text:
    A11A0787.
    A11A1342.
    MOREY v. THE STATE. EVANS v. THE STATE.
    (719 SE2d 504)
   Adams, Judge.

Claude Morey III and Deandre M. Evans appeal their convictions and sentences arising out of a fight that took place on July 3, 2007 outside the main gate of Six Flags amusement park. Both young men were convicted on counts of aggravated battery, aggravated assault, battery, simple assault, and participating in a criminal street gang. Among other things, they challenge the sufficiency of the evidence, the trial court’s ruling on a motion in limine, and the court’s finding that they received effective assistance of counsel. The two cases have been consolidated for purposes of appeal.

The evidence presented at trial by the victims shows the following: On July 3, 2007, 18-year-old Devin Carter, a recent high school graduate, and his friends Joshua and Gerald Martin (who are cousins), went to Six Flags to have a good time and to celebrate Devin being accepted into an art school. They rode a Cobb County Transit (CCT) bus to the park, arriving about 1:00 p.m., and they stayed until almost 8:00 p.m. They left via the main entrance/front gate and planned to ride CCT home. They walked out of the park, to a hotel to use the bathroom, and back toward the CCT bus stop; they eventually sat down on a guardrail to wait for the next bus.

Sitting there, Devin saw a group of 15 to 20 young, black males, dressed in similar clothing — white and black t-shirts and tank tops, some with “flags” on them, exit the front gate and walk past his group. Carter had seen the group earlier in the park. Videotape of the large group leaving the park, including Evans, was shown to the jury; it shows 15 to 20 individuals, many in white t-shirts, walking, running, and jumping as they exit the gate. Devin testified that the large group appeared to be together because they were talking with each other, and they appeared angry because they were loud, rowdy, hyperactive, and cursing. Devin and his cousins did not interact with the large group at that time.

Eventually, Devin and his cousins walked the rest of the way to the CCT bus stop, and when they arrived, the same large group came across the street from the MARTA bus stop and attacked them without provocation. Five or six young men attacked Devin, who was punched in the head, thrown to the ground, and kicked and punched repeatedly. More of the large group focused on Joshua. After one or two minutes of fighting, the large group ran off and jumped on a MARTA bus. Devin got up and saw that Joshua was lying on the ground unconscious and bleeding, with bruises on his face. Two days after the incident, Joshua was still semi-comatose and unable to speak to the detective. He spent a week or two in the hospital and since the incident, he repeats things, is “very slow,” and is paranoid. Gerald was also hit, but he managed to avoid significant injury. The victims were not able to identify the specific people who attacked them.

The State presented evidence from three individuals who confessed and pleaded guilty to being involved in the beating. Willie Franklin testified that he knew he was going to fight the victims fifteen minutes in advance and that he struck one of the victims with brass knuckles that he had received from another member of the group. Franklin testified that he knew both Evans and Morey at the time and that he was with them that day, but he claimed not to know their role in the fight. In a statement to a detective, however, Franklin stated that Morey and Evans were part of the group outside the park, that the group simply chose innocent victims to attack, and that Morey kicked and stomped the victim in the head. He added that he wanted to tell the truth and he wanted to call Morey and tell him to turn himself in. Brandon Forbes admitted that he and others attacked the three boys without provocation. Forbes testified that after Franklin hit Joshua with brass knuckles, the group, which included Evans and Morey, then knocked Joshua to the ground and kicked and stomped on him repeatedly. Jonathan McCoy testified that he hit one of the victims a couple of times. He was with Evans that day but did not remember seeing Evans as part of the fight; he testified that Morey was a part of the group just before the fight began.

Detective Christopher Sperrazza of the Cobb County Police Department investigated the assault. A week after the incident and after Sperrazza read Evans his Miranda rights, Evans waived his rights and gave a statement in which he told the detective that he witnessed the beating but that he had not participated and that he left on the bus. He admitted wearing a white t-shirt and black pants that day.

1. Both appellants challenge the trial court’s denial of their motion in limine regarding an incident involving two white families inside the park earlier on the same day and regarding references to a gang. In that incident, a large group of teenage, black males, dressed mostly in white t-shirts, ran full speed by the two families and almost ran into one of their small children. That led to a confrontation between the two fathers and the group, during which members of the group were yelling and making vulgar hand gestures and other unusual hand motions, which the State characterized as flashing gang signs. After the group left, one of the fathers — John Tapp — spoke to security, and the families returned to enjoying the park. But at the end of the day, Tapp saw the same group near the main gate, and he heard someone in the group say, “We’ll get you in the parking lot.” When the families exited the park, the young men were standing outside the gate; somebody said, “That’s them”; and the group followed the families into the parking lot. The families were able to leave without further incident. Tapp could not identify the appellants as being part of the group, but he was pretty sure it was the same group. The attack on the victims occurred shortly after the two families left.

In their motion, Evans and Morey argued the incident was inadmissible because it happened sometime before the alleged crimes, there was no evidence showing they were involved in the incident with the families, the evidence injected the issue of racial prejudice into the proceedings, and the evidence was so prejudicial that no curative instructions could remove the prejudice from the minds of the jury. Morey also moved that the State not be allowed to mention gang activity. The State proffered that witnesses would testify that Evans and Morey were present for the incident with the families, as well as during the attack on the victims. The State argued that the earlier incident was a part of the res gestae of the crime and that the gang evidence was proper because the case involved charges of participating in illegal gang activities.

The trial court denied the motions, but the court stated that if the State failed to “tie these events together, both in a proximity of time” and also by showing a relationship between the incident with the families and the incident with the victims, including the allegation of gang activity, “the prejudicial effect may be such that it might require further instructions to the jury about what to disregard or to even more serious curative measures.”

“The determination of admissibility under the res gestae exception rests within the sound discretion of the trial court, and this Court will not disturb that determination absent abuse. [Cit.]” Kuykendoll v. State, 278 Ga. App. 369, 371 (3) (629 SE2d 32) (2006). Andrews v. State, 249 Ga. 223, 228 (290 SE2d 71) (1982) (clearly erroneous).

In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous.

(Citation and punctuation omitted.) Self v. State, 245 Ga. App. 270, 272-273 (2) (537 SE2d 723) (2000).

During the trial, several of the witnesses testified about the earlier incident, including references to a gang. Following Tapp’s trial testimony, which essentially tracked the State’s proffer, Forbes testified that as of July 3, 2007, he was a Six Flags employee; that he had been acquainted with Evans, also an employee, for about two months; and he “knew of” Morey, who worked with Forbes’s brother in a different division at the park. On the day of the incident, neither Forbes nor Evans was working; rather, they were just hanging out together at the park with 15 or 20 others. Forbes characterized the group as Evans’s friends. Evans was wearing a bandana that day that had the letters “YGL” on it, and Forbes asked him what the letters meant. Evans said that “YGL” was a gang and that he was the leader. Others in the group also wore black or white bandanas or t-shirts with “YGL” on them. Forbes thought about 10 to 15 of the young men were in the gang, but he did not believe that Morey was a member. He testified that the letters “YGL” had been spray-painted on the lockers and floor in the employee locker room at the park, and pictures were introduced in support.

Forbes testified that he was present for the verbal altercation with John Tapp and the two families. He testified that a friend of Evans bumped into a child to start the altercation, that Evans took part in the altercation, that Evans was “repping his gang,” and the group was “throwingup their flags”; Forbes did not characterize this activity as flashing gang signs. Forbes did not place Morey as being present during the Tapp incident. After the incident, a group that included Forbes and Evans ran off and rode rides elsewhere in the park. But they later joined with several others including Morey. The two groups discussed the earlier altercation with the families. Forbes testified that Evans said the group was going to the parking lot to fight the families; Morey was a part of that conversation. The group eventually went to the parking lot; Forbes specifically identified himself and Evans in a video of young men leaving the park. Forbes saw the two families go to their cars. Then he and a couple of others went to the bus stop; the rest of the group, including Evans and Morey, arrived about five minutes later. The large group then attacked the three victims without provocation.

Franklin testified that Evans told him he was a member of YGL, but Franklin testified that Morey was not a member. In Franklin’s statement to Sperrazza, he said that Evans was the leader of YGL and the leader of “what happened.”

McCoy testified that he, along with Evans, was part of the altercation with the two families; that he saw the two men from the families outside the park; and that when the group was unable to fight the men, they turned their attention to the three victims and fought them without provocation. McCoy testified that Evans had a rap group named “YGL.”

Evans testified in his own defense that he was at the park that day wearing black pants and a white shirt with the letters “YGL” on it, which, he explained, stood for “Young Ghetto Legends,” the name of a rap music group to which he belonged. He denied being in a group named by the detective as “Young Gangsters Living.” He testified that he did not know Morey at the time although he recognized him from working in the park. He admitted being present at the incident involving the two families, and he referred to the person who almost ran into the child as “one of my little cousins.” But he testified that he was not a part of the ensuing altercation or the beating of the victims, although he admitted to being within five or six feet of the fight.

Morey testified that he had been working in the park that summer for about 30 days before the incident and that he was 17 years old at the time. He testified that he was at the park with his friend Ryan Parker that day and that he had prearranged a ride home with Willie Franklin. At the end of the day, they called Willie, and after Willie picked them up, he told them that he had been involved in a fight and had struck a person with brass knuckles. Based on the timing, Morey believes he was inside the park at the time of the fight. He testified that he did not know Evans, McCoy, or Forbes. He testified that he did not see the fight with the victims or the altercation with the families and that he did not know anything else about those incidents that day.

Following the State’s presentation of evidence, Morey moved for a directed verdict on all counts, including the count of being involved in criminal street gang activity. Evans moved for a directed verdict on several counts, including the gang count, as well. In response, the State argued that the gang activity was comprised of the crimes charged in the present case. No prior criminal activity was mentioned.

(a) The incident with the two families was a part of the res gestae of the crime. Res gestae is defined in the Code:

Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.

OCGA § 24-3-3. Acts, too, are part of the res gestae if they are sufficiently related to the hostile enterprise:

It is well settled in this state that acts are pertinent as a part of the res gestae if they are done pending the hostile enterprise, and if they bear upon it, are performed whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard it, or to evince essential motive or purpose in reference to it. (Citations and punctuation omitted.) Sypho v. State, 175 Ga. App. 833, 835 (3) (334 SE2d 878) (1985).

In the Interest of J. W. B., 296 Ga. App. 131, 133 (673 SE2d 630) (2009). In Sypho, the defendant was tried for armed robbery and rape in Rockdale County. The Rockdale trial court allowed evidence of crimes the defendant committed earlier on the same day against the same victim in Jasper County. Sypho, 175 Ga. App. at 835 (3). This Court affirmed and held that the earlier crimes were part of the res gestae of the Rockdale crimes because there was a relationship between the two sets of crimes sufficient to satisfy the definition of res gestae quoted in J. W. B. above. Id. See also Johnson v. State, 264 Ga. 456, 458 (2) (448 SE2d 177) (1994) (“Acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae”) (citation and punctuation omitted).

This case is similar. Evidence was presented that linked the earlier incident involving the two families to the beating of the victims in several ways: Many of the same individuals were involved; both involved a large group of similarly dressed young men who were moving about the park together; both Evans and Morey were a part of the conversation about doing something to the two families in the parking lot; and the motive for the beating was the thwarted desire for some sort of revenge for the earlier incident. The trial court did not err by denying the motion in limine on these grounds.

(b) The references to a gang were admissible for two reasons.

The gang-related evidence was admissible because Evans and Morey were charged with engaging in criminal street gang activity. A charge of violating the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq., requires proof that the gang in question is a “criminal street gang,” that is, a group of three or more persons that engages in “criminal gang activity”; the later term is defined as “the commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit any of the [certain enumerated] offenses.” OCGA § 16-15-3 (1), (2). The criminal gang activity or plans for its continuation must be ongoing at the time of the commission of the indicted offenses; in other words, “the commission of an enumerated offense by the defendant is not itself sufficient to prove the existence of a ‘criminal street gang.’ ” Rodriguez v. State, 284 Ga. 803, 808 (2) (671 SE2d 497) (2009). See, e.g., In the Interest of A. D., 311 Ga. App. 384 (715 SE2d 787) (2011). Thus, the evidence regarding gangs was relevant and necessary to prove these charges.

In addition, even if they place a defendant’s character in issue, statements referring to a gang and a defendant’s association with a gang can be admissible as res gestae of the crime. Eason v. State, 283 Ga. App. 574, 576 (2) (a) (642 SE2d 207) (2007). Although there was no direct evidence linking Morey to YGL, Evans told others that day that YGL was a gang and that he was the leader. Moreover, Evans and others were wearing the letters “YGL” on their clothing and moving about the park together; they exited the park together; the group, including Morey, discussed taking some action against the two families; and they were acting rowdy and angry and in search of a victim. The testimony about the gang and Evans’s leadership was therefore linked to the large group and the beating of the victims, thereby providing relevance for its admission. See Johnson v. State, 277 Ga. App. 499, 507 (4) (627 SE2d 116) (2006) (testimony about defendants’ membership in gang was relevant to show, among other things, how defendants knew one another and to provide context and motive for defendants’ joint participation in crime). Therefore the trial court did not abuse its discretion by allowing this testimony.

2. Both appellants contend the evidence was insufficient to support certain of the convictions. On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. Brown v. State, 265 Ga. App. 613 (594 SE2d 770) (2004). To sustain a conviction, the evidence must be sufficient to enable a rational trier of fact to find the appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(a) Morey contends there was insufficient evidence to establish venue in Cobb County. But Evans testified that the fight was “on Cobb County’s side of the bus. . . .” And Devin and Gerald indicated on an exhibit the location where they exited the park and testified that they were at the CCT bus stop. Although the appellants contend the fight occurred near the boundary with Fulton County, “if a crime is committed on, or immediately adjacent to, the boundary line between two counties, the crime shall be considered as having been committed in either county.” OCGA § 17-2-2 (b). We find no error. See Adsitt v. State, 248 Ga. 237, 240 (4) (282 SE2d 305) (1981).

(b) Both Morey and Evans contend there was insufficient evidence to corroborate Brandon Forbes’s testimony that they were involved in the crimes. See OCGA § 24-4-8 (“felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient”); Woods v. State, 208 Ga. App. 810 (432 SE2d 249) (1993) (“defendant may not be convicted on the uncorroborated testimony of an accomplice.”).

The rule is well established that, to sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that [he] is guilty, and more than sufficient to merely cast on the defendant a grave suspicion of guilt. . . . Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. [Cit.] See also OCGA § 24-4-8. The sufficiency of the corroborating evidence is for the trier of fact to decide. [Cit.]

Baines v. State, 276 Ga. 117, 119 (1) (575 SE2d 495) (2003).

With regard to Morey’s participation in the assault on the victims, in addition to Forbes’s testimony that Morey kicked and hit Joshua, there was evidence that Morey was involved in the conversation about retribution on the two families, that he was near the exit among the larger group shortly before the assault, and that he rode home in a car with Willie Franklin — an admitted participant in the beating. Moreover, Franklin told the detective that Morey was involved in the beating.

With regard to Evans’s participation in the assault on the victims, in addition to Forbes’s testimony that Evans kicked and hit Joshua, there was evidence that Evans was involved in the earlier incident with the two families and in the conversation about retribution on them, that he was near the exit among the larger group shortly before the assault, that he was the leader of the group of young men wearing YGL on their clothing, and that he was the leader of “what happened.” Finally, Ander Cowart testified that he was a witness to the fight and that Evans hit Joshua. Thus, there was sufficient corroboration of both Morey’s and Evans’s role in the beating.

Evans and Morey were also convicted of violating the Georgia Street Gang Terrorism and Prevention Act for participating in criminal gang activity through the commission of the above offenses. See OCGA § 16-15-4. With regard to the gang charge, Forbes testified that Evans admitted being the leader of the gang “YGL”; that there were ten or fifteen gang members wearing YGL on their clothing; that this group had the encounter with the two families; that Evans was “repping his gang” at that incident; that, later, the group involved in the incident with the families, together with Morey, discussed the incident and decided to find the families and fight with them; and that the group, including Evans and Morey, then attacked the three boys without provocation. Thus, Forbes’s evidence shows that a gang existed that was involved in ongoing criminal gang activities, i.e., terroristic threats and stalking, and that the gang’s attack on the three boys was related to those gang activities. This satisfies the requirement that the “criminal gang activity” was ongoing at the time of the incidents underlying the charged offenses. See Rodriguez, 284 Ga. at 809.

Franklin and McCoy corroborated Evans’s and Morey’s participation in the gang activities. First, Franklin provided evidence that Evans was the leader of YGL and of what happened that day. Franklin and McCoy also provided evidence that showed that Morey was part of the group of gang members outside the park right before the beating, as well as that he participated in that beating. It is “unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity.” (Emphasis supplied.) OCGA § 16-15-4 (a). See generally In the Interest of K. R. S., 284 Ga. 853, 853-855 (2) (672 SE2d 622) (2009). And corroboration may consist of direct or circumstantial evidence “which connects the defendant with the crime, tends to show his participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice.” Woods, 208 Ga. App. at 810. Thus there is corroboration that Morey was associating with the YGL gang members in the discussion about the incident with the families, which led to the terroristic threats and stalking, and that he then participated with the gang as they attacked the victims.

(c) Morey contends there was insufficient evidence to support Count 2 of the indictment — aggravated assault, which charged Morey and three others with kicking Joshua “with a shoe-clad foot,” because no one testified that Morey was wearing shoes that day. But Evans was wearing shoes, both he and Morey were involved in the kicking, and Morey can be convicted of being a party to the crime based on his participation. OCGA § 16-2-20 (a). See Clark v. State, 311 Ga. App. 58 (714 SE2d 736) (2011) (which of two defendants actually held the weapon was not material as long as one did and the two acted in concert).

(d) Morey contends there was insufficient evidence to support the conviction of aggravated battery because the evidence did not support the allegation of the indictment that Joshua’s brain had been rendered “useless, in violation of OCGA § 16-5-24.” See OCGA § 16-5-24 (a), which provides:

A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.

We affirm where there is evidence the victim suffered a substantial loss of use of a member of his or her body. See Webb v. State, 228 Ga. App. 624, 625 (3) (492 SE2d 312) (1997); Taylor v. State, 178 Ga. App. 817, 820 (344 SE2d 748) (1986) (Beasley, J., concurring specially).

Here, evidence was presented to show that after the attack, Joshua was unable to finish high school and he could no longer look after his younger cousin Gerard as he had previously; he had trouble communicating and “[sjlow reactions”; and Devin “[had] to repeat things to him for him to comprehend sometimes, like, it doesn’t seem to register everything in his mind like he used to.” At the time of trial, more than 14 months after the beating, Joshua had been in continuous treatment for his condition and was living in a treatment center. Gerard testified that whereas Joshua used to take care of him, he now had to take care of Joshua. During Joshua’s own testimony, the jury was able to witness his inability to remember recent events or events about the incident. The jury was authorized to discount Joshua’s testimony that his condition was the same as before the incident. This evidence was sufficient for the jury to conclude that Joshua had a substantial loss of brain function.

3. Morey contends the trial court erred by denying his motion for mistrial based on statements by the prosecutor made during closing argument. The prosecutor attempted to explain the fact that on two counts the trial court would be charging the jury on lesser included offenses. Morey claims that during this explanation, the prosecutor implied that because the defendants asked for those charges they had admitted guilt.

The prosecutor said:

It’s been asked to give you a charge on simple battery and simple assault with respect to the two aggravated assault charges. . . . They are offering it as a compromise because they sometimes feel like, I guess, well, the jury goes back there, and if they can’t get themselves over that hump, then maybe they will take this lesser one.

Morey objected, and, after the prosecutor concluded his argument and the court recessed for lunch, he requested a mistrial. The court gave a curative instruction as a part of its overall charge to the jury in connection with explaining the charges on the lesser offenses; Morey objected to this curative instruction and renewed his objection/motion. The court’s curative instruction went as follows:

When lesser included offenses are legally appropriate, the Court makes a determination as to whether such offenses should be charged to the jury. The jury should draw no inference with respect to any request for such offenses to be included by ,the Court in its charge. The jury will disregard any reference to such request made in the closing argument.

Based on the prosecutor’s statement, this instruction was sufficient to remove a possible implication that the defendants were admitting guilt to the lesser included offenses. The prosecutor only said that “they” — presumably, the defense — offered the charges “as a compromise,” in other words, a compromise between the State’s assertion of guilt to the greater charges and the defense’s assertion of innocence. The statement was therefore unlikely to produce the inference suggested by Morey, and if it did, the jury was instructed to disregard any such inference and that it is the trial court that decides whether to give such a charge.

A trial court’s decision not to grant a mistrial based on a prosecutor’s improper remarks will not be disturbed on appeal absent a manifest abuse of discretion. [Cit.] Moreover, a new trial will not be granted unless it is clear that the trial court’s curative actions failed to eliminate the improper argument from consideration by the jury. [Cit.]

Byrum v. State, 282 Ga. 608, 613 (10) (652 SE2d 557) (2007). We conclude that denying the motion for mistrial was not an abuse of discretion.

4. Morey contends the trial court erred by failing to merge the convictions on Counts 2 and 3. In the two separate counts, Morey was charged with aggravated assault on Joshua Martin “with a shoe-clad foot” and “with metal knuckles,” both being “instruments which, when used offensively against a person, [are] likely to and actually did result in serious bodily injury, in violation of OCGA § 16-5-21.” Morey argues that aggravated assault using two weapons on the same victim at the same time constitutes but one crime. But multiple wounds on the same victim resulting from different weapons will support convictions for more than one offense. Lett v. State, 160 Ga. App. 476, 477 (4) (287 SE2d 384) (1981). See also Rouse v. State, 295 Ga. App. 61, 63-65 (1) (670 SE2d 869) (2008); Thomas v. State, 310 Ga. App. 404 (5) (714 SE2d 37) (2011).

5. Both Morey and Evans contend they suffered from ineffective assistance of counsel at trial. Under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), the appellant “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. [Cit.]” White v. State, 283 Ga. 566, 569 (4) (662 SE2d 131) (2008). On claims of ineffective assistance of counsel, Georgia appellate courts will uphold a trial court’s findings of fact unless they are clearly erroneous but review legal conclusions de novo. Hunter v. State, 281 Ga. 526, 528 (2) (a) (640 SE2d 271) (2007); Cherry v. State, 283 Ga. App. 700 (1) (642 SE2d 369) (2007).

(a) Morey contends he received ineffective assistance of counsel in three ways: his trial counsel failed to object when Detective Sperrazza commented on the credibility of a defense witness; trial counsel was so unprepared that he gave an opening statement that contradicted Morey’s own testimony; and trial counsel ignorantly failed to request a charge on a lesser-included offense for aggravated battery.

On the first point, at the hearing on his motion for new trial, Morey’s counsel failed to raise the issue of Sperrazza’s comments or to ask trial counsel why he failed to object to Sperrazza’s comments. “Where the issue of trial counsel’s effectiveness has been raised on motion for new trial, any claims of ineffective assistance by trial counsel not raised at that time are waived[,] [Cit.]” and, therefore, they are “procedurally barred. [Cit.]” (Punctuation omitted.) Howard v. State, 281 Ga. App. 797, 804 (6) (637 SE2d 448) (2006). See also Wilson v. State, 286 Ga. 141, 144-145 (4) (686 SE2d 104) (2009), citing Howard with approval.

On the second point, during trial counsel’s opening statement, he told the jury the evidence would show that Morey ran when the attack began; yet Morey testified that he never saw the fight and did not know about it. In the State’s closing argument, the prosecutor argued to the jury that Morey’s trial counsel said in his opening statement that he was going to prove with the State’s evidence that Morey ran and hid in a car when the attack began. The prosecutor argued that he hoped the jurors were taking notes when trial counsel “promised that that was going to be the defense in this story.” The prosecutor then took advantage of the discrepancy with strong rhetoric:

Because I guess, as the trial progressed, [Morey] decided upon a better story. And instead of going with the story that he ran and hid in the car, he now takes the stand and says, “I wasn’t there at all. When the whole thing was going down, I was somewhere in the park, I guess, riding the rides still. And then when I got ready to go home, I called Willie, who’s not my friend, on the phone, and he came back and picked me up.”

At the hearing on the motion for new trial, trial counsel explained that he was only appointed a week before trial and he did not recall that Morey’s testimony was inconsistent with his opening statement. Even if it was, Morey presented another witness at the hearing on the motion for new trial who testified that he and Morey were in a car at the time of the assault and that they could see the assault. This evidence is a basis for concluding that Morey may have testified in an unexpected manner at trial. See Sloan v. State, 172 Ga. App. 620, 621 (6) (323 SE2d 834) (1984) (trial counsel’s actions “arose from unanticipated testimony at trial rather than lack of adequate time for preparation”). And at the new trial hearing, Morey did not ask trial counsel why he did not take any action in response to Morey’s testimony being inconsistent with his opening argument. “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance.” (Citations and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004). In short, Morey has not shown that counsel made an uninformed tactical decision or otherwise engaged in deficient performance regarding his client’s testimony.

On the third point, Morey contends trial counsel was ineffective because at the charge conference he stated that he did not believe there were any lesser-included offenses for aggravated battery (Count 1). Presumably, Morey therefore faults trial counsel for failing to request any such charge. Again, however, first appellate counsel did not raise this issue at the hearing on the motion for new trial nor ask trial counsel about that issue. Where the defendant fails to question trial counsel concerning a strategic decision, he fails to carry his burden to demonstrate deficient performance. Dyer v. State, 278 Ga. 656, 660 (7) (604 SE2d 756) (2004). And the decision could have been tactical because, as trial counsel did point out, if the State failed to prove that the assault rendered Joshua’s brain useless, the jury would not be authorized to convict.

(b) Evans contends he received ineffective assistance because trial counsel failed to adequately investigate and present Evans’s alibi defense, including failing to subpoena alibi witnesses and failing to call one alibi witness who was present for the trial. At the new trial hearing, Evans presented several purported alibi witnesses who did not testify at trial. And Evans cross-examined trial counsel about his attempts to identify, locate and secure these witnesses for trial. He contends trial counsel’s conduct was deficient and that, absent that deficiency, there is a reasonable probability that the trial result would have been different.

First, we agree with the trial court that the new witnesses were not, strictly speaking, alibi witnesses. The witnesses did not testify that Evans was somewhere else at the time of the fight; rather, like Evans himself, they admitted that Evans was very near the fight but claimed he was not involved. An alibi must exclude the possibility of presence at the scene of the crime:

The defense of alibi involves the impossibility of the accused’s presence at the scene of the offense at the time of its commission. The range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence.

OCGA § 16-3-40. Cf. Dixon v. State, 157 Ga. App. 550, 550 (278 SE2d 130) (1981) (where evidence “is vague and uncertain, and . . . does not negate the possibility of [defendant’s] presence at the scene,” the trial court does not err by failing to charge on alibi without a proper request).

Our review of the testimony at the hearing on the motion for new trial shows that trial counsel reviewed the State’s file, including hearing transcripts and plea statements; he telephoned State witnesses; he met with Evans and his mother on several occasions; and he met with counsel for the co-defendants. Counsel identified witnesses through the news media, through newspaper reports, through witness statements, and through other transcripts and discovery. Moreover, trial counsel spoke with Evans and his mother about potential witnesses, and Evans’s mother gave him a list of seven or eight names. Counsel turned the list over to his paralegal/ investigator, with whom he had worked for more than 25 years. According to counsel, the investigator, who was not called as a witness at the hearing, attempted to investigate all of the leads. But he reported back that, in each case, either the purported witness could not be found, would not be interviewed, or had no relevant information. Counsel made calls as well, but to no avail. Counsel testified that he was very frustrated with the lack of witnesses. Over the course of the representation, counsel stressed at each of seven or eight meetings with Evans and his mother that he needed witnesses:

From day one, I told Mr. Evans I needed a list of any witnesses there, people that I could bring into my office, people that I could interview, people that would be his witnesses.

He testified that no witness ever came forward in over a year of representation. Accordingly, he did not file a witness list for trial. He even gave Evans’s mother a stack of subpoenas on the day of trial and told her that he needed any witnesses she could get immediately. Again none came forward. Although some of the witnesses testified that no one ever contacted them, the trial court was authorized to believe trial counsel’s testimony to the contrary.

Decided November 3, 2011

Reconsideration denied November 18, 2011

Zell & Zell, Rodney S. Zell, Lawrence W. Daniel, for appellant (case no. A11A0787).

Louis M. Turchiarelli, for appellant (case no. A11A1342).

Patrick H. Head, District Attorney, Amelia G. Pray, Jason D. Marbutt, Assistant District Attorneys, for appellee.

Counsel did testify that Evans brought a young man with him to one of the meetings but that he, counsel, did not speak to him. Yet that witness only partially corroborated Evans’s testimony: he testified Evans was with him at the scene, approximately 25 feet away from the fight. Moreover, the court found that the witnesses at the hearing were not credible. Counsel also admitted that other than the above efforts, he “did not go out and look for people. I didn’t go door to door and canvas the neighborhood”; nor did he go to Six Flags to talk to any employees or security personnel. Nevertheless, no Six Flags employees or security personnel were offered as witnesses at the new trial hearing.

In sum, the trial court determined that trial counsel was “as prepared as he could be given the level of cooperation of his client and the incomplete nature of the information given to him prior to trial” and therefore, not ineffective. We find no error in the trial court’s determination that counsel’s performance was not deficient. Accordingly, we need not reach the question of whether Evans could show harm.

Judgments affirmed.

Barnes, P. J., and Blackwell, J., concur.

       OCGA § 16-15-3 (2) was amended in 2010, effective July 1, 2010. Ga. L. 2010, p. 230, § 2. See also OCGA § 1-3-4 (a) (1) (re: effective date). But no provisions bearing on this case were changed.

       We find no indication that Morey moved to sever in the trial court. And there is no enumeration of error regarding severance.

       See OCGA §§ 16-15-3 (1) (A), (B); 16-14-3 (9) (A) (xxxi); 16-5-90; 16-11-37.


source: Caselaw Access Project

author: Barnes, Presiding Judge.

license: Public Domain

text:
    A11A1393.
    WILLIAMS v. THE STATE.
    (719 SE2d 501)
   Barnes, Presiding Judge.

Frank Lee Williams appeals his convictions for trafficking in cocaine and violation of the Georgia Controlled Substances Act. Williams contends the trial court erred by denying his motion for a new trial because (1) the court admitted impermissible and prejudicial hearsay evidence concerning his earlier involvement in drug activity, (2) the court erroneously overruled defense counsel’s objection to improper character evidence, and (3) Williams’ defense counsel was ineffective because he failed to renew his motion in limine to exclude improper character evidence concerning Williams’ earlier drug activity and counsel failed to impeach a prosecution witness about his knowledge that the confidential informant was unreliable. Finding no error, we affirm the trial court.

Construed most strongly to support the verdict, the evidence shows that after two unsuccessful attempts, a confidential informant purchased a kilogram of cocaine from Williams. The audio recording of the two unsuccessful attempts to purchase the drug from Williams were played for the jury. At the trial, Williams’ accomplices, the confidential informant, and the agent in charge of the operation all testified about the purchase of the cocaine from Williams. An audio recording of the conversations and a video of the events also were played for the jury.

1. Williams contends the court erred by admitting impermissible and prejudicial hearsay evidence concerning his earlier involvement in drug activity. The thrust of the objection is that the trial court should have prevented the prosecution from asking the investigating officer why he targeted Williams. Williams’ counsel first made a motion in limine to prevent the prosecutor from questioning the officer why he targeted Williams so that the officer would not respond, as he did in this case, that he was investigating Williams because “I received information that Mr. Williams was involved in drug transactions.” As authorized to do, the trial court deferred ruling on the motion in limine, but expressed the view that the prosecutor could question the officer about his reasons for targeting Williams to explain the officer’s conduct.

On the second point we must repeat again what our Supreme Court repeated in Teague v. State, 252 Ga. 534, 536 (1) (314 SE2d 910) (1984):

It will be seen that only in rare instances will the “conduct” of an investigating officer need to be “explained,” as in practically every case, the motive, intent, or state of mind of such an officer will not be “matters concerning which the truth must be found.” At heart, a criminal prosecution is designed to find the truth of what a defendant did, and, on occasion, of why he did it. It is most unusual that a prosecution will properly concern itself with why an investigating officer did something. If the hearsay rule is to remain a part of our law, then OCGA § 24-3-2 . . . must be contained within its proper limit. Otherwise, the repetition of the rote words “to explain conduct” can become imprimatur for the admission of rumor, gossip, and speculation.

(Citation and punctuation omitted; emphasis in original.) Most assuredly this is not one of those rare cases in which the investigating officer’s motive for targeting Williams needed to be explained. Therefore, the trial court erred by denying Williams’ motion in limine and also erred by overruling Williams’ objection on hearsay grounds to the prosecutor’s question, “[W]hy did you start this investigation into the defendant?” After Williams’ objection was overruled, the officer answered, “I received information that Mr. Williams was involved in drug transactions.” Williams then moved for a mistrial, which was also denied.

Although we find that the trial court erred by overruling Williams’ objection, we must also consider whether he was harmed by the error. Considering the totality of the evidence against him, i.e., the testimony from his own accomplices and the audio and video tapes of the purchase, we must conclude that it was highly probable that the error did not contribute to the judgment. See Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869) (1976); Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38) (1988).

2. Williams further contends the court erred by overruling his defense counsel’s objection to the prosecution’s improper character evidence. In this instance, the prosecutor asked the confidential informant what the goal of the investigation was, and the informant answered that the goal was to take down everybody involved in drug dealing. Again, although we find that the question and answer introduced a subject not relevant to any issue in the trial, we also find that given the overwhelming evidence of Williams’ guilt, it is highly probable that this error also did not contribute to the judgment. Johnson v. State, supra, 238 Ga. at 60; Palmer v. State, supra, 186 Ga. App. at 897.

3. Williams contends his defense counsel was ineffective because he failed to renew his motion in limine to exclude improper character evidence concerning Williams’ earlier drug activity, and also because his defense counsel failed to impeach a prosecution witness about his knowledge that the confidential informant in this case was later determined to be unreliable. The trial court denied Williams’ motion for new trial based upon the ineffectiveness of counsel, finding that “there was overwhelming and cumulative evidence and testimony of [Williams’] guilt proven at trial.”

Under our law,

[t]o prevail on a claim of ineffective assistance, a defendant must show that counsel rendered deficient performance and that actual prejudice resulted. Counsel are strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and counsel’s performance is evaluated without reference to hindsight. A petitioner has suffered actual prejudice only where there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Ineffective assistance claims are mixed questions of law and fact. We accept the [trial] court’s findings of fact unless clearly erroneous and independently apply the law to those facts.

(Citation and punctuation omitted.) Head v. Hill, 277 Ga. 255, 266 (VI) (587 SE2d 613) (2003). Merely proving deficient performance by counsel, however, is not enough. To prevail, Williams must satisfy both prongs of the Strickland test, Buttram v. State, 280 Ga. 595, 599 (15) (631 SE2d 642) (2006), but his “burden is to show only ‘a reasonable probability’ of a different outcome, not that a different outcome would have been certain or even ‘more likely than not.’ ” (Citation omitted.) Schofield v. Gulley, 279 Ga. 413, 416 (I) (A) (614 SE2d 740) (2005).

This court, however, need not address both components of an ineffective assistance of counsel claim if the appellant has made an insufficient showing of one component, and the components need not be addressed in any particular order. Thompson v. State, 191 Ga. App. 906 (1) (383 SE2d 339) (1989); Young v. State, 191 Ga. App. 651, 653 (2) (382 SE2d 642) (1989). Thus, we need not resolve whether the performance of Williams’ trial counsel was deficient within the meaning of Strickland, if no reasonable probability exists that the outcome of his case would have been different but for counsel’s performance. Thompson v. State, supra, 191 Ga. App. at 906. After examining the record and transcript in their totality, we find no reasonable probability exists that the outcome would have been different within the meaning of Strickland, Thompson, and Young if counsel had excluded the comment about Williams’ involvement with drugs or had questioned the officer about his decision that the confidential informant was no longer reliable. In light of the overwhelming evidence of guilt, Williams cannot show that had the motion in limine been renewed and the officer questioned about the confidential informant’s later unreliability, there was a reasonable probability the outcome of the trial would have been any different. See Lampley v. State, 284 Ga. 37, 39 (2) (663 SE2d 184) (2008). The testimony by Williams’ accomplices, the confidential informant, and the officer who participated in the sale, in conjunction with the audio and video tapes, overwhelmingly established Williams’ guilt. The trial court’s findings were not clearly erroneous, and these enumerations of error are without merit.

Decided November 1, 2011

Reconsideration denied November 18, 2011.

Steven M. Holmes, Dwight L. Thomas, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

         Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).


author: Phipps, Presiding Judge.

text:
    A11A1053.
    MEREDITH et al. v. THOMPSON et al.
    (719 SE2d 592)
   Phipps, Presiding Judge.

Michelle Thompson and other residents of East Point sued William C. Meredith Company, Inc. (the corporation), alleging that operations at the corporation’s nearby facility were tortiously emitting chemicals and noxious odors upon their properties and that they were entitled to injunctive relief and damages. Among the other defendants, the residents named three individuals affiliated with the corporation: (i) Cleveland G. Meredith, the sole shareholder of the corporation and the chairman of its board; (ii) Scott Schneider, the corporation’s president; and (iii) Paul M. Castle, the corporation’s vice president and general manager. This appeal concerns the denial of a motion for summary judgment filed by these individual defendants, who maintain that they cannot be held personally liable for damages in connection with their roles in the corporation. For reasons that follow, we vacate the denial and remand for proceedings not inconsistent with this opinion.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We use a de novo standard of review on appeal from a grant [or denial] of summary judgment, and view the evidence and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

The corporation is in the business of manufacturing and treating wooden utility poles. The corporation obtains unfinished poles from various third parties; at its East Point facility, the corporation then treats the poles with a solution containing the preservative/pesticide pentachlorophenol (“penta”). The treatment process involves placing the timber into a retort (a huge vessel), which contains the solution. Once treated, the poles are either sent to customers or stored upon the facility’s yard. According to the residents, the corporation’s operations emit penta and other chemicals into the air.

Penta is regulated by the Environmental Protection Agency (EPA). Consequently, it may be sold only to licensed applicators; the corporation is operating under such a license, and the EPA has approved the use of penta for treating wooden poles. While the corporation’s facility is located in the vicinity of residential neighborhoods, it is situated upon property that is zoned light industrial, where it has operated since 1921. The corporation employs approximately 18 individuals to run the treatment and manufacturing process. And according to the individual defendants, at all relevant times, the corporation was duly permitted by the Georgia Environmental Protection Division (EPD) to operate its wood preservative facility.

Alleging nonetheless that the East Point facility was tortiously emitting chemicals and noxious odors upon their properties, the residents set forth in their complaint numerous theories against the three named individuals affiliated with the corporation. During discovery, these individual defendants described their corporate roles as follows. Meredith deposed that his involvement with the corporation focused on sales and marketing. Schneider stated that his responsibilities included handling customers, scheduling logistics, and buying and selling certain wood. Castle stated that he was responsible for supervising the manager of quality control and treating, as well as the manager of shipping and receiving.

The individual defendants moved for summary judgment, pointing out that the numerous claims against them stemmed from alleged chemical and odor emissions from the corporation’s operations. They cited the principle that a corporation possesses a legal existence separate and apart from that of its officers, directors, and shareholders so that the operation of corporate business does not render officers, directors, and shareholders personally liable for corporate acts. They argued that the residents had demonstrated no basis for disregarding the legal separateness. Additionally, the individual defendants acknowledged the principle that a corporate officer, director, or shareholder

who takes part in the commission of a tort by the corporation is personally liable therefor, but an officer [or director or shareholder] who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or cooperated therein.

They argued, however, that there was no evidence of any such tortious act that would entitle the residents to damages from them; that the evidence instead showed that they had operated a lawful business in compliance with local, state, and federal laws and regulations governing air emissions; and that their roles in overseeing the overall operations of the business were insufficient to trigger personal liability for damages. The individual defendants cited the principle that mere operation of a corporate business does not render one personally liable for corporate acts.

The residents countered that the individual defendants were not entitled to summary judgment on the asserted theories of nuisance, nuisance per accidens, trespass, and common law negligence. The residents argued that the individual defendants could be held personally liable for having directed, controlled, and participated in the discharge of penta and other chemicals into the air and thus upon their properties. The residents described the corporation as “a family owned and operated business” and characterized the three individual defendants as “the company.” The residents cited evidence which they claimed showed that the three individual defendants had offices at the corporation’s East Point facility; that they were aware of the manner in which penta was being used at the facility; that they were aware of community complaints regarding odors and chemical emissions; that they knew that penta was a hazardous substance; that they had been involved with environmental compliance issues; that they held the authority and discretion regarding capital expenditures; and that they had made no plans to relocate the facility or change operations to reduce the use of penta or otherwise modify their facility to reduce emissions. Additionally, the residents disagreed with the individual defendants’ claim of operating a business in a lawful manner. In particular, the residents argued, as alleged in their complaint, that the chemical emissions constituted negligence and a nuisance; the residents further asserted that the corporation’s operations were in violation of the Georgia Air Quality Act; the Rules of the Georgia Department of Natural Resources, Environmental Protection Division for Air Quality Control; the federal Clean Air Act; and the federal Clean Air Act Regulations.

Alternatively, the residents took the position that, because the individual defendants had not supported their motion with any sworn statement(s) that they had not directed, participated in, or taken part in the underlying conduct about which the residents were complaining, the individual defendants had not pierced their pleadings and consequently were not entitled to summary judgment.

Adopting this latter position, the trial court denied the motion, explaining, “Neither an unsupported denial of the plaintiffs’ allegations, nor an unsupported assertion that the plaintiffs had no evidence to prove their allegations will support summary judgment.” The court determined:

In sum, the defendants’ motion for summary judgment based upon a naked allegation that they did not engage in the conduct alleged in the plaintiffs’ complaint does not provide a basis for a grant of summary judgment, nor as a matter of burdens on summary judgment does it require the plaintiffs as non-movants to come forward with any evidence. They are under those circumstances entitled to rest on the allegations contained in the pleadings which are sufficient to state a claim against the individual defendants.

The trial court certified its order for immediate review, and this court granted the individual defendants’ application for interlocutory review. For reasons explained below, we vacate the denial of summary judgment and remand the case with direction.

To be entitled to summary judgment, the individual defendants were not required to present sworn statements as contemplated by the trial court’s ruling. “Under Lau’s Corp. v. Haskins,[] [a defendant] is not required to prove the negative fact but may rely on the absence of proof by [the plaintiff].” Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Thus, to prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiffs claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case.

Where a defendant moving for summary judgment “discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.”

As detailed above, the individual defendants did not attempt to affirmatively disprove that they had engaged in the particular acts about which the residents complained; rather, the individual defendants argued that the evidence did not show that they were involved in or had performed any particular act constituting a tort for which the residents were entitled to recover damages from them personally. To this end, the individual defendants’ counsel conceded at the summary judgment hearing that there was no dispute that they had “operated the business”; counsel argued that the evidence nevertheless showed that the individual defendants’ particular acts were lawful and that his clients could not be held personally liable inasmuch as they had acted only within their corporate capacities in performing functions for the corporation.

And in this appeal, the individual defendants contest the denial of their summary judgment motion as erroneously eviscerating the corporate shield afforded to officers, directors, and shareholders, thereby impermissibly exposing their personal assets to liability for the (alleged) torts of the corporation. They maintain that they cannot be held personally liable for damages because they were involved only in the routine operations of the business and there was a complete absence of any violation of federal or state air emissions law and/or regulation.

The trial court did not reach this asserted ground, however, having denied the individual defendants’ motion for summary judgment for the reason that they had not presented sworn statements to negate alleged facts. Because the individual defendants were not so limited in their quest for summary judgment, the denial of summary judgment based solely on that ground was premature. Given the numerous theories of recovery asserted against each of the three individual defendants, we vacate the denial of the individual defendants’ motion for summary judgment such that the trial court can consider in the first instance the remaining issues pertaining to the ground asserted by the individual defendants.

Decided November 18, 2011.

Beloin, Brown, Blum & Wise, Kyler L. Wise, Carlock, Copeland & Stair, Charles M. McDaniel, Jr., Tonya F. Stokes, McKenna, Long & Aldridge, James B. Manley, Jr., Jill C. Kuhn, Wilson, Brock & Irby, Larry M. Dingle, John K. Eldridge, for appellants.

Andrews, Knowles & Princenthal, Gary B. Andrews, Craig C. Knowles, Adam P. Princenthal, Doffermyre, Shields, Canfield, Knowles & Devine, Ralph I. Knowles, Jr., Leslie J. Bryan, Donald D. J. Stack, Robert B. Jackson TV, for appellees.

Judgment vacated and case remanded with direction.

Andrews and McFadden, JJ., concur.

       The other defendants included Meredith Pole & Timber Co., Inc., KMG Chemicals, Inc., and KMG-Bernuth, Inc. Issues in this appeal, however, do not pertain to those entities.

        Kaplan v. City of Sandy Springs, 286 Ga. 559, 560 (1) (690 SE2d 395) (2010) (citations omitted); OCGA § 9-11-56 (c); Norton v. Budget Rent A Car System, 307 Ga. App. 501 (705 SE2d 305) (2010) (we review the denial of summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party).

       See Benschoter v. Shapiro, 204 Ga. App. 56, 57 (1) (418 SE2d 381) (1992); Lawton v. Temple-Warren Ford, Inc., 203 Ga. App. 222, 223 (b) (416 SE2d 527) (1992).

        See Farmers Warehouse &c. v. Collins, 220 Ga. 141, 150 (2) (d) (137 SE2d 619) (1964) (noting that great caution should be exercised by the court in disregarding the corporate entity and that neither a portion nor all of the natural persons who compose a corporation, or who own its stock and control its affairs, are the corporation itself).

        Lawton, supra (citation and punctuation omitted); see Smith v. Hawks, 182 Ga. App. 379, 384 (4) (355 SE2d 669) (1987) (noting that a corporation is a separate and distinct legal entity from its officers, stockholders, or agents).

       See, e.g., Kilsheimer v. State, 250 Ga. 549, 550 (299 SE2d 733) (1983) (cardinal rule of corporate law is that the corporation possesses a legal existence separate and apart from that of its officers, employees, shareholders, and directors; suit against the corporation cannot proceed against its members in their personal capacities unless some persuasive reason is presented for piercing the corporate veil); Amason v. Whitehead, 186 Ga. App. 320, 322 (367 SE2d 107) (1988) (sole ownership of a corporation by one person or another corporation is not a factor, and neither is the fact that the sole owner uses and controls it to promote his ends).

        Earnest v. Merck, 183 Ga. App. 271, 273 (358 SE2d 661) (1987) (“All corporate bodies perforce must operate through individuals. The mere operation of corporate business does not render one personally liable for corporate acts.”); see Hester Enterprises v. Narvais, 198 Ga. App. 580, 581 (1) (402 SE2d 333) (1991).

       See OCGA § 41-1-1 (“A nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance.”).

       See Galaxy Carpet Mills v. Massengill, 255 Ga. 360-361 (1) (338 SE2d 428) (1986) (“[A] lawful business may, by reason of its location in a residential area, cause hurt, inconvenience, and damage to those residing in the vicinity and become a nuisance per accidens (a nuisance by reason of circumstances and surroundings), against which an injunction will be granted.”) (citations and punctuation omitted).

       The residents cited OCGA §§ 1-3-3 (20) (defining “trespass” to mean: “any misfeasance, transgression, or offense which damages another’s health, reputation, or property”) and 51-9-1 (“The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie.”).

       The residents initially asserted also theories of negligence per se and strict liability for abnormally dangerous activities. Notably, their counsel informed the court at the summary judgment hearing that a nuisance per se theory had been abandoned; and the court granted summary judgment on the strict liability theory because the residents had made no argument to oppose the summary judgment motion.

       See, however, n. 11, supra, regarding nuisance per se.

       OCGA § 12-9-1 et seq. See, e.g., OCGA §§ 12-9-23 (d) (providing for civil penalties recovered for violating Act to be paid into state treasury to the credit of the general fund); 12-9-24 (providing for criminal penalties for violating Act).

       Ga. Comp. R. & Regs. r. 391-3-1 et seq.

       42 USC § 7401 et seq. See, e.g., 42 USC § 7604 (allowing citizen suits and providing for disposition of penalties received).

       40 CFR § 50.1 et seq.

       261 Ga. 491 (405 SE2d 474) (1991).

        Herrin Business Products v. Ergle, 254 Ga. App. 713, 716 (2) (563 SE2d 442) (2002) (footnote omitted).

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted; emphasis supplied); see Lau’s Corp., supra.

        Lau’s Corp., supra, citing OCGA § 9-11-56 (e) (“When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”); see Cowart, supra.

       See Cowart, supra.

       Also, the record does not make clear which of the residents’ various theories of recovery for damages remained viable. For example, the corporation also moved for summary judgment, and it appears that some of the trial court’s rulings favorable to the corporation were intended to apply also to the individual defendants. What is more, according to the individual defendants, the sole issue before this court was whether they “may be held personally liable for [the residents’] nuisance per accidens and trespass claims.” It does not appear, however, that the residents agree that only these two substantive theories of recovery for damages remain. On remand, therefore, the trial court can specify the remaining viable theories of recovery, if any.

       See generally Community Renewal &c. v. Nix, 279 Ga. 840, 842 (2) (621 SE2d 722) (2005) (declining to apply a right-for-any-reason analysis, where denial of summary judgment was based on an erroneous legal theory and trial court’s ruling left other issues unresolved); City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002) (appellate courts retain discretion in determining whether to apply the right-for-any-reason rule and consider alternative legal theories not addressed by the trial court in its order granting summary judgment, or to vacate order and remand for the trial court to consider alternative legal theories in the first instance); United Healthcare &c. v. Ga. Dept. of Community Health, 293 Ga. App. 84, 93 (2) (d) (666 SE2d 472) (2008).


text:
    A11A1174.
    AHMAD v. THE STATE.
    (719 SE2d 563)
   Phipps, Presiding Judge.

A jury found Joseph Mitwalli Ahmad guilty of trafficking in methamphetamine; trafficking in 3, 4-methylenedioxymethamphet-amine (also known as ecstasy); possession of ecstasy; possession of methamphetamine; violation of the Georgia Controlled Substances Act for possessing trifluoromethylphenyl, piperazine, and benzyly-piperazine; driving with a suspended license; and driving with no insurance. On appeal, Ahmad contends the trial court erred by denying his motion to suppress, failing to give his requested charge on the defense of mistake of fact, and sentencing him separately for trafficking in methamphetamine and trafficking in ecstasy. Finding no error, we affirm.

1. Ahmad contends the trial court erred by denying his motion to suppress because it was not reasonably necessary to impound his vehicle and the resulting inventory search was unlawful. We disagree.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

Ahmad and the state agree that the evidence is uncontroverted and no question regarding the credibility of witnesses is presented; as such, this court will review the trial court’s application of the law to the undisputed facts de novo.

The evidence shows that as the arresting officer was talking to the driver (Ahmad’s wife) of a car stopped for a tag violation, Ahmad parked his car in a nearby parking lot and approached the officer on foot. The officer (who, prior to the stop, had telephoned the dispatcher and confirmed Ahmad’s license was suspended) advised Ahmad that his license was suspended, and asked him why he was driving with a suspended license. Ahmad was unable to produce a driver’s license and was placed under arrest. Having obtained information from the Georgia Crime Information Center that neither vehicle had insurance coverage, the officer requested officer assistance to conduct inventory searches of the vehicles for impound. Before searching Ahmad’s vehicle, however, the officer asked Ahmad whether he had a preference regarding a wrecker service; Ahmad replied that it did not matter. A search of Ahmad’s vehicle revealed a bag of pills, a bottle of pills, and $427 in cash.

Ahmad contends that it was not reasonably necessary to impound his vehicle because it was parked on private property and that the policy of the sheriffs office to impound all uninsured vehicles regardless of the attendant circumstances is unreasonable as a matter of law.

Justification for an inventory search is premised upon the validity of the impoundment of the vehicle. A police officer is authorized to make an inventory of the contents of a vehicle that has been impounded. “The ultimate test for the validity of the police’s conduct in impounding a vehicle is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment.”

[A] police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that. Inventory searches have two purposes: to protect the vehicle and the property in it, and to safeguard the police or other officers from claims of lost possessions. The decisive evidentiary issue in cases involving inventory searches is the existence of reasonableness rather than the existence of exigent circumstances.

“The argument that an automobile must be an impediment to traffic before it can be lawfully impounded has been rejected.”

In Duvall v. State, after arresting the defendant for driving without a license and insurance, the officer impounded the vehicle and conducted an inventory search. The search revealed a gun, drug paraphernalia, and cocaine. That defendant argued that, because his vehicle was legally parked, it was unnecessary to remove it and that an alternative to impoundment existed because his companion could have driven the vehicle. We found that it was reasonable for the officer to impound the vehicle because there was potential liability involved in allowing the vehicle to remain unattended in a parking lot of a business. We also found that it was not unreasonable for the officer to refuse to allow the defendant’s companion to drive the vehicle, as there was no proof that the vehicle was insured.

Ahmad’s reliance on State v. Bell, is misplaced. In that case, a defendant was arrested for violating a municipal ordinance completely unconnected to the operation of his vehicle. In this case, Ahmad’s arrest was directly related to the impounded vehicle.

Nobody could have legally driven Ahmad’s vehicle from the location of arrest because it was uninsured. When given an opportunity, Ahmad expressed no preference regarding towing companies and allowed the arresting officer to make the towing arrangements. Therefore, it was necessary for the police to exercise at least temporary dominion over the vehicle. Under the circumstances, it was reasonable for the police to impound the vehicle and inventory its contents to protect Ahmad’s property and to protect against claims of lost or stolen property while the vehicle was in the possession of the police or its contractors. Thus, the court did not err in denying Ahmad’s motion to suppress.

The legislature having recognized that “uninsured vehicles pose a threat to the public safety and health,” we cannot say that where a person is arrested for a crime directly related to the operation of his vehicle, the policy of the sheriffs office to impound the arrestee’s uninsured vehicle is unreasonable as a matter of law.

2. Ahmad contends the trial court erred by failing to give his requested jury charge on the defense of mistake of fact. We find no merit in Ahmad’s assertions.

With respect to the affirmative defense of mistake of fact, “[a] person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.”

As a rule, the trial court must charge the jury on an affirmative defense such as mistake of fact if the defense is raised by the evidence. The trial court is not, however, required to charge the jury on mistake of fact if the charge is not authorized by the evidence. . . ,

That Ahmad, who used drugs, may have believed he was authorized as a confidential informant to possess sample amounts of drugs to seek out potential drug dealers for drug busts in Hall County does not constitute the type of mistake of fact that would serve as a defense to his possessing a trafficking amount of drugs (and for three days). Ahmad testified that the officer with whom he worked as a confidential informant wanted to be contacted within 24 hours of any potential drug deals; and according to Ahmad, prior to this incident, he complied with that rule. The evidence is uncontro-verted that Ahmad drove outside of Hall County for the purpose of picking up a large quantity of ecstasy and in fact picked up a trafficking quantity of drugs. At the time, Ahmad had not, for more than a month, been in contact with the officer with whom he worked as a confidential informant or with any other officer who authorized him to possess a trafficking amount of drugs. Also, according to Ahmad, at the time of this incident, his services as a confidential informant were no longer being requested and the charges against him had been “taken care of.” Thus, there existed no misapprehension of fact(s) which, if true, would have justified Ahmad possessing a trafficking amount of drugs. Therefore, the trial court did not err by failing to give his requested jury charge on the defense of mistake of fact because the charge was not authorized by the evidence.

3. Ahmad contends the trial court erred in sentencing him separately for trafficking in methamphetamine and trafficking in ecstasy because both crimes were supported by identical evidence. Specifically, Ahmad argues that because the same 29.01 grams of substance tested positive for methamphetamine and for ecstasy, both crimes required the same facts or proof. We disagree.

Georgia law prohibits multiple convictions if one crime is included in the other. Under the express terms of [OCGA § 16-1-7 (a) (1)], however, the rule prohibiting more than one conviction if one crime is included in the other does not apply unless the same conduct of the accused establishes the commission of multiple crimes.

In one count, Ahmad was indicted for “TRAFFICKING IN METHAMPHETAMINE, for that the said accused . . . did knowingly possess more than 28 grams of a mixture containing methamphetamine, a controlled substance, in violation of the Georgia Controlled Substances Act and OCGA § 16-13-31. . . .”

In a separate count, Ahmad was indicted for

TRAFFICKING IN 3, 4 METHYLENEDIOXYMETHAM-PHETAMINE, A/K/A ECSTASY, for that the said accused . . . did knowingly possess more than 28 grams of a mixture containing 3, 4 methylenedioxymethamphetamine in violation of the Georgia Controlled Substances Act and OCGA Section 16-13-31.1 ....

Ahmad relies on the “actual evidence” test articulated in Wofford v. State. The “actual evidence” test provides: “[i]f the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6. ” However, in Drinkard v. Walker, which overruled Wofford, the Supreme Court of Georgia disapproved the “actual evidence” test and adopted the “required evidence” test for determining when one offense is included in another under OCGA § 16-1-6 (l). The Court stated:

Under the “required evidence” test . . . the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . . [A] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

An additional statutory provision concerning the prohibition against multiple convictions for closely related offenses is found in OCGA § 16-1-6 (2); that provision provides that one crime is included in another where it differs only in that it involves a “less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability.”

Decided November 18, 2011.

Travis A. Williams, for appellant.

Lee Darragh, District Attorney, Lindsay H. Burton, Assistant District Attorney, for appellee.

Ahmad is correct that the same 29.01 grams of substance which tested positive for methamphetamine also tested positive for ecstasy. Therefore both controlled substances shared in the same mixture, and thus the trafficking crimes were accomplished by the same conduct of the accused. However, merger was not required on that basis. It is generally necessary to take the next step in the analysis by applying the required evidence test for determining when one offense is included in another. Because trafficking in methamphetamine required possession of methamphetamine (a Schedule II controlled substance) and trafficking in ecstasy required possession of 3, 4-methylenedioxymethamphetamine (a Schedule I controlled substance), two discrete portions of the mixture were used to prove two distinct offenses. Each crime required proof of a fact which the other did not, as there was no evidence that chemical compounds or elements were shared between the drugs. Accordingly, the two counts did not merge, and the trial court did not err in sentencing him separately for the two crimes.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994) (citations omitted).

        Martin v. State, 201 Ga. App. 716, 718 (1) (a) (411 SE2d 910) (1991).

        Duvall v. State, 194 Ga. App. 420, 421 (390 SE2d 647) (1990).

       Id. (citation and punctuation omitted).

       But see State v. King, 237 Ga. App. 729, 729-730 (1) (516 SE2d 580) (1999) (stating that inventory searches have been upheld where they serve three legitimate purposes: (1) protecting the property of a person taken into custody; (2) protecting police from potential dangers; and (3) protecting police against claims for stolen or lost property).

        Waggoner v. State, 228 Ga. App. 148, 149 (1) (491 SE2d 88) (1997) (citations and punctuation omitted).

        Garner v. State, 154 Ga. App. 839, 841 (1) (269 SE2d 912) (1980) (citing Mooney v. State, 243 Ga. 373, 376 (254 SE2d 337) (1979)).

       Supra.

       Id.

       Id.

       Id.

       Id.; see State v. Howard, 264 Ga. App. 691, 693 (592 SE2d 88) (2003) (physical precedent only) (where defendant who had struck a deer while driving, pulled over on the side of the road and was arrested for driving without a valid license and with no proof of insurance, officer’s decision to impound vehicle was reasonable).

       259 Ga. App. 328 (577 SE2d 39) (2003).

       Id. at 330.

       See Duvall, supra.

       See Waggoner, supra.

       See id.

       See id.; King, supra; Duvall, supra.

       Id.

       OCGA § 40-6-206 (d).

       OCGA § 16-3-5; Boatright v. State, 289 Ga. 597, 600 (6) (a) (713 SE2d 829) (2011).

        Phillips v. State, 307 Ga. App. 366, 368 (2) (705 SE2d 287) (2010) (citations and punctuation omitted).

       See Boatright, supra; Phillips, supra.

        Ledford v. State, 289 Ga. 70, 71 (1) (709 SE2d 239) (2011) (citations and punctuation omitted).

       226 Ga. App. 487 (486 SE2d 697) (1997) (overruled by Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006)).

        Wofford, supra at 489 (1).

       Supra.

       Id. at 215-217.

       Id. at 215 (citations, punctuation and footnotes omitted).

       Id. at 216, n. 32.

       Id.; OCGA § 16-1-6 (2).

       See Ledford, supra at 72 (1) (overruling Nealey v. State, 285 Ga. App. 334 (646 SE2d 471) (2007), because it erroneously skipped the “same conduct” analysis and unnecessarily examined whether one aggravated battery was included in another by utilizing the “actual evidence” test, which was rejected in Drinkard, supra).

        Ledford, supra.

       See Satterfield v. State, 289 Ga. App. 886 (658 SE2d 379) (2008) (defendant’s conviction affirmed for possessing methamphetamine, amphetamine, cocaine, and marijuana in his bodily fluids where his urine tested positive for the drugs).

        Ledford, supra at 72-73 (1).