author: PHIPPS, Presiding Judge.

text:
    A13A0464.
    RUSSU v. THE STATE.
    (742 SE2d 511)
   PHIPPS, Presiding Judge.

In connection with her attempt to cash a $2,100 check, Olena Russu was charged with first degree forgery. A jury found her guilty, and she was granted first offender treatment and given a five-year, probated sentence. In this appeal, Russu argues that the evidence was insufficient to prove the intent element of the offense and that the trial court erred by rejecting her claim of ineffective assistance of trial counsel. We affirm.

1. When an appellant challenges the sufficiency of the evidence to support the conviction, “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.”

So viewed, the state’s evidence showed the following. At about 1:00 p.m. on June 28, 2010, Russu walked into a bank and presented to a teller the check at issue. The check was made payable to “Olena Russu.” Russu signed the back of the check, provided the teller with two forms of identification, and placed her thumb print on the check. Aspects of the check, however, raised bank employees’ suspicion of fraudulent activity. The bank manager placed a telephone call to the account holder, who told the bank manager that she had not authorized any such draft and instructed the manager not to honor the check.

The bank manager testified that, upon subsequent instruction from the bank’s corporate security personnel, she asked Russu how she had obtained the check, and Russu answered that her husband had remodeled the account holder’s kitchen and that the account holder had mailed the check to her husband.

Police were summoned. What Russu told the responding police officer about how she had obtained the check conflicted with what she had told the bank manager. The police officer testified that Russu told him that the “Daylight Company” had delivered the check to her via UPS. Upon further questioning by the officer, Russu stated that she was hired by that company to perform accounting and language translation work. Russu told the officer further that she did not know the account holder. The officer arrested Russu.

The state also called as a witness the account holder who testified that she had not written the $2,100 check and had not authorized the payment of any amount from her account to Russu. The account holder testified that neither Russu nor Russu’s husband had done any remodeling work in her kitchen and that she (the account holder) had met neither Russu nor her husband.

Russu was the sole witness for the defense. She claimed that, when she attempted to cash the check, she did not know that it was counterfeit. She also denied making any statement at the bank on the day in question that the check had been provided to her husband as payment for construction work he had performed for the account holder. Russu claimed at trial that she apparently was misunderstood at the scene, testifying that when the bank manager asked her about being in possession of the check, she responded that she wanted to call her husband, who was in the business of constructing kitchen counter tops.

At trial, Russu gave details about her background. She had been born in the Ukraine, where she had lived until age 25 and had earned an MBA in finance. Subsequently, she had lived and worked for several years in Italy, before moving to the United States in about 2004. Russu was thirty-five years old at the time of the January 2012 trial; she had earned in the United States an associate’s degree, and was expecting to graduate from an American college with a bachelor’s degree within a few months of the trial.

Russu gave this account of how she had come into possession of the check. As a result of having posted her resume on the Internet, she began exchanging e-mails with an individual claiming to be the human resources manager for a “travel company” named Daylight Tour. According to one such e-mail received by Russu, Daylight Tour was “an entity organized and existing under international laws, with its head office located... [in the country of] Italy.” Russu visited a website that the human resources manager identified as the company’s, read materials faxed to her by the human resources manager, submitted to a “face to face” interview with a Daylight Tour company representative over the Internet using a web-cam, and conducted her own Internet research using the search engine Google, finding no negative information about Daylight Tour. Prior to being hired, Russu was required to “prove [her] skills” by completing two unpaid assignments that involved bookkeeping and language translation.

Having thereafter accepted the company’s offer of employment as a “travel coordinator,” Russu was given her first task, which involved the check: the check would be delivered to Russu by UPS; when it so arrived, she had to cash it then send $2,000 by money order or cashier’s check to a company agent she did not know, but whose name was provided in an e-mail; and all components of the task had to be completed within four hours of the starting time of the task. (Russu had been told that her compensation for successful completion of the check task was approximately five percent of the check amount.)

On appeal, Russu contends that the state’s wholly circumstantial evidence of intent fell short of proving that she had the requisite criminal intent, maintaining that she was “dupe[d] in a scam seeking to take advantage of [her] burgeoning and naive familiarity with the United States.” Russu asserts that her trial testimony, as well as the evidence of her actions at the bank — signing her own name on the check, providing valid identification to bank personnel, and putting her thumb print upon the check — demonstrated that she had no knowledge that the account holder had not written the check.

At the time of the act for which Russu was prosecuted, OCGA § 16-9-1 (a) provided:

A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.

“Both knowledge and intent to defraud may be proven by circumstantial evidence.”

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”

[(Questions about the reasonableness of hypotheses are generally for the jury’s determination, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt, this Court does not disturb such finding unless the verdict of guilty is insupportable as a matter of law.

In the instant case, the evidence showed that Russu attempted to withdraw $2,100 from an account belonging to an individual she neither knew nor had any prior dealings with, using a check she claimed had been delivered to her from a source essentially unknown to her. Although Russu gave an account which she maintains explained her innocent possession of the check and her lack of knowledge that the check was a forgery, “[t]he jury was entitled to reject [Russu’s] explanation in favor of the circumstantial evidence of intent.” Indeed, under Farmer v. State, the circumstantial evidence was sufficient for the jury to conclude that Russu knew that the $2,100 check she presented to the bank’s personnel was forged. And “[k]nowingly passing as genuine a forged instrument is conclusive of the intent to defraud.” The jury’s guilty verdict was not unsupportable as a matter of law.

Contrary to Russu’s contention on appeal, a rational trier of fact could have found beyond a reasonable doubt that she was guilty of first degree forgery.

2. Russu contests the trial court’s rejection of her claim of ineffective assistance of trial counsel.

To prevail on an ineffectiveness claim, a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Both the performance and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact. In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review the trial court’s legal conclusions de novo.

Russu complains that the jury was never shown the arresting police officer’s incident report, claiming that her trial lawyer should have used the document to impeach the officer’s credibility. She asserts that her trial lawyer either should have published the report to the jury as an impeaching document while the officer was on the stand or should have insisted that it be shown to the jury when it asked to see the report during deliberations.

Russu points out that the officer initially testified that she had given him conflicting accounts at the scene about how she had gained possession of the check. On direct examination, the prosecutor asked the officer, “So the first thing [Russu] told you was that her husband had done services and this was payment for his services?” He answered, ‘Yes, ma’am.” The prosecutor questioned the officer about the details of the bank scene and about Russu’s demeanor, before returning to: “As the conversation with her went on, did her story change?” The officer responded, ‘Yes, ma’am, it did,” elaborating that “later on in the conversation she told me specifically that she was being paid for accounting work and for being a translator.”

Russu points out further that the officer’s incident report, which Russu introduced as an exhibit at the new trial hearing, did not include any statement that Russu had told the officer any conflicting accounts about how she had obtained the check. Rather, the officer had recited therein:

When attempting to get the check cashed, Russu stated that her husband worked on a kitchen and received the check as payment for the services provided.... I met with Russu ... [and] asked Russu to explain how she obtained the check that she attempted to cash. Russu stated that she received the check ... by UPS from “Daylight Company” for her work....

The report itself, Russu urges on appeal, would have deflated the officer’s credibility with the jury. That is, the report would have “canceled out the officer’s prejudicial testimony of [her] alleged conflicting statements.”

At the new trial hearing, Russu asked her trial lawyer why he had not introduced in evidence the police report. He answered:

Well, in general I don’t think police reports are helpful to the defendant’s case when they’re introduced in their entirety since they’re created by an officer with adverse interest to my client. That’s why I didn’t introduce it. I tried to get the point across to the jury that his report was inconsistent with what he was testifying to. But I didn’t feel any need to introduce the entire report because I felt like that wouldn’t be helpful to us— [Tjhere probably would have been just as much hurt as to help. I mean I tried to get across to the jury that his report was inconsistent with what he was saying. But if the report had come in, it also includes the rest of the information about her behavior at the bank which was not helpful.

Hence, when Russu’s trial lawyer was later asked at the new trial hearing why he had not sought to show the jury the police report when it asked to see it during deliberations, he reiterated the position he had taken.

Indeed, the trial transcript shows that, on cross-examination, Russu’s trial attorney elicited the officer’s testimony that his report did not include any statement that Russu had told him that the check was payment for work performed by her husband. And more specifically, the attorney elicited the officer’s testimony that his report contained the statement: “When attempting to get the check cashed, Russu stated that her husband worked on a kitchen and received the check as payment for the services provided.” The attorney clarified through additional testimony elicited from the officer that that statement was based entirely on what banking personnel had told him once he arrived at the scene. The trial transcript shows further that, during closing argument, Russu’s trial lawyer revisited the issue, positing that there was “some doubt about... whether [Russu] told a different story.” Thus, as a result of Russu’s trial lawyer pursuing this line of cross-examination, then following up during closing argument, the jury was apprised and reminded of the discrepancy Russu cites on appeal as between the officer’s direct testimony (that Russu told him “conflicting” accounts) and the officer’s own incident report (that did not state that Russu told him a conflicting account).

Plainly, the alleged deficiencies in Russu’s trial counsel’s performance were decisions made as matters of trial strategy. Although Russu’s trial lawyer did not pursue the specific tactics of impeachment she cites on appeal, given the foregoing, Russu did not overcome the strong presumption that the tactics employed by her trial lawyer fell within a wide range of reasonable professional assistance.

Decided May 2, 2013.

Douglas N. Fox, for appellant.

Daniel J. Porter, District Attorney, Teresa B. Klein, Jennifer G. Hendee, Assistant District Attorneys, for appellee.

Finally, Russu has shown no reasonable probability that, but for the fact that the jury did not see the police officer’s report itself, the outcome of her trial would have been different. The jury was informed by the officer himself of what Russu cites as the salient points: despite the officer’s testimony on direct examination, the police officer’s report contained no statement that Russu had made conflicting stories to the officer and she had not given the officer two conflicting accounts of how she had obtained the check. Nevertheless, the jury was presented other evidence that Russu had given conflicting accounts as to how she had obtained the check. The bank manager testified that Russu had claimed to her that the check was in payment for her husband’s construction work. Russu, however, testified that the check had been sent to her as payment for her own work at “Daylight Tour,” which account was presented to the jury also through the officer. In light of these circumstances, Russu failed to demonstrate the requisite prejudice based upon trial counsel’s decision not to show the jury the officer’s incident report.

The trial court did not err in rej ecting Russu’s claim of ineffective assistance of trial counsel.

Judgment affirmed.

Ellington, C. J., and Branch, J., concur.

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

       OCGA § 16-9-1 (a) (2010).

        Collins v. State, 258 Ga. App. 400, 401 (1) (574 SE2d 423) (2002) (punctuation and footnote omitted).

       OCGA § 24-4-6 (2012). “Georgia adopted a new Evidence Code effective January 1, 2013.” Leslie v. State, 292 Ga. 368, 369 (2) (a), n. 3 (738 SE2d 42) (2013). See Ga. L. 2011, pp. 99, 214, § 101 (providing that the new Evidence Code “shall apply to any motion made or hearing or trial commenced on or after [January 1, 2013]”). Russu’s trial was held in 2012.

        Bryant v. State, 282 Ga. 631, 634 (1) (651 SE2d 718) (2007) (citation omitted).

        Connor v. State, 268 Ga. 656, 657 (1) (492 SE2d 669) (1997) (citation omitted); see Vaughn v. State, 301 Ga. App. 391, 392 (687 SE2d 651) (2009) (“It is the jury’s prerogative to choose what evidence to believe and what to reject. Issues regarding the credibility of witnesses are in the sole province of the jury and only the jury may analyze what weight will be given each witness’s testimony.”) (citation and punctuation omitted).

       276 Ga. App. 443 (623 SE2d 545) (2005).

       Id. at 444-445 (1) (rejecting claim that circumstantial evidence of criminal intent was insufficient to sustain first degree forgery conviction, where defendant cashed a $2,335.75 check and an $1,800 check made payable to him, the account holder was a construction company for which defendant had never worked, where checks had been provided to defendant by a man he had recently met and knew only as “Greg”; and finding no basis in claim that criminal intent was not established for reason that, when cashing the checks, the defendant had used his own name, supplied his valid identification, and placed upon the checks his thumb print).

        Matula v. State, 264 Ga. 673, 675 (2) (449 SE2d 850) (1994) (citation and punctuation omitted); see Crowder v. State, 218 Ga. App. 630, 632 (2) (462 SE2d 754) (1995).

       See Farmer, supra.

       See Jackson, supra; Farmer, supra.

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

        Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003).

        Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000).

       Id. at 88 (4).

        See Payne v. State, 289 Ga. 691, 697 (3) (b) (715 SE2d 104) (2011) (decisions about what questions to ask on cross-examination are quintessential trial strategy); Washington v. State, 276 Ga. 655, 659 (3) (a) (581 SE2d 518) (2003) (manner in which an attorney attacks the credibility of a witness falls within amhit of trial tactics).

       See Strickland, supra at 689 (III) (A) (a court must indulge a strong presumption that counsel’s conduct falls within wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy); Farris v. State, 290 Ga. 323, 326 (3) (720 SE2d 604) (2012) (same); Battise v. State, 295 Ga. App. 833, 839-840 (2) (f) (673 SE2d 262) (2009) (rejecting claims that trial counsel was ineffective for not impeaching witness with specific evidence).

       See Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009) (setting forth the appropriate test for determining prejudice: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”), quoting Strickland, supra at 694 (III) (B).


source: Caselaw Access Project

license: Public Domain

text:
    A13A0711.
    HUDSON v. THE STATE.
    (742 SE2d 516)
   PHIPPS, Presiding Judge.

Anthony Rudyard Hudson was charged with having committed criminal trespass, by entering the premises of another person after he had received notice that such entry was forbidden. A jury returned a guilty verdict, and a judgment of conviction was entered thereon. In this appeal, Hudson challenges the admission of certain evidence and the propriety of a jury instruction. We affirm.

The state presented the following evidence at trial. The premises at issue was a hair salon that was owned and operated by a woman with whom Hudson had fathered a child out of wedlock. The child was born in 2008 or 2009. In October 2009, a superior court denied Hudson’s petition to obtain rights to the child. And as of the date of the criminal trespass, February 1, 2012, Hudson had not legitimated the child, had not obtained legal custody of her, and had not secured any visitation rights. While the child’s mother had initially allowed Hudson to spend time with their daughter, around September 2011, she abruptly ended the visitations for reasons not disclosed at trial.

Hudson embarked upon a public protest at or near the woman’s salon. On September 29, 2011, while working inside her salon, the child’s mother was informed by a customer that Hudson was standing outside, less than 50 yards away, displaying a sign. The woman went outside and discovered Hudson standing where described and holding a sign with language: “Boycott [salon] for cruelty to her father and daughter, call the bitch, [salon’s telephone], poison her baby.” The woman took pictures of Hudson and his sign, which were shown to the jury. The woman called the police, but when police arrived, neither Hudson nor his sign could be located.

According to the salon owner, Hudson made numerous visits to her salon’s parking lot or breezeway, sometimes three or four days a week, despite her repeated and emphatic pleas to him not to return to the property. Hudson displayed signs and handed out fliers to individuals passing by, placed fliers on vehicles parked in the salon’s parking lot, strewed fliers onto the floor of the breezeway leading from the parking lot to the salon, and jammed fliers into the salon’s doorway. The salon owner collected many of the fliers, examples of which were shown to the jury. The fliers depicted the salon owner’s face, and contained language such as “Owner of [salon name],” “child abuser,” and “SPERM THIEF”; the fliers also included language such as: “FETAL TORTURE,” and “¡Domestic Terror!”; and the fliers accused the salon owner of having “poisoned baby [their child’s name],” and of having “filed false charges to keep baby’s daddy from protecting his child.”

The woman testified that, although Hudson continued to come to her salon, the breezeway, the parking lot, and the general area of her business, she typically did not call police unless Hudson entered the salon. On December 30, 2011, Hudson walked into her salon without her permission. This time, he tried to take their daughter away from the salon. She dialed 911 for police. The salon owner testified that she had sole physical and legal custody of the child; and on that day, she repeated to Hudson that he was supposed to stay away from her and the child and leave them alone. Hudson spoke a few words to the child, then walked briskly out the door.

When an officer arrived, Hudson returned to the salon. The salon owner provided at trial this account of what unfolded. Emphatically, she told the officer of Hudson’s persistent visits to or near the premises of her business, that she had repeatedly told him not to return, that she previously had called police about Hudson’s ongoing and escalating conduct, that she did not want Hudson on the premises of her business, and that she wanted law enforcement to somehow protect her and the child from Hudson. Hudson, however, insisted to the officer that he had legal rights to the child. Thus, the officer advised the woman that he would give Hudson the benefit of the doubt. Thereupon, the officer issued Hudson an oral warning not to come back to the premises unless he had with him documented proof of his right to be there; otherwise he was going to jail.

The police officer who responded to the 911 call that day gave a similar account. He arrived at the salon and was met by a woman who reported that Hudson had come to her workplace and tried to get their daughter to leave with him, but that he had no visitation rights. Based on the woman’s description of Hudson, the officer realized that, while traveling to the scene, he had seen Hudson about three blocks away; Hudson was displaying some type of sign. While the officer was at the salon, Hudson returned and told the officer that he had been at that location trying to get his child because the child’s mother had been refusing to permit him visits. But the woman was complaining that she did not want Hudson at her place of business again. The officer testified that he thereupon issued Hudson an oral criminal trespass warning with regard to that business location. Elaborating, the officer testified that he told Hudson in no uncertain terms that he was not to come back to that particular address and that, if he returned, he would go to jail; Hudson responded that he understood.

But on February 1, 2012, Hudson again went inside the salon, even though he had not been invited back there. He announced to the owner that he was there to see his child. She grabbed her phone and called the police. As she was explaining her emergency to the 911 operator, Hudson dashed out of the salon. Based on that entry upon the premises, Hudson was arrested and tried for criminal trespass.

Hudson called no witnesses, but took the stand. He conceded going inside the salon on February 1, acknowledging that a court in one county had denied his legitimation petition and explaining that he nevertheless wanted to see his child and wanted further to discuss with his child’s mother a legitimation petition he was planning to file in a different county. She had responded by calling police. Hudson characterized his relationship with his child’s mother as strained, and his visits with their daughter as sporadic; but he denied that either the child’s mother or any police officer had ever told him not to go to her place of business. His September 29 visit to the area of the salon was admittedly to protest what he saw as mistreatment of his daughter. Hudson testified that he was similarly protesting on December 30, and that, while he had told the police officer questioning him that day that he had no official legitimation document, the officer did not tell him not to return to the salon.

1. Hudson asserts that the trial court erred by allowing the state to show the jury fliers he had distributed and a picture of the sign he had displayed, asserting that the evidence was more prejudicial than it was probative.

Evidence of prior difficulties, such as the sign and fliers in this case, is ordinarily “admissible to show that past actions may be indicative of the defendant’s actions at the time of the offense charged.” As has been repeatedly held:

Evidence of prior difficulties between a defendant and a victim is generally admissible when the crime charged was perpetrated against the victim and the evidence demonstrates: (1) the relationship between the defendant and victim, and (2) the defendant’s motive, intent or bent of mind.

The images and language incorporated into the sign and fliers that Hudson displayed or distributed concerning his child’s mother at or near her workplace “most certainly demonstrated the state of the relationship between [Hudson] and [his child’s mother],” and were “highly relevant” to show his “abusive bent of mind toward her.” Hudson’s bare assertion that the evidence should have been excluded as unduly prejudicial falls short of demonstrating abuse of discretion.

2. Hudson contends that the trial court erred by charging the jury on the custody of children who have not been legitimated.

At the charge conference, the judge proposed giving a “charge on legitimation and the rights of a father to a child who has not been legitimated, which are none.” Hudson’s attorney objected, asserting that the issue was not related to a criminal trespass prosecution and that the instruction would only confuse the issues for the jury. The judge overruled the objection, thereafter charging the jury: “[0]nly the mother of a child born out of wedlock is entitled to custody of the child unless the father first legitimates the child as provided by Georgia law. Otherwise, the mother may exercise all parental power over that child.”

“To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge.” In the instant case, whether Hudson was authorized to enter the premises based upon a legal right he had to the proprietor’s child was raised by the trial evidence. Moreover, the charge given to the jury was a correct principle of law. But even if the evidence adduced at trial was insufficient to authorize a charge on that principle, then “[t]he true question is whether an abstractly correct charge not authorized by the evidence is calculated to confuse and mislead the jury. Where it is obviously highly probable that the error, if existing, did not contribute to the verdict, a reversal will not result.” Viewed in its entirety, the final charge was not likely to confuse the jury regarding Hudson’s guilt or innocence of the charged offense of criminal trespass. We discern no basis for reversal.

Decided May 2, 2013.

Lister & Holt, Mercedes G. Ball, for appellant.

TashaM. Mosley, Solicitor-General, SharlettaK. Mahone, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Ellington, C. J., and Branch, J., concur.

       OCGA § 16-7-21 (b) (2) (“Aperson commits the offense of criminal trespass when he or she knowingly and without authority . . . [e]nters upon the land or premises of another person ... after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden.”).

       See generally Temple v. State, 238 Ga. App. 146, 147 (2) (517 SE2d 850) (1999) (noting that “prior difficulties between the parties are not independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus”).

        Hill v. State, 243 Ga. App. 124, 125-126 (2), n. 2 (532 SE2d 491) (2000).

        Tuff v. State, 278 Ga. 91, 92 (2) (597 SE2d 328) (2004) (footnote omitted); Quintero v. State, 279 Ga. App. 497, 498 (631 SE2d 723) (2006) (citation omitted). See Brady v. State, 270 Ga. 574, 578-579 (5) (a) (513 SE2d 199) (1999) (“Although motive is not an essential element in proving the crimes charged, the State is entitled to present evidence to establish that there was a motive.”).

        Quintero, supra; see Appling v. State, 246 Ga. App. 556, 557 (541 SE2d 129) (2000).

       See Brooks v. State, 281 Ga. 514, 517 (3) (640 SE2d 280) (2007) (“The admission of relevant evidence that is challenged on the basis that its probative value is outweighed by its prejudicial impact is within the sound discretion of the trial court.”) (punctuation omitted).

        Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998) (citation omitted).

       See OCGA § 19-7-25 (“Onlythe mother of a child born out of wedlock is entitled to custody of the child, unless the father legitimates the child as provided in Code Section 19-7-21.1 or 19-7-22. Otherwise, the mother may exercise all parental power over the child.”).

        Neal v. State, 290 Ga. 563, 566 (3) (722 SE2d 765) (2012) (citations and punctuation omitted).

         See generally Rojas v. State, 280 Ga. 139, 140-141 (4) (625 SE2d 750) (2006); Sherrod v. State, 157 Ga. App. 351, 352 (3) (277 SE2d 335) (1981) (“Harmful error results when an inapplicable instruction might reasonably draw the jury away from the true issues in dispute or if the erroneous instruction is inapplicable to a vital issue in the case.”) (citation and punctuation omitted).


author: Miller, Judge.

text:
    A13A0117.
    HARRELL v. THE STATE.
    (742 SE2d 521)
   Miller, Judge.

Following a jury trial, Clifton Commodore Harrell was convicted of seven counts, Count 1, armed robbery (OCGA § 16-8-41); Count 2, aggravated assault with intent to rob (OCGA § 16-5-21); Count 3, aggravated assault with a knife (OCGA § 16-5-21); Count 4, robbery by force and intimidation (OCGA § 16-8-40); Count 5, battery (OCGA § 16-5-23.1); Count 6, possession of a knife during the commission of a felony (OCGA § 16-11-106); and Count 7, contributing to the delinquency of minor Whitney Bonds (OCGA § 16-12-1). Harrell filed a motion for new trial, which was partially denied. On appeal, he contends that the evidence was legally insufficient and that the trial court violated OCGA § 17-8-57 by cross-examining a witness and intimating to the jury her opinion of the witness’s credibility. We reverse the conviction of armed robbery, affirm the legal sufficiency of the evidence on the remaining counts, remand to the trial court for resentencing, and find no error in the trial court’s questioning of the witness.

In weighing the sufficiency of the evidence, this Court construes the evidence at trial, and all reasonable inferences from it, most strongly in favor of the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. Brown v. State, 293 Ga. App. 633-634 (667 SE2d 899) (2008). We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Id.

So viewed, the evidence showed that Johnny Monroy moved to Rome in July 2011 to assist his aunt in managing her recently purchased market. He met Whitney Bonds, who is appellant Harrell’s niece, a few weeks later. Although Bonds told him she was 18, she was 16. The two exchanged phone numbers and became friends. Sometime in November, Monroy texted a picture of cash from his aunt’s market to Bonds, in an effort to impress her.

On November 21, Monroy and Bonds drove around and hung out together. When Monroy returned to the car after buying dog food, Bonds suggested that they pick up Bonds’s friend and go to a party. They proceeded to a Citgo station and picked up Christina Gettrost.

Earlier that evening, Gettrost, Harrell, and co-defendant Phillip Johnson had been riding around when Harrell began talking on his cell phone about planning to rob Monroy. After Gettrost got into the truck with Monroy and Bonds, she and Bonds directed Monroy to a park around 10:30 or 11:00 p.m. On the way to the park, Bonds and Gettrost sent text messages to Harrell informing him of their actions. Upon arriving at the park, Monroy noticed another vehicle parked there, with its lights off. Although Monroy started to drive off a couple of times, Bonds and Gettrost kept telling him to stay. When Monroy had parked the truck, Gettrost reached over and pulled the keys out of the ignition. Harrell and Johnson then walked up to the truck, and Johnson yanked Monroy out of the truck. Harrell and Johnson then began verbally berating Monroy and pushing and punching him. Monroy felt someone going through his pockets and removing his wallet. Then, Harrell and the others began to kick Monroy while he was on his stomach on the ground.

As Monroy attempted to get up, Harrell pulled a knife on him, telling him not to move or he would cut him. When Monroy tried to move again, Harrell held the knife close to his face, stating “I’ll kill you.” Monroy heard one of the young women say to throw his truck keys and cell phone away because he would call the cops. After Harrell and the others left, Monroy proceeded to a road where he waved down a man who called police. Monroy suffered a split lip and bruising on his face. Monroy was robbed of $1,000 in cash, along with his keys and cell phone. The keys and cell phone were found by officers near the park’s boat ramp. Bonds, Gettrost, Harrell and Johnson proceeded to another location where Harrell divided up the money among them.

1. In his first enumeration, Harrell contends, and the State agrees, that the evidence was insufficient to support the conviction of armed robbery because Harrell did not use the knife prior to or contemporaneously with the taking of the money, but rather in assaulting Monroy after his wallet had been taken. The evidence confirms that Harrell did not commit armed robbery because OCGA § 16-8-41 (a) “clearly contemplates that the offensive weapon be used as a concomitant to a taking which involves the use of actual force ... against another person.” (Citation and punctuation omitted.) Johnson v. State, 288 Ga. 771, 773 (1) (a) (707 SE2d 92) (2011). Therefore, Harrell’s conviction of armed robbery is reversed, and this case is remanded for resentencing on the remaining counts.

2. Harrell’s second enumeration is that the trial court improperly commented on the evidence and the credibility of Gettrost, thereby violating OCGA § 17-8-57. We disagree.

“It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” OCGA § 17-8-57.

Harrell’s argument is focused on the trial court’s questioning of Gettrost about her relationship with Bonds prior to the incident at issue and the chronology of the events of the evening. As Gettrost acknowledged during her direct examination by the State, she was less than forthcoming during her interview with the detective and told several different versions of what occurred that night. The detective testified concerning his lengthy interview of Gettrost, the inconsistencies in her testimony, and his opinion that she was trying to protect co-defendant Johnson. Following Harrell and Johnson’s cross-examinations of Gettrost, the trial court asked the questions of which Harrell complains. The trial court’s questions were directed at clarifying how Gettrost became involved in the situation and how the idea of the robbery originated.

Decided May 3, 2013.

Robert C. Rutledge, for appellant.

Leigh E. Patterson, District Attorney, Kay A. Wetherington, Assistant District Attorney, for appellee.

A trial court may propound questions to a witness in order to develop the truth of a case or to clarify testimony. Finley v. State, 286 Ga. 47, 51-52 (9) (685 SE2d 258) (2009); Bush v. State, 317 Ga. App. 439, 441-442 (2) (731 SE2d 121) (2012). The extent of such an examination is a matter for the trial court’s discretion. Finley v. State, supra; see also Littlejohn v. State, 320 Ga. App. 197, 203 (2) (739 SE2d 682) (2013).

Having reviewed the transcript here, the trial court’s questions to Gettrost did not express or intimate an opinion on the evidence or on Harrell’s guilt. Accordingly, no violation of OCGA § 17-8-57 occurred.

3. Finally, Harrell contends that the evidence of his guilt of the remaining offenses is legally insufficient. We disagree.

As set out above, viewed in favor of the jury’s verdict, the evidence was more than sufficient to convict Harrell of the remaining charges against him: Count 2, aggravated assault with intent to rob; Count 3, aggravated assault with a knife; Count 4, robbery by force and intimidation; Count 5, battery; Count 6, possession of a knife during the commission of a felony (robbery and aggravated assault); and Count 7, contributing to the delinquency of minor Whitney Bonds.

Judgment affirmed in part and reversed in part, and case remanded with direction.

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

       In partially granting his motion for new trial, the trial court amended its sentence to merge Counts 3, 4, 5, and 6 into Count 1.

       Bonds, a juvenile, and Gettrost were charged as co-defendants in the indictment. Gettrost pled guilty to robbery and testified against Harrell. Another co-defendant, Phillip Johnson, was tried with Harrell.

       Although defense counsel failed to object to the trial judge’s questions, that failure did not waive the issue on appeal. See State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010). In the context of OCGA § 17-8-57, the issue on appeal is simply whether there was a violation of the statute. See id.

       Harrell’s contention that the trial court’s reference to Monroy as “victim” on two occasions violates the statute is unavailing, because Gettrost had repeatedly referred to him as “victim” during her direct and cross-examinations.


author: Ellington, Chief Judge.

text:
    A13A0209.
    ANDERSON v. ATLANTA INDEPENDENT SCHOOL SYSTEM.
    (742 SE2d 524)
   Ellington, Chief Judge.

Winnie Anderson, a former employee of the Atlanta Public Schools (formally known as the Atlanta Independent School System) (“the system”), brought this breach of contract action against the system in the Superior Court of Fulton County. Days before a trial was scheduled to commence, the parties’ counsel of record reached a settlement in principle, and so advised the trial court. Over the next two weeks, the parties exchanged drafts of a Release Agreement; the system accepted Anderson’s final proposed changes on or about November 11, 2009. Months later, the trial court entered the following order:

The Court, having been advised by Counsel that [Anderson’s] action has been settled [in principle], hereby order that this action shall stand dismissed within 30 days of this date unless either party, with good cause, moves that this action should not be dismissed, but should be allowed to proceed upon such basis as is shown in said motion if so ordered by this Court.

Within 30 days of that order, Anderson moved that her action should not be dismissed, asserting that her attorneys lacked her authority to settle her claims, and she sought to proceed to a resolution of the merits of her suit. In response, the system moved to enforce the settlement. Finally, the trial court entered the appealed order, which granted the system’s motion to enforce the settlement, based on the absence of any evidence that Anderson limited her counsel’s apparent authority to settle her claims or that her counsel communicated to the system’s counsel any such limitation of their authority. The trial court did not recite the terms of the settlement agreement in the final order, but attached the draft Release Agreement first proposed by Anderson’s counsel. It is undisputed that, as finally accepted by the system, the settlement agreement had been revised, inter alia, to exclude, from the parties whom Anderson released from her claims, the Teachers Retirement System of Georgia and to omit any release by the system. See Torres v. Elkin, 317 Ga. App. 135, 140-141 (2) (730 SE2d 518) (2012) (“[Settlement agreements must meet the same requirements of formation and enforceability as other contracts. Thus, an answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. The offer must be accepted unequivocally and without variance of any sort. [When] a purported acceptance of [a] settlement offer imposes any new conditions, it constitutes a counteroffer rather than an acceptance.”) (punctuation and footnotes omitted).

Decided May 3, 2013.

Jacqueline K. Taylor, for appellant.

Carlock, Copeland & Stair, Michael J. Walker, for appellee.

Because the trial court failed to specify the terms of the Release Agreement in its final judgment, and attached only an offer of settlement that had been rejected when the system counter-offered, we are unable to perform any meaningful appellate review of the propriety or the effect of the court’s final judgment. Accordingly, the judgment is vacated, and this case is remanded to the trial court for the necessary clarification of its judgment.

Judgment vacated and case remanded.

Phipps, P. J., concurs. Branch, J., concurs in judgment only.

       Following the trial court’s conditional dismissal order, the trial court permitted Anderson’s attorneys of record to withdraw, and new counsel filed Anderson’s motion.

       Under Georgia law,
      an attorney of record has apparent authority to enter into an agreement on behalf of his client].] ... The authority may be considered plenary unless it is limited by the client and that limitation is communicated to opposing parties. Therefore, from the perspective of the opposing party, in the absence of knowledge of express restrictions on an attorney’s authority, the opposing party may deal with the attorney as if with the client, and the client will be bound by the acts of his attorney within the scope of his apparent authority. The client’s remedy, where there have been restrictions not communicated to the opposing party, is against the attorney who overstepped the bounds of his agency, not against the third party.
      (Citations, punctuation and footnote omitted.) Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 674-675 (308 SE2d 544) (1983).

       We note that the trial court indicated that “[the] Defendant^ that is, the system,] moved for attorney fees for bringing this motion [to enforce the settlement]” and that it reserved ruling on the system’s motion for attorney fees. Although the system asked that “the costs of bringing this motion [to enforce settlement] be taxed against [Anderson,]” we find no such formal motion for attorney fees in the appellate record.


author: MCMILLIAN, Judge.

text:
    A13A0285.
    THE STATE v. BACHAN.
    (742 SE2d 526)
   MCMILLIAN, Judge.

By indictment, the State charged Shaun Michael Bachan with felony theft by taking, OCGA § 16-8-2, for unlawfully taking the statue of Bre’r Rabbit from the Uncle Remus Museum in Eatonton, Georgia. The trial court subsequently dismissed the indictment, and the State appeals. See OCGA § 5-7-1 (a) (1); State v. Henderson, 283 Ga. App. 111, 112 (1) (640 SE2d 686) (2006). For the reasons set forth below, we reverse the trial court’s dismissal of the indictment.

Because the issue before us is a question of law, we do not owe deference to the trial court’s ruling, and we apply the “plain legal error” standard of review. See State v. Brooks, 301 Ga. App. 355, 356 (687 SE2d 631) (2009); State v. Carr, 287 Ga. App. 691, 692 (652 SE2d 597) (2007).

The record shows that in early October 2011 Bachan waived arraignment and entered a plea of not guilty to felony theft by taking. In early November 2011, Bachan’s three co-defendants entered non-negotiated guilty pleas to misdemeanor theft by taking pursuant to the First Offender Act and were sentenced to community service and joint restitution for repairing the museum’s statue and for restoring the courthouse lawn rabbit if so desired by the county. Bachan, a citizen of another country, was not present in court because he was in another state addressing his residency status with the United States Immigration Service, and his attorney requested that he be given the opportunity to enter a plea at a later date.

In April 2012, Bachan’s attorney filed a request to enter a plea in absentia. In his sworn statement, Bachan explained he was residing outside of the country and could not come back without permission from the United States Immigration Service. He was waiting on approval for permanent residency in the United States, which could take up to eight years. Bachan asked the trial court to accept his guilty plea in absentia to misdemeanor theft by taking pursuant to the First Offender Act, accept his cash bond of $1,000, and suspend any sentence.

In mid-August 2012, during an unrecorded bench conference with the State and Bachan’s attorney regarding his request to enter a plea in absentia, the trial court, sua sponte, forfeited his cash bond and dismissed the indictment against him. The trial court asked Bachan’s attorney to draft an order memorializing its ruling, which specifically held:

[t] his matter . . . regarding pending criminal charges on [Bachan], who is currently a non-citizen of this country, and in his native country of Trinidad, and it appearing that he will not be entitled to return to the United States due to his immigration status for some years, and that the State has no plans to retrieve [Bachan] from his native country, and it further appearing that the State had been recommending a first offender misdemeanor plea in this matter, with community service, and that the continued pendency of this matter for years does not serve justice or administration of the Courts, and that [Bachan] is content to have this Court forfeit the bond in this matter, it is hereby ORDERED AND ADJUDGED that the cash bond in this matter of $1000.00 be forfeited, and thereafter, the pending charges against [Bachan] be dismissed.

Decided May 3, 2013.

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellant.

Brenda H. Trammell, for appellee.

The State appeals, arguing the trial court erred by dismissing the indictment without legal cause before any evidence was presented before it.

We agree the trial court erred by sua sponte dismissing the indictment. “ ‘In the district attorney’s role as an administrator of justice, he or she has broad discretion in making decisions prior to trial about [whom] to prosecute, what charges to bring, and which sentence to seek.’ ” (Citation omitted.) State v. Perry, 261 Ga. App. 886, 887 (583 SE2d 909) (2003). But the trial court may dismiss charges on its own accord in limited circumstances. A trial court abuses its discretion in dismissing a criminal charge when it “interferes with the State’s right to prosecute ... without a legal basis to do so.” State v. Brooks, 301 Ga. App. at 359. See State v. Perry, 261 Ga. App. at 887-888.

A trial court generally is authorized to dismiss an indictment when there is a defect on the face of the indictment. See State v. Carr, 287 Ga. App. at 692. There has been no argument by Bachan that there was a defect on the face of the indictment, and we find none. Moreover, the trial court has discretion to dismiss criminal charges without prejudice for want of prosecution. See State v. Brooks, 301 Ga. App. at 359. Here, Bachan’s case had not been called to trial and had not been placed on any calendar at which the State would have been required to present evidence. Instead, the indictment was dismissed following a bench conference at which the requested plea in absentia was apparently discussed. We find that a delay in Bachan being able to appear in court “for years” due to his immigration status does not provide any legal basis for dismissing the indictment and deprives the State of its right to present its case against Bachan. See State v. Perry, 261 Ga. App. at 887. Accordingly, we find the trial court erred and reverse.

Judgment reversed.

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

       The State’s recommendation included either first offender status for felony theft by taking with two years probation or misdemeanor theft by taking without first offender status with a $1,000 fine, community service, and an apology letter. Defense counsel asked for first offender status for misdemeanor theft by taking.


text:
    A13A0663.
    BUCKNER v. THE STATE.
    (742 SE2d 528)
   Ellington, Chief Judge.

A Spalding County jury found Christopher Buckner guilty of trafficking in a controlled substance, MDMA (“Ecstasy”), a violation of OCGA § 16-13-31.1 (l). Buckner appeals from the order denying his motion for a new trial, contending that the evidence was insufficient, that his trial counsel was ineffective, and that the trial court erred in admitting his statement and in refusing to give a jury charge on equal access. Finding no reversible error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record reveals the following relevant facts. On April 28, 2007, while patrolling Interstate 75 in Spalding County, a Spalding County deputy noticed a car following a truck too closely. The deputy stopped the driver of the car, Buckner, with the intention of issuing him a warning. Buckner’s girlfriend and her three-year-old child were in the back seat. The deputy testified that Buckner seemed very nervous and that he was breathing heavily and kept moving back and forth. While his partner was writing up the warning citation, the deputy asked Buckner for permission to search the car. Buckner responded by repeatedly stating that “we’re church people; we don’t mess around” and “we sing in a church band,” which the deputy found suspicious. The deputy got his drug dog from his patrol car, walked the dog around Buckner’s car, and the dog alerted on the driver’s side door. The deputy then radioed for assistance.

Two deputies searched the car. One found a black plastic bag hidden beneath the passenger-side front seat. The bag contained 490 pills which tested positive for MDMA, which is also known by the street name “Ecstasy.” The total weight of the pills was 142.84 grams. A deputy testified that, before anyone questioned Buckner about the drugs, he volunteered that his girlfriend knew nothing about them. Moreover, he even offered to be an informant in exchange for leniency. Buckner later signed a written statement that his girlfriend “had absolutely nothing to do with the ecstasy pills seized from the vehicle.” He also testified at trial that he did not believe that his girlfriend “had anything to do with” the drugs. However, Buckner insisted that one of the two officers who searched his car must have planted the drugs, and that he gave the written statement because the officers coerced him into doing so. Portions of the 40-minute video recording of the traffic stop and search were played for the jury.

1. Buckner contends that the trial court committed plain error in admitting his inculpatory statements without first conducting a hearing outside the presence of the jury to determine the voluntariness and admissibility of those statements.

Although defense counsel filed a generic “Motion to Suppress” the contraband seized from Buckner’s car, including “all statements and testimony concerning the alleged contraband,” Buckner’s primary basis for suppression (and the only argument pursued in the hearing) was that the evidence was illegally seized in Henry County as opposed to Spalding County. Buckner did not file a motion in limine or request a Jackson-Denno hearing, and nothing in his motion to suppress identifies any particular statement that he contends was inadmissible on the ground now asserted, that is, that it was involuntarily made. Moreover, counsel did not object to the introduction of Buckner’s statements at trial. Rather, Buckner elected to testify on his own behalf, taking the position that the statements were coerced. Under the circumstances of this case, “[d]ue process does not require a voluntariness hearing absent some contemporaneous challenge to the use of the [statement].” (Citations and punctuation omitted; emphasis in original.) Gamble v. State, 235 Ga. App. 777, 783 (5) (510 SE2d 69) (1998). Having failed to make that challenge, any error is waived. Id.

Nevertheless, Buckner asserts that this Court should apply the plain error standard of review due to the alleged magnitude of the constitutional error. However, because Buckner was tried in 2008, the plain error analysis does not apply. As the Supreme Court of Georgia has explained, in appeals from criminal cases tried before January 1, 2013, plain error review is limited

to alleged error in three circumstances: the sentencing phase of a trial resulting in the death penalty, a trial judge’s expression of opinion in violation of OCGA § 17-8-57, and a jury charge affecting substantial rights of the parties as provided under OCGA § 17-8-58 (b). See Williams v. State, 291 Ga. 501 (2) (732 SE2d 47) (2012) (citing cases). The new Evidence Code will change this rule in cases tried after January 1, 2013, allowing a court to consider plain errors “affecting substantial rights although such errors were not brought to the attention of the court.” OCGA § 24-1-103 (d); Williams, 291 Ga. at 505 (2).

Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012). Because, under the circumstances, plain error review does not apply to the instant allegations regarding the improper admission of evidence, it provides no basis for concluding that the trial court committed reversible error in allowing the testimony. See id.

2. Buckner contends that the trial court’s refusal to give his written request to charge on the law of equal access constitutes reversible error. We disagree. There was no evidence offered at trial demonstrating that anyone else had access to the drugs seized. Buckner testified that his girlfriend had nothing to do with the drugs that were in the car — a statement from which, incidentally, the jury could reasonably infer that Buckner was aware of their presence. Further, the State did not rely on Buckner’s ownership of the car to establish possession, and the jury was not charged on that presumption.

[A] charge on equal access is appropriate to counter a jury instruction on presumption of possession, and is not necessary otherwise. Equal access is merely a defense available to the accused to whom a presumption of possession flows. Where the State did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense.

(Citations and punctuation omitted.) State v. Johnson, 280 Ga. 511, 513 (630 SE2d 377) (2006). Because the requested charge was not adjusted to the evidence, the trial court was not required to give it. Id.

3. Buckner contends that he is entitled to a new trial because his trial counsel was ineffective in the three respects noted below.

Under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), 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. When reviewing the trial court’s decision, this Court will accept the trial court’s factual findings and credibility determinations unless clearly erroneous; however, we review legal principles de novo.

(Citations and punctuation omitted.) May v. State, 316 Ga. App. 403, 404-405 (2) (729 SE2d 545) (2012). Applying this standard, we address Buckner’s claims.

Buckner contends that his trial counsel was ineffective because counsel (a) did not challenge the voluntariness of Buckner’s statements in a pre-trial hearing, (b) did not pursue his motion to suppress the drugs seized from his car on the ground that he was illegally detained, and (c) did not preserve these claims of error for appeal. Other than making these broad allegations, however, Buckner makes no legal argument demonstrating, with reference to the record, that his statements or that the evidence seized from his car would have been suppressed had counsel taken these actions. “When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citation and punctuation omitted.) Rivers v. State, 283 Ga. 1, 5 (3) (b) (655 SE2d 594) (2008).

Further, Buckner did not call his trial counsel as a witness at the motion for new trial.

Where, as here, trial counsel does not testify at the motion for new trial hearing about the subject, it is extremely difficult to overcome [the presumption that counsel’s choice was strategic]. Appellant thus made no affirmative showing that the purported deficiency in counsel’s representation was indicative of ineffectiveness, as opposed to being an example of a conscious, deliberate and reasonable trial strategy.

(Citation and punctuation omitted.) Newsome v. State, 288 Ga. 647, 652-653 (4) (706 SE2d 436) (2011).

Buckner has not carried his burden of showing that a motion to suppress either his statements or the contraband would have been successful or that his alleged failure to pursue such motions was not the result of deliberate trial strategy. Consequently, we must con-elude that the trial court properly found that trial counsel’s representation of Buckner did not amount to ineffective assistance. See, e.g., Rivers v. State, 283 Ga. at 5 (3) (b); Keaton v. State, 318 Ga. App. 446, 448 (734 SE2d 220) (2012).

4. Buckner contends that the evidence is insufficient to support his conviction. He argues that the State failed to prove that he alone possessed the drugs or to rule out the reasonable hypothesis that the drugs belonged to someone else. Given Buckner’s statement that his girlfriend had nothing to do with the drugs and his wish to turn informant in exchange for leniency, as well as the evidence of Buckner’s nervousness and the presence of the drugs in the car that he was driving, the jury could have concluded that there was no reasonable hypothesis that the crime could have been committed by someone else. See Prather v. State, 293 Ga. App. 312, 313-315 (1) (667 SE2d 113) (2008). The evidence adduced was sufficient to prove beyond a reasonable doubt that Buckner possessed the MDMA. See id. at 315.

Buckner also argues that, because the forensic chemist who testified as to the chemical composition of the pills only tested four of the 490 pills, “which [only] accounts for 1.16 grams of the 142.84 grams of the MDMA [he] is alleged to have possessed,” the State failed to prove he possessed the requisite 28 grams of MDMA as asserted in the indictment. Contrary to Buckner’s argument, however, under Georgia law “the testing of representative samples is sufficient to support a conviction for trafficking in the entire amount.” (Citations omitted.) Salinas v. State, 313 Ga. App. 720, 725 (2) (722 SE2d 432) (2012); see also Rochefort v. State, 279 Ga. 738, 740-741 (2) (620 SE2d 803) (2005) (testing of two of 2,329 pseudoephedrine tablets sufficient to support a conviction for possession of 300 such tablets in violation of OCGA § 16-13-30.3 (b) (1)). The jury was thus authorized to find that Buckner possessed 142.84 grams of MDMA, a finding which supports his guilt beyond a reasonable doubt on the trafficking offense. See OCGA § 16-13-31.1. Consequently, we find no error.

Judgment affirmed.

Phipps, P. J., and Branch, J., concur.

Decided May 3, 2013.

Bentley C. Adams III, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

       The jury also found Buckner guilty of possession of MDMA (3, 4-methylenedioxyam-phetamine) with the intent to distribute, OCGA § 16-13-30 (b), and possession of MDMA, OCGA §§ 16-13-30 (a); 16-13-25 (3) (A).

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

       An assertion of error followed by a case citation is not legal argument. As we have explained, legal analysis “is, at a minimum, a discussion of the appropriate law as applied to the relevant facts.” Dixon v. MARTA, 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000).

       The indictment alleged trafficking in MDMA “as described in Schedule I.” The Schedule I controlled substance is defined as “[a]ny material, compound, mixture, or preparation which contains any quantity of ... 3, 4-methylenedioxyamphetamine[.]” (Emphasis supplied.) OCGA § 16-13-25 (3) (A).

       OCGA § 16-13-31.1 provides, in relevant part, that anyone “who knowingly . . . has possession of 28 grams or more of... any mixture containing 3,4-methylenedioxyamphetamine or 3,4-methylenedioxymethamphetamine as described in Schedule I, in violation of this article commits the felony offense of trafficking].]” (Emphasis supplied.)


author: DOYLE, Presiding Judge.

text:
    A13A0044.
    MULLIS v. THE STATE.
    (742 SE2d 750)
   DOYLE, Presiding Judge.

Following a jury trial, Barry Mullis was convicted of criminal attempt to commit armed robbery, aggravated assault, burglary, and three counts of possession of a knife during the commission of a felony. Mullis appeals the denial of his motion for new trial, arguing that his convictions of aggravated assault with intent to rob and attempted armed robbery merged as a matter of fact. We vacate Mullis’s aggravated assault conviction and remand for resentencing, for the reasons that follow.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict [,] and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[ ] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve.

So viewed, the record shows that Mullis knocked on the door of 84-year-old Leola Freeman and asked for a cup of water. Freeman handed Mullis a plastic cup of water and then closed and locked her screen door. At Mullis’s insistence, Freeman opened the screen door to retrieve the plastic cup, and Mullis grabbed the door out of her hand and forced his way into her house. Freeman threw the cup of water at him and attempted to push him out the door, but he pushed her back against the door facing, held her there, and advised her that he had a knife, gesturing toward his back pocket and telling her that he would not use it if she did not fight him or yell. Mullis then pushed Freeman backward, and she fell into a nearby chair and then unsuccessfully attempted to kick him out the door. Freeman got up and retreated into the house, but Mullis grabbed or pushed her in the back, causing her to fall over a recliner. Freeman was able to grab the telephone, at which point Mullis fled. Mullis was apprehended the following day in the woods, and he admitted to police that he intended to rob Freeman.

Following his conviction on all counts, Mullis filed a motion for new trial, which the trial court denied. Mullis appeals, arguing in a single enumeration that the trial court erred by denying his motion for new trial on the basis that his convictions for aggravated assault and criminal attempt to commit armed robbery merge as a matter of fact.

“Whether offenses merge is a legal question, which we review de novo.” Under OCGA § 16-1-7 (a) (1), a defendant “may not ... be convicted of more than one crime if. .. [o]ne crime is included in the other.” Under the required evidence test adopted in Drinkard v. Walker, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” The Supreme Court of Georgia has held that “[b]ecause aggravated assault does not require proof of any element that armed robbery does not, convictions for both offenses will merge — but only if the crimes are part of the same ‘act or transaction.’ ”

Here, as charged in the indictment, the criminal attempt to commit armed robbery occurred when Mullis “with the intent to commit a theft, attempted to take property from the person of Leola Freeman, by use of an offensive weapon, to-wit: a knife.” The indictment further alleged that Mullis committed aggravated assault when he pushed Freeman to the ground in an attempt to rob her. As alleged, Mullis’s pushing of Freeman was part of his effort to control her during the robbery. Under these circumstances, the aggravated assault arose out of the same “act or transaction” as the criminal attempt to commit armed robbery, and therefore, the convictions merged. Thus, Mullis’s conviction “must therefore be vacated and the case remanded to the trial court for resentencing.”

Decided May 6, 2013.

Deming, Parker, Hoffman, Campbell &Daly, Stephen A. Shea, for appellant.

S. Hayward Altman, District Attorney, Kelly A. Jenkins, Assistant District Attorney, for appellee.

Judgment vacated and case remanded.

McFadden and Boggs, JJ., concur.

       OCGA §§ 16-4-1; 16-8-41 (a).

       OCGA § 16-5-21 (a) (1).

       OCGA § 16-7-1 (b).

       OCGA § 16-11-106 (b).

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

       (Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

        Louisyr v. State, 307 Ga. App. 724, 730 (2) (706 SE2d 114) (2011).

       281 Ga. 211 (636 SE2d 530) (2006).

       (Punctuation omitted.) Id. at 215, quoting Blockburger v. United States, 284 U. S. 299, 304 (52 SCt 180, 76 LE 306) (1932).

        Thomas v. State, 289 Ga. 877, 880 (3) (717 SE2d 187) (2011), citing Long v. State, 287 Ga. 886, 888-889 (700 SE2d 399) (2010); Drinkard, 281 Ga. at 215.

        See McGlasker v. State, 321 Ga. App. 614, 616 (2) (741 SE2d 303) (2013).

       See Bradley v. State, 292 Ga. 607, 610 (1) (c) (740 SE2d 100) (2013); McGlasker, 321 Ga. App. at 616 (2).

        Long, 287 Ga. at 889 (2).


text:
    A13A0231.
    OWENS v. THE STATE.
    (742 SE2d 752)
   DOYLE, Presiding Judge.

Terrance Owens, pro se, appeals the denial of his motion for an out-of-time appeal following his guilty plea. We affirm, for the reasons that follow.

On April 27, 2011, Owens entered a guilty plea in the Superior Court of Fulton County to trafficking in methamphetamine, possession of marijuana with intent to distribute, possession of methamphetamine within 1,000 feet of a school, possession of marijuana within 1,000 feet of a school, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. On November 3, 2011, Owens filed a motion in arrest of judgment, arguing that the indictment failed to allege venue. The trial court denied the motion on November 29, 2011. On January 25, 2012, Owens filed a notice of appeal, but this Court dismissed the appeal as untimely. Thereafter, on April 13, 2012, Owens filed a motion for leave to file an out-of-time appeal, which the trial court denied.

Decided May 6, 2013.

Terrance Owens, pro se.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

Owens appeals, contending that the trial court lacked jurisdiction to accept his guilty plea because the indictment failed to aver venue, that the trial court failed to “merge [ ] the counts during the sentencing phase,” and that his plea was not knowingly and voluntarily entered because the indictment was fatally defective.

As the Supreme Court of Georgia has recently explained,

[t]he purpose of an out-of-time appeal in a criminal case is to address the constitutional concerns that arise when a defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. So, a motion for an out-of-time appeal must be premised upon an allegation of a deprivation of the right to direct appeal due to trial counsel’s ineffective assistance.

Because Owens’s “motion for out-of-time appeal did not allege that his failure to file a timely appeal of his conviction was due to any ineffective assistance of counsel, . . . the motion was therefore correctly denied.”

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       See OCGA § 5-6-38 (requiring that a notice of appeal be filed within 30 days of entry of the order on appeal).

       We note that each count of the indictment in this case avers that the crime charged took place in Fulton County. “Accordingly, the Superior Court of [Fulton] County had jurisdiction to accept appellant’s guilty plea.” Dennis v. State, 292 Ga. 303 (736 SE2d 428) (2013).

       Owens fails to specify which counts he contends should have merged.

       (Citation and punctuation omitted.) Kemp v. State, 292 Ga. 795 (741 SE2d 652) (2013).

       Id., quoting McMullen v. State, 292 Ga. 355, 356 (2) (737 SE2d 102) (2013).


text:
    A13A0382, A13A0416.
    MERCER v. MUNN; and vice versa.
    (742 SE2d 747)
   DOYLE, Presiding Judge.

Roy A. Munn sued Dr. Alexander J. Mercer, his psychiatrist, alleging that Mercer’s refusal to allow him to bring his rottweiler, which Munn characterized as a “service dog,” into the office during an appointment violated the Americans with Disabilities Act (“ADA”) and OCGA § 30-4-2. The trial court granted summary judgment to Mercer. In Case No. A13A0382, Mercer appeals the trial court’s denial of his motion to dismiss Munn’s appeal. In Case No. A13A0416, Munn appeals pro se the trial court’s grant of summary judgment to Mercer. For the reasons that follow, we conclude that the trial court erred by denying Mercer’s motion to dismiss Munn’s appeal. Therefore, we reverse and remand Case No. A13A0382, and we dismiss Case No. A13A0416.

Case No. A13A0382

■ 1. Mercer argues that the trial court abused its discretion by denying his motion to dismiss the appeal based on Munn’s failure to timely file the transcript. We agree.

Georgia law provides:

[A] party filing a notice of appeal must state whether or not any transcript of evidence or proceedings is to be transmitted as a part of the record on appeal. OCGA § 5-6-37. When a transcript is to become part of the record on appeal, the appellant must have the transcript prepared at its expense and have it filed to be part of the record on appeal within 30 days after the notice of appeal was filed. OCGA §§ 5-6-41 (c); 5-6-42. If the transcript cannot be filed within 30 days, the appellant must request an extension of time under the procedures stated in OCGA § 5-6-39 to file the transcript. OCGA § 5-6-42.

OCGA § 5-6-48 (c) authorizes a trial court to dismiss an appeal “where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by [the appealing] party.”

The appeal should not be dismissed unless the delay is unreasonable so as to affect the appeal itself, either by prejudicing a party’s position or by causing the appeal to be stale such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.

“While the trial court has broad discretion in ruling on a motion to dismiss under [OCGA § 5-6-48 (c)], that discretion is not unlimited and the trial court’s decision may be reversed for abuse of discretion.”

In this case, the trial court entered the order granting summary judgment to Mercer on April 11, 2011. Munn filed a notice of appeal on May 9, 2011; the notice included a request that the clerk omit nothing from the record and stated that “[a] transcript of evidence and proceeding will be filed for inclusion in the record on appeal.” On May 11, 2011, the deputy clerk wrote to Munn, informing him that he needed to order any trial transcripts from the court reporter.

Six months later, on November 15, 2011, Mercer filed a motion to dismiss Munn’s appeal because a transcript had not been filed, resulting in a delay in docketing the case. At the July 24,2012 hearing on the motion to dismiss, Munn stated that he contacted the court reporter on May 24, 2012, to order a transcript of the court proceedings. The court reporter indicated that she sent Munn an e-mail on May 31, 2012, advising he had to pay her the estimated cost of $340.20 before she could begin preparing the transcript. As of the July 24 hearing, Munn had not yet paid the court reporter.

Following the hearing, the trial court entered an order denying Mercer’s motion to dismiss, stating therein that Munn did not request an extension of time to file his transcript and that

his delay in obtaining a transcript for filing in the record of appeal has been excessive. However, [Mercer] has failed to show any real prejudice to him that would result from the delay should the [c]ourt in its discretion grant [Munn] an extension of time to file his transcript as permitted under OCGA § 5-6-39. As [Munn] has shown a willingness to make a good faith effort to complete the filing of his appeal, . . . [Mercer’s] Motion to Dismiss [Munn’s] Notice of Appeal is DENIED [,] and [Munn] will have... 30 [ ] days from the date of this order to file a copy of the transcript of the evidence and proceedings to be included in the record of appeal.

It is well settled that “the duty to order the transcript and to monitor timely the progress of the reporter’s office in transcript preparation is vested upon the appropriate appealing party.”

A delay of more than 30 days in filing a transcript as provided by OCGA § 5-6-42 is prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.

Here, Munn has failed to demonstrate that his delay of more than a year in contacting the court reporter to order the transcript was excusable.

[T]he threshold question [of] whether the delay was unreasonable refers principally to the length and effect of the delay. Delay is unreasonable where it may affect an appeal by: (a) directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or (b) causing the appeal to be stale, such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.

Although the record supports the trial court’s conclusion that Mercer has not been “directly prejudiced]” by the extraordinary delay, it is indisputable that Munn’s failure to procure the transcript has “discernibly delayed docketing of the record in the appellate court and prevented an appellate decision on the merits at the earliest possible date.” As we have repeatedly held, “[jjustice delayed for even one day is justice denied to the litigant who was successful in the lower court and who is entitled to his judgment unless the case is properly reversed.”

Decided May 6, 2013.

Hall Booth Smith, Kawania B. James, Mark W. Wortham, for appellant.

Roy A. Munn, pro se.

Accordingly, because Munn failed to present evidence to rebut the presumption that his delay in filing the transcript was unreasonable, which delayed the just disposition of this case, we conclude that the trial court abused its discretion by denying Mercer’s motion to dismiss. Therefore, “we reverse the trial court’s order denying [Mercer’s] motion to dismiss this appeal and remand this case with direction to dismiss the appeal.”

Case No. A13A0416

2. Based on our above holding, this related appeal is dismissed.

Judgment reversed and case remanded with direction in Case No. A13A0382. Appeal dismissed in Case No. A13A0416.

McFadden and Boggs, JJ., concur.

       OCGA § 30-4-2 (b) provides:
      [E]very totally or partially blind person shall have the right to be accompanied by a guide dog, and every physically disabled person and every deaf person shall have the right to be accompanied by a service dog, especially trained for the purpose, in any of the places listed in subsection (a) of this Code section. . . . The guide dog or service dog must be identified as having been trained by a school for seeing eye, hearing, service, or guide dogs.

       Munn did not seek specific injunctive relief, but instead sought emotional damages, punitive damages, an order requiring Mercer to return all Medicare payments for Munn’s treatment, an order requiring Mercer to take an anger management course and to “[l]earn about the [ADA],” and costs.

       (Punctuation omitted.) Crown Diamond Co. v. N. Y. Diamond Corp., 242 Ga. App. 674, 676 (2) (530 SE2d 800) (2000).

       (Citations and punctuation omitted.) Coptic Constr. Co. v. Rolle, 279 Ga. App. 454, 454-455 (631 SE2d 475) (2006).

        Morrell v. Western Svcs., 291 Ga. App. 369, 370 (662 SE2d 215) (2008).

        Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 502 (2) (458 SE2d 377) (1995).

       (Punctuation omitted.) In the Interest of T. H., 311 Ga. App. 641, 643 (716 SE2d 724) (2011).

       (Citation and punctuation omitted; emphasis in original.) Pistacchio v. Frasso, 314 Ga. App. 119, 121-122 (723 SE2d 322) (2012).

       Id. at 122.

       (Punctuation omitted.) Id.

        Coptic Constr., 279 Ga. App. at 456 (trial court abused its discretion by denying motion to dismiss based on appellant’s nine-month delay in communicating with the court reporter, which resulted in inexcusable delay in filing trial transcript). See also Morrell, 291 Ga. App. at 375 (reversing denial of a motion to dismiss the appeal based on the appellant’s 19-month “unreasonable, inexcusable delay in both the payment of costs and the filing of the transcript”); Jackson, 217 Ga. App. at 503 (trial court abused its discretion by finding that the appellants’ unreasonable delay was excusable).

        Coptic Constr., 279 Ga. App. at 456.


author: Ray, Judge.

text:
    A13A0451.
    MERILIEN v. THE STATE.
    (742 SE2d 754)
   Ray, Judge.

Jean Jocelyn Merilien, proceeding pro se, appeals from the dismissal of his out-of-time motion to withdraw his guilty plea to a charge of possession of a firearm by a convicted felon. OCGA § 16-11-131. On appeal, Merilien contends that the trial court erred by dismissing his petition as untimely and that the trial court erred in failing to consider his various claims regarding the validity of his plea and ineffective assistance of counsel. Discerning no error, we affirm.

The record shows that on January 31, 2000, Merilien, with the assistance of counsel, entered a negotiated plea to possession of a firearm by a convicted felon. The trial court sentenced Merilien to serve two years on probation and imposed a $1,000 fine.

On December 2, 2011, Merilien filed his motion to withdraw his guilty plea in the trial court, arguing that his 2000 conviction should be vacated because he did not enter his plea intelligently, knowingly, and voluntarily, and that he received ineffective assistance of counsel. The trial court dismissed Merilien’s motion, finding that it lacked jurisdiction to consider his petition as a motion to withdraw guilty plea because it was not filed in the same term of court as the judgment of conviction and that the petition could not be considered as a writ of habeas corpus since the period for filing a habeas corpus petition had expired.

On appeal, Merilien contends that the trial court erred in dismissing his petition without examining the merits of his arguments. We disagree.

The trial court’s jurisdiction to entertain a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction was rendered. See Matthews v. State, 295 Ga. App. 752, 754 (1) (673 SE2d 113) (2009) (motion to withdraw guilty plea must be filed in same term in which defendant sentenced; otherwise, court lacks jurisdiction to consider motion). “And it is well established that after the expiration of the term and of the time for filing an appeal from the conviction, the only remedy available to the defendant for withdrawing a plea is through habeas corpus proceedings.” (Punctuation and footnote omitted; emphasis in original.) LaFette v. State, 285 Ga. App. 516, 516 (1) (646 SE2d 725) (2007). Since Merilien filed his motion more than ten years after the expiration of the term of court in which his judgment of conviction was entered, the trial court had no jurisdiction to rule on his motion to withdraw a guilty plea. See Matthews, supra. Moreover, even construing his motion as a petition for writ of habeas corpus, Merilien’s petition was likewise untimely. Merilien had until July 1, 2008, to file a habeas corpus petition, but he did not file the present motion until December 2011. OCGA § 9-14-42 (c) (1) (“[A]ny person whose conviction has become final as of July 1, 2004, regardless of the date of conviction, shall have until... July 1, 2008, in the case of a felony to bring an action” for habeas corpus relief).

To the extent that Merilien’s motion may be construed as one seeking an out-of-time appeal based on ineffective assistance of counsel, the trial court did not abuse its discretion in dismissing the motion. See Dennis v. State, 292 Ga. 303 (736 SE2d 428) (2013) (the denial of a motion for out-of-time appeal is reviewed for abuse of discretion).

Decided May 6, 2013

Jean J. Merilien, pro se.

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

An out-of-time appeal is appropriate when a direct appeal was not taken due to ineffective assistance of counsel. But in order for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal. A direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issue on appeal can be resolved by reference to facts on the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty. Issues regarding the effectiveness of counsel are not reached unless the requirement that the appeal be resolved by reference to facts on the record is met.

(Citation and punctuation omitted.) Green v. State, 291 Ga. 506, 507 (1), n. 1 (731 SE2d 357) (2012).

In this case, Merilien’s claims of ineffective assistance of counsel cannot be resolved solely by facts in the record. Indeed, the resolution of his ineffective assistance claims would have required a post-plea evidentiary hearing. Therefore, such claims would not have been subject to review stemming from a motion for out-of-time appeal, but were required to have been pursued in an action for habeas corpus. Green, supra at 507 (2); Gibson v. State, 290 Ga. 516, 517 (2) (b) (722 SE2d 741) (2012). Here, Merilien did not timely seek habeas relief.

For the above reasons, the trial court properly dismissed his motion.

Judgment affirmed.

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


text:
    A13A0530.
    PETERSON v. BANKER.
    (742 SE2d 756)
   DOYLE, Presiding Judge.

This is the second appearance of this civil action before this Court. As explained in our earlier opinion,

[fallowing a bench trial, the court below entered judgment for Judi Digilio Banker on her [counter] claim against Charles Alexander Petersonf] for malicious prosecution, and the court awarded more than $250,000 to Banker as damages. Peterson had attempted on seven occasions to have Banker prosecuted, and the court below concluded that five of these occasions — one warrant application in Fulton County and four applications in Rabun County — were actionable as malicious prosecutions.

Upon review, this Court determined that Fulton County and Rabun County declined to issue two out of the five warrants at issue and, therefore, vacated “the judgment below to the extent that it award[ed] damages for malicious prosecution” with regard to those warrant applications and remanded “for further proceedings consistent with [the] opinion.”

On remand, the trial court, relying on the record made during the bench trial as this Court determined was proper, decided that in light of the facts determined at trial, Banker was due $245,000.

1. Peterson first contends that the trial court erred by “basically ignoring]” this Court’s remittitur and reinstating most of the damages for malicious prosecution. Nevertheless, the trial court’s order on remand was thorough and well-reasoned, and the trial court cited ample evidence supporting its finding that Peterson’s malicious prosecutions of Banker resulted in the damages so awarded. Accordingly, this enumeration is without merit.

Decided May 6, 2013.

Peterson & Harris, Jim N. Peterson, Jr., for appellant.

Moorman Pieschel, Nicholas J. Pieschel, for appellee.

2. Next, Peterson challenges the amount of attorney fees awarded to Banker after remand because this Court’s previous opinion vacated that judgment and, thus, Banker had no prevailing counterclaim to support the attorney fee award. We disagree.

In order to recover attorney fees as expenses of litigation pursuant to OCGA § 13-6-11, the plaintiff must show that the defendant acted in bad faith, was stubbornly litigious, or caused the plaintiff unnecessary trouble and expense. We will affirm an award of attorney fees ... if there is any evidence to support it.

In Peterson, this Court did not find that the underlying claim of malicious prosecution was without merit; this Court simply vacated the award and remanded for the trial court to review the award in light of our holding that two of the five warrants at issue were not sufficient to sustain a finding of malicious prosecution. Moreover, Peterson did not appeal the initial award of the attorney fees during that appeal, and arguably, he has waived this issue for review. In any event, his enumeration of error fails because Banker’s malicious prosecution claim constituted a prevailing claim for purposes of an award of attorney fees pursuant to OCGA § 13-6-11.

3. Banker’s motion for frivolous appeal damages is hereby denied. Judgment affirmed.

McFadden and Boggs, JJ., concur.

       Peterson initiated the civil action against Banker, alleging claims of trover and conversion.

       (Footnote omitted.) Peterson v. Banker, 316 Ga. App. 571, 571-572 (730 SE2d 89) (2012).

       Id. at 572.

         See id. at 572, n. 2.

       See, e.g., Gooch v. Tudor, 296 Ga. App. 414 (674 SE2d 331) (2009) (“While we apply a de novo standard of review to any questions of law decided by the trial court, factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. OCGA § 9-11-52 (a). Because the clearly erroneous test is in effect the same standard as the any evidence rule, appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them.”) (punctuation omitted).

       We note that the trial court reduced the attorney fee award from $58,508.48 to $55,000 after issuing a new order pursuant to our opinion in Peterson, 316 Ga. App. at 572.

       (Punctuation and footnote omitted.) Monterrey Mexican Restaurant of Wise v. Leon, 282 Ga. App. 439, 450 (6) (638 SE2d 879) (2006).

       See 316 Ga. App. at 572.