, however, is inapposite because in that case, the defendant pleaded guilty to the prior offense in 1995 and was sentenced at that time to ten years of probation. In this case, while Pardon pleaded guilty to rape in 1982, he was not released from prison until 2006. Thus, while Eilers was not required under the statute to register because his conviction and release to probation occurred prior to 1996 — the effective date of the registration statute — Pardon’s release to probation occurred subsequent to 1996. Accordingly, the State provided sufficient evidence at trial to establish that Pardon was required to register under OCGA § 42-1-12 (e) (4).

(b) Forgery.

Pardon contends that (i) insufficient evidence supported the two counts of forgery because the State failed to establish that he signed the housing application in a “manner that the writing purports to have been made by another person,” and (ii) the State failed to establish that he possessed the driver’s license in the name of “Anthony Bohanan” with the intent to defraud. Citing Villedrouin v. State, Pardon contends that he did not sign the housing application with intent to defraud because evidence at trial established that he was called by the last name “Bohanan” (the last name of his stepfather) for much of his life. Nevertheless, based on the evidence that Pardon generally used the last name “Pardon,” including by signing such name to his Floyd County traffic citations, the jury could infer that he utilized the name of “Bohanan” on the application with the requisite intent to defraud. Moreover, the evidence supports the jury’s guilty verdict as to the second count of forgery because the jury could infer from Pardon’s use of the photocopy of the redacted driver’s license that he possessed the document with the intent to defraud Heritage Point on his application for employment.

3. Pardon contends that the trial court erred by sentencing him as a recidivist pursuant to OCGA § 17-10-7 (a) because the court erred by using the 1982 conviction to enhance his sentence. We agree. Pursuant to OCGA § 17-10-7 (a),

any person who, after having been convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

The prescribed sentencing range applicable to OCGA § 42-1-12 is from one to thirty years and for first degree forgery is one to ten years. Based on the recidivist count, the trial court sentenced Pardon to the maximum term for all four charges — thirty years for the failure to register counts and ten years for the forgery counts. Pardon, who has only one prior conviction, argues that the trial court erred by allowing that prior conviction to serve as the basis both of his failure to register counts and his recidivist sentence under OCGA § 17-10-7 (a).

This Court’s recent decision in Harris v. State explains, in the context of the crime of felon in possession of a firearm, why Pardon is correct:

Our court held in King v. State, [] that the State cannot use the prior felony conviction required to convict a convicted felon for being in possession of a firearm, and then use the same prior conviction to enhance the sentence to the maximum punishment for the offense under the repeat offender statute. The Supreme Court of Georgia recently explained the rationale for this holding: the application of OCGA § 17-10-7 (a) eviscerates the sentencing range of one to five years set forth in OCGA § 16-11-131[,] possession of a firearm by a convicted felon [,] because the trial court is forced to impose a five-year sentence. In other words, the sentencing range of one to five years is eliminated by the requirement of OCGA § 17-10-7 (a) that a defendant shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense.

The same logic applies to the crime of failure to register as a sex offender under OCGA § 42-1-12 (n), which prescribes a sentencing range of one to thirty years for the first offense. If the State was allowed to apply the prior conviction of every defendant as a recidivist charge under OCGA § 17-10-7 (a), the range of one to thirty years would he eviscerated, and all defendants would be sentenced instead to thirty years. Such a result would ignore the legislature’s stated penalty range for failure to register as a sex offender, and it contravenes the requirement that penal statutes be construed strictly against the State.

Decided June 25, 2013.

Jennifer A. Trieshmann, for appellant.

Leigh E. Patterson, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Here, Pardon had only one prior conviction — the 1982 conviction for which the failure to register as a sex offender stemmed. And despite the State’s unsupported argument that the “rape” portion of his 1982 conviction was used to support the failure to register charge while the “other” portions of his 1982 conviction were used to support his recidivist charge, the legislature specifically stated otherwise within OCGA § 17-10-7 (d): “For the purpose of this Code section, conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.”

Accordingly, the trial court erred by sentencing Pardon as a recidivist, and we remand for the purpose of resentencing.

Judgment affirmed in part and reversed in part, and case remanded for resentencing.

McFadden and Boggs, JJ., concur.

       OCGA § 42-1-12 (e) (6).

       OCGA § 16-9-1 (b).

       OCGA § 17-10-7 (a).

       Two other charges were dropped. For further information regarding the incident resulting in Pardon’s 1982 conviction, see State v. Pardon, 2000 Ohio App. LEXIS 3907 (Case No. 99AP-1336; decided Aug. 31, 2000).

       422 U. S. 806 (95 SCt 2525, 45 LE2d 562) (1975).

       (Citations and punctuation omitted.) Horne v. State, 318 Ga. App. 484, 492-493 (4) (733 SE2d 487) (2012).

       Id. at 492 (4).

       (Punctuation omitted.) Prater v. State, 220 Ga. App. 506, 509 (469 SE2d 780) (1996).

       304 Ga. App. 607 (697 SE2d 295) (2010).

       See id. at 607-608. See also OCGA § 42-1-12 (e).

       See OCGA § 42-1-12 (e) (4) (“Registration pursuantto this Code section shall be required by any individual who: [h]as previously been convicted of a sexually violent offense or dangerous sexual offense and may be released from prison or placed on parole, supervised release, or probation on or after July 1, 1996.”).

       See Villedrouin v. State, 246 Ga. App. 774, 776 (1) (542 SE2d 160) (2000), citing OCGA § 16-9-1 (“By statutory definition, forgery in the first degree can be committed in any of three ways by knowingly and with intent to defraud uttering a writing: (1) in a fictitious name; (2) in such a manner that the writing purports to have been made by another person, at another time, with different provisions; or (3) in such a manner that the writing purports to have been made by the authority of one who did not give such authority.”).

       246 Ga. App. at 774.

       See Pope v. State, 179 Ga. App. 739, 741 (1) (347 SE2d 703) (1986) (forgery in first degree as committed by one making a writing purporting to be the writing of another).

       See OCGA §§ 16-9-1 (b) (2008); 42-1-12 (n).

       322 Ga. App. 87, 88 (2) (744 SE2d 82) (2013).

       169 Ga. App. 444 (313 SE2d 144) (1984).

       (Citations, punctuation and footnotes omitted.) Harris, 322 Ga. App. at 89 (2).

       See, e.g., id.

       See Watson v. State, 276 Ga. 212, 213 (576 SE2d 897) (2003).

        See Anderson v. State, 176 Ga. App. 255, 255-256 (335 SE2d 487) (1985) (five prior crimes were consolidated for trial and could not be treated separately for purposes of recidivist sentencing). Compare with Barbee v. State, 308 Ga. App. 322, 327 (5) (707 SE2d 550) (2011) (totality of the circumstances surrounding defendant’s three prior crimes, including that “[t]he three prior crimes involved different victims, and each conviction had a separate case number, indictment, and sentencing order.”).


text:
    A13A0542.
    CHO v. MOUNTAIN SWEET WATER, INC.
    (745 SE2d 663)
   DOYLE, Presiding Judge.

We granted this discretionary appeal from a decision of the Appellate Division of the State Board of Workers’ Compensation affirmed by operation of law pursuant to OCGA § 34-9-105 (b), (d). Dong An Cho appeals that portion of the decision adopting a ruling by the Administrative Law Judge (“ALJ”) that Cho waived his claim for attorney fees under OCGA §§ 34-9-108 (b) (2) and 34-9-126 (b). For the reasons that follow, we reverse and remand.

In reviewing a workers’ compensation award, this [C]ourt must construe the evidence in the light most favorable to the party prevailing before the appellate division. In addition, the findings of the [Board], when supported by any evidence, are conclusive and binding, and neither the superior court nor this [C]ourt may substitute itself as a factfinding body in lieu of the State Board. But erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to a de novo standard of review.

So viewed, the record shows that Cho was an employee of Mountain Sweet Water, Inc. (“MSW”) when he suffered a compensable injury in January 2011. In April 2011, Cho filed a notice of claim seeking total temporary disability benefits as well as penalties under OCGA § 34-9-221 (e) and attorney fees under OCGA § 34-9-108 (b) (1) and (2) and “other... additional penalties and attorney fees.” Also in April, the Board issued a notice of hearing stating that the issues to be determined included those listed on the claim notice as well as penalties pursuant to OCGA § 34-9-126. The Board also issued an order requiring Cho’s employer to submit “evidence of its compliance with [OCGA §§] 34-9-120, [34-9-121], and [34-9-126], or show cause why it should not be subject to penalties ... for refusal to comply with those Code sections ...”

At the hearing, Cho argued that he was entitled to attorney fees due to the employer’s alleged bad faith in refusing the claim and denying his employee status. Cho’s counsel gave testimony as to his hourly rate and the time spent on the case. After the hearing, at the direction of the ALJ, the parties submitted briefs; Cho’s brief specifically requested attorney fees, outlining the fees incurred up to that date.

In December 2005, the ALJ made an award, noting the issues to be determined, and finding Cho to be an employee covered by the Workers’ Compensation Act. The award stated that the assessment of attorney fees based on OCGA § 34-9-126 was among the issues to be determined. The award later stated that Cho was not entitled to the assessment of attorney fees “because the defense of the claim has not been unreasonable,” citing OCGA § 34-9-108 (b) (1) and Brigmond v. Springhill Homes of Ga., which addressed attorney fee awards under that Code section. The award did not address the availability of attorney fees under any other Code section.

Cho requested an amended award to address certain issues, including the availability of attorney fees under OCGA § 34-9-126 (b). The ALJ did issue an amended award, but she found that Cho had not raised that issue at the hearing, and he therefore waived the issue of attorney fees under that Code section. The amended award also reiterated the denial of attorney fees under OCGA § 34-9-108 (b) (1), finding that the defense of the claim was not unreasonable.

Cho timely filed an appeal to the Appellate Division, which adopted the ALJ’s award, and Cho’s appeal to the Superior Court of Gwinnett County resulted in an affirmance by operation of law after the superior court failed to issue a ruling in accordance with OCGA § 34-9-105 (b). We granted Cho’s application to address his argument that the ALJ and Appellate Division erred by ruling that he waived the issue of attorney fees under OCGA §§ 34-9-108 (b) (2) and 34-9-126 (b).

In his notice of claim, Cho sought an award of attorney fees (i) under OCGA § 34-9-108 (b) (1), (2), and (ii) because his employer was uninsured, which fees are codified at OCGA § 34-9-126 (b), as noted by the ALJ in her original and amended awards. OCGA § 34-9-108 (b) provides as follows, in relevant part:

(1) Upon a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the administrative law judge or the board may assess the adverse attorney’s fee against the offending party.
(2) If any provision of Code Section 34-9-221 [pertaining to payment of income benefits], without reasonable grounds, is not complied with and a claimant engages the services of an attorney to enforce his or her rights under that Code section and the claimant prevails, the reasonable quantum meruit fee of the attorney, as determined by the board, and the costs of the proceedings may be assessed against the employer.

OCGA § 34-9-126 (b) provides as follows:

Any employer subject to the compensation provisions of this chapter who refuses or willfully neglects to comply with subsection (a) of this Code section [requiring annual filings evidencing compliance with the Workers’ Compensation Act] shall be guilty of a misdemeanor. In hearing any application for compensation by an injured employee of such delinquent employer, the board may assess compensation against such employer in an amount 10 percent greater than that provided for in this chapter and, in addition to the increased compensation, shall also fix a reasonable attorney’s fee to be paid by the employer to the representative of the employee. . . .

It is clear from Cho’s notice of claim that he sought attorney fees pursuant to OCGA § 34-9-108 (b) (1), (2), as well as OCGA § 34-9-126 (b), but the ALJ’s amended award only considered (and rejected) an award under OCGA § 34-9-108 (b) (1). The ALJ’s ruling as to that subsection is couched in terms of the reasonableness of the employer’s defense of the claim. We find no error as to that ruling, as far as it goes, but it makes reference to only OCGA § 34-9-108 (b) (1) and fails to address the basis for an award under OCGA § 34-9-108 (b) (2), which speaks to the reasonableness of an employer’s failure to pay income benefits. Further, with respect to OCGA § 34-9-126, the AL J’s award initially notes that he sought an award under that Code section, but later explicitly declines to rule on it on the basis of waiver.

Nevertheless, Cho’s claim stated each of the three grounds for a fee award, the Board’s show cause order listed compliance with OCGA § 34-9-126 as an issue to be determined, and his attorney presented argument seeking attorney fees at the hearing. Having so pled and argued his claim for attorney fees, Cho’s conduct as reflected by the record fails to support the ALJ’s finding that Cho waived his claim to attorney fees under OCGA §§ 34-9-108 (b) (2) and 34-9-126 (b). Accordingly, we reverse the finding of waiver and remand for consideration of Cho’s stated claims of attorney fees under OCGA §§ 34-9-108 (b) (2) and 34-9-126 (b).

Decided June 25, 2013.

Fried, Rogers & Goldberg, R. Sean McEvoy, for appellant.

Stephen J. Wasley, for appellee.

Judgment reversed and case remanded with direction.

McFadden and Boggs, JJ., concur.

       (Punctuation omitted.) Med. Center, Inc. v. Hernandez, 319 Ga. App. 335, 335-336 (1) (734 SE2d 557) (2012).

       The notice of claim form has boxes available for attorney fees under OCGA § 34-9-108 (b) (1), (2) and “other.” The form does not provide a space to specify the “other” fees sought, but Cho wrote in “uninsured employer subject to additional penalties and fees.”

       180 Ga. App. 875, 876 (350 SE2d 846) (1986).

       See Pet, Inc. v. Ward, 219 Ga. App. 525, 526 (466 SE2d 46) (1995) (“While the question of whether there are reasonable grounds for resisting an award of compensation is an issue of fact to be determined by the board, attorney fees may not be awarded where the matter is closely contested on reasonable grounds.”); Brigmond, 180 Ga. App. at 876 (‘Whether or not reasonable grounds for resisting an award of compensation exist is an issue of fact for the board to determine”) (punctuationomitted).


author: ANDREWS, Presiding Judge.

text:
    A11A0933.
    DUNBAR v. ERTTER et al.
    (745 SE2d 699)
    Decided June 26, 2013.

      Bruce W. Phillips, for appellant.

      Dupree & Kimbrough, Hylton B. Dupree, Jr., Ronne G. Kaplan, Jean M. Kutner, for appellees.
   ANDREWS, Presiding Judge.

In Dunbar v. Ertter, 312 Ga. App. 440 (718 SE2d 350) (2011), we reversed the judgment of the Cobb County Superior Court awarding permanent custody of A. L., a minor child, to Shannon and Michael Ertter. In Ertter v. Dunbar, 292 Ga. 103 (734 SE2d 403) (2012), the Supreme Court reversed the judgment of this Court. Accordingly, this Court’s judgment is vacated; the judgment of the Supreme Court is made the judgment of this Court; and the judgment of the Cobb County Superior Court awarding permanent custody of A. L., a minor child, to Shannon and Michael Ertter is affirmed.

Judgment affirmed.

Barnes, P. J., Phipps, P. J., Dillard, McFadden, Boggs, and Branch, JJ., concur.