text:
    A11A1803.
    ANGULO v. THE STATE.
    (725 SE2d 802)
   DOYLE, Presiding Judge.

After a jury trial, the DeKalb County Superior Court convicted Gustavo Angulo of four counts of armed robbery and four counts of aggravated assault. After the trial court granted in part and denied in part Angulo’s amended motion for new trial, Angulo appealed, arguing that the trial court erred by failing to record trial counsel’s motion to strike a juror for cause; the trial court erred by admitting evidence of his prior conviction; and he received ineffective assistance from trial counsel. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the evidence establishes that on July 6, 2007, Angulo and six or seven accomplices (all African-American except for Angulo) robbed at gunpoint five men in the Northcrest Apartments parking lot. All five victims recognized Angulo and identified him in a photographic lineup. Four of the victims testified at trial and also identified Angulo at that time. One of the victims, Adrian Armenia, went to high school with Angulo and knew his name as Gustavo.

The State presented similar transaction evidence of a 2004 robbery in which Angulo and four African-American accomplices assaulted and attempted to rob him. The victim testified that he recognized Angulo from around the apartment complex, but he did not testify in the case against Angulo at the time because the victim had moved out of state and did not receive the court notices.

Angulo took the stand and testified that he pleaded guilty to a 2005 charge of theft by taking of a motor vehicle, but denied being involved in the 2007 armed robbery at Northcrest. He testified that he was either at home or church at the time, but neither his mother nor his pastor testified on his behalf. Angulo testified that he lived about a mile from Northcrest Apartments with his mother, and he knew Armenia from high school.

The jury found Angulo guilty of five counts of armed robbery and five counts of aggravated assault, and Angulo filed a motion for new trial, which the trial court granted in part by vacating one conviction for armed robbery and directing a verdict of acquittal as to one of the aggravated assault counts based on insufficiency of the evidence.

1. Angulo first contends that the trial court erred by failing to record jury voir dire, leading to an incomplete record upon which he could challenge the trial court’s failure to excuse three jurors for cause. We disagree.

“[Reporting of voir dire is not required in felony cases except those in which the death penalty is sought.” Although objections made during voir dire and the rulings thereon should be recorded, a defendant still must show error in order for a conviction to be reversed upon the failure of a trial court to record voir dire.

Angulo maintains that trial counsel moved to strike jurors 17, 20, and 25 for cause, which motions were denied without recordation. He contends that failure to record his objections to these jurors and the rulings thereon by the trial court amounted to reversible error on the part of the court. Although counsel attempted to place the bases for his objections on the record at the close of voir dire, he only articulated a general objection of having “issues” with the jurors. Here, the only harm alleged by Angulo was that he was forced to use his peremptory strikes to remove some jurors because the trial court denied his motion to remove them for cause, but he does not contend that he would have removed other jurors instead. In fact, a prosecutor’s affidavit filed in the trial court in response to Angulo’s motion for new trial states that Angulo did not use all of his peremptory strikes during voir dire.

To the extent that Angulo argues that there may be some unknown error that would have been shown had voir dire been recorded, such argument does not support reversal. “[A] general. . . hope of reversible error during voir dire does not win a new trial on the ground that a record should have been made so as to accommodate a search for error now buried in unrecorded history.” Thus, Angulo has failed to show harm, and this enumeration is without merit.

2. Next, Angulo contends that the trial court erred by admitting evidence of his prior conviction for impeachment purposes. Specifically, he contends that the trial court applied a more liberal standard to determine whether to admit evidence of Angulo’s 2005 conviction for theft by taking of an automobile.

Evidence of a defendant’s prior convictions

is admissible if its probative value substantially outweighs its prejudice to the defendant. As OCGA § 24-9-84.1 (a) (2) provides: evidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant.

Even if the trial court erred by announcing the incorrect standard, any error is harmless based on the overwhelming evidence in this case because the five victims in the case separately identified Angulo from a photographic lineup, one victim recognized Angulo from school, and all four victims who testified in court also were able to make in-court identifications of the defendant. Accordingly, any error from admission of this evidence based on a more lenient standard was harmless.

3. Finally, in three sub-arguments, Angulo contends that he received ineffective assistance of counsel.

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

(a) Angulo contends that counsel was ineffective for failing to have voir dire transcribed; however, as explained in Division 1, Angulo failed to establish how he was harmed by this failure and, therefore, he cannot establish prejudice pursuant to Strickland.

(b) Next, Angulo contends that counsel was ineffective for failing to object to the State’s line of questioning, which impermissibly shifted the burden of production by questioning his lack of corroborating testimony for his alleged alibi. We disagree.

Decided March 9, 2012.

Chaunda Brock, Deah B. Warren, for appellant.

Either party in a criminal trial is allowed to draw inferences during closing argument regarding the other party’s failure to produce witnesses who could have given favorable testimony. Necessarily, there must be “evidence placed before the jury that the missing [witnesses] have knowledge of facts relevant and material to the case.” Accordingly, it was not erroneous for the State to inquire into the knowledge of Angulo’s mother or pastor regarding his alibi during cross-examination, and therefore, Angulo has failed to establish that trial counsel was ineffective for failing to object to the line of questioning.

(c) Finally, Angulo contends that trial counsel was ineffective because he failed to object to the improper use of similar transaction evidence. Specifically, he contends that trial counsel should have objected to the improper similar transaction instruction given to the jury, which stated that the limited purpose of the evidence was to show identity, state of mind, knowledge or intent, even though the State had proffered the evidence only for purposes of bent of mind or modus operandi.

Nevertheless, Angulo has failed to establish prejudice as a result of any failure on the part of trial counsel to object to the trial court’s inappropriate addition of the word identity to the list of appropriate purposes for which the jury could consider the similar transaction evidence. First, Angulo does not argue that the evidence was incorrectly admitted and presented to the jury. Thus, regardless of the limiting instruction, the evidence was properly presented. Moreover, the four testifying eyewitness victims from the 2007 robbery separately identified Angulo in photographic lineups and in court. The evidence was overwhelming, and therefore, Angulo cannot establish that the evidence resulted in a guilty verdict.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

Robert D. James, Jr., District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-21 (a).

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

        McConnell v. State, 263 Ga. App. 686, 690 (5) (589 SE2d 271) (2003).

       See State v. Graham, 246 Ga. 341, 343 (271 SE2d 627) (1980).

       See Primas v. State, 231 Ga. App. 861, 862-863 (2) (501 SE2d 28) (1998).

       See Johnson v. State, 283 Ga. App. 524, 525 (1) (642 SE2d 170) (2007); McConnell, 263 Ga. App. at 690 (5); Primas, 231 Ga. App. at 862, n. 3 (collecting cases).

        Primas, 231 Ga. App. at 863 (2).

       (Punctuation and emphasis omitted.) Johnson v. State, 307 Ga. App. 791, 792 (706 SE2d 150) (2011).

       See id. at 793.

       See id.

       In the future, we caution counsel to properly enumerate each error in the appropriate portion of her appellate brief. See Court of Appeals Rules 22, 25 (a), (c).

        Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

       See id. at 690 (III) (A). See also Moore v. State, 301 Ga. App. 220, 228 (6) (687 SE2d 259) (2009).

       See, e.g., Edwards v. State, 282 Ga. 259, 263 (8) (a) (646 SE2d 663) (2007).

       See Morgan v. State, 267 Ga. 203, 205-206 (3) (476 SE2d 747) (1996).

       Id. at 206-207 (3).

       See Sims v. State, 281 Ga. 541 (2) (640 SE2d 260) (2007) (failure to assert meritless objection cannot constitute ineffective assistance of counsel).

       See Moore, 301 Ga. App. at 225 (4) (“[I]t is highly unlikely that the admission of the similar transaction evidence impacted the verdict. We thus fail to see how any error in the limiting instruction contributed to the judgment or harmed [Angulo]”), citing Nesbitt v. State, 296 Ga. App. 139, 140 (2) (673 SE2d 652) (2009).


source: Caselaw Access Project

author: Blackwell, Judge.

license: Public Domain

text:
    A11A2016.
    GIBSON CONSTRUCTION COMPANY v. GAA ACQUISITIONS I, LLC et al.
    (725 SE2d 806)
   Blackwell, Judge.

In Gibson Constr. Co. v. GAA Acquisitions I, LLC, 307 Ga. App. 698 (705 SE2d 913) (2011) (“Gibson I”), we affirmed an award of summary judgment in this case to GAA Acquisitions I, LLC, and in doing so, we rejected the proposition that an agreement modifying the terms of a deed to secure debt always must be recorded. 307 Ga. App. at 700-701. That proposition had been urged upon us by Gibson Construction Company, and it was an essential premise of the claims that Gibson Construction asserted against GAA Acquisitions. Following our decision in Gibson I, the court below awarded attorney fees to GAA Acquisitions under OCGA § 9-15-14 (a), concluding that the proposition urged by Gibson Construction was so clearly without merit that no one reasonably might have believed that a court would accept it. Gibson Construction now appeals from the award of attorney fees, and we reverse.

The facts of the underlying dispute are set out at length in our opinion in Gibson I, 307 Ga. App. at 698-699, and we will not repeat here everything that we said before. It is enough to note that GAA Acquisitions had a security deed to certain real property in Fulton County, that Gibson Construction had a special lien upon the same real property, that the security deed was superior to the lien, and that GAA Acquisitions foreclosed upon the security deed. Whether the special lien was extinguished by the foreclosure depended on whether the proceeds of the foreclosure exceeded the indebtedness secured by the deed. GAA Acquisitions said that they did not, and it pointed to the terms of an agreement modifying the original security deed in support of its valuation of the indebtedness secured. Gibson Construction said, however, that the indebtedness secured had to be valued under the terms of the original security deed because the agreement that modified it never had been recorded. GAA Acquisitions responded that the law does not require the recording of an agreement that modifies a security deed. Gibson Construction sued GAA Acquisitions, and GAA Acquisitions moved for summary judgment, squarely presenting the court below with the competing arguments about whether an agreement modifying a security deed must be recorded. The court below agreed with GAA Acquisitions, and when Gibson Construction appealed, so did we. See id. at 699-701.

After we issued our decision in Gibson I, the court below awarded attorney fees under OCGA § 9-15-14 (a), which absolutely requires such an award in any civil case in which a party has pressed an argument so clearly without merit that no one reasonably might think a court would accept it:

In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Attorney’s fees and expenses so awarded shall be assessed against the party asserting such claim, defense, or other position, or against that party’s attorney, or against both in such manner as is just.

OCGA § 9-15-14 (a). In its consideration of the question of attorney fees, the court below pointed first to our decision in Aetna Casualty & Surety Co. v. Valdosta Fed. Savings & Loan Assn., 175 Ga. App. 614 (333 SE2d 849) (1985), which makes clear, the court said, that an agreement modifying a security deed is not itself a security deed. The court reasoned that, although a security deed must be recorded, see OCGA § 44-14-63 (a), it does not follow in light of Aetna that an agreement modifying a security deed also must be recorded. So, the court found, to make out a colorable claim, Gibson Construction had to point to some statute, case, or other authority specifically dealing with an agreement modifying a security deed and suggesting that it must be recorded. Because Gibson Construction failed to do so, the court concluded, an award of attorney fees was required.

Generally speaking, when we review an award of attorney fees under OCGA § 9-15-14 (a), we do so under the “any evidence” standard, a standard that ordinarily is marked by deference to the way in which the court below assessed the relevant evidence. See Citizens & Southern Trust Co. v. Trust Co. Bank, 262 Ga. 345, 345 (417 SE2d 148) (1992); see also Haggard v. Bd. of Regents of the Univ. System of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987). That said, whether attorney fees are required under OCGA § 9-15-14 (a) depends in some cases not so much upon an assessment of what we usually mean when we speak of “evidence” — testimony and exhibits and the like — but upon an assessment of the state of the law at the time a party advanced a legal argument that, another party now contends, forms the basis for an award of attorney fees. Such an assessment of the state of the law, we think, itself presents a question of law, and we usually do not defer to trial courts about pure questions of law. See, e.g., Gutierrez v. State, 306 Ga. App. 371, 371 (702 SE2d 642) (2010) (“This appeal presents questions of law, which we review de novo.”). This seems to be a case in which an assessment of the state of the law at the time Gibson Construction asserted its claims against GAA Acquisitions is mostly dispositive. So, although we apply the “any evidence” standard of review in this case, to the extent that the “evidence” relevant to the question of attorney fees consists of the state of the law, we make our own assessment of that “evidence” and decide for ourselves “whether the claim asserted below . . . presented a justiciable issue of law.” Doster v. Bates, 266 Ga. App. 194, 196 (1) (596 SE2d 699) (2004); see also Hall v. Hall, 241 Ga. App. 690, 691 (1) (527 SE2d 288) (1999).

When we decided in Gibson I that an agreement modifying a security deed need not be recorded, we decided an issue of first impression. No Georgia appellate court previously had considered, at least in a published opinion, whether the statutes that require the recording of a security deed also require the recording of an agreement modifying a security deed. The statutes themselves do not speak explicitly to this question. Our decision in Aetna does not resolve the question because it involved whether a loan modification agreement was a novation of an earlier loan agreement, thereby depriving an earlier-recorded security deed of priority, and Aetna had nothing to do with whether such a modification must be recorded. See 175 Ga. App. at 617 (2). Even a preeminent treatise on Georgia real estate law, upon which we relied in Aetna, then had nothing to say about whether an agreement modifying a security deed must be recorded. See Pindar’s Ga. Real Estate Law & Procedure, § 21-44 (6th ed. 2004).

It is true that Gibson Construction failed to cite any convincing “authority for the proposition that a loan modification agreement is not valid or enforceable unless it is recorded,” as we found in Gibson I. 307 Ga. App. at 700-701. But Gibson Construction did rely in this case upon Reidling v. Holcomb, 225 Ga. App. 229, 230-231 (1) (483 SE2d 624) (1997), where we addressed the purpose of the recording statutes and explained that “[i]t is by [these statutes] made the plain duty of a grantee to record his deed, thereby giving constructive notice to every one of its existence and of his rights thereunder.” (Citation and punctuation omitted; emphasis supplied.) In the absence of precedents to the contrary, a reasonable lawyer might have read Reidling and inferred that, given the purposes of the recording statutes, perhaps they should be construed to require the recording of an agreement that modifies the terms of a security deed and thereby alters the rights of the lender under the deed. Moreover, in the absence of precedents to the contrary, a reasonable lawyer might have thought that some support for such a requirement could be found in OCGA § 44-2-2 (b), which addresses the need to record deeds and certain other instruments “which are against the interests of third parties who have acquired a transfer or lien binding the same property,” reflecting the notice purpose of the recording statutes.

Generally speaking, an award of attorney fees cannot be sustained if it is based on an argument about the meaning of a statute, where the statute does not speak explicitly to the issue at hand, where the statute has not previously been interpreted with respect to that issue, and where some support for the argument can be gleaned from the text or purpose of the statute. See Fox v. City of Cumming, 298 Ga. App. 134, 136 (679 SE2d 365) (2009). Although we ultimately were not persuaded by the argument that Gibson Construction made below and in Gibson I about whether an agreement modifying a security deed must be recorded, we cannot say that this argument was nonsensical, illogical, foreclosed by existing precedent, or without some arguable support in the case law and statutes. And we must keep in mind that OCGA § 9-15-14 (a) is intended to discourage the bringing of frivolous claims, not the presentation of questions of first impression about which reasonable minds might disagree or the assertion of novel legal theories that find arguable, albeit limited, support in the existing case law and statutes. See OCGA § 9-15-14 (c) (attorney fees not to be assessed for “a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority”). In light of these considerations, we conclude that the trial court erred when it awarded attorney fees under OCGA § 9-15-14 (a), and for that reason, we reverse the judgment below. See Ellis v. Johnson, 263 Ga. 514, 516-517 (2) (435 SE2d 923) (1993).

Decided March 9, 2012.

Andrew R. Diamond, for appellant.

Schulten, Ward & Turner, Kevin L. Ward, Jill D. Prussack, Joseph L. Kelly, James Bates, Michael A. Dunn, for appellees.

Judgment reversed.

Barnes, P. J., and Adams, J., concur.

       An appeal from an award of attorney fees under OCGA § 9-15-14 must be taken by application for discretionary review. See OCGA § 5-6-35 (a) (10). Gibson Construction timely filed such an application, and we granted it.

       This approach is, we think, consistent with the approach of our Supreme Court in cases in which it has assessed the state of the relevant law in considering an award of attorney fees under OCGA § 9-15-14 (a), cases in which the Supreme Court does not appear to have deferred to any assessment of the state of the law by the trial court. See, e.g., Ellis v. Johnson, 263 Ga. 514, 516-517 (2) (435 SE2d 923) (1993).

       See, e.g., OCGA § 44-2-1 (“Every deed conveying lands shall be recorded . . . .”); OCGA § 44-2-2 (b) (“Deeds, mortgages, and liens of all kinds which are required by law to be recorded . . . and which are against the interests of third parties who have acquired a transfer or lien binding the same property and who are acting in good faith and without notice shall take effect only from the time they are filed for record . . . .”); OCGA § 44-14-63 (a) (“Every deed to secure debt shall be recorded . . . .”).


author: Dillard, Judge.

text:
    A11A2074.
    In the Interest of J. B., a child.
    (725 SE2d 810)
   Dillard, Judge.

Following a bench trial, a juvenile court found 16-year-old J. B. delinquent for committing the offenses of carrying a concealed weapon, possession of a handgun by a minor, and loitering. J. B. now appeals, arguing that the juvenile court erred in denying his motion to suppress unlawfully obtained evidence and in finding that the evidence was sufficient to prove beyond a reasonable doubt that he committed the offense of loitering. For the reasons set forth infra, we reverse the denial of J. B.’s motion to suppress and the adjudication of delinquency.

Viewed in the light most favorable to the juvenile court’s findings and judgment, the evidence shows that around 3:00 p.m. on February 22, 2011 (a day the local schools were on break), four officers in the Griffin Police Department’s Crime Suppression Unit were on patrol in two separate squad cars when they observed several young males, including J. B., gathered in a vacant lot at the corner of Meriwether and Fifteenth Street. Because the officers were aware that illegal drug and street gang activities frequently occurred in the vacant lot itself and in the surrounding area, the officers decided as they drove by that they would investigate the young men if they were still gathered in the lot after the officers turned around. The officers in the first squad car then turned around, while the officers in the second car drove around the block and parked near to where a path leading to the back of the vacant lot exited onto an adjacent street that is routinely used by pedestrians walking to a nearby apartment complex.

As the officers in the first squad car returned to the front of the vacant lot, parked, and exited their vehicle, three of the young men, including J. B., began traipsing away via the path at the back of the lot. However, before they reached the street where the path exited, they encountered the two officers who had parked there. J. B. and the other two young men — who were a “good distance” behind him — stopped, and one of the officers asked J. B., who appeared to be sweating and out of breath as if he had been running, “what’s your hurry?” And when J. B. failed to reply, the officer asked J. B. whether he was running away from the two other young men or from the officers in the lot. Again, J. B. did not reply, and the officer then directed J. B. to walk back down to the vacant lot “till we find out what’s going on.” The officers then ordered the other two young men to accompany them (along with J. B.) back to the vacant lot in order to determine what exactly was “going on.” And while walking back to the lot, the officers observed the two young men who had been behind J. B. drop their black bandanas into some nearby bushes.

Once they had arrived back at the vacant lot, the officers asked the young men what they were doing, and one of the men responded that they were just “walking through.” Unconvinced by this explanation and recognizing one of the young men as a gang member whom the officer had arrested on a weapons charge in the past, the officer began searching all of them. And while patting down J. B., the officer discovered a black bandana in J. B.’s front pocket similar to the bandanas dropped by the other two young men, indicating that J. B. was likewise affiliated with the same street gang. As the officer continued his pat-down, he noticed that J. B. was attempting to keep his knees and feet close together, so the officer ordered him to spread his feet apart. J. B. refused to comply, and when the officer reached near the waistband of J. B.’s pants, J. B. suddenly attempted to do the same. And as a result, the officer grabbed J. B.’s arms and handcuffed him. The officer then resumed his pat-down, at which point a small caliber handgun that had been concealed inside J. B.’s pant-leg fell to the ground.

A complaint and delinquency petition were filed in juvenile court, charging J. B. with carrying a concealed weapon, possession of a handgun by a minor, and loitering. Shortly thereafter, J. B. filed a motion to suppress the handgun, arguing that it was discovered as a result of the police officers’ unlawful detention and search.

On March 22, 2011, the juvenile court held a hearing on J. B.’s motion to suppress, which it denied based upon the testimony of the two investigating officers. Immediately following that denial, the juvenile court conducted a bench trial, which concluded with the court finding that sufficient evidence supported the charges against J. B. Consequently, the court adjudicated him delinquent. This appeal follows.

1. J. B. contends that the juvenile court erred in denying his motion to suppress, arguing that the police officers had no reasonable articulable suspicion that he was engaging in criminal activity so as to justify detaining and searching him. We agree, and therefore, reverse the denial of J. B.’s motion.

At the outset, we note that “[o]n a motion to suppress, the burden of proving the search was lawful is on the [S]tate.” And in reviewing a trial court’s decision on a motion to suppress, “we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” Additionally, because the trial court is the trier of fact, “its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.” With these guiding principles in mind, we now turn to an analysis of J. B.’s argument that the officers’ detention and search were unlawful.

Our analysis necessarily begins with the Fourth Amendment to the United States Constitution, which provides, inter alia, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ,” In construing this amendment, the Supreme Court of the United States has set forth — including most notably in Terry v. Ohio — three tiers of police-citizen encounters: “(1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.”

In a first-tier encounter, “police may approach citizens, ask for identification, ask for consent to search, and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave.”

And here, the initial encounter between J. B. and the police officers occurred when J. B. was walking away from the vacant lot on the path leading to another street. At that point in time, the only objective observations the officers had made regarding J. B. was that he was a “good distance” ahead of the other two young men and appeared to be sweating and out of breath. But instead of merely questioning J. B. regarding what he was doing, the officers who first encountered J. B. while waiting for him near the path’s exit, stopped him and directed him to return to the vacant lot.

It is well settled that “a citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter[.]” However, here, the officers waiting at the path’s exit blocked J. B. and directed him to return to the vacant lot. And no reasonable person in J. B.’s position would have felt free to decline the officers’ request or otherwise terminate the encounter. Indeed, the investigating officer who ordered J. B. back to the vacant lot explicitly testified at the hearing that at the time he issued this directive J. B. was not free to leave. Thus, the officers’ stop of J. B. “was a second-tier, investigative detention that required the [officers] to have a particularized and objective basis for suspecting that [J. B.] was or was about to be involved in criminal activity.”

Under Terry, a police officer, “even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.” In doing so,

[t]he officer’s action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion, and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.

Furthermore, “[w]hile a mere hunch is not enough to render an investigative detention reasonable, law enforcement officers are permitted to draw upon their own experience and training in assessing the circumstances in which they find themselves[.]” And thus when a court is considering the reasonableness of an investigative detention, it “properly defer[s] to reasonable inferences and deductions drawn by officers in light of their experience and training.”

In the case sub judice, the investigating officers testified during the motion-to-suppress hearing that their detention of J. B. and the other young men was based on the fact that the suspects were gathered in a vacant lot known for drug and gang-related activity and that three of them, including J. B., began walking away when officers approached them. Specifically, the officer that first made contact with J. B. did not observe him wearing a gang-related bandana and only testified that J. B. appeared to be out of breath, was sweating, and was a “good distance” ahead of the other two young men on the path when the officer stopped him. And although the officer testified that he observed the other two young men drop (presumably to conceal) their black bandanas, it appears from the record that the officer only made this observation after he had already ordered all three to return to the vacant lot. But even if the officer’s stopping of J. B. and observation of the other two men dropping their bandanas occurred simultaneously, by the officer’s own admission these objective facts only led him to uncertainty as to whether J. B. was affiliated with the other two or was instead their potential victim.

As we have previously held, “[m]ere presence in an area known to the police for [criminal] activity, without more, is insufficient to support a reasonable suspicion that one is engaged in or about to engage in criminal activity.” And here, the only other objective observation made about J. B. by the police was that he was walking away from the officers in the vacant lot and appeared to be sweating and out of breath as if he had been running when the other officers first made contact with him. But walking away or even running from police officers, without more, does not justify a second-tier encounter. Thus, J. B.’s presence in this area coupled with the fact that he walked away from the officers when they initially approached the lot and appeared sweaty and out of breath when the detaining officer stopped him does not amount to a reasonable articulable suspicion that J. B. was either committing, or was about to commit, a crime.

Although only briefly mentioned by the testifying officers, the State, at least by implication, argues that the officers’ second-tier stop was justified by a reasonable articulable suspicion that J. B. and the other young men who had gathered in the vacant lot were committing the offense of loitering. Again, we disagree.

Under OCGA § 16-11-36 (a), “[a] person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” In upholding the constitutionality of this statute in the face of a challenge that it was void for vagueness, our Supreme Court was persuaded by the reasoning of the Supreme Court of Florida when it denied a challenge to that state’s nearly identical loitering statute by concluding that “the statute could be interpreted in a constitutional manner to proscribe only loitering or prowling which amounts to a threat to the safety of persons or property, conduct which persons of common intelligence may readily appreciate.” Specifically, “[a]s a threshold matter, the [statute] requires at least some manifestation of aberrant behavior and the circumstances must be such that this behavior warrants alarm for the safety of persons or property in the vicinity.” Our Supreme Court then concluded that while “perspectives may differ as to what conduct is ‘usual’ for law-abiding citizens, the statute narrows the construction of this phrase by making it clear the conduct must be that which would alarm a reasonable person that danger exists to person or property.”

And here, the officers testified that there would be no reason for anyone to be in the subject vacant lot at 3:00 p.m. “unless they were doing something illegal, something they’re not supposed to be doing.” But it is hardly naive (or unreasonable) to think that even in areas known for drug or gang-related activity, touch football, stick-ball games, or the like are played in vacant lots on days when children/teenagers are on break from school. Moreover, despite painting with such a broad brush, the testifying officers neglected to provide specific evidence that any of the young men in the lot that day when the police initially approached, including J. B., exhibited any aberrant behavior that warranted an alarm for the safety of persons or property in the vicinity. And while OCGA § 16-11-36 (b) provides in part that one of the circumstances which may be considered in determining whether such alarm is warranted is the fact that the person “takes flight” upon the appearance of police, none of the officers specifically testified that they observed any of the young men start running when the officers approached. Thus, “ [a]t best, [the officers’ testimony] raised a subjective, unparticularized suspicion or hunch.” It did not constitute an objective basis for suspecting J. B. of loitering and thus did not justify a second-tier investigatory detention. Accordingly, the trial court erred in denying J. B.’s motion to suppress evidence garnered from the stop.

2. J. B. also contends that the trial court erred in finding that the evidence was sufficient to prove beyond a reasonable doubt that he committed the offense of loitering. We agree.

Decided March 9, 2012.

Kimberly A. Gross, for appellant.

Scott L. Ballard, District Attorney, David J. Younker, Robert W. Smith, Jr., Assistant District Attorneys, Christy R. Jindra, for appellee.

When reviewing the sufficiency of the evidence supporting a juvenile court’s adjudication, “we apply the same standard of review used in criminal cases.” Thus, “[w]e construe the evidence in favor of the court’s adjudication and determine if a rational trier of fact could have found beyond a reasonable doubt that the juvenile committed the acts charged.”

And here, the juvenile court’s finding that J. B. committed the offense of loitering was based on the same testimony provided by the investigating officers during the hearing on J. B.’s motion to suppress. In fact, the only additional evidence introduced was the testimony of a probation officer, who stated that J. B. had previously been subject to an abeyance order based on a curfew violation, and that of one of the police officers, who was recalled to describe the type of handgun J. B. had in his possession.

Given that we concluded in Division 1, supra, that the officers failed to provide evidence to support an articulable suspicion that J. B. was loitering, we similarly must conclude that the evidence was insufficient to support his adjudication of delinquency on that charge.

Judgment reversed.

Mikell, P. J., and Boggs, J., concur.

        In the Interest of R. F., 279 Ga. App. 708, 708 (632 SE2d 452) (2006).

        See OCGA § 16-11-126 (b).

        See OCGA § 16-11-132 (b).

        See OCGA § 16-11-36 (a).

        Walker v. State, 299 Ga. App. 788, 788 (683 SE2d 867) (2009).

        Hammont v. State, 309 Ga. App. 396, 396 (710 SE2d 598) (2011) (punctuation omitted).

        Id. (punctuation omitted).

       U. S. Const. amend. IV

       392 U. S. 1, 21 (III) (88 SC 1868, 20 LE2d 889) (1968).

        Minor v. State, 298 Ga. App. 391, 394 (1) (a) (680 SE2d 459) (2009) (punctuation omitted).

        Id. (punctuation omitted).

       At the hearing, one of the officers testified that J. B. “was a good distance ahead of [the other] two subjects.”

        Thomas v. State, 301 Ga. App. 198, 201 (1) (687 SE2d 203) (2009) (punctuation omitted).

        See id. at 201-02 (1) (holding that a second-tier detention occurred, as opposed to a first-tier encounter, when officer blocked defendant’s path in parking lot, demanded that defendant submit to a pat-down, and testified that defendant was not free to leave encounter).

        Id. at 201 (1) (punctuation omitted).

        Black v. State, 281 Ga. App. 40, 43 (1) (635 SE2d 568) (2006) (punctuation omitted).

        Id. (punctuation omitted).

        Culpepper v. State, 312 Ga. App. 115, 119 (717 SE2d 698) (2011).

        Id.

       At the hearing, both investigating officers testified that the black bandanas in question signified gang affiliation with the “Southside Boys.”

       At the hearing, the officer testified that [w]hen I pulled up, I asked [J. B.] - I got out of the car immediately, because he was like sweating, breathing hard. I said, are you running from the guys in the path or are you running from the two officers back there? He wouldn’t say anything, he just looked at me. I said, let’s walk back down here [toward the vacant lot] till we find out what’s going on. He turned around and went down there .... We didn’t know - as far as I knew, he may be a victim at this point, the other guys may have been trying to jump him and he was running from them. I had no idea what was going on .... (Emphasis supplied.)

        Thomas, 301 Ga. App. at 202 (1) (punctuation omitted); see Walker, 299 Ga. App. at 790-91 (1) (holding that defendant’s apparent nervousness in the presence of a group of police officers, even in a known drug area, does not provide a basis for a reasonable articulable suspicion).

       At the hearing, one of the investigating officers testified that J. B. was “fast pace walking,” and that while it appeared J. B. had at one point been running, the officer conceded that he had “never seen him run.”

        See Black, 281 Ga. App. at 44 (1) (holding that even running from police during a first-tier encounter is wholly permissible).

        See Brown v. State, 301 Ga. App. 82, 85 (686 SE2d 793) (2009) (holding that none of defendant’s described activities, i.e., walking faster away from the police officer who knew him from a previous encounter, ignoring the police officer calling his name, or being present in an area known for its propensity for drugs and criminal activity, is a crime in and of itself, nor are they enough to make an objective determination that defendant was about to be engaged in criminal activity).

        See OCGA § 16-11-36 (a).

        Bell v. State, 252 Ga. 267, 270 (1) (313 SE2d 678) (1984).

        Id. (punctuation omitted).

        Id. at 271 (1).

       In this respect, it is important to note that there is nothing in the record indicating that at the time of the officer’s second-tier encounter with J. B. that he was in any way affiliated with a gang.

        Compare Evans v. State, 216 Ga. App. 21, 23 (2) (453 SE2d 100) (1995) (holding that defendant’s loitering, which entailed slowly circling a shopping center parking lot for 45 minutes in his car, pausing next to certain cars, and never parking to enter any stores, provided officers with articulable suspicion to justify a second-tier stop); Hansen v. State, 168 Ga. App. 304, 305-06 (1) (308 SE2d 643) (1983) (holding that defendant parking his car not in a parking space but near the exit of an apartment complex in which he did not reside and crouching down next to another car that he did not own constituted loitering and provided officers with articulable suspicion to justify a stop).

        See OCGA § 16-11-36 (b). We note that more than merely walking away, the word flight is defined as “the action of fleeing or running away from, or as from, danger, etc.” The Compact Oxford English Dictionary 605 (2d ed. 1991) (emphasis supplied).

        Thomas, 301 Ga. App. at 202 (1) (punctuation omitted).

        See id.-, Walker, 299 Ga. App. at 791 (1).

        In the Interest of G. L. B., 301 Ga. App. 619, 620 (688 SE2d 400) (2009) (punctuation omitted).

        Id. (punctuation omitted).


author: BARNES, Presiding Judge.

text:
    A11A2091.
    HART v. THE STATE.
    (725 SE2d 816)
   BARNES, Presiding Judge.

A jury convicted Devor Emanuel Hart of aggravated sodomy and child molestation, and the trial court sentenced him to serve 20 years. On appeal, he argues that the trial court erred in several evidentiary rulings, but for the reasons that follow, we affirm the convictions.

“Following a criminal conviction, we construe the evidence in the light most favorable to the jury’s verdict.” (Citation omitted.) Fortune v. State, 304 Ga. App. 294, 295 (696 SE2d 120) (2010). So viewed, the evidence at trial established that the six-year-old victim and her 12-year-old brother were staying with the 17-year-old Hart and his parents in the summer of 2005 while their mother was in the Army and stationed in Korea. When the mother returned to the States, she, her long-term boyfriend, and her children were at a restaurant when the victim “blurted out” that she did not really like Hart because “he does nasty things to me.” When pressed, the child said Hart had “peed on her butt,” “tried to get me to suck his . . . thing,” and then “took his thing and he put it in my butt. And he put my head in the pillow.” The mother testified that Hart’s mother never told her that the victim said anything about Hart molesting her, even though the two women spoke almost every day while the mother was in Korea.

The family went to Hart’s house and confronted him and his parents, and Hart responded that he “didn’t do it,” that he was always being blamed for things, and that he did not care if the victim’s mother called the police and reported the outcry. The police came to the house and took statements, and after they left, the mother’s boyfriend and Hart’s father got into a fight. The police returned and remained until the victim and her family cleared out of Hart’s house.

The victim’s brother testified that he was close to his younger sister, and when she told him that Hart had been “doing nasty stuff to her” he took her straight to Hart’s mother and made her repeat her allegations because he thought Hart’s mother should know about them. The victim told Hart’s mother that Hart “stuck his thing in” her “then he peed on her back.” Hart’s mother seemed “a little shocked,” and told the brother that his mother did not want to hear him talking about it, so he did not tell her when she called from Korea.

The boyfriend of the victim’s mother, who had been with her for nine years and was a father figure to the children, had been stationed with the mother in Korea and returned to Atlanta with her, testified about the victim’s outcry. The mother had asked the children how things had been while they were with Hart’s family, and the brother said he did not like staying there. The victim said she did not like it either because Hart was nasty and did nasty things to her, like made her suck his “thing,” peed on her back, and put his “thing” in her butt and her head in the pillow. The boyfriend was livid and confronted Hart, who denied doing anything to the victim. When the boyfriend asked what they were going to do to get to the bottom of this, Hart’s mother “shrugged it off.” Hart’s father was angry about the accusation, got into an altercation with the boyfriend, and began throwing the family’s belongings into the yard. The victim had never accused anyone else of molesting her.

The victim, who was nine at the time of the trial, testified that she first told her brother that Hart was doing nasty things to her, and that her brother immediately told Hart’s mother. She testified that Hart took her into his room, told her to get on his bed face-down, then got on the bed himself, but when asked what happened next the victim did not answer. She denied telling anyone that a boy from her school said he was going to put his thing in her mouth, and when asked if she told the truth or a lie about Hart doing nasty things to her, she responded, “Truth.”

Two days after the outcry, an expert in forensic interviewing and the process of child molestation disclosure interviewed the victim. After establishing a rapport, the victim told her that Hart put his “thing” in her butt and clarified with an anatomical drawing that by “thing,” she meant penis. The expert testified that children who were coached to lie gave little information and expressed events in rote fashion, without details or context. In contrast, the victim here gave conceptual details, and her demeanor, behavior, and disclosure were consistent with that of a child who had been abused.

The victim’s former kindergarten teacher testified that in April 2006, Hart’s mother came to the school and reported that an older student had said something to the victim about “putting his d-i-c-k in her mouth.” The teacher was shocked at the language and asked the mother to step into the hall to discuss the matter. When the teacher sought to identify the boy and suggested they go to the principal’s office to report the matter, Hart’s mother said she had already told someone and just wanted the teacher to know too.

1. Hart alleges that the evidence against him was insufficient to sustain his convictions. He was indicted for one count of aggravated sodomy by inserting his penis into the anus of a child younger than ten, a second count of aggravated sodomy by inserting his sex organ into the mouth of a child younger than ten, and for child molestation for exposing his penis to a child younger than 16 with the intent to arouse and satisfy his sexual desires. The jury acquitted Hart of the second count, but convicted him on the first and third counts.

OCGA § 16-6-2 (a) (2) defines aggravated sodomy as, among other things, “sodomy with a person who is less than ten years of age.” OCGA § 16-6-4 (a) (1) provides that “a person commits the offense of child molestation when such person . . . [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy [his] sexual desires.” The evidence as presented above was sufficient to authorize the jury to find Hart guilty beyond a reasonable doubt of both aggravated sodomy and child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Hart contends the trial court erred in allowing the state to refer to one of the witnesses as a victim, rather than as an alleged victim. “|W]hile reference to the alleged victim as ‘the victim’ may technically imply that a crime has been committed, the common usage of the term ‘victim’ in connection with criminal prosecutions embodies the concept that the complaining party is allegedly the object of a crime.” (Punctuation omitted.) Gober v. State, 203 Ga. App. 5, 6 (2) (416 SE2d 292) (1992), overruled in part on other grounds, Dudley v. State, 273 Ga. 466, 468 (542 SE2d 99) (2001). Accordingly, we find no error in the trial court’s ruling.

3. Hart asserts the trial court erred in denying his hearsay objection to the testimony of the victim’s mother about statements the victim’s brother made to her. While the mother was testifying about the victim’s outcry at the restaurant, she began to testify that the brother “charmed in” [sic] on the conversation and told her he had told Hart’s mother about the victim’s outcry, but Hart’s mother told him not to tell the victim’s mother. At that point, Hart objected on hearsay grounds to testimony by the victim’s mother about conversations between the brother and Hart’s mother, and the trial court sustained the objection. Hart then interposed a second objection to the mother testifying about anything the brother said to her, and the trial court overruled that objection. The State did not ask the victim’s mother any more questions about what the brother said to her, but asked her what actions she took after her conversation with the children.

Hart does not argue that any testimony given by the victim’s mother about the brother’s statements was prejudicial, only that the trial court’s failure to sustain the second objection constituted harm, although he does not describe how the ruling itself was harmful absent the introduction of evidence afterward. The State moved on to ask the victim’s mother about her actions after her conversation with the children. “It is well established that, to show grounds for reversal, an appellant must establish harm as well as error.” Perdue v. State, 271 Ga. App. 402, 405 (2) (609 SE2d 756) (2005). Hart cannot establish that he was harmed by the trial court’s ruling, and we therefore find this enumeration to be without merit.

4. Finally, Hart contends that the trial court allowed an expert witness to improperly bolster the victim’s credibility. While an expert may express an opinion about whether the evidence is consistent with the victim’s story, she may not testify that in her opinion the victim was telling the truth. Hubert v. State, 297 Ga. App. 71, 78 (c) (i) (676 SE2d 436) (2009). “An expert witness may . . . express an opinion as to whether medical or other objective evidence in the case is consistent with the victim’s story.” (Citation and punctuation omitted.) Harris v. State, 279 Ga. App. 570, 571 (1) (631 SE2d 772) (2006). In this case, the expert testified that the victim’s demeanor, disclosure and behavior was consistent with that of a child “who has been sexually abused,” testimony that is permissible under our law. It follows that the trial court did not err in overruling the defense’s objection to the testimony.

Decided March 9, 2012.

Simon Weinstein, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: Adams, Judge.

text:
    A11A2129.
    LOWE v. LOWE.
    (725 SE2d 820)
   Adams, Judge.

We granted Elisa M. Lowe’s pro se application for discretionary appeal from an order entered by the Superior Court of Paulding County (Paulding Court) denying her motion to set aside, motion for new trial, and request for sanctions in this case arising out of a child custody dispute. We agree with Ms. Lowe that the Paulding Court lacked jurisdiction over the child custody modification petition filed by the father/appellee, Michael L. Lowe, and thus erred by denying the mother’s motion to set aside.

Before we turn to the recitation of the facts and analysis of the issues, we note that we are troubled by the fact that the father failed to file a response to the application for discretionary appeal and has also failed to file an appellee’s brief in this ensuing appeal. By failing to file a brief on appeal, the father has failed to controvert the facts as set forth in the mother’s brief; pursuant to our Rules, this failure “shall constitute consent to a decision based on the appellant’s statement of facts. [Further, ejxcept as controverted, appellant’s statement of facts may be accepted by this Court as true.” See Court of Appeals Rule 25 (b) (1).

Turning now to the pertinent facts, the record and the mother’s brief disclose the following: The parties were divorced in April 2000. The divorce decree was entered by the Superior Court of Coweta County (Coweta Court), and the mother was awarded sole custody of the parties’ two minor children. The mother subsequently filed a petition to modify child support and visitation and a motion for contempt in the Coweta Court, and on August 14, 2001, after noting the father had failed to appear at the hearing on those matters, the court entered an order modifying the father’s support obligations and visitation; further the father was held in contempt for willful violation of the divorce decree, and was ordered to appear and purge himself of the contempt or face the possibility of incarceration.

In January 2004, the father filed a petition for modification of child support and custody in the Coweta Court. Pursuant to the father’s request, and without a hearing being held, an ex parte temporary custody order was entered giving the father custody of the children. However, after a hearing was held, that order was vacated and the original custody order was reinstated, apparently with some modifications.

A specially set final hearing was held on April 12, 2005. Following that hearing the father’s attorney apparently drafted a “final order,” but the parties’ attorneys did not agree on the terms of the proposed order, and it was never executed. Apparently no further action was taken in that case until it appeared on a peremptory calendar in December 2008, and at that time, the case was dismissed for lack of prosecution.

On March 4, 2008, prior to the dismissal of the Coweta modification action, the father filed another Complaint for Change of Custody in the Paulding Court, where he resided. The father alleged that the mother had been residing in Fulton County but had left the State and, disregarding the fact that the Coweta modification action was still pending, alleged that although the Coweta Court had previously granted the parties’ divorce and heard a subsequent modification case, Coweta County had no interest in the case because none of the parties resided there. Further, the father alleged that he was not aware of any other pending proceeding concerning the children, and he stated that although the final order in the Coweta case had not been executed, pursuant to that order the parties had joint legal and joint physical custody of the children and had been proceeding pursuant to the terms of that order as to custody. Moreover, although the father stated that the final order was attached as Exhibit “E” to the complaint, the order was not attached to the complaint, and in fact it appears that it was not filed with the Paulding County clerk’s office until after the appeal was docketed in this case.

Additionally, as he had also done in the Coweta case, the father obtained an ex parte emergency order granting him temporary legal and physical custody of the children. In that order, the Paulding Court referred to the father’s previously filed Coweta modification action, and it noted “[t]hat case was resolved by a hearing that awarded the Parties joint legal and joint physical custody of the children.” As noted above, however, at that time the Coweta County case remained pending and the “final order” in that case had never been executed and had not been filed with the Paulding Court.

Again, just as in the Coweta case, when the mother was given an opportunity to appear before the Paulding Court, that court reversed itself and returned custody of the children to the mother. In that order, the Paulding Court further noted that the “visitation schedule previously followed by the parties shall continue once the father is released from jail.”

On June 30, 2008, the father’s attorney, Martin E. Valbuena, sent the father a letter, which referenced a Paulding case and a Coweta case, stating his intent to file a motion to withdraw because of the non-payment of fees. In that letter, the attorney notified the father that “The Superior Courts of Paulding and Coweta Counties retain jurisdiction of these actions.” Valbuena filed his motion to withdraw as counsel on July 16, 2008, and an order permitting the withdrawal was filed on August 6, 2008.

After the dismissal order was entered in the Coweta case in December 2008, it appears no filings were made or orders entered in either the Coweta or the Paulding case until April 12, 2010, when the father filed a motion to set aside the dismissal order in the Coweta Court. At that time the father was once again being represented by Valbuena, and on July 6, 2010, Valbuena filed an entry of appearance in the Paulding Court as well as a rule nisi requesting a temporary hearing. On July 7, 2010, Valbuena filed affidavits on behalf of the children purporting to be their elections to live with the father in Florida. Although the entry of appearance and rule nisi were apparently served on the mother, there was no certificate of service filed with these affidavits, and the mother has stated in her brief that Valbuena did not send a copy of the executed affidavits to her.

On July 14, 2010, the mother filed, inter alia, a motion to dismiss the father’s request for a temporary hearing and a “Notice to the Court of Another Court Having Jurisdiction over Child Custody Matters Pursuant to OCGA § 19-9-62” as well as a request for sanctions. In this notice, she gave a brief outline of the history of these proceedings, including that the custody action in the Coweta case was pending at the time the father filed his complaint in the Paulding case, in which he specifically alleged that there were no pending actions concerning the children. Moreover, the mother also notified the Paulding Court that the father had filed a “Motion to Set Aside Order” in the Coweta Court on April 12, 2010, just two months prior to the filing of the request for a temporary hearing in the Paulding Court, and that at that time, that motion remained pending in the Coweta Court, as did a contempt action filed by the mother against the father for past due child support.

On August 10, 2010, the Paulding Court issued a temporary order, in which it noted the mother’s objection to the court’s jurisdiction based on improper venue, but found that the mother had waived her venue objection because at the time of the emergency hearing, in which the mother was successful in getting the Paulding Court to reverse its temporary ex parte order giving custody to the father, the mother was represented by an attorney who did not voice any objection to venue. Further the court found that the mother had failed during the two-and-a-half years the case had remained pending to file any pleadings raising a venue objection. The Paulding Court, based on the Minor Child Elections, then granted temporary primary physical custody to the father.

On November 2, 2010, the mother filed a motion to reconsider and attached a copy of this Court’s opinion in Hatch v. Hatch, 287 Ga. App. 832 (652 SE2d 874) (2007), again arguing that the Paulding Court lacked jurisdiction over this matter. On November 16, 2010, the mother filed a “Demand for Abatement of Proceedings Due to Lack of Jurisdiction and Notification of Inquiry of Jurisdiction in Coweta Superior Court” in which she requested that the Paulding Court contact the Coweta Court to resolve the jurisdiction issue pursuant to OCGA § 19-9-62. On January 5, 2011, the Paulding Court entered a final order in which it expressly denied the mother’s motion for reconsideration and jurisdictional challenge and, inter alia, awarded primary physical custody of the children to the father pursuant to their elections and the mother’s consent.

The mother subsequently moved to set aside that order and renewed her motion for sanctions against the father and Valbuena for making false statements and untrue allegations. The trial court denied the mother’s motion on April 6, 2011, and we granted the mother’s application for discretionary appeal on May 25, 2011. We now reverse as to the jurisdictional issue, and remand for a determination of whether sanctions are warranted in this case.

1. It appears in this case that at the time the father filed his complaint in Paulding County there was a pending custody modification action in Coweta County and thus the Coweta Court, not the Paulding Court, had jurisdiction of the custody case. And even if the Coweta action had not been pending, the Paulding Court was without jurisdiction over this matter. In Hatch v. Hatch, 287 Ga. App. 832, which the mother aptly notes is remarkably similar to this case, we determined that jurisdiction and venue in a child custody case were proper in the county where the legal custodian resided and if the legal custodian resided out of state, then jurisdiction was proper in the county where the custody determination was initially made. Id. at 835 (2); see also OCGA §§ 19-9-23 (a) and 19-9-62 (a). Here, the father filed his complaint to change custody in Paulding County, which was his county of residence, stating that the mother had been a resident of Fulton County but had recently moved to Tennessee. Although it is unclear from the record exactly where the mother resided at the time the initial Paulding County complaint was filed, it is clear that the mother was not residing in Paulding County at that time. Thus, pursuant to the relevant Code sections and our opinion in Hatch, even if there had not been a pending action in the Coweta Court, the complaint should have been filed in either Coweta County or in the county where the legal guardian, who at that time was the mother, resided.

Further, when the father requested a hearing in the Paulding Court in July 2010, he had shortly before returned to the Coweta Court and filed a motion to set aside the Coweta Court order which dismissed his modification action for want of prosecution. And it also appears that by that time the mother was once again residing in Coweta County and, in any event, that the Coweta Court had continuing jurisdiction pursuant to OCGA § 19-9-62 (a). Thus, nothing had occurred since the father initially filed the modification complaint in the Paulding Court and he sought a hearing in that court in July 2010 that would have changed the jurisdictional posture of this case.

In sum, we find that the Paulding Court erred by assuming jurisdiction of this custody matter. And because a judgment entered by a court lacking jurisdiction is void, all orders of the Paulding County court in this case are vacated. Hatch, 287 Ga. App. at 835 (2).

Decided March 9, 2012.

Elisa M. Lowe, pro se.

Martin E. Valbuena, for appellee.

2. Because we have held in Division 1 that the Paulding Court lacked subject matter jurisdiction in this case, it is unnecessary for us to consider the issues raised in the mother’s second and third enumerations of error.

3. The mother also contends that the Paulding Court erred by refusing to consider her requests for sanctions against the father’s attorney. We agree that the facts here warrant at least a hearing on this matter, and that upon remand the Paulding Court should consider whether it is the appropriate venue for such a hearing, and depending on that determination, either conduct a hearing or transfer the sanctions issue to the Coweta Court.

Judgment vacated and case remanded with direction.

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

       Even though orders in child custody cases are directly appealable pursuant to OCGA § 5-6-34 (a) (11), appeals from orders denying a motion to set aside under OCGA § 9-11-60 require an application for discretionary appeal. Avren v. Garten, 289 Ga. 186, 191-192 (7) (710 SE2d 130) (2011).

       The Coweta Court case number referenced does not appear to match that for the modification action, and apparently there were other filings in that court also, such as a contempt action.

       The mother has stated in her supplemental brief that the father’s attorney, in response to her inquiry concerning the basis for the rule nisi and hearing, sent her Mre-executed election affidavits via e-mail, and she has requested that we have the record corrected by the trial court to reflect the true set of facts here. However, whether she was properly served with the executed affidavits is immaterial to the resolution of the issues raised in this appeal, and thus we decline to delay this case by ordering yet another supplementation of the record. Accordingly, the motion to supplement is hereby denied.

       We note that although the father initially obtained a temporary emergency change of custody, once a hearing was held the Paulding Court returned the children to the mother. Thus, our holding here does not address the court’s ability to assume temporary emergency jurisdiction to make a child custody determination pursuant to OCGA § 19-9-64 (a). See also Taylor v. Curl, 298 Ga. App. 45, 46 (679 SE2d 80) (2009).


author: DOYLE, Presiding Judge.

text:
    A11A2165.
    MITCHELL v. THE STATE.
    (725 SE2d 824)
   DOYLE, Presiding Judge.

Following a jury trial, Elliott Mitchell appeals from his conviction of armed robbery, kidnapping, possession of a firearm during the commission of a crime, and aggravated assault. Mitchell contends that (1) the evidence was insufficient to support the verdict, (2) he received ineffective assistance of counsel, and (3) the trial court erred by admitting irrelevant evidence. Finding no error, we affirm.

Construed in favor of the verdict, the evidence shows that Terrence Reid, Shannon Clay, and some friends drove from Charlotte, North Carolina, to Atlanta to purchase illegal drugs from Clay’s friends and to shop. Clay arranged a meeting with her friends, and Reid accompanied her with $10,000 in cash, believing that he was going to purchase drugs. When Reid and Clay arrived at the meeting spot, the purported sellers had already left, so Reid and Clay browsed in a nearby jewelry store. Reid left $8,000 of his cash in the trunk of the car. As Reid looked at the jewelry, Clay was on her telephone, pacing the floor and going in and out of the store. Soon Reid noticed that Clay had not returned to the store, so he went to the car, where he discovered that his money was gone from the trunk.

Five or ten minutes later, Clay returned to the car with her friends in a truck and introduced Reid. As Reid approached the truck, Mitchell, who was armed with an automatic pistol and hiding in the back seat, rose up and forced Reid into the truck. Once Reid was in the back seat, Mitchell ordered Reid to remove his jewelry and empty his pockets. As the driver drove off, Reid attempted to jump out of the door, and Mitchell hit him in the head with the butt of the pistol, causing the gun to fire and shatter the truck’s window. The stray bullet hit bystander Shelly Williams, permanently paralyzing her from the waist down. The driver sped off, and Reid managed to leap from the vehicle as Mitchell shot at Reid while he tumbled onto the ground.

Reid ran back to the jewelry store shopping center where he discovered emergency personnel responding to the scene of Williams’s injury. Realizing that his robbery was connected to the shooting of Williams, Reid called 911 and reported the incident to police.

Mitchell was charged with armed robbery, kidnapping, aggravated assault (two counts), theft by taking, and possession of a firearm during the commission of a crime (four counts). A jury found him guilty on each count, and the trial court denied his motion for new trial, giving rise to this appeal.

1. Mitchell contends that the evidence was insufficient to support the guilty verdict because he was not adequately identified as the gunman in the back seat of the truck. We disagree.

When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Here, with respect to the question of the identity of the back seat gunman, there was testimony from Reid at trial that Mitchell “looks like him.” Any equivocation by Reid due to the passage of time was for the jury to weigh because “[ijdentity is a question for the trier of fact, and where a witness identifies a defendant, the credibility of the witness making such identification is not to be decided by this [C]ourt.” Further, the driver of the truck in which Reid was robbed testified that Mitchell was his armed, back seat accomplice. Finally, there was testimony from Michael Wright, a friend of Mitchell, stating that Mitchell had told him that he had come to Atlanta to conduct a robbery, and Mitchell described the events of the day in question. In that account, Mitchell admitted to Wright that he took a victim’s jewelry and struck the victim on the head with a gun, causing the gun to go off and injure a bystander. Although Wright’s testimony was reluctant, and he questioned the truth of those statements, this credibility determination was for the jury. Therefore, the evidence at trial supported an inference that Mitchell was the perpetrator of the indicted offenses, and the jury was authorized to so find.

2. Mitchell next contends that the trial court erred by denying his claim of ineffective assistance of counsel based on two grounds: (a) trial counsel failed to move for a directed verdict at the close of the State’s evidence, and (b) trial counsel failed to cross-examine certain witnesses for the State. We find no merit to these grounds.

Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate 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. “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) With respect to trial counsel’s failure to move for a directed verdict, trial counsel testified at the motion for new trial hearing that she believed she “would not be successful” if she had moved for a directed verdict. As we concluded in Division 1, the evidence was sufficient to support a guilty verdict. “Failure to make a meritless motion for directed verdict is not ineffective assistance of counsel,” so this argument presents no basis for reversal.

(b) With respect to trial counsel’s failure to cross-examine certain witnesses, trial counsel testified that her strategy was to challenge the State’s evidence of identity. As explained by trial counsel’s testimony, the witnesses she did not cross-examine were not useful in her challenge to the identity evidence because they were not part of the State’s evidence establishing Mitchell as the perpetrator of the crimes. For example, a bystander who drove up and encountered the injured Williams was not cross-examined because she had no knowledge of what happened or who shot Williams. The same was true for the first officer who arrived on the scene. Trial counsel explained that this was done as part of the defense strategy to attack the identity evidence:

We cross-examined the witnesses that were — that had information that would be helpful to Mr. Mitchell. . . . We wanted the jury to focus on the lack of evidence. So instead of creating more information for them to consider that was not related, we wanted to streamline it and make sure that they understood that there was a lack of evidence versus something additional that they could later use against him. . . . [Also, jurors] typically appreciate [a streamlined process].

Based on the evidence in this case, this was a reasonable trial strategy and did not constitute deficient performance. Accordingly, this enumeration is without merit.

3. Finally, Mitchell contends that the trial court erred by admitting irrelevant evidence that was prejudicial to him. Specifically, he points to testimony from a hotel manager describing a separate armed robbery that occurred the day before the robbery in this case. Mitchell was never accused of participating in the prior robbery; instead, Ky Bolden was arrested in connection with that offense. Mitchell objected to the evidence of the prior robbery on the ground that it had no relevance to whether he committed the robbery at issue. The trial court overruled the objection, which ruling Mitchell now assigns as error.

Under OCGA § 24-2-1 “[e]vidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.”

This rule favors the admission of any relevant evidence, no matter how slight its probative value, and evidence is relevant if it renders the desired inference more probable than it would be without the evidence. But the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.

Here, the State offered the challenged evidence for the purpose of explaining the genesis of the robbery and to explain the motive. Ky Bolden, Mitchell’s friend, was originally planning to participate in the robbery, but when he was arrested for the hotel robbery described in the challenged testimony, he could not participate, so his brother, Kendall Bolden, stepped into Ky’s role as driver “to help [his] brother out” and obtain money to pay for an attorney. This evidence explained the State’s theory of how the robbery was planned and the motive of the perpetrators, including Mitchell. The evidence did not implicate Mitchell in the prior robbery, so the risk of unfair prejudice or confusion was low. Accordingly, the trial court did not abuse its discretion in overruling Mitchell’s relevance objection.

Decided March 9, 2012.

Gina A. Smalley, for appellant.

Patrick H. Head, District Attorney, Amelia G. Pray, Jesse D. Evans, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-40 (a).

       OCGA § 16-11-106 (b).

       OCGA § 16-5-21 (a) (1).

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

       For purposes of sentencing, counts for aggravated assault and theft by taking merged into an armed robbery count.

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

       (Punctuation omitted.) Wallace v. State, 289 Ga. App. 497, 499 (657 SE2d 874) (2008).

       See Knight v. State, 271 Ga. 557, 559 (1) (521 SE2d 819) (1999) (witness credibility is a matter to be determined by the jury).

       See Handley v. State, 289 Ga. 786 (1) (716 SE2d 176) (2011) (“the credibility of eyewitness testimony is within the exclusive province of the jury, and the testimony of but a single witness generally is sufficient pursuant to OCGA § 24-4-8.”); In the Interest of A. A., 293 Ga. App. 827, 829 (668 SE2d 323) (2008) (testimony of a single witness is sufficient to establish identity).

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

       See id. at 687-688, 694 (III) (A)-(B).

       (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       See Strickland, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       Mitchell does not assert any new grounds for challenging the sufficiency of the evidence in his ineffective assistance claim.

        Crawford v. State, 294 Ga. App. 711, 713 (1) (c) (670 SE2d 185) (2008).

       See Cooper v. State, 281 Ga. 760, 762 (4) (a) (642 SE2d 817) (2007) (“The scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.”) (punctuation omitted).

       (Citation and punctuation omitted.) Knapp v. State, 229 Ga. App. 175, 177 (2) (493 SE2d 583) (1997).

       See Quedens v. State, 280 Ga. 355, 361 (4) (629 SE2d 197) (2006) (trial court “may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury”) (punctuation omitted).

       See Kolokouris v. State, 271 Ga. 597, 599 (3) (523 SE2d 311) (1999) (“Evidence as to motive is relevant, even though it may incidentally place the defendant’s character in issue.”); Pittman v. State, 178 Ga. App. 693 (2) (344 SE2d 511) (1986) (“The trial court has wide discretion in determining relevancy and materiality, and furthermore, where the relevancy or competency is doubtful, the evidence should be admitted, and its weight left to the determination of the jury.”) (punctuation omitted).


text:
    A11A2310.
    AIKEN DERMATOLOGY & SKIN CANCER CLINIC, P.A. v. DAVLONG SYSTEMS, INC.
    (725 SE2d 835)
   Adams, Judge.

Appellant/plaintiff Aiken Dermatology & Skin Cancer Clinic, EA., has filed four essentially identical complaints against defendant/appellee DavLong Systems, Inc. seeking to recover for breach of contract and fraud. The first complaint (hereinafter referred to as Case One) was filed on March 14, 2002 and was dismissed without prejudice by Aiken Dermatology on March 18, 2003. Aiken Dermatology filed a substantially identical complaint (Case Two) against DavLong on March 25, 2003. On February 4, 2005, the trial court denied DavLong’s motion for summary judgment on the breach of warranty claim, but granted DavLong summary judgment on the fraud claim. Although Aiken Dermatology had the right to file a direct appeal from that order pursuant to OCGA § 9-11-56 (h), it instead sought a certificate of immediate review, which the trial court issued, and then filed an application for interlocutory appeal in this Court, which this Court granted on March 3, 2005. Aiken Dermatology filed its notice of appeal on March 3, 2005 and DavLong filed a cross-appeal on March 8, 2005.

On July 6, 2005, the clerk of the lower court sent Aiken Dermatology’s counsel a statement of costs for preparation of the appellate record via certified mail. However, costs were not paid, and DavLong filed a motion to dismiss the appeal based on failure to pay costs on September 12, 2006. On January 8, 2007, the clerk sent plaintiffs attorney another request for payment of the appeal costs. No other entries were made on the docket until March 1, 2010, when a docket entry indicates Case Two was dismissed under the five-year rule. OCGA § 9-11-41 (e).

On May 6, 2010, Aiken Dermatology filed a substantially similar complaint, which included a count based on fraud, against DavLong and its successor in interest, David H. Long (Case Three). However, at the time it filed Case Three, Aiken Dermatology had not paid the costs associated with Case Two, and DavLong filed a motion to dismiss Case Three on or about June 9, 2010. On August 4, 2010, while Case Three was pending, Aiken Dermatology paid the costs associated with Case Two, and a few minutes later filed another renewal action (Case Four).

On August 31, 2010, DavLong filed a motion to dismiss Case Four, arguing that Case Four violated OCGA § 9-2-5, which prohibits the prosecution of simultaneous actions (see also OCGA § 9-2-44), and that Aiken Dermatology had impermissibly filed two renewal actions (Case Three and Case Four), outside the applicable statute of limitation. See OCGA § 9-2-61.

Approximately five months later, on January 3, 2011, the trial court apparently issued an order dismissing Case Three based on plaintiffs failure to pay the costs associated with Case Two. On April 29, 2011, the trial court issued the order that is the subject of the present appeal, rejecting DavLong’s claim that Aiken Dermatology had violated OCGA § 9-2-5 by prosecuting simultaneous actions, but nevertheless dismissing Case Four on the basis that Case Four was not a valid renewal action, reasoning that Aiken Dermatology’s attempted filing of one renewal action outside the statute of limitation (Case Three) prevented the filing of another renewal action (Case Four) outside the statute of limitation. Further, the trial court found that its previous grant of summary judgment on Aiken Dermatology’s fraud claim was res judicata as to that cause of action. Aiken Dermatology appeals, arguing that the trial court erred by finding that Case Three constituted an exercise of its one-time privilege of renewal under OCGA § 9-2-61 (a) and additionally erred by finding its claim for fraud was barred by the doctrine of res judicata.

1. We first consider whether the trial court properly dismissed Case Four because it fell, as the trial court held, outside the “penumbra of the renewal statute.” Our analysis begins with the relevant statutory provisions. Pursuant to OCGA § 9-2-61 (a):

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9-11-41; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.

(Emphasis supplied.)

Further, OCGA § 9-11-41 (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.”

As to the relevant facts, the record shows that Case Three and Case Four were filed outside the applicable limitations period for contract claims, that both were filed within six months of the dismissal of Case Two, and that the costs associated with Case Two were not paid prior to the filing of Case Three but were paid minutes before the filing of Case Four. Further, there is no question that both Case Three and Case Four were attempts to file renewal actions of Case Two. Thus, while acknowledging that Case Three was not a valid, pending suit, the trial court reasoned the language of the statute which provides that a party is permitted to exercise the privilege of renewal only once means that the party is permitted to attempt to renew only once, and having failed in that attempt by not filing a valid cause of action when it filed Case Three, Aiken Dermatology was not permitted to file another renewal action.

Aiken Dermatology challenges this ruling, arguing that the trial court has impermissibly read the word “attempt” into the statute, which contains no such language. We are constrained to agree. As cases from both this Court and our Supreme Court have made clear,

OCGA § 9-11-41 (d) . . . requires court costs to be paid in the first suit before an action is recommenced. This is “a condition precedent to filing a second suit,” so that “payment of costs in a previous suit is jurisdictional” with respect to a subsequent suit. Little v. Walker, 250 Ga. 854, 855 (301 SE2d 639) (1983). Without the prior payment of the first suit’s costs, “the second suit is not a valid pending action.” Couch v. Wallace, 249 Ga. 568, 569 (292 SE2d 405) (1982). It was not always so. McLanahan v. Keith, 239 Ga. 94 (236 SE2d 52) (1977).

Jeff Davis Hosp. Auth. v. Altman, 203 Ga. App. 168 (416 SE2d 763) (1992) (setting forth narrow exception not applicable here). See also Tucker v. Mitchell, 252 Ga. 545 (314 SE2d 896) (1984).

We fail to see how a party can be said to have exercised its one-time privilege of renewal by filing a complaint that is not valid, and thus we agree with Aiken Dermatology that Case Four was in fact the first time it exercised its one-time privilege of renewal under OCGA § 9-2-61 (a). See Sosebee v. Steiner, 128 Ga. App. 814 (198 SE2d 325) (1973) (recommenced suit not considered a valid pending suit when costs of previous action have not been paid); see also Grier v. Wade Ford, Inc., 135 Ga. App. 821 (219 SE2d 43) (1975) (same).

However, the trial court also held that as a matter of fairness to DavLong, Aiken Dermatology should not have another opportunity to renew its suit. We too are bothered by the fairness of the situation here since DavLong has had the specter of a lawsuit hanging over it more or less continuously since 2003, and has been forced to respond to multiple filings, including those during the aborted appeal to this Court. However, we do not think the circumstances here are so “extreme . . . [and] . . . the delay was so long and so prejudicial that it would violate due process to allow the case to proceed.” See Robinson v. Boyd, 288 Ga. 53, 57 (2) (701 SE2d 165) (2010). Further, it is important to remember that certain safeguards are built into the statutory scheme, as a party seeking to renew outside the applicable limitations period must do so within six months of the dismissed action it is seeking to recommence. Thus, the mere passage of time limits the number of renewal actions a party may “attempt” to file.

Accordingly, we hereby reverse the trial court’s dismissal of Case Four on the basis that it was not a valid renewal under OCGA § 9-2-61 (a). Cf. Worley v. Pierce, 211 Ga. App. 863, 864 (1) (440 SE2d 749) (1994) (dismissing second renewal action); Associated Writers Guild of America v. First Nat. Bank, 195 Ga. App. 820, 821 (2) (395 SE2d 23) (1990) (same).

2. DavLong also argues that the trial court’s order dismissing Case Four should be affirmed because, contrary to the trial court’s holding, Case Three was a prior pending action that barred the filing of Case Four. See OCGA §§ 9-2-44 (a) and 9-2-5 (a). However, we find the trial court correctly rejected this argument.

“OCGA §§ 9-2-5 (a) and 9-2-44 (a) are closely related in effect and are to be considered and applied together.” (Citations omitted.) Huff v. Valentine, 217 Ga. App. 310, 311 (1) (457 SE2d 249) (1995). Simply stated “[t]he general rule under [these provisions] is that when there are two lawsuits involving the same cause of action and the same parties that were filed at different times but that both remain pending in Georgia courts, the later-filed suit must be dismissed.” Bhindi Brothers v. Patel, 275 Ga. App. 143, 145-146 (619 SE2d 814) (2005). But as we further noted in Bhindi Brothers, “there is an exception to the rule. If it appears from the face of the pleadings in the first-filed case that the court therein does not have jurisdiction to resolve the pending claims on the merits, then the plea of abatement will not lie and the later-filed suit may proceed forward.” Id. at 146.

DavLong argues that the failure to pay costs was not a defect apparent from the face of the record and thus the trial court erred when it refused to dismiss Case Four based on the prior pending case rule. Jones v. Rich’s Inc., 81 Ga. App. 841, 849 (60 SE2d 402) (1950). But in our view, the trial court properly rejected this argument. In 1902, our Supreme Court, after reviewing the law of other jurisdictions on this issue, held that the exception to the rule prohibiting simultaneous prosecutions applies

when — because of void process; failure to comply with statutory conditions precedent to bringing suit, instituting the action in a court having no jurisdiction of the subject-matter thereof; failure to give the suit a standing in court, by omitting to perfect legal service; or because of other like reasons, which the defendant is bound to know render it unnecessary to appear and plead, — the first suit is a wholly abortive effort, which the defendant is not legally called upon to resist at all, and therefore is really for the first time impleaded by the filing of another action which does render imperative his making a defense.

Wilson v. Atlanta, K. & N. R. Co., 115 Ga. 171, 179-180 (41 SE 699) (1902).

Based on the foregoing, it appears firmly established that the payment of costs prior to filing Case Three was a “statutory condition precedent” that was not in the nature of an affirmative defense “but a jurisdictional matter which may never be waived. OCGA § 9-11-12 (h) (3).” Tucker v. Mitchell, 252 Ga. at 545. Thus, we conclude that the trial court did not err in refusing to consider Case Three a prior pending suit such that Case Four should be dismissed.

3. Lastly, we address Aiken Dermatology’s argument that the trial court erred by finding that its fraud claim was barred by the doctrine of res judicata.

“Under OCGA § 9-11-54 (b), a judgment as to one or more but fewer than all of the claims is not a final judgment and lacks res judicata effect unless the trial court expressly directs the entry of a final judgment. [Cit.]” Stanley v. Hart, 254 Ga. App. 258 (562 SE2d 186) (2002).

But if a grant of partial summary judgment is not made final under OCGA § 9-11-54 (b), the party against whom summary judgment was granted has the option to either appeal or not appeal at that time. And if the party chooses to appeal, then the appellate decision on the summary judgment ruling is binding under OCGA § 9-11-60 (h).

Roth v. Gulf Atlantic Media, 244 Ga. App. 677, 679 (536 SE2d 577) (2000). Moreover, if a party attempts to appeal pursuant to OCGA § 9-11-56 (h) and suffers a procedural default resulting in the dismissal of the appeal, then res judicata also attaches; however, our appellate courts have stated that a different rule applies if a procedural default resulting in dismissal occurs in an appeal which has been initiated by the filing of an application for interlocutory review, or if a party voluntarily withdraws an appeal. Compare Houston County v. Harrell, 287 Ga. 162, 163 (695 SE2d 29) (2010) and Mitchell v. Oliver, 254 Ga. 112, 114 (1) (327 SE2d 216) (1985) with Canoeside Properties v. Livsey, 277 Ga. 425, 427 (1) (589 SE2d 116) (2003) and Hardwick, Cook & Co. v. 3379 Peachtree, Ltd., 184 Ga. App. 822, 823 (1) (363 SE2d 31) (1987).

In this case, Aiken Dermatology timely filed its notice of appeal after we granted its application for interlocutory appeal, but then failed to pay costs. As indicated by the docket, DavLong moved to dismiss the appeal on September 12, 2006, and Aiken Dermatology responded by filing a notice that it would not oppose the motion to dismiss on October 16, 2006. The next docket entry indicates a second request for payment of appeal costs was sent to Aiken Dermatology’s attorney on January 8, 2007, and the certified return receipt was filed on January 12, 2007. Nothing further appears on the docket until March 1, 2010, when the trial court’s order dismissing the case for want of prosecution under the five-year rule was entered, and neither the record nor the docket show that the appeal was ever involuntarily dismissed by the trial court because of Aiken Dermatology’s failure to pay appeal costs. “Thus, the ‘sanction of res judicata which attaches to a final judgment from which a procedurally defective appeal is taken,’ suffered by the appealing party in Mitchell [and like cases], is not applicable. . . Hardwick, Cook, 184 Ga. App. at 823 (l). Because res judicata does not bar the relitigation of the fraud claim lost on summary judgment in the prior suit, the trial court’s order must be reversed.

DeCided March 9, 2012

Richard H. Middleton, Jr., for appellant.

Friend, Hudak & Harris, Michael S. Reeves, Benjamin M. Byrd, for appellee.

Judgment reversed.

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

       That the costs were not paid is undisputed.

       The trial court noted that it was incorporating this order by reference into the order that is at issue in the present case, and took judicial notice of the dockets of all four cases.

       We granted the application under the authority of Spivey v. Hembree, 268 Ga. App. 485, 486, n. 1 (602 SE2d 246) (2004), which provides that “[t]his Court will grant a timely application for interlocutory review if the order complained of is subject to direct appeal and the applicants have not otherwise filed a notice of appeal.”

       We note that a dismissal for want of prosecution under the five-year rule occurs automatically and does not require an order by the trial judge. Further, it is not an adjudication on the merits for res judicata purposes. OCGA § 9-11-41 (e); Goodwyn v. Carter, 252 Ga. App. 114, 115 & 116 (555 SE2d 474) (2001).

       Although we need not decide this issue here, we note that this case is also distinguishable from those cases where the procedurally defective appeal from a grant of partial summary judgment was taken pursuant to OCGA § 9-11-56 (h) since this appeal was initiated via an application for interlocutory review pursuant to OCGA § 5-6-34 (b), which “does not have the effect of making the judgment appealed from res judicata of the issue.” Mitchell v. Oliver, 254 Ga. at 114 (1). However, as noted in footnote 3, we granted this appeal on the basis that Aiken Dermatology had the right to file a direct appeal pursuant to OCGA § 9-11-56 (h), as is our practice, and thus it is arguable that to that extent this case would stand on the same footing as those cases where the “appellant machinery” has been put into motion via OCGA § 9-11-56 (h). However, because we decide this case on a different basis, it is not necessary for us to address the effect, if any, of that distinction here.