author: Barnes, Presiding Judge.

text:
    A11A1046.
    DENDY v. WELLS et al.
    (718 SE2d 140)
   Barnes, Presiding Judge.

Duncan Wells, M.D., performed hip replacement surgery on Frances Dendy, and during the procedure her sciatic nerve became damaged. Dendy sued Wells and his practice, Duncan Wells, M.D., EC. d/b/a Atlas Orthopedics for medical malpractice, alleging that the defendant violated the applicable standard of care by clamping a retractor on the plaintiff s sciatic nerve during the surgery. A jury returned a defense verdict, and the trial court denied the plaintiff s motion for new trial. The plaintiff appeals, arguing that the defendant repeatedly violated a motion in limine which prohibited the parties from using the personal practices of expert witnesses to establish the applicable standard of care. For the reasons that follow, we affirm.

In 2009, the Supreme Court of Georgia in Condra v. Atlanta Orthopaedic Group, 285 Ga. 667, 669-672 (1) (681 SE2d 152) (2009), changed a long-standing rule prohibiting a medical malpractice expert from testifying about his personal practices. The court held that “evidence regarding an expert witness’ personal practices, unless subject to exclusion on other evidentiary grounds, is admissible both as substantive evidence and to impeach the expert’s opinion regarding the applicable standard of care.” Id. at 669 (1). It concluded that the plaintiff in that case should have been allowed to cross-examine an expert witness about his personal practices, which differed from the standard of care he described. Id. at 669-672 (1). Applying Condra, this court subsequently held in Griffin v. Bank-ston, 302 Ga. App. 647, 651-652 (1) (b) (691 SE2d 229) (2009), that a plaintiff could cross-examine a fact witness about his personal practices to refute the witness’s testimony that such practices would not have made a difference to the outcome in that case.

In this case, the plaintiff argues that Condra and Griffin “did nothing to change Georgia’s long-standing prohibition against admitting personal practices testimony on direct examination,” but only applied to cross-examination of an expert whose personal practices differed from the standard of care he espoused. Such testimony, argues the plaintiff, does not illuminate the standard of care, improperly leads the jury to believe that since the expert follows certain practices, those practices must fall within the proper standard of care, and “does nothing to illustrate a physician’s credibility.”

Before trial, the defendant filed a written motion in limine, seeking to exclude

[e]vidence that the personal professional practices of Dr. Wells, defense expert(s), plaintiffs expert(s), or treating physicians that differ from Dr. Wells’ or [his expert witness’s] practice conclusively establishes [sic] the standard of care. Georgia courts have consistently held that eliciting testimony about the course of conduct a particular physician personally would have followed in treating a patient is not a proper means to establish the general standard of care. The standard of care is a general standard, and is not defined in terms of what a particular physician prefers to do under the circumstances. A mere difference in views between physicians as to the medical judgment exercised by the defendant physicians is not proof of medical malpractice when the procedures preferred by each, or the judgment exercised, are all acceptable and customary methods of treatment. A mere difference in the personal practices of medical experts does not by itself prove a breach in the standard of care by the defendant physicians. Condra v. Atlanta Orthopaedic [Group, 285 Ga. 667],

The defendant also noted that the court in Condra advised that

any potential confusion created by the admission of such evidence may be remedied through the use of careful jury instructions . . . [which] define the legal meaning of standard of care; enunciate the principle that a mere difference in views between physicians does not by itself prove malpractice, . . . and clarify concepts such as burden of proof and credibility of witnesses.

Id. at 672 (1).

The plaintiff had no objection to the motion, agreeing with the defendant’s statement that “evidence of personal practices of the various orthopedic surgeons does not establish standard of care, although they can be used to assess the credibility of experts.”

In his opening statement, the defendant told the jury that his expert witness was going to testify “what the standard of care is for an orthopedic surgeon, . . . what the appropriate technique is and what the technique is that he uses” during hip replacement surgery. The expert would also testify that he and the defendant used the same technique, which they both were taught at Harvard Medical School. Before testimony began the next day, the plaintiff expressed her concerns about the defendant’s statements that his expert would testify that the defendant and the expert performed surgery the same way and sought confirmation that the expert could not testify that “because he does it one way, that establishes the standard of care, or because he and Dr. Wells do it the same way. You can’t use personal preferences to establish standard of care.” The defendant responded that he would not argue that “because this is the way he does it, this is the standard of care,” but added that the Supreme Court has held that evidence of personal practices was admissible and relevant. The trial court responded that the proper way to establish the standard of care was for an expert to testify that “this is how this procedure should be done,” and then the expert could testify, “I happen to do it that way.”

After the plaintiff presented her evidence, the defendant called his expert witness, who is an orthopedic surgeon specializing in total hip and knee joint replacements. At the beginning of the expert’s testimony, the defendant asked if he understood the standard of care to mean, for purposes of the lawsuit, “what a surgeon is required to do to exhibit the skill and degree of care as employed by professionals generally under conditions and like surrounding circumstances.” The expert responded that he understood the definition and understood that the standard of care was national, not local. The expert then opined that the standard of care applicable to this type of surgery did not require the surgeon to see or touch the sciatic nerve before placing a retractor or pin to hold the soft tissue out of the way. Damage to the sciatic nerve is already a known complication from hip replacement surgery, and dissecting the tissue around the nerve to see or touch it would create an additional risk of injury. The witness testified that he had been taught not to dissect tissue in order to see or feel the sciatic nerve, and he also taught residents not to “mess with it.” Instead, the standard of care was to retract the group of muscles in front of the nerve, visualize the ischium, and place the pin or retractors in place to hold the soft tissue out of the way, thus reducing the potential for damaging the nerve. In this case, he opined, the defendant did not deviate from that standard of care.

The defendant also asked the expert about his personal hip replacement surgery practices, such as whether he used the same approach the defendant did when replacing a hip, whether he placed his retractor in the same place the defendant put his pin, and whether he visualized or touched the sciatic nerve before placing his retractor. The expert confirmed that he used the same approach as the defendant.

In closing, the defendant argued that the expert testified he might “carefully” identify the general location of the sciatic nerve when working with a brand-new doctor, but otherwise, the expert said, “I leave it alone. I stay away from it. That’s the way I’ve done it ever since I left Harvard, even before I went to Harvard.” The defendant in closing also recalled that the expert “came in and said, I am just telling you that this is my training. This is the way I do it. I have never, never attempted to palpate or visualize the sciatic nerve when I am doing [this surgery].” Finally, the defendant argued that both the defendant and his expert said, “This is the way I’ve always done it, and the way I was trained to do it.”

After the jury returned a defense verdict, the plaintiff moved for a new trial, arguing that the defendant violated the granted motion in limine by establishing the applicable standard of care through his expert’s personal practices. She also argued that the defendant “never asked [his expert] to explain what the standard of care was with respect to the issues in this case.” The trial court disagreed and denied the motion.

The plaintiff argues on appeal that the trial court erred in denying her motion for a new trial, to which she was entitled because of the defendant’s “numerous and intentional violations” of the granted motion in limine, which was intended to exclude evidence that the expert’s personal practices established the standard of care. Because the evidence was inadmissible and prejudicial, plaintiff asserts, she is entitled to a new trial.

But reviewing the transcript in its entirety reveals that neither the defendant nor his expert attempted to establish the applicable standard of care through their personal practices. The defendant established the standard of care through his expert’s testimony that a surgeon performing a total hip replacement was not required to visualize or touch the sciatic nerve before placing a retractor or pin to hold the soft tissue out of the way. The defense expert also testified that, in his opinion, the defendant’s actions during the plaintiffs surgery did not deviate from the applicable standard of care.

As recommended by the Supreme Court in Condra, the trial court in this case instructed the jury about the legal meaning of “standard of care,” the principle that a defendant does not prove malpractice by introducing a doctor’s mere difference of opinion, and the concepts of burden of proof and credibility of witnesses.

The issue in Condra was whether a plaintiff could ask a defense witness about the fact that his personal practices differed from the standard of care he described. 285 Ga. at 672 (1). The expert witness in that case testified that the defendant did not violate the standard of care by failing to monitor the plaintiffs blood count while she was taking a medication that caused her to develop aplastic anemia, but had testified in deposition that he personally monitored patients taking that medication. Id. at 668. The plaintiff was not allowed to cross-examine the expert regarding this discrepancy. Id. In reversing, the Supreme Court explained:

Neither the jury’s ability to perform its role as arbiter of the expert’s credibility, nor the party’s right to a “thorough and sifting cross-examination,” OCGA § 24-9-64, is well served by a prohibition on cross-examination of the opposing party’s expert regarding personal practices that differ from the standard of care as asserted by that expert.

Id. at 671 (1). The court further noted that the potential for confusing the jury “by conflating the standard of care with an expert’s personal protocols [did] . . . not as a general rule outweigh the usefulness of such information in evaluating an expert’s credibility.” Id. at 672 (1).

In Griffin, this court applied Condra and reversed a defense verdict, remanding a dental malpractice case for a new trial because the plaintiff was not allowed to cross-examine a fact witness about his personal practices, which differed from the defendant’s practices. 302 Ga. App. at 649 (1). The witness testified that the defendant’s failure to administer prophylactic penicillin would not have prevented the massive infection that occurred after the defendant extracted two of the plaintiffs wisdom teeth, but had testified in deposition that his personal practice was to administer penicillin as a preventive measure under similar circumstances. Id. We held that evidence that the witness “routinely took the same precaution to guard against infection that he now claimed would not have made a difference in the present case arguably called into question the credibility of such a claim.” Id. at 652 (1) (b). Excluding the evidence about the expert’s personal practices “undermined the jury’s ability to fully evaluate [the witness’s] credibility and deprived [the plaintiff] of her substantial right to a thorough and sifting cross-examination.” Id.

While the factual situations in Condra and Griffin involved the cross-examination of an expert whose personal practices differed from the standard of care he espoused, we see no logical distinction between allowing an expert to be cross-examined about whether his personal practices differed from the defendant’s and allowing the expert to testify on direct examination about whether his personal practices mirrored the defendant’s, and comported with the previously-established standard of care. Contrary to the plaintiffs assertions, both scenarios assist the jury in determining the expert’s credibility.

We agree that the defendant may not establish the applicable standard of care with evidence of an expert witness’s personal practices, or evidence about the course of conduct the expert would have followed under similar circumstances. In this case, however, the expert testified first that the generally accepted standard of care for physicians nationally was to avoid touching or looking for the nerve, and then testified that he followed that standard, as did the defendant.

Accordingly, we find no error in the trial court’s denial of the plaintiff s motion for a new trial.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

Decided November 1, 2011.

Glenn A. Loewenthal, Sherard K. Dixon, for appellant.

Peters & Monyak, Jonathan C. Peters, Sharon L. Neal, for appellees.


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A11A1106.
    TURNER v. THE STATE.
    (718 SE2d 545)
   Smith, Presiding Judge.

A jury found Michael Lynn Turner guilty of rape. Following the denial of his amended motion for new trial, Turner appeals. He argues that he should have been allowed to testify about statements made to him by the victim and to cross-examine a witness concerning statements the witness posted about the victim on a social media website. For the following reasons, we affirm.

Construed in favor of the verdict, the evidence revealed that Turner lived with M. T, his 16-year-old daughter. M. T. invited the victim, who was also 16 years old, and another teenage girl to spend the night at her home. The victim’s mother drove her to Turner’s home, and when she arrived, M. T. and another girl were at the home. At some point, Turner arrived home with alcohol in his car and asked the three girls to retrieve it. Turner made margaritas for the girls and gave them shots of vodka. The victim testified that Turner also gave them a marijuana cigarette. She stated that she smoked it four times. Later in the evening, the victim “start[ed] to feel sick” and stumbled to M. T.’s bathroom, where she vomited on the bathroom floor. After she vomited again in the hallway because she could not walk or crawl, Turner assisted her back into M. T.’s bathroom. M. T, her friend, and Turner all laughed as the victim continued to vomit.

The next thing the victim remembered was waking up naked and face-down on the floor in Turner’s bathroom. She stated that she felt “scared and sick, confused.” Turner, sitting in the bathroom next to the victim, asked her “Would you like me to help you lay down? It might make you feel better.” The victim, unable to talk, attempted to stand up and walk back to M. T.’s room, but she lost consciousness.

The victim testified that when she awoke, she was “in [Turner’s] bed and he’s on top of me, and I’m fully aware that we’re having sex.” Even though she was unable to open her eyes, she explained that she could feel “[h]is penis going in and out, inside me,” and that she could feel it “[b]ecause it hurts. It’s rough.” The victim stated that she “black[ed] in and out,” could “feel [Turner] breathing on [her],” and that she could not move or fight him off. She stated further: “It’s hot. He’s laughing, he’s talking, It’s just scary, ... I feel so weak ... I can’t do anything. I can’t even hold my eyes open. I can’t talk.” She remembered specifically Turner laughing and grunting, “sexual grunting.”

After again losing consciousness, the victim awoke still naked and in Turner’s bed. Turner, also still naked, was standing next to the bed, and when the victim asked, “What’s going on?,” Turner told her, “Well, I had to bring you back here to clean you up.” The victim then stumbled into Turner’s bathroom, retrieved her clothes, and went to M. T.’s room for the remainder of the night.

The next day, Turner sent the victim several text messages including: “Im sry I hope ur ok,” and “Please dnt say anything il do wht eva u want.” Turner claimed that he sent the text messages to the victim because he was concerned that she “got pretty sick when she was drinking.” Less than 48 hours after the incident, the victim made an outcry to her mother and explained what had occurred at Turner’s home.

M. T. testified that on the night the girls were at her home, she asked Turner to purchase alcohol for them. She stated further that Turner made margaritas for the three of them, and that they also drank shots of vodka. M .T. claimed that after drinking the alcohol, she retrieved a marijuana cigarette from her room, and that she, the victim, and the other teenage girl smoked it on the front porch. She stated that after smoking the marijuana, the victim began vomiting in the hall and in her bathroom, eventually “passfing] out” on the bathroom floor, but that she did not remember much of what occurred after that because she also “passed out.” M. T. explained that at some point during the night, she knocked on Turner’s bedroom door and asked him if he knew where the victim was, and that Turner replied: “she’[ll] be there in a minute.” M. T. went back to her own room, and when the victim came into the room shortly thereafter, she asked the victim what she was doing in Turner’s room. M. T. testified that the victim responded, “Nothing,” and went to sleep.

Turner testified in his own defense that he had sex with the victim but that it was consensual. He admitted that he provided the teenage girls with alcohol, but that he did so to deter them from drinking in the future because they would become sick and have a “real nasty hangover.” But Turner denied providing the girls with marijuana. He testified that the victim became sick and vomited around 9:00 p.m. and that he cleaned up after her. He stated further that later in the evening, just after midnight, he went to take a shower, and when he came out of the bathroom, the victim was lying on his bed naked “with her legs spread.” Turner stated that the victim asked him for sex “around 35 times,” and that he told her to put on her clothes. He explained that he told the victim “You were just throwing up all over yourself earlier .... The best thing I could suggest ... is you take a shower ... if you haven’t changed your mind or whatever, . . . then we’ll talk about it after that.” After the victim took a shower, Turner claimed that she got back into his bed “like[ ] she lived there” and that the two of them had sex. When asked about the victim’s state of awareness, Turner stated:

she seemed like she was pretty aware to me . . . she might have had a little buzz or something. That’s when I suggested the shower. But ... I had no doubt in my mind that she was totally aware of what she was doing by the time she got out of there. I never seen her stumbling, or having trouble walking, or anything, communicating.

1. Turner argues that the trial court should have allowed him to testify to certain statements the victim made to him. Turner sought to testify that the victim told him: “That’s what I like about having sex with older men. They know what they’re doing,” and, “The only reason I’m doing this is because [my boyfriend] hasn’t f d me in two weeks.” He contends these statements are essential to his sole defense that the victim consented to having sexual intercourse with him. The trial court ruled that the statements were barred by the Rape Shield Statute.

The Rape Shield Statute “is a strong legislative attempt to protect the victim-prosecutrix in rape cases by the exclusion of evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused.” (Citation, punctuation and footnote omitted.) Smith v. State, 294 Ga. App. 692, 698 (3) (670 SE2d 191) (2008).

Specifically, OCGA § 24-2-3 (a) provides:

In any prosecution for a violation of Code Section 16-6-1, relating to rape; Code Section 16-6-2, relating to aggravated sodomy; Code Section 16-6-4, relating to aggravated child molestation; or Code Section 16-6-22.2, relating to aggravated sexual battery, evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section. For the purposes of this Code section, evidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness’s marital history, mode of dress, general reputation for promiscuity, nonchas-tity, or sexual mores contrary to the community standards.

OCGA § 24-2-3 (b) provides the only exceptions to this general rule: such evidence may be admitted where the past sexual behavior of the victim directly involves the accused’s participation and supports an inference that the accused could have reasonably believed that the victim had consented to the conduct at issue. The evidence may also be admitted on a finding that it “is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence.” OCGA § 24-2-3 (c) (2). “We review the trial court’s exclusion of the evidence for abuse of discretion.” (Citation omitted.) Davis v. State, 235 Ga. App. 362, 363 (1) (509 SE2d 655) (1998).

The statements Turner alleges the victim made here do not fall within either exception enumerated in OCGA § 24-2-3 (b) and (c) and are prohibited by the Rape Shield Statute because they both make reference to the victim’s past sexual behavior by implying that the victim had sex in the past with her boyfriend and with older men. See Smith, supra, 294 Ga. App. at 698 (3); see also Myers v. State, 160 Ga. App. 685, 686 (2) (288 SE2d 27) (1981) (that victim had reputation for partying equates to prior sexual behavior). There was testimony that the victim was intoxicated, in and out of consciousness, and unable to move. See Davis, supra. Based on the facts and circumstances here, Turner would not have “reasonably believed” that the victim consented to sex. See, e.g., id. The trial court therefore did not abuse its discretion in excluding the testimony proffered. It simply was not “so highly material” that it supported a reasonable belief in consent.

2. Turner argues that he should have been allowed to cross-examine M. T. about a comment she posted on her MySpace page concerning the victim. During trial, the prosecutor asked M. T. to read a copy of a post from her MySpace page:

Prosecutor:

All right. Now on a Myspace page, you get to post information about you, correct?

M. T:

Yes, ma’am.

Prosecutor:

All right. And you get to post general information, is that right?

M. T:

Yes, ma’am.

Prosecutor:

General information. Start with the word “looking.” Read that to me, please.

M. T.:

“Looking forward to seeing that redheaded slut.”

Prosecutor:

Who were you talking about?

M. T.:

[The victim].

On cross-examination, Turner sought to question M. T. about the comment she posted, and out of the presence of the jury made a proffer of M. T.’s testimony:

Trial counsel:

And you recall that they showed a picture of [MySpace], and it said in there that you referred to [the victim] as a redheaded slut?

M. T:

Yes, sir.

Trial counsel:

All right. Why did you refer to her in your [MySpace] as a redheaded slut?

M. T:

Because she had told me . . . about her sleeping around.

Trial counsel:

Having sex with other men?

M. T:

Yes, sir.

Turner argues that the State on direct examination sought to discredit M. T. by showing that she “hated” the victim and would probably testify favorably for Turner. He contends that he should have been allowed on cross-examination to rehabilitate M. T. by allowing her to testify about why she posted the comment about the victim.

The testimony Turner sought to elicit by cross-examination, that the victim had sex with other men, is the very type of evidence prohibited by the Rape Shield Statute. See Brown v. State, 260 Ga. App. 77, 80-81 (4) (579 SE2d 87) (2003). Its two exceptions “are exclusive,” Lamar v. State, 243 Ga. 401, 402 (2) (254 SE2d 353) (1979), and “it is well settled that the Rape Shield Statute . . . supersedes all evidentiary exceptions.” (Citations and punctuation omitted.) Logan v. State, 212 Ga. App. 734, 735-736 (1) (a) (442 SE2d 883) (1994). “The defendant’s right to confront and cross-examine witnesses concerning the victim’s past sexual behavior with others must bow to accommodate the [S]tate’s interest in the Rape Shield Statute.” Harris v. State, 257 Ga. 666, 668 (1) (c) (362 SE2d 211) (1987). Therefore, we find no merit in Turner’s argument that the State “opened the door” to evidence which Turner admits was protected by the Rape Shield Statute. The trial court did not err in refusing to allow this testimony.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

Decided November 1, 2011.

Buford & Buford, Floyd M. Buford, Jr., for appellant.

Fredric D. Bright, District Attorney, Reagan W. Goodrich, Assistant District Attorney, for appellee.


text:
    A11A1251.
    DICKERSON v. THE STATE.
    (718 SE2d 564)
   Barnes, Presiding Judge.

In September 2004, a jury found Larrion Dickerson guilty of trafficking in cocaine. He received a life sentence without parole. Dickerson timely filed a motion for new trial and filed a motion to modify his sentence. The trial court granted the motion to modify the sentence in October 2010 and resentenced him to 40 years to serve 20, then denied the motion for new trial in November 2010. Dickerson appeals his conviction, pro se, contending that the State presented insufficient evidence to support his conviction, his counsel was ineffective, and the trial judge erred by failing to charge on accomplice testimony and by admitting similar transaction evidence. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Hubbard v. State, 274 Ga. App. 184, 185 (1) (617 SE2d 167) (2005). We neither weigh the evidence nor judge the credibility of the witnesses, but only determine whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this light, the facts show that a police detective received information that crack cocaine was being sold from a house on Metropolitan Avenue in Atlanta. The officer recruited a confidential informant who met Dickerson on the front porch, followed him inside the house, and emerged with two “hits” of cocaine. On the basis of that information, the detective obtained a search warrant for the house, which Dickerson had recently rented using an alias. When the warrant was executed a few hours later, Dickerson was not present, but the officers found James Riley in the kitchen throwing crack cocaine into a pot of boiling grease, with cocaine scattered on the stove, counter, and floor. Riley was arrested along with Frenchie Lemon, who had been staying in one of the bedrooms, and both Riley and Lemon were charged with trafficking. A drug dog found a bag containing individual packages of crack cocaine hidden in the basement. The individual packages were similar to the ones Riley was tossing into the grease pot. The total weight of cocaine seized from the house measured 83 grams.

Lemon testified that Dickerson used the nickname “Doc,” had rented the house, and had provided the drugs. She had previously seen cocaine in a bag that was marked “thank you,” similar to the bag found in the basement. The trial court admitted evidence of four similar crimes committed by Dickerson.

1. Dickerson contends the evidence was insufficient to sustain his conviction, arguing that the only evidence linking him to the drugs was Lemon’s uncorroborated accomplice testimony. In “felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient” and must be supported by the testimony of at least one other witness or by “corroborating circumstances.” OCGA § 24-4-8. The additional evidence must be independent of the accomplice testimony and must connect the defendant to the crime or lead to the inference he is guilty. Johnson v. State, 288 Ga. 803, 805 (2) (708 SE2d 331) (2011). The trier of fact must decide whether the corroborating evidence is sufficient. Id.

In this case, the State introduced sufficient corroborating evidence of Lemon’s testimony that the drugs found in the basement of the house on Metropolitan Avenue belonged to Dickerson. Among other things, the detective’s testimony that he saw Dickerson greet the confidential informant on the porch, the two men went inside, and the informant came out with two packages of crack is sufficient.

Dickerson also argues that others had equal access to the drugs found in the basement, and therefore the evidence against him was insufficient. “If the State presents evidence that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband.” (Citation omitted.) Wheeler v. State, 307 Ga. App. 585, 587 (1) (705 SE2d 686) (2011). This presumption of constructive possession arising from ownership or control of the premises can be overcome by evidence that other persons had equal access to the contraband found there. See Wilkerson v. State, 269 Ga. App. 190, 191-192 (2) (603 SE2d 728) (2004). But absent “unrebutted affirmative evidence demanding a finding of equal access,” the question of whether the presumption of possession has been overcome is for the jury to resolve. (Punctuation and footnote omitted.) Mangum v. State, 308 Ga. App. 84, 87 (1) (706 SE2d 612) (2011). “While the presence of others in the house may be viewed as inculpating those individuals, their presence need not be viewed as exculpating [Dickerson].” Daugherty v. State, 283 Ga. App. 664, 667 (1) (b) (642 SE2d 345) (2007). Dickerson’s arguments about the equal access evidence address the weight of the evidence, which the jury decided against him. We find no error.

2. Dickerson argues that the trial court erred in admitting evidence of four similar transactions. Two of the four transactions involved convictions for possession of cocaine with the intent to distribute, to which Dickerson had pled guilty, and the State introduced certified copies of those convictions. The other two transactions were not convictions, but were established through the testimony of two police officers, both of whom arrested Dickerson for possession of cocaine with the intent to distribute.

We review a trial court’s decision to admit such evidence for an abuse of discretion. Brooks u. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998). To qualify for admission as a similar transaction, the State must show that (1) it is introducing the evidence for an appropriate purpose, (2) sufficient evidence establishes that the accused committed the independent offense, and (3) sufficient similarity exists between the independent offense and the crime charged, so that “proof of the former tends to prove the latter.” McKibbons v. State, 226 Ga. App. 452, 454-455 (3) (486 SE2d 679) (1997). As the record shows the presence of all factors required to authorize admission of the similar transaction evidence in question, we find no error by the trial court.

Dickerson asserts that the State said it would call a chemist to testify that the substance with which he was arrested was cocaine, but then did not do so. Presumably he intended to argue that the trial court therefore erred in admitting evidence of the two arrests. We find no error. Dickerson’s counsel stipulated to the admissibility of one of the lab reports identifying the material seized as positive for cocaine and weighing 37.8 grams, which the State read into the record. As to the second arrest, the arresting officer testified without objection that he knew what crack cocaine looked like and that he saw Dickerson sell a package from a plastic bag containing 65 individual packages of crack cocaine. The trial court did not abuse its discretion in admitting evidence of transactions similar to the one for which Dickerson was on trial.

3. Dickerson contends the trial court erred in failing to find that his trial counsel was ineffective.

We will not reverse a trial court’s determination that a defendant received effective assistance from trial counsel unless clearly erroneous. Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996). To determine the validity of an ineffective assistance of counsel claim, we consider whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense, or whether a reasonable probability exists that the outcome would have been different if counsel had not been deficient. Jones v. State, 289 Ga. App. 219, 222 (2) (656 SE2d 556) (2008).

(a) Dickerson contends his trial counsel was ineffective for failing to file a motion to suppress the evidence found during the execution of the search warrant. Dickerson asserts the warrant was based on a “fraudulent misrepresentation” in the affidavit, without which probable cause would not exist. When trial counsel’s failure to file a motion to suppress is the basis for an ineffective assistance claim, “the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” Richardson v. State, 276 Ga. 548, 553 (3) (580 SE2d 224) (2003).

Specifically, Dickerson argues that the affiant incorrectly implied that he had seen the confidential informant buy drugs directly from Dickerson. During the hearing on Dickerson’s motion for new trial, the trial court considered the affidavit absent the representation that the affiant saw the informant buy drugs from Dickerson, and determined that the affidavit was still sufficient to establish probable cause for the search warrant. We find no flaw in this analysis, and absent a likelihood of success, Dickerson’s counsel was not ineffective for failing to file a motion to suppress. See Sullivan v. State, 284 Ga. 358, 361 (2) (667 SE2d 32) (2008).

(b) Dickerson contends his trial counsel was also ineffective for failing to request a jury charge that an accomplice’s testimony had to be corroborated, which was harmful because Lemon’s testimony was the only evidence offered to connect him to the drugs found in the basement. “[S]uch corroboration need only be slight, and there was considerable evidence corroborating [Lemon’s] testimony. . . . Accordingly, we do not conclude that there is a reasonable probability that the outcome of the trial would have been different had the charge been requested.” (Citations omitted.) Hinely v. State, 275 Ga. 777, 782 (2) (e) (573 SE2d 66) (2002).

4. The trial court did not err in failing to charge the jury sua sponte that accomplice testimony “should be viewed with suspicion and caution.”

This state’s requirement is one of corroboration and where there is corroboration, the law of this state does not require an additional instruction to the jury that the testimony of the accomplice must be received with skepticism. Although it is not error to give such an instruction upon request, we decline to hold that the failure to so charge where the corroboration requirement has been satisfied is error requiring a new trial.

Decided November 1, 2011.

Larrion Dickerson, pro se.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Paige Reece Whitaker, Assistant District Attorneys, for appellee.

(Citation omitted.) Haas v. State, 146 Ga. App. 729, 733 (7) (247 SE2d 507) (1978); see also Ladson v. State, 248 Ga. 470, 476-477 (9) (285 SE2d 508) (1981).

5. Dickerson’s motion for sanctions is denied.

Judgment affirmed.

Adams and Blackwell, JJ, concur.

       Riley’s conviction was affirmed in Riley v. State, 292 Ga. App. 202 (663 SE2d 835) (2008).


text:
    A11A1255.
    LYNX REAL ESTATE, INC. v. F. A. L. INVESTMENTS, LLC.
    (718 SE2d 552)
   Smith, Presiding Judge.

In this action on a real estate brokerage contract, Lynx Real Estate, Inc. (“Lynx”) appeals from the grant of summary judgment in favor of F. A. L. Investments, Inc. (“F. A. L.”), the seller of the property. Because genuine issues of material fact remain for resolution, we reverse.

Lynx brought this action seeking a commission on the sale of a commercial property by F. A. L., alleging that the exclusive brokerage contract between the parties was extended by mutual agreement and that the sale was procured by Lynx during the six-month extension period provided by the terms of the contract. Lynx also alleged, in the alternative, a claim in quantum meruit for the value of its services in procuring the purchaser of the property. F. A. L. moved for summary judgment, asserting that the written contract expired by its terms and was never extended and that Lynx was not the procuring cause of the sale.

On August 6, 2010, the trial court entered a brief order denying F. A. L.’s motion for summary judgment because “material issues of fact remain on claims so alleged.” But on October 4, 2010, the trial court entered another brief order granting the motion for summary judgment, noting only: “Since there was no written agreement or actual procurement of a buyer, plaintiffs claims fail.” And on October 27, 2010, the trial court entered a third order reading:

It having come to the Court’s attention that two (2) conflicting orders have been filed into the Court’s record in error, It is hereby ordered that the order filed with the Court on August 6, 2010 is set aside and the order filed with the Court on October 4, 2010 shall remain granting the defendant’s motion for summary judgment for the reasons cited in said order.

This appeal followed.

“On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. [Cit.]” Simprop Acquisition Co. v. L. Simpson &c. Unitrust, 305 Ga. App. 564 (1) (699 SE2d 860) (2010). So viewed, the record shows that in September 2006, Lynx and F. A. L. executed a written “Representation Agreement.” In this agreement, F. A. L. granted to Lynx “the exclusive and irrevocable right and authority to sell” an office building in Fayette County for a period of time ending on March 14, 2007. The parties agreed to a certain commission if Lynx procured a buyer during the term of the agreement “or any extension thereof,” or if

[a] sale, exchange or other conveyance of the property is made within six (6) months after the expiration of the term to a person or entity with whom agent has negotiated, or to whose attention agent has brought the property, or who was introduced to seller by agent as a prospective purchaser . . . provided that the name of any such person or entity has been submitted to seller by delivery of a written offer to purchase the property prior to expiration of the term or by written notice within fifteen (15) calendar days of such expiration. With respect to a sale, exchange or other conveyance to any such person or entity, agent shall conclusively be deemed to be the procuring cause.

The agreement also provided: “Any future modification of this agreement will be effective only if it is in writing and signed by the party to be charged.”

The agreement by its terms expired on March 14, 2007. Lynx, however, contends that the evidence shows the parties continued the written agreement in force after that date. Lynx presented evidence, including e-mails exchanged between the parties, that after March 14, 2007, and throughout the summer and fall of 2007, F. A. L.’s principals continued to discuss the marketing of the property with Lynx. F. A. L.’s representative acknowledged that during this time, Lynx sought out prospective customers, negotiated a contract and obtained earnest money, corresponded with the purchaser on F. A. L.’s behalf, forwarded letters of intent to F. A. L., including one from the purchaser in September 2007, and met with the purchaser and F. A. L. in person in the fall of 2007 to negotiate the terms of a sale.

Lynx’s principal testified that as of late 2007, the purchaser was still interested in the property but wanted to sell another property in order to finance the transaction. F. A. L.’s principal acknowledged that F. A. L. had “multiple verbal and written communications” with Lynx between March 2007 and January 2008 “[blecause I wanted him to find a buyer for the building, and we were willing to pay him a commission if he did so.” He also acknowledged that Lynx “did find” the purchaser and “brought [him] to the table for negotiations in September 2007.”

On January 17, 2008, F. A. L.’s principal informed Lynx by e-mail that it was retaining a different broker and instructed Lynx to “direct any inquiries to them.” In April 2008, within six months of that e-mail, F. A. L. signed a contract for the sale of the property, for the same purchase price negotiated by Lynx and with the same purchaser presented by Lynx in the fall of 2007.

1. The parties’ extended correspondence and activity provide some evidence that the parties agreed to extend the original written contract until F. A. L. terminated it on January 17, 2008. And it provides some evidence that Lynx was a “procuring cause” of the eventual sale. Perimeter Realty v. GAPI, Inc., 243 Ga. App. 584, 596-597 (11) (533 SE2d 136) (2000) (prima facie evidence of procuring cause when brokers brought parties together, presented information to parties, set up meeting between parties, and continued to attempt to monitor negotiations until seller declined their assistance) .

F. A. L. contends that it never agreed to an extension and that the terms of such an extension were never established, and it points to evidence contrary to that presented by Lynx. But when the evidence is in conflict, as it is here, whether Lynx and F. A. L. mutually intended to extend the term of the existing contract is a question for the finder of fact.

Even if the contract provides it may not be changed except by writing, parties may subsequently by mutual consent enter into a new agreement at variance with the other. The modified agreement need not be expressed in words, in writing or signed, but the parties must manifest their intent to modify the original contract. Whether there has been such a mutual and intended departure so as to make practically a new agreement is generally a question for the fact finder to determine.

(Citations and punctuation omitted). Marathon Oil Co. v. Hollis, 167 Ga. App. 48, 49 (1) (B) (305 SE2d 864) (1983).

Further, in cases such as this one, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement. Where such extrinsic evidence exists and is disputed, the question of whether a party has assented to the contract is generally a matter for the jury.

(Citations omitted.) Turner Broadcasting System v. McDavid, 303 Ga. App. 593, 597 (1) (693 SE2d 873) (2010). “[T]he question as to what was intended here is an issue of fact that requires jury resolution. [Cit.]” Atlanta Dev. v. Emerald Capital Investments, 258 Ga. App. 472, 479 (1) (574 SE2d 585) (2002).

The Georgia Brokerage Relationships in Real Estate Transactions Act (“BRRETA”), OCGA § 10-6A-1 et seq., cited by F. A. L., does not change this result. First, our Supreme Court has concluded

that the legislature did not intend for BRRETA to regulate real estate commissions or remuneration payments, but rather (as explained) is concerned primarily with the question of whether and under what circumstances a client or a customer relationship arises, and what duties are owed within the context of each.

(Citations and footnote omitted.) Killearn Partners, Inc. v. Southeast Properties, 279 Ga. 144, 147 (2) (611 SE2d 26) (2005). Additionally, this is not a case in which “no written brokerage engagement agreement has been executed.” Id. at 144. Rather, Lynx contends that an existing written agreement was modified by mutual consent to amend its terms in accordance with black letter Georgia contract law. Finally, even if no written agreement is found to be in effect, BRRETA has no effect on other common law actions for recovery of a real estate commission, such as the quantum meruit claim also alleged by Lynx. Id. at 147 (2). F. A. L. has not demonstrated that no material issues of fact remain or that it is entitled to judgment as a matter of law. The trial court therefore erred in granting summary judgment in favor of F. A. L.

Decided November 1, 2011.

Cohen, Cooper, Estep & Allen, Jefferson M. Allen, for appellant.

Smith, Welch, Webb & White, Timothy W. Haley, for appellee.

2. In light of our holding in Division 1 of this opinion, we do not reach Lynx’s remaining enumeration of error.

Judgment reversed.

Mikell and Dillard, JJ., concur.

       This court has recognized similar post-termination provisions in exclusive listing agreements. See Snipes v. Marcene P Powell & Assocs., 273 Ga. App. 814 (616 SE2d 152) (2005); Goodman v. Frolik & Co., 233 Ga. App. 376, 377-378 (504 SE2d 223) (1998); Ellzey Realty Co. v. Hugo, Inc., 154 Ga. App. 460, 461-462 (268 SE2d 717) (1980).


text:
    A11A1269.
    DAVIS v. THE STATE.
    (718 SE2d 559)
   Smith, Presiding Judge.

Justin Davis, a/k/a Shaun Neverson, appeals from his convictions of burglary, aggravated assault, attempt to commit armed robbery, and possession of a firearm during the commission of a felony. Davis contends (1) that the trial court erred by failing to merge his aggravated assault conviction into the attempted armed robbery conviction; (2) that the trial court erred by limiting defense counsel’s cross-examination of a State’s witness; and (3) that he received ineffective assistance of counsel. For the reasons set forth below, we affirm in part, vacate in part, and remand for resentencing.

Viewed in the light most favorable to the verdict, the record shows that the victim was at home in his apartment with his two teenage daughters when he “heard somebody try [his] doorknob” around 11:00 p.m. When he looked out the window, he saw “two guys coming out the front of the apartment building running around towards the back, so [he] went and checked the back door to make sure that was locked.” He retrieved his gun and went back to the front of his apartment where he saw someone try the door again. When he went and checked the front door, it was unlocked, and the door came open. He saw three men wearing bandanas and hoodies and then a fourth man wearing a ski mask who “came from the blind side” of the doorway with a raised gun. The victim testified that when he saw the gun, he pulled his own gun and shot the man holding the gun in the leg. After the gunman was shot, his three companions fled.

The victim testified that the gunman was inside his apartment when he shot him. The two men then struggled with one another for both weapons, and the gunman’s ski mask fell off. During the struggle, one daughter used a bat to hit the gunman on his injured leg, while the other daughter called the police. After a few minutes of struggle, the man “gave the weapon up” and told the victim “it’s the wrong apartment, it was a mistake.”

After securing both weapons, the victim decided to take the gunman to the hospital because the police had not yet arrived and the gunman kept saying he needed to go to the hospital. The victim drove him to the hospital and returned home after leaving him at the emergency room. The victim admitted that when he returned home he initially lied to the police, claiming that both guns belonged to the men outside his door. When a detective arrived, he told the truth: that the gun with the removed serial number belonged to him.

A detective interviewed Davis in the hospital emergency room. Davis told the detective that he was shot after getting into an altercation with an unknown man while he was walking to a liquor store. He claimed that the man shot him and left and that a woman he also did not know stopped and drove him to the hospital.

During the trial, the victim identified Davis as the gunman, and both of his daughters identified Davis as the man they saw “tussling” with their father. DNA taken from the ski mask that fell off during the struggle matched a known sample from Davis. Davis’s cellmate in the county jail testified that Davis told him he was shot while trying “to rob a guy that had a bunch of money and drugs.”

1. Davis asserts that the trial court erred by refusing to merge his aggravated assault conviction with his attempted armed robbery conviction because “there was never a break in the action to end one offense and begin another.” The State asserts that the offenses did not merge because the aggravated assault was complete when Davis pointed the handgun at the victim, and that the armed robbery was complete when Davis entered the victim’s apartment as alleged in the indictment.

Aggravated assault is not a lesser included offense of armed robbery as a matter of law, and the two offenses rarely merge as a matter of fact. We determine whether one crime is included in another as a matter of fact by applying the “required evidence” test adopted recently by our Supreme Court. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. The important question is not the number of acts involved, or whether the crimes have overlapping elements, but whether, looking at the evidence required to prove each crime, one of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged.

(Citations, punctuation and footnotes omitted.) Reed v. State, 293 Ga. App. 479, 481-482 (2) (668 SE2d 1) (2008).

We are not persuaded by the State’s argument that the aggravated assault was completed before the attempted armed robbery. The victim testified repeatedly that Davis was in his apartment when he shot him and that he fired his gun as soon as he saw Davis point a gun at him while forcing his way in. Both crimes were complete wben Davis pointed the gun at the victim while simultaneously entering the apartment, and there was no separate aggravated assault before the attempted armed robbery began. The trial court therefore erred by failing to merge the aggravated assault charge into the attempted armed robbery charge. Reed, supra, 293 Ga. App. at 482 (2); Young v. State, 272 Ga. App. 304, 307-308 (2) (612 SE2d 118) (2005).

2. Davis argues the trial court erred by prohibiting defense counsel from cross-examining Davis’s cellmate about the charge for which he had been jailed. The record shows that before the cellmate testified, counsel for both parties and the trial judge discussed at length the scope of allowable impeachment of this witness. The record shows that the witness was in jail for violating the terms of his probation for a first offender sentence on an aggravated assault charge. At the time the witness approached the police, his probation revocation was pending, but it had been resolved by the time he testified at trial. Defense counsel asserted that he was entitled to question the witness

about the reason he is in jail, because the jury should know that he pled guilty. Although that guilty plea has not been entered on the record, he admitted in open court under oath that he assaulted a police officer in an aggravated manner, obstructed a law enforcement officer, and he admitted the probation revocation charges ... of testing positive for methamphetamine.

The trial court ruled that the jury could learn that the witness was “in jail” and nothing further.

Davis asserts that the trial court should have allowed the evidence of the pending probation revocation to demonstrate bias and a motive for the witness to curry favor with the State by manufacturing evidence against him. We cannot consider this claim, however, because Davis failed to raise this ground in the trial court. Haynes v. State, 199 Ga. App. 288, 290-291 (3) (404 SE2d 585) (1991). “Errors not raised in the trial court will not be heard on appeal.” Butler v. State, 285 Ga. 518, 519 (2) (678 SE2d 92) (2009).

Defense counsel sought to admit evidence of the witness’s first offender guilty plea and his first offender probation revocation for general impeachment purposes only. But it is well settled that

the first offender record of one who is currently serving a first offender sentence or of one who has successfully completed the first offender sentence may not be used to impeach the first offender on general credibility grounds (i.e., by establishing that the first offender has been convicted of a felony or crime of moral turpitude) because no adjudication of guilt has been entered.

(Citations and punctuation omitted.) Davis v. State, 269 Ga. 276, 277 (2) (496 SE2d 699) (1998). See also Butler, supra, 285 Ga. at 518-520 (2).

3. Davis contends that he received ineffective assistance of counsel because his attorney failed to assert that the pending probation revocation was admissible to show the cellmate’s bias. 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. Miller v. State, 285 Ga. 285, 285-287 (676 SE2d 173) (2009). “A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” (Citations and punctuation omitted.) Scapin v. State, 204 Ga. App. 725 (420 SE2d 385) (1992).

Decided November 1, 2011.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Alston C. McNairy, William C. Akins, Assistant District Attorneys, for appellee.

Davis correctly asserts that his trial counsel’s performance was defective for failing to urge that he was entitled to cross-examine the cellmate about the probation revocation charges that were pending at the time he went to the police with Davis’s jailhouse confession.

While it is true that a first offender sentence cannot be used to impeach the first offender on general credibility grounds because no adjudication of guilt has been entered, the defendant is entitled to attack the credibility of the witness by showing that the pending charges reveal a possible bias, prejudice, or ulterior motive on the part of the witness to give untruthful or shaded testimony in an effort to please the State.

(Citations and punctuation omitted.) Melson v. State, 263 Ga. App. 647, 648 (2) (588 SE2d 822) (2003).

Our inquiry does not end here, however, because Davis must also demonstrate that there is a reasonable probability that the trial result would have been different if not for his counsel’s deficient performance. Based upon the overwhelming evidence against Davis, we conclude that he cannot meet this burden. Melson, supra, 263 Ga. App. at 648 (2). The record shows that the victim, as well as his two daughters, testified about the victim’s struggle with Davis in the apartment. DNA evidence placed Davis in the apartment, and he was hospitalized for a gunshot wound consistent with the victim’s testimony. Davis has therefore failed to show that there is a reasonable probability that the outcome of his trial would have been different if his counsel’s performance had not been deficient.

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

Mikell and Dillard, JJ., concur.

       The trial court sentenced Davis to ten years in prison for burglary, aggravated assault, and criminal attempt to commit armed robbery, with the sentences to run concurrently. The trial court sentenced Davis to five years probation on the firearm charge, running consecutive to the sentences on the other three convictions.

       Count 2 of the indictment charged Davis with committing aggravated assault “upon the person of [the victim], with a handgun, a deadly weapon, by pointing the handgun at him, thereby placing said person in reasonable apprehension of immediately receiving a violent injury.” Count 3 of the indictment charged Davis with attempt to commit armed robbery “in that the accused did knowingly and intentionally perform an act, to wit: entering the victim’s apartment with a handgun, said act constituting a substantial step toward the commission of said crime, by attempting to take the property of [the victim], from the immediate presence of Lthe victim], by use of an offensive weapon, to wit: a handgun, with the intent to commit a theft. . . .”


author: Blackwell, Judge.

text:
    A11A1418.
    CLARK v. RUSH.
    (718 SE2d 555)
   Blackwell, Judge.

In this case, we must consider whether the pattern jury instruction on comparative negligence is an accurate statement of the law According to the pattern instruction, if the jury determines that the plaintiff was negligent and that his negligence, although less than that of the defendant, contributed to the injury for which he seeks damages, the jury must “reduce the amount of damages otherwise awarded to the plaintiff in proportion to the negligence of the plaintiff compared with that of the defendant.” Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.) § 60.141. We previously have approved this pattern instruction, see Whelan v. Moone, 242 Ga. App. 795, 796-797 (2) (531 SE2d 727) (2000), but that was long before the current version of OCGA § 51-12-33 (a) was enacted as part of the Tort Reform Act of 2005. See Ga. L. 2005, p. 1, § 12. In cases of comparative negligence, OCGA § 51-12-33 (a) requires the jury to determine the percentage of fault borne by the plaintiff and report that percentage to the judge, but the statute assigns the task of reducing the damages award accordingly to the judge. We have cautioned before that OCGA § 51-12-33 (a) seems to require such a procedure, but it appears that the pattern jury charge on comparative negligence has not been revised to accommodate the procedure that the General Assembly adopted in 2005. Today, we conclude that the pattern instruction on comparative negligence no longer is an accurate statement of law.

Zanta’vious Rush sued Courtny Clark for injuries that Rush sustained when his car collided with a van driven by Clark, and Clark defended on the ground that Rush was partly at fault for the collision. When the case was tried by a Clayton County jury, the trial court charged the jury with the pattern instruction on comparative negligence, and the court directed the jury to return its verdict on a form that, consistent with the pattern instruction, contemplates that the jury itself would reduce the damages award for any comparative negligence and did not permit the jury to specifically report the percentage of fault, if any, borne by the plaintiff. Clark timely objected to both the jury instruction and the verdict form. The jury awarded $20,000 to Rush, and Clark appeals, enumerating the jury instruction and the verdict form as error. We reverse and remand for a new trial.

1. On appeal, Rush does not dispute the contention that the charge on comparative negligence and the verdict form are inconsistent with OCGA § 51-12-33 (a) and, therefore, erroneous, but he argues instead that there simply is no evidence from which a jury could find that he was negligent and that his negligence contributed to his injuries. If Rush is right, of course, the errors that Clark asserts with respect to the jury instructions and verdict form would be harmless, Morrow v. State, 155 Ga. App. 574, 575 (2) (271 SE2d 707) (1980), so we will consider first whether the evidence properly put comparative negligence in issue. We conclude that it did.

Clark testified at trial that, before the collision, she came to a stop as she prepared to turn left onto Mount Zion Road, looked both ways, saw no oncoming traffic, and began to make her left turn. Only then did she see the headlights of the car Rush was driving, which was “coming real fast,” according to Clark. There was evidence that the speed limit on Mount Zion Road is 40 miles per hour, and it was undisputed that Rush struck Clark’s van with sufficient force to flip the van onto its side. Moreover, Clark testified that her van rolled over three times before coming to rest on its side. A jury might properly conclude from this evidence, we think, that Rush was driving too fast, that driving so fast was negligent, and that his negligence contributed to the collision. Clark was entitled, therefore, to a correct charge on comparative negligence. See Jimenez v. Morgan Drive Away, 238 Ga. App. 638, 641 (2) (b) (519 SE2d 722) (1999).

2. We turn now to the jury instruction on comparative negligence and the verdict form. The trial court in this case charged the jury with the pattern instruction on comparative negligence:

If you find that the defendant was negligent so as to be liable to the plaintiff and that the plaintiff [also] was negligent, thereby contributing to [the] plaintiffs injury and damage, but that the plaintiffs negligence was less than the defendant’s negligence, then the negligence of the plaintiff would not prevent the plaintiffs recovery of damages, but would require that you reduce the amount of damages otherwise awarded to [the] plaintiff in proportion to the negligence ... of the plaintiff compared with that of the defendant.

See Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.) § 60.141. This pattern charge is based on our decision in Underwood v. Atlanta &c. R. Co., 105 Ga. App. 340, 358-362 (8) (124 SE2d 758) (1962), reversed in part on other grounds, Atlanta &c. R. Co. v. Underwood, 218 Ga. 193 (126 SE2d 785) (1962), and it predates the enactment of the Tort Reform Act of 2005. See Little Ocmulgee Elec. Membership Corp. v. Lockhart, 212 Ga. App. 282, 284 (2) (441 SE2d 796) (1994) (physical precedent only); id. at 285-286 (Blackburn, J., concurring specially). Clark timely objected to this instruction, asserting that it is inconsistent with the requirement of the current version of OCGA § 51-12-33 (a) that the judge, rather than the jury, make any reduction of damages for comparative negligence. See OCGA § 5-5-24 (a) (“ [I]n all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”).

Consistent with the jury charge on comparative negligence, the verdict form that the trial court provided to the jury did not permit the jury, in the event that it found the case to be one of comparative negligence, to return a special verdict as to the percentage of fault attributable to Rush. Instead, the verdict form allowed the jury either to return a verdict for Rush in an amount specified by the jury or to return a verdict for Clark. Clark timely objected to the verdict form on the ground that it “just doesn’t give a space for the jury to [assign a] percentage of fault to the plaintiff.” See Albert v. Albert, 164 Ga. App. 783, 785 (5) (298 SE2d 612) (1982) (objection to special verdict form must be made before jury retires for deliberation).

On appeal, as she did below, Clark argues that the jury instruction on comparative negligence and the verdict form are inconsistent with OCGA § 51-12-33 (a), and we think she is right. The current version of OCGA § 51-12-33 (a), enacted in 2005, provides that if the jury concludes that the plaintiff was negligent, that his negligence contributed to his injuries, but that his negligence is less than that of the defendant, the jury must identify the percentage of fault attributable to the plaintiff and specifically report that percentage to the judge, who then must reduce the award of damages by the same percentage:

Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.

OCGA § 51-12-33 (a). The statute sets out this procedure for the reduction of damages for comparative negligence in clear and unambiguous terms. When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant, see Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 577 (1) (707 SE2d 921) (2011), and we must bear in mind that, “[wjhere the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003); see also Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010). We have suggested in dicta in several prior decisions that the current version of OCGA § 51-12-33 (a) requires such a procedure, see note 1 supra, and we hold today that it does.

The statutory procedure for reducing a damages award for comparative negligence differs in two significant respects from the procedure embodied in the pattern charge. First, the statutory procedure requires the jury, if it finds comparative negligence, to quantify the fault of the plaintiff in precise terms by determining the “percentage of fault of the plaintiff.” OCGA § 51-12-33 (a). The pattern charge, on the other hand, does not require the jury to quantify the fault of the plaintiff so precisely, although it does allow it. Instead, the pattern charge directs the jury to determine the “proportion” of negligence attributable to the plaintiff, see Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.) § 60.141, which equally suggests that a jury may decide comparative negligence based on a mere rough proportionality of fault or on a more exact and quantified percentage of fault attributable to the plaintiff. Second, by requiring that the jury make a factual finding as to the percentage of fault attributable to the plaintiff and committing any reduction of the damages award to the judge, see OCGA § 51-12-33 (a), the statutory procedure ensures that the legal consequences of a finding that a plaintiff bears responsibility for a certain percentage of fault for his injuries are truly reflected in the verdict and judgment. The procedure established by the pattern charge leaves the parties to wonder whether the jury found comparative negligence at all and, if so, correctly reduced the damages to be awarded the plaintiff in proportion to the degree of his negligence. We conclude, therefore, that both the existing pattern charge on comparative negligence and Underwood, 105 Ga. App. at 340, the case on which the pattern charge is based, have been superseded by OCGA § 51-12-33 (a), as amended in the Tort Reform Act of 2005.

Decided November 1, 2011.

Taken together, the jury charge and the verdict form in this case did not reflect the statutory requirements that the jury, if it found negligence on the part of Rush, identify a precise percentage of fault attributable to Rush and report it as a special verdict and that the judge reduce the damages award accordingly. Clark preserved her objections to the erroneous jury instruction and the verdict form, and aside from the contention that Clark was entitled to no instruction at all on comparative negligence, which we have rejected in Division 1 above, Rush does not even attempt to show that the errors were harmless. Given the possibility that the jury might have found negligence on the part of Rush but failed to quantify his negligence in precise terms and reduce its award of damages accordingly, we cannot say in this case that the errors were harmless, and for this reason, we are constrained to reverse the judgment entered on the verdict below and remand for a new trial by a properly instructed jury, which shall return a verdict in a proper form. See Glisson v. Glisson, 265 Ga. 239, 240 (3), (4) (454 SE2d 508) (1995).

Judgment reversed and case remanded.

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

Tavis L. Knighten, M. Katherine Durant, Allison M. McDonald, for appellant.

Roger W. Orlando, for appellee.

       See, e.g., Turner v. New Horizons Community Svc. Bd., 287 Ga. App. 329, 330-331 (651 SE2d 473) (2007) (OCGA § 51-12-33 (a) “shows legislative approval of a procedure under which the trial court reduces the jury’s damage award in proportion to the degree of fault the jury attributes to the plaintiff”); Decatur's Best Taxi Svc. v. Smith, 282 Ga. App. 731, 733 (2), n. 2 (639 SE2d 482) (2006) (“We note that pursuant to Senate Bill No. 3, Ga. L. 2005, commonly known as the Tort Reform Act of 2005, the calculation of the proportional reduction of damages is now to be performed by the judge following a jury’s determination of the parties’ respective percentages of fault.”).

       In addition to the evidence recited above, we note that Rush admitted that he was driving to work at the time of the collision, that he was running late, that he had been late for work at least 15 times in the months preceding the collision, that he knew at the time of the collision that he was “close to losing” his job for tardiness, and that he was, in fact, fired soon after the collision for tardiness. We also note that, notwithstanding the evidence that Rush was partially to blame for his injuries, other evidence suggests that Clark alone was responsible for the collision. An eyewitness testified that Clark did not come to a stop as she approached Mount Zion Road, that Rush was not speeding, and that the eyewitness warned the driver of the car in which she was riding to watch out for Clark because Clark did not appear to slow as she turned into traffic. It was for the jury to weigh this conflicting evidence and resolve the question of comparative negligence.

       The trial court also charged the jury with the pattern instruction on contributory negligence, charging that, if the jury found that Rush was negligent, that his negligence contributed to his injuries, and that his negligence was equal to, or greater than, that of Clark, Rush could not recover any damages. See Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.) § 60.140. No one takes issue with this instruction.

       Confusingly, the verdict form authorized the jury to return a verdict for Clark in one of two overlapping ways; the jury could simply “find in favor” of Clark, or it could find either that Clark was not negligent at all or that Rush was equally or more negligent than Clark and, “therefore!,] find for [Clark].” This aspect of the verdict form is not challenged in this appeal, and we decide nothing about it.

       The statute does not explicitly state that the jury must return a special verdict identifying the percentage of fault attributable to the plaintiff, but that is implicit, given the explicit requirements that the jury determine the percentage of fault and that the judge reduce any damages award in proportion to the percentage determined by the jury. Without a special verdict, the judge could not know the percentage by which he is to reduce the damages award.


text:
    A11A1427.
    DAWSON POINTE, LLC et al. v. SUNTRUST BANK.
    (718 SE2d 570)
   Barnes, Presiding Judge.

The trial court granted summary judgment to SunTrust Bank on its complaint for breach of a promissory note from Dawson Pointe, LLC, and personal guarantees from H. Wayne Clark and James A. Walters. The court awarded the bank $11,714,697 in principal and more than $6.85 million in interest, up to the date of the judgment, plus post-judgment interest at the rate of 21.5 percent per year against all three defendants. On appeal, the defendants argue that the trial court erred because SunTrust failed to prove the applicable rate of interest. For the reasons that follow, we disagree and affirm the trial court.

On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. On summary judgment, after the movant makes a prima facie showing of its entitlement to judgment as a matter of law, the burden then shifts to the respondent to come forward with rebuttal evidence. To do so, the respondent must set forth specific facts showing the existence of a genuine issue of disputed fact. OCGA § 9-11-56 (e).

(Citations and footnotes omitted.) Oasis Goodtime Emporium I v. Crossroads Consulting Group, 255 Ga. App. 375, 376 (565 SE2d 573) (2002).

The appellants do not dispute that they defaulted on the loan and that they owe the principal awarded, but argue that SunTrust failed to establish the applicable variable rate of interest during the term of the note and after its maturity.

Under the terms of the promissory note and guarantees, the variable interest rate before default was one-quarter of one percent (.25%) over the “Wall Street Journal Prime Rate,” which varied during the term of the loan. After default, the contract provided that interest on the unpaid principal amount would accrue at a rate of 18 percent over the variable interest rate.

With its motion for summary judgment, SunTrust submitted an affidavit from one of its employees responsible for maintaining the bank’s business records. Attached to and verified by the affidavit was a “Loan History” for the promissory note, which included the variable interest rate applicable from the note’s inception through the date of the affidavit, February 26, 2010. The employee averred that as of the default date of July 24, 2009, the accrued interest was $1,009,687, and that from July 26, 2009, to February 26, 2010, additional interest accrued at the rate of 18 percent plus the variable interest rate before default, which was 3.5 percent, for a total of 21.5 percent interest. The appellants argue that this evidence is insufficient to prove the variable interest rate underlying the interest calculated because it does not establish the Wall Street Journal Prime Rate for the time periods at issue.

Absent evidence to establish the variable rate of interest, defined in the note as a fixed percentage above a specific prime rate, “in the face of a denial of the indebtedness, summary judgment for the holder of the note was improper.” Garrett v. Atlantic Bank &c. Co., 157 Ga. App. 103 (1) (276 SE2d 152) (1981); see also Moore v. Wachovia Mtg. Co., 138 Ga. App. 646, 647 (1) (226 SE2d 812) (1976) (absent evidence of the interest rate by way of stipulation, deposition, or admission, in the face of the debtor’s denial of the interest amount sought, a question of fact remained for jury).

In this case, however, SunTrust introduced the affidavit of its employee setting forth the applicable variable interest rate, along with a document setting forth the history of the loan and showing the specific variable interest rate charged over time. The trial court acted within its discretion by admitting into evidence this “Loan History Report” as a business record under OCGA § 24-3-14. Ishak v. First Flag Bank, 283 Ga. App. 517, 519 (642 SE2d 143) (2007). And we have held that a bank employee’s uncontested affidavit setting forth the amount of interest that had accrued authorized an award of interest as a matter of law, where, as here, the defendant never came forward with contrary evidence. McIntosh v. McLendon, 162 Ga. App. 220, 221 (2) (290 SE2d 157) (1982). Furthermore, the affidavit, which states that the default variable interest rate has consistently been 21.5 percent at all times relevant to this action, provided a sufficient basis for computing the interest rate from the date the affidavit was made to the date that judgment was entered. See Hinton v. Institutional Investors Trust, 133 Ga. App. 364, 367-368 (3) (211 SE2d 169) (1974).

Read v. Benedict, 200 Ga. App. 4 (406 SE2d 488) (1991), does not require a different result. There, we affirmed a trial court’s grant of a partial directed verdict on an interest claim because we found “no competent evidence of record sufficient to enable the jury to calculate the applicable prime rate and, thus appellant’s interest claim with reasonable certainty.” Id. at 8 (3). In this case, the bank employee’s affidavit constitutes competent evidence regarding the variable interest rate, and absent any evidence from the defendants that the interest rate differed, the trial court did not err in granting summary judgment to SunTrust on the principal and interest due.

Decided November 1, 2011.

Orr, Brown & Johnson, E. Wycliffe Orr, Sr., Dustin R. Marlowe, for appellants.

Arnall, Golden & Gregory, James A. Gober, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


text:
    A11A1449.
    PLAYNATION PLAY SYSTEMS, INC. v. JACKSON.
    (718 SE2d 568)
   Smith, Presiding Judge.

In this action on a personal guaranty, PlayNation Play Systems, Inc. (“PlayNation”) appeals from the trial court’s grant of Robert Jackson II’s motion for summary judgment. For the following reasons, we affirm.

On appeal, we review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). The relevant facts here are undisputed. Jackson and Gerald Flanagan owned The Bottom Line, a limited liability Pennsylvania corporation, and conducted business under the fictitious name or “d/b/a” of Swingset Planet. The company sold and installed children’s swing sets and operated an indoor play center. The swing sets were purchased pursuant to a 2006 dealership agreement between Swingset Planet and PlayNation, a manufacturer of children’s playground equipment.

Jackson executed a personal guaranty for the debts of “Swing Set Planet” a month after the parties entered into the dealership agreement. The guaranty listed “Swing Set Planet” as the principal debtor. In 2008, PlayNation licensed its name and Jackson and Flanagan changed The Bottom Line’s fictitious name to PlayNation Parties and Playgrounds (“PlayNation Parties”) and continued to conduct the same business.

When PlayNation Parties failed to make payment on outstanding invoices, PlayNation sued for breach of Jackson’s personal guaranty, interest, and attorney fees. Following some discovery, both parties moved for summary judgment. The trial court granted Jackson’s motion for summary judgment on the ground that Jackson could not be held responsible for the debt of PlayNation Parties because the debtor listed on the guaranty was Swingset Planet. It is from this order that PlayNation appeals.

“The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another.” OCGA § 10-7-1; see Rohm & Haas Co. v. Gainesville Paint & Supply Co., 225 Ga. App. 441, 444 (3) (483 SE2d 888) (1997). The guaranty must identify the debt, the principal debtor, the guarantor, and the creditor. Cox v. U. S. Markets, 278 Ga. App. 287, 288 (1) (628 SE2d 701) (2006). “Georgia courts strictly construe guaranty agreements in favor of the guarantor. And the guarantor’s liability cannot be extended by implication or interpretation.” (Citations and footnotes omitted.) Caves v. Columbus Bank &c. Co., 264 Ga. App. 107, 114-115 (3) (b) (589 SE2d 670) (2003).

Citing American Express Travel &c. v. Berlye, 202 Ga. App. 358 (414 SE2d 499) (1991), PlayNation argues that Jackson promised to pay the debts of The Bottom Line when he signed the guaranty because Swingset Planet and PlayNation Parties were not legal entities but both were merely trade names descriptive of the corporation. See id. at 360 (1). We disagree.

In Berlye, the guarantors guaranteed payment of all sums due to the creditor from the agent under a trust agreement. Id. at 359. The trust agreement named Convenient Financial Services Group, Inc. d/b/a Cashland Check Cashing as the agent. At some time after the guaranty was executed, the corporation, Convenient Financial Services Group, Inc., began operating a d/b/a under the name Associated Check Cashing. Id. at 359. This court held that the change in the description of the corporation was immaterial and did not alter the guarantor’s obligation to guaranty the sums of the corporation. Id. at 360 (1). But Berlye is inapposite here because in Berlye, the corporation, Convenience Financial Services Group, Inc., at all times was the agent referred to in the guaranty. Id. at 359-360 (1).

In contrast to Berlye, the guaranty here named only Swingset Planet as the debtor, without any reference to a corporation or other legal person it was describing. Strictly construing the guaranty here, as we are required to do, we cannot conclude that Jackson was obligated to guarantee the debt of The Bottom Line or its later d/b/a, PlayNation Parties; the guaranty named only Swingset Planet. See, e.g., Peara v. Atlanta Newspapers, 120 Ga. App. 163 (169 SE2d 670) (1969) (physical precedent only) (defendant agreed to indemnify for credit extended to a named division of a larger corporation only and could not be held liable for credit extended to the corporation itself). To hold otherwise would extend a guarantor’s liability by implication or interpretation — an act forbidden to the courts. The trial court therefore did not err in granting Jackson’s motion for summary judgment.

Decided November 1, 2011

Marc B. Hershovitz, for appellant.

Fellows LaBriola, Christina M. Baugh, for appellee.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       Flanagan is not a party to this appeal.

       PlayNation did not sue for breach of its dealership agreement with Swingset Planet which was signed only by Flanagan, nor did it sue PlayNation Parties for unpaid invoices for goods sold and delivered.


author: McFadden, Judge.

text:
    A11A1965.
    SIPPLEN v. THE STATE.
    (718 SE2d 571)
   McFadden, Judge.

After a jury trial, William Sipplen, Sr., was convicted of kidnapping and possession of a firearm during the commission of a felony. He appeals, contending that the evidence was insufficient to authorize his convictions and the trial court erroneously charged the jury on the kidnapping offense. We hold that the evidence was sufficient to sustain the convictions and to render harmless any error in the jury charge. Accordingly, 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.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence showed that on the afternoon of May 7, 2007, a Pepsi-Cola truck driver was leaving a Wal-Mart parking lot after having refilled vending machines at the store. A purple PT Cruiser driven by Sipplen pulled out of the parking lot in front of the truck. Shortly beforehand, a man later identified as Kenneth Howard had gotten out of the PT Cruiser. Howard ran next to the truck, jumped inside, and pointed a gun at the truck driver. Howard told the truck driver “to drive and where to turn.” He also told the truck driver that there were “some people behind [them] that wasn’t going to be happy if they couldn’t get no money.” The truck driver told Howard that he did not have the combination to the truck’s safe.

At Howard’s direction, the truck driver drove approximately six miles from the store, turned onto a dirt road, and drove an additional half mile to three quarters of a mile down the road, followed by the PT Cruiser. At that point, Howard told the truck driver to stop and to hand over his cell phone. He then got out of the truck, and the truck driver “took off.”

“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” OCGA § 16-5-40 (a). The state thus must prove an unlawful movement, or asportation, of the victim that occurred against his or her will. Brashier v. State, 299 Ga. App. 107, 109 (2) (681 SE2d 750) (2009). Sipplen contends that the state failed to prove asportation.

Because the crime occurred in May 2007 and Sipplen’s trial occurred in February 2008, the test for asportation enunciated in Garza v. State, 284 Ga. 696, 701-702 (1) (670 SE2d 73) (2008), applies in this case. See Hammond v. State, 289 Ga. 142, 143-144 (1) (710 SE2d 124) (2011) (holding that Garza test applies retroactively); Dixon v. State, 300 Ga. App. 183, 184 (1), n. 3 (684 SE2d 679) (2009) (subsequent amendment of the kidnapping statute, OCGA § 16-5-40, does not apply to crimes committed before the amendment’s effective date of July 1, 2009). Garza set out four factors to determine whether the asportation element was met:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

(Citation omitted.) Garza, 284 Ga. at 702 (1). “The test was designed to determine whether the movement was one serving to substantially isolate the victim from protection or rescue — or merely a criminologically insignificant circumstance attendant to some other crime.” (Citation and punctuation omitted.) Wright v. State, 300 Ga. App. 32, 34 (1) (684 SE2d 102) (2009).

Sipplen argues that the evidence did not show asportation under the Garza test because the movement in this case was “irrelevant” to the attempted armed robbery and occurred only because the driver “just happened to be driving a truck” at the time. But not all of the elements under the Garza test must favor the state to prove asportation. Abernathy v. State, 299 Ga. App. 897, 900 (1) (685 SE2d 734) (2009). And, as we recently held in ruling on an appeal brought by Howard, who was jointly tried with Sipplen, considering the Garza factors “leads us inevitably to the conclusion that the evidence is sufficient to sustain the kidnapping conviction in this case.” Howard v. State, 310 Ga. App. 659, 662 (1) (714 SE2d 255) (2011). In that decision we reasoned:

The driver was forced at gunpoint to drive more than six miles, a substantial distance. The movement from a Wal-Mart parking lot to a secluded dirt road isolated the driver and made it less likely that law enforcement officers or bystanders would discover his predicament and come to his aid. And the movement made it less likely that Howard would be seen by eyewitnesses, which gave him greater freedom to do as he wished with the driver. In short, the evidence is overwhelming that the movement in this case served to substantially isolate the victim from protection or rescue. . ..

(Punctuation omitted.) Id. The evidence was sufficient for the jury to find that the asportation element of kidnapping, as interpreted in Garza, was proven in this case, see Howard, 310 Ga. App. at 662 (1), and that Howard possessed a firearm in the commission of the kidnapping. See OCGA § 16-11-106 (b).

The evidence also was sufficient for the jury to find that Sipplen was a party to the crimes committed by Howard. “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). Pertinently, a person is concerned in the commission of a crime if he “[ijntentionally aids or abets in the commission of the crime.” OCGA § 16-2-20 (b) (3). The evidence showed that Sipplen was driving the PT Cruiser, that he pulled out in front of the Pepsi-Cola truck as it was leaving the Wal-Mart parking lot, that Howard got out of the PT Cruiser and into the truck, that Howard insinuated to the truck driver that people who wanted money were following them, and that Sipplen in fact followed the truck from the Wal-Mart parking lot to the dirt road. From these circumstances, the jury could infer that Sipplen had the intent to participate in the kidnapping and in Howard’s possession of a gun during the commission of that crime. See Sherrer v. State, 289 Ga. App. 156, 159 (2) (656 SE2d 258) (2008) (while mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s criminal intent as a participant in the crime may be inferred). Although Sipplen testified that he did not follow the truck to the dirt road and he offered explanations for his presence first in the Wal-Mart parking lot and later on the dirt road, the jury was authorized to reject his testimony. See Ferguson v. State, 307 Ga. App. 232, 235 (1) (704 SE2d 470) (2010).

Decided November 1, 2011.

Phillips & Nemajovsky, Mark T. Phillips, for appellant.

J. David Miller, District Attorney, Tracy K. Chapman, Assistant District Attorney, for appellee.

Because there was evidence from which a rational trier of fact could find that Sipplen intentionally aided and abetted Howard in his commission of the offenses of kidnapping and of possession of a firearm during the commission of that crime, the evidence was sufficient to support Sipplen’s convictions for these offenses.

2. Sipplen enumerates as error the trial court’s charge to the jury that the asportation element of the offense of kidnapping could be supported by evidence of “only the slightest movement,” rather than by evidence of the Garza factors. He correctly asserts that the rule set forth in Garza must be applied retroactively to his case, thereby entitling him to a jury instruction consistent with that rule. See Hammond, 289 Ga. at 144 (2). We must therefore determine whether the failure to charge the jury according to the Garza rule on asportation was harmless or whether it constituted reversible error. Id. Because this case concerns nonconstitutional error, we apply the “highly probable test,” and we ask “whether it is highly probable that the error did not contribute to the judgment.” (Citation and punctuation omitted.) Id.

Because, as explained in Division 1, the evidence demonstrated that asportation occurred under the Garza test, “it is highly probable that the error of the trial court in not instructing the jury to consider the asportation element of kidnapping using the Garza test did not contribute to the judgment of guilt.” Hammond, 289 Ga. at 145 (2). Therefore, Sipplen has presented no ground for reversal. Id.

Judgment affirmed. Phipps,

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