author: MILLER, Presiding Judge.

text:
    A11A1047.
    A11A1048, A11A1049.
    A11A1050, A11A1051.
    JONES et al. v. WHITE et al. KHALIL v. JONES et al.; and vice versa. BROCK v. JONES et al.; and vice versa.
    (717 SE2d 322)
   MILLER, Presiding Judge.

These five consolidated appeals arise out of Margaret Jones’s and Margaret Jones & Associates’s (collectively, “Jones”) claim for unpaid consulting fees in connection with her work for a team of three developers, Steve Brock, Carl Drury, and Noel Khalil, on a project to revitalize the former Perry Homes, a public housing facility managed by the Atlanta Housing Authority (“AHA”). Jones filed suit against the developers and Perry Homes Redevelopment, LLC (“PHR”), as well as Richard White, a consultant on the project, and White’s associated company, The Alisias Holding Company, alleging claims of breach of contract, unjust enrichment, promissory estoppel, and fraud.

Brock filed a motion for summary judgment. On October 17, 2008, the trial court entered its order granting Brock’s motion on Jones’s claims of breach of contract, promissory estoppel, and fraud, and it denied Brock’s motion on her claim of unjust enrichment. Khalil and White subsequently filed motions for summary judgment on all claims, and Brock moved for reconsideration of the trial court’s denial of summary judgment on Jones’s unjust enrichment claim. On April 9, 2009, the trial court entered an order (i) granting White’s motion for summary judgment as to all claims, (ii) granting Khalil’s motion for summary judgment on Jones’s breach of contract claim, (iii) denying Khalil’s motion for summary judgment on Jones’s claims of unjust enrichment, promissory estoppel, and fraud, and (iv) denying Brock’s motion for reconsideration.

In Case No. A11A1047, Jones appeals the grant of summary judgment to White and Alisias on her breach of contract, unjust enrichment, and promissory estoppel claims. We reverse because genuine issues of material fact remain for the jury.

In Case No. A11A1048, Khalil cross-appeals from the trial court’s denial of his motion for summary judgment on Jones’s claims for unjust enrichment, promissory estoppel, and fraud. In Case No. A11A1050, Brock cross-appeals from the trial court’s denial of his motion for summary judgment on Jones’s unjust enrichment claim. In both cases, we agree with the trial court that genuine issues of material fact remain outstanding, and affirm.

In Case Nos. A11A1049 and A11A1051, Jones has cross-appealed from the cross-appeals filed by Khalil and Brock, respectively, seeking to challenge the trial court’s grant of partial summary judgment to those defendants. We dismiss Jones’s cross-appeals for lack of appellate jurisdiction because OCGA § 5-6-38 does not provide for cross-appeals to cross-appeals, and because Jones elected not to file timely direct appeals from the trial court’s grant of partial summary judgment to Khalil and Brock.

Case No. A11A1047

1. In Case No. A11A1047, Jones appeals the trial court’s grant of summary judgment to White and Alisias on her claims for breach of contract, unjust enrichment, and promissory estoppel. She argues that material issues of fact preclude an award of summary judgment on these claims. We agree.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citation and punctuation omitted.) Rushin v. Ussery, 298 Ga. App. 830, 830-831 (681 SE2d 263) (2009). Our review of the grant or denial of summary judgment is de novo. Id. at 831.

So viewed, the evidence shows that the United States Department of Housing and Urban Development awarded a grant to the AHA for the purpose of redeveloping the former Perry Homes, a low income community located northwest of downtown Atlanta. In 1999, the AHA announced that it would seek requests for proposals from contractors seeking to redevelop Perry Homes.

In January 2000, Drury, a golf course developer, drove Jones, a public affairs consultant who had a relationship with the AHA, to view the site of a possible golf course development. Jones informed Drury that the site was adjacent to the proposed Perry Homes revitalization project and that AHA might be interested in including a golf course in that development. Shortly thereafter, Jones contacted White, who was also a consultant to the AHA, with the information that she had the name of a golf course developer who was interested in working on property adjacent to Perry Homes.

Jones met with Drury and White in March 2000 to discuss the Perry Homes project. A few days later, they met again, and White brought Khalil, a multi-family housing developer, to the meeting. According to Jones, her “role at that meeting was to discuss how we might put together a team of developers to do a bid for the Perry Redevelopment.” Soon thereafter, Khalil contacted Brock, a single-family housing developer, about the Perry Homes project. Jones deposed that she and White agreed from the outset that they would “split the money that was paid to [them] by the three developers equally.”

By April 2000, Brock, Drury, Khalil, White, and Jones agreed to move forward as a team to pursue the bid for the Perry Homes project. Jones’s role on the team was

[t]o use [her] experience and knowledge of the [AHA] and its projects and goals[,] . . . [her] public relations experience[,] . . . [her] contacts in the community, [and her] organizational skills to help support this team in their efforts to secure the bid.

On or about August 24, 2000, PHR was formed for the purpose of submitting the bid proposal to the AHA. PHR was comprised of three members, Brock Built, LLC, Perry Golf Course Development, LLC, and Columbia Residential, LLC, the limited liability companies associated with Brock, Drury, and Khalil, respectively. The AHA awarded the bid for the revitalization of Perry Homes to PHR in January 2001.

According to Jones, by April 4, 2000, Khalil, Drury, and Brock had agreed to pay Jones and White for consulting services, but Jones acknowledged that at that time she “didn’t have an agreement about how it would be calculated.” White’s notes from a May 2, 2000, meeting between Khalil, Drury, Brock, Jones, and White show Drury proposed that “professional service fees due to Jones and White ... be evenly spread across all developers ([Drury], [Brock], and [Khalil]) as opposed to just [Khalil].” Also in May 2000, White drafted a proposed agreement among himself, Jones, Khalil, Brock, and Drury pursuant to which Khalil, Brock, and Drury would pay White and Jones an undefined amount per unit of each single-family, multi-family, and commercial property developed on the Perry Homes project.

According to Drury, he, Khalil, and Brock “agreed that for each of the units that [Khalil] did . . . [Jones] and [White] would get a thousand dollars apiece . . . they’d split it. That was the deal.” Drury maintained that the agreement was reached “[e]arly in the process,” before any contract was awarded, and that the three shook hands on the deal.

Jones deposed that discussions concerning the business relationship between herself, Drury, Brock, Khalil, and White continued through February 2001. The “end result,” according to Jones, was that if the redevelopment bid was successful, Khalil, Brock, and Drury would pay Jones and White “in phases at the closings of the properties and . . . would be paid a percentage. [White and Jones] would each receive 10 percent ... of the net developer’s fee from Columbia Residential.”

On February 21, 2001, Khalil sent an e-mail to his counsel requesting that he draft a side agreement pursuant to which White and Jones would each be entitled to “[a] 10 [percent] interest in [the] developer[’]s fee received by Noel Khalil’s LLC[.]” Khalil deposed, “I was prepared to make 20 percent of the net developer’s fee available to whoever it went to.”

Notwithstanding Khalil’s e-mail, no side agreement was ever executed. On November 1, 2002, a written “Fee Share Agreement” was entered into between Alisias and Columbia, pursuant to which Columbia agreed to pay Alisias an Assistance Fee equal to 20 percent of the Net Developer’s Fee. The Fee Share Agreement, which acknowledged that Alisias had provided services to Columbia, and that the parties “wish[ed] to document and memorialize the various agreements heretofore made,” stated that “the parties anticipate^] that Alisias will receive from Columbia an aggregate Assistance Fee of approximately $1,148,000 if all 700 housing units” are completed. As of October 2005, $120,000 had been paid under the Fee Share Agreement.

Although they denied responsibility to pay for Jones’s services, Khalil, Drury, Brock, and White indicated that Jones did compensable work on the Perry Homes project. Khalil deposed that “[he] expected that [Jones] was going to be compensated.” Drury also deposed that Jones deserved to be paid for her work. Brock testified that he presumed Jones had a financial arrangement with Drury. Although he denied owing Jones money, White told Jones that she deserved to be paid. Nevertheless, Jones was not paid for any consulting work on the Perry Homes project.

(a) Jones claims that material issues of fact preclude summary judgment to White and Alisias on her breach of contract claim. We agree.

“Georgia contract law requires a meeting of the minds of the parties, and mutuality, and in order for the contract to be valid the agreement must ordinarily be expressed plainly and explicitly enough to show what the parties agreed upon.” (Citation and punctuation omitted.) Athens Heart Center v. Brasstown Valley Resort, 275 Ga. App. 607, 608 (621 SE2d 565) (2005). “A contract may be enforceable even though it rests only in words as remembered by the witnesses.” (Citations and punctuation omitted.) Cline v. Lee, 260 Ga. App. 164, 168 (1) (581 SE2d 558) (2003).

White argues that there was an absence of evidence of a contract between himself and Jones or between Alisias and Jones with regard to payment of consulting fees for the Perry Homes project. For purposes of Jones’s claim against White and Alisias, however, a jury could conclude that Jones and White, either individually or on behalf of Alisias, entered into an oral agreement to split consulting fees, and that the payments Alisias received from Columbia constituted consulting fees subject to that agreement. More specifically, Jones testified that White agreed to a fee splitting arrangement, and Jones’s testimony is consistent with (i) Khalil’s February 21, 2001, e-mail directing his counsel to draft an agreement pursuant to which his LLC would pay 10 percent of net developer’s fees to White and Jones, and (ii) the May 2000 document drafted by White, pursuant to which fees would be paid to them jointly as “Jones and . . . White (together, a/k/a MJA/Alisias).” See Swanson v. Hodges, 96 Ga. App. 540, 540-542 (1) (101 SE2d 212) (1957) (unsigned proposal admissible to corroborate plaintiffs testimony as to oral contract); Denton v. Etheridge, 73 Ga. App. 221, 226 (2) (36 SE2d 365) (1945) (although unsigned agreement was not admissible in evidence as a written contract, it was admissible “for the purpose of corroborating the plaintiff as to what he contended the alleged oral contract to be”).

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.

(Citation omitted.) Turner Broadcasting System v. McDavid, 303 Ga. App. 593, 597 (1) (693 SE2d 873) (2010).

White argues that even if there was “some type of understanding” that Jones would be paid, it was impossible to determine exactly how and in what amount Jones should be paid. However, the mutual promise to split the consulting fees equally was specific enough to be “definitely and objectively ascertainable” so as to form the basis of a contract. Arby’s Inc. v. Cooper, 265 Ga. 240, 241 (454 SE2d 488) (1995); see Kerwood v. Dinero Solutions, 292 Ga. App. 742, 745 (666 SE2d 40) (2008) (party’s testimony sufficient to create issue of fact as to whether a contract attachment represented the agreed-upon method of calculating profits). White’s and Alisias’s other arguments, such as characterizing White’s assistance as “exclusive to Khalil,” may be relevant to the ultimate trier of fact, but they do not demonstrate that the undisputed facts, when viewed in a light most favorable to Jones, as the nonmovant, warranted summary judgment on Jones’s claim for breach of contract.

(b) Jones also contends that the trial court erred in granting summary judgment to White and Alisias on her claim of unjust enrichment. Again, we agree. A claim of unjust enrichment will lie if there is no legal contract and “the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefited party equitably ought to return or compensate for.” (Citation and punctuation omitted.) Smith v. McClung, 215 Ga. App. 786, 789 (3) (452 SE2d 229) (1994). “The concept of unjust enrichment in law is premised upon the principle that a party cannot induce, accept, or encourage another to furnish or render something of value to such party and avoid payment for the value received.” (Citation and punctuation omitted.) Scott v. Mamari Corp., 242 Ga. App. 455, 458 (2) (530 SE2d 208) (2000).

White and Alisias claim that Jones’s unjust enrichment claim cannot be sustained because Jones did not provide any product or service to White or Alisias. A trier of fact could conclude, however, that Jones’s efforts benefited White and Alisias. “The word ‘benefits ]’... denotes any form of advantage.” Restatement of Restitution, § 1, Unjust Enrichment, cmt. b (1937). Evidence showed that Jones did compensable consulting work in furtherance of the Perry Homes project. White’s controlled company, Alisias, has received $120,000 of consulting fees for that project. See Maloy v. Ewing, 157 Ga. App. 95, 96 (4) (276 SE2d 145) (1981) (jury could infer that the work done by plaintiffs was of benefit to the defendant personally where defendant controlled the corporation which was a beneficiary of plaintiffs’ services). In addition, even if Jones did not have a legally enforceable agreement with White, the evidence would support a finding that she acted with an expectation that she would receive payment from White should the entirety of the consulting fees be tendered by the developers to White. See Morris v. Britt, 275 Ga. App. 293, 294 (1) (620 SE2d 422) (2005) (unjust enrichment requires party conferring labor to act with expectation that the other is responsible for the cost). A trier of fact could conclude that White and Alisias, having received 100 percent of the consulting fees, have been compensated not only for White’s consulting work, but also for the consulting work performed by Jones, and that it would be unjust for White and Alisias to retain the entirety of those fees. See generally Cochran v. Ogletree, 244 Ga. App. 537, 539 (1) (536 SE2d 194) (2000) (“[PJrinciple of unjust enrichment . . . gave rise to the duty for the plaintiff to pay to the defendants the value of the services and expenses incurred, because the plaintiff received some benefit.”).

(c) Jones further contends that she presented sufficient evidence to preclude the grant of summary judgment on her claim of promissory estoppel. Her contention has merit.

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

OCGA § 13-3-44 (a). White argues that he made no promise to pay Jones, but, as shown by the evidence discussed in Division 1 (a), supra, a jury could conclude that White promised to split the consulting fees with Jones. A jury could also conclude that White should have reasonably expected Jones to rely on his promise, that she did in fact rely on the promise to her detriment, and that an injustice could be avoided only by the enforcement of the promise. See Hendon Properties v. Cinema Development, 275 Ga. App. 434, 438-439 (2) (620 SE2d 644) (2005) (setting forth elements of promissory estoppel). Accordingly, White and Alisias were not entitled to summary judgment on Jones’s promissory estoppel claim.

In view of the foregoing, we find that the trial court erred in granting summary judgment to White and Alisias on Jones’s claims of breach of contract, unjust enrichment, and promissory estoppel.

Case No. Al 1A1048

2. (a) In Case No. A11A1048, Khalil cross-appeals from the trial court’s denial of his motion for summary judgment on Jones’s claims for unjust enrichment, promissory estoppel, and fraud. Khalil argues that at all times in relation to the Perry Homes project, he was acting as a representative of and on behalf of his independent corporate entity, Columbia, and that any asserted causes of action arising out of those dealings should have been brought against Columbia rather than Khalil, individually. Khalil contends that Jones was fully aware that any acts, statements, or alleged promises related to the Perry Homes project were made by Khalil as a member of Columbia, and not in his individual capacity. He points out that the proposal that Jones helped prepare showed Columbia, and not Khalil, as the entity responsible for the multi-family component of the Perry Homes project; Khalil also points to Jones’s testimony that Columbia was the entity responsible for paying the net developer’s fees to Jones and White.

“Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, the mere operation of a corporate business does not render one personally liable for corporate acts.” (Citation and punctuation omitted.) Litland v. Smith, 247 Ga. App. 277 (1) (543 SE2d 468) (2000). As a rule, however, “[i]f the agent wishes to avoid personal liability, the duty is on him to disclose his agency, and not on the party with whom he deals to discover it.” (Citation and punctuation omitted.) Redi-Floors v. Sonenberg Co., 254 Ga. App. 615, 616 (1) (563 SE2d 505) (2002); see Reed v. Burns Intl. Security Svc., 215 Ga. App. 60 (449 SE2d 888) (1994) (“one who deals with an agent who fails to disclose his principal may at his election recover from either the agent or the principal”) (citation and punctuation omitted). “This is generally a question for the jury.” (Citation omitted.) Redi-Floors, supra, 254 Ga. App. at 616 (1).

Jones deposed that Khalil, as well as Brock and Drury, “talked about themselves as individuals.” Khalil likewise described Jones as a part of a team of individuals. Khalil’s testimony also indicates that he dealt with Jones as Khalil, individually, and not as an agent of Columbia:

Q: Now, when you had talked with . . . White and [Jones] about their compensation, did you specifically refer to your entity or are you just talking with them as [Khalil], [Jones], and [White]?
[A:] I probably was speaking in the context of [Khalil], [Jones], and [White],

We conclude that an issue of material fact remains as to whether Khalil disclosed to Jones that he was acting as an agent of Columbia.

(b) Khalil further argues that the alleged promise by Brock, Drury, and Khalil to pay Jones and White a consulting fee lacked the essential term of the amount of payment to be made and was too indefinite to be enforced. Therefore, he contends, the indefinite promise could not support Jones’s claims for promissory estoppel and fraud.

Promissory estoppel “does not apply ... to vague, indefinite promises.” (Footnote omitted.) Mooney v. Mooney, 245 Ga. App. 780, 783 (538 SE2d 864) (2000). Similarly, fraud cannot be predicated upon a promise that is too indefinite to be enforced. See Jackson v. Ford, 252 Ga. App. 304, 307 (1) (b) (555 SE2d 143) (2001). In light of Jones’s deposition testimony and other evidence of record, however, including Khalil’s e-mail of February 21, 2001, a trier of fact could conclude that Khalil promised to pay Jones 10 percent of his net developer’s fee, an amount sufficiently definite to be enforced. Hardnett v. Ogundele, 291 Ga. App. 241, 242-243 (1) (661 SE2d 627) (2008) (promise to pay 1/3 of any settlement or recovery was enforceable); Phillips & Co. v. Hudson, 9 Ga. App. 779, 780-781 (72 SE 178) (1911) (promise to pay a percentage of company’s net earnings was definite and enforceable). Accordingly, Khalil’s argument fails.

(c) Lastly, Khalil contends that he has fully performed his portion of the oral promise alleged by Jones and that a verdict against him in any amount would be improper. Specifically, Khalil contends that he “has done everything and paid all amounts that he ever promised to pay the Consultants — 20% of Columbia Residential’s net developer’s fees,” and that if a jury should find that Jones is entitled to 50 percent of the net developer fees, then the proper verdict would be against White or Alisias, and not Khalil. Based on the evidence, however, a trier of fact could conclude Khalil promised to pay Jones 10 percent of net developer’s fees and that payment of 20 percent of the fees to White did not fulfill his promise to Jones.

In light of the foregoing, we affirm the trial court’s denial of Khalil’s motion for summary judgment on Jones’s claims for unjust enrichment, promissory estoppel, and fraud.

Case No. A11A1050

3. In Case No. A11A1050, Brock cross-appeals from the trial court’s order denying his motion for summary judgment on Jones’s unjust enrichment claim. Brock argues that he did not unjustly enrich himself at Jones’s expense because Jones did not perform services for Brock and because there is an absence of evidence that Brock directly benefited from any services provided by Jones. Brock also maintains that Jones had no expectation of compensation from Brock, and that her knowledge of Brock Built’s involvement with the Perry Homes project precluded her claim for unjust enrichment.

(a) “For unjust enrichment to apply, the party conferring the labor and things of value must act with the expectation that the other will be responsible for the cost.” (Citation and punctuation omitted.) Morris, supra, 275 Ga. App. at 294 (1). In this case, Jones deposed that by April 2000 the developers, including Brock, had agreed to pay her for her services. There is at least some evidence that Jones acted with the expectation that Brock would be responsible for the cost of her services.

(b) Brock argues that because evidence showed that Jones knew about the existence of Brock’s company, Brock Built, that there was no issue of fact as to whether Brock acted as an undisclosed agent. Brock shows that shortly after he met Jones in April 2000, White sent an e-mail to several parties, including Jones and Brock, in which White informed Brock that he was “hopeful that [Brock] and [Jones] are able to arrange time to spend together developing some basic fact sheets about Brock Built. . . .” Brock also argues that Jones knew that PHR submitted the bid for the Perry Homes project and points out that the proposal submitted by PHR identified Brock Built as one of its members.

As discussed in Division 2 (a), supra, it is the duty of the agent to disclose the agency, but “not on the party with whom he deals to discover it.” (Punctuation omitted.) Redi-Floors, supra, 254 Ga. App. at 616 (1). The evidence does not demand a finding that Brock disclosed to Jones that he was acting as an agent of Brock Built. According to Jones, Brock and the other developers talked about themselves as individuals in their discussions with Jones, and Jones testified that Brock “represented himself as [her] client.” The issue must be resolved by the trier of fact. Id.

(c) Brock also argues that Jones’s unjust enrichment claim fails because he did not benefit directly from any services provided by Jones. He points out that it was PHR, not Brock, that was awarded the Perry Homes project, and that Brock Built, not Brock, was a member of PHR. See Scott, supra, 242 Ga. App. at 458-459 (2) (concluding that a lender Bank and its assignee were not unjustly enriched since they did not “receive [ ] the direct benefit of [plaintiffs] labor” on a development project, and any indirect benefit to Bank’s collateral was only the “natural by-product” of work performed). However, PHR was not formed until months after Brock, Drury, and Khalil began their efforts, with Jones’s assistance, to secure the successful bid. Jones testified to her efforts on behalf of the team of developers, which included Brock. According to Drury, Brock, along with Drury and Khalil, agreed to pay Jones and White for their services “[ejarly in the process.” Under the circumstances, a trier of fact could conclude that Brock received the direct benefit of services rendered by Jones. To the extent that Jones’s efforts may have also inured to the benefit of Brock Built, a trier of fact would not be precluded from finding that Brock was personally benefited by Jones’s services. See Maloy, supra, 157 Ga. App. at 96 (4).

The trial court did not err in denying Brock’s motion for summary judgment on Jones’s unjust enrichment claim.

Case No. A11A1051

4. In Case No. A11A1051, Jones appeals the trial court’s order entered October 17, 2008, granting summary judgment to Brock on her breach of contract, promissory estoppel, and fraud claims. Brock has moved to dismiss this appeal. We agree that we lack appellate jurisdiction.

A party may elect to appeal a grant of partial summary judgment by notice of appeal filed within 30 days of entry of the judgment. See OCGA § 9-11-56 (h); Olympic Dev. Group v. American Druggists’ Ins. Co., 175 Ga. App. 425 (1) (333 SE2d 622) (1985). We have previously

held that where the appellants had failed to bring a timely appeal from a grant of partial summary judgment, they could not obtain appellate review of that ruling in an appeal from a subsequent grant of partial summary judgment, where the latter order did not constitute a final judgment in the case. ... [A] party who chooses not to bring a direct appeal from such an order may reasonably be deemed to have made an election to wait until a final judgment has been entered in the case to challenge the ruling.

(Citations omitted.) Hutchison v. Nat. Svcs. Indus., 191 Ga. App. 885, 886 (1) (383 SE2d 212) (1989). This holding is a recognized “exception to the general rule that once a case is on appeal, all rulings theretofore made by the trial court are subject to review.” Id. See OCGA § 5-6-34 (d). Thus, having failed to bring a timely appeal from the October 17, 2008 order granting partial summary judgment to Brock, Jones made an election to wait until the entry of a final judgment to challenge the ruling. The subsequent April 9, 2009 order did not constitute a final judgment in the case and did not afford Jones an opportunity to seek appellate review of the October 17, 2008 order.

Jones nevertheless seeks appellate review of the October 17, 2008 order through her notice of cross-appeal to Brock’s cross-appeal in Case No. A11A1050. In applicable part, OCGA § 5-6-38 (a) provides that “[i]n civil cases, the appellee may institute cross appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant[.]” The “notice of appeal” in this sentence logically refers to that which “shall be filed within 30 days after entry of the appealable decision or judgment complained of[.]” Id. OCGA § 5-6-38 (a) does not contemplate a cross-appeal to a cross-appeal.

Jones argues that because a cross-appeal to a cross-appeal is not specifically limited by statute, her cross-appeal is viable. See generally Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317, 317-318 (380 SE2d 704) (1989) (allowing cross-appeal against party other than appellant); Sanders v. Ramo, 203 Ga. App. 43, 44 (1) (416 SE2d 333) (1992) (“the Appellate Practice Act is to be liberally construed in order to bring about a decision on the merits of every case appealed”) (citation and punctuation omitted). We are unpersuaded. As indicated above, by failing to file a direct appeal of the October 17, 2008 order, Jones is deemed to have elected to wait until the entry of final judgment before challenging the entry of partial summary judgment in favor of Brock. We are not inclined to recognize a procedure which would allow an appellant to circumvent the rule recognized by Olympic and Hutchison. Jones’s arguments do not establish the viability of her cross-appeal to the cross-appeal. Brock’s motion to dismiss is granted.

Case No. A11A1049

5. Case No. A11A1049 suffers from the same procedural deficiency we addressed in Case No. A11A1051, supra. Case No. A11A1049 was initiated by Jones’s notice of cross-appeal of that portion of the trial court’s April 9, 2009 order granting partial summary judgment to Khalil. The notice of cross-appeal, filed June 8, 2009, cannot be considered a timely direct appeal from the April 9, 2009 order. Nor did Jones challenge the grant of partial summary judgment to Khalil through her appeal in Case No. A11A1047, supra, in which Jones appealed only the grant of summary judgment to White. Accordingly, Case No. A11A1049 is what it purports to be, which is Jones’s cross-appeal of Khalil’s cross-appeal in Case No. A11A1048. As discussed in Division 4, supra, a cross-appeal to a cross-appeal is not a recognized procedure under OCGA § 5-6-38. Therefore, given that Jones elected not to directly appeal the partial grant of summary judgment to Khalil, her appeal in Case No. A11A1049 must be dismissed. See Hutchison, supra, 191 Ga. App. at 886 (1).

Decided October 4, 2011.

RobbinsFreed, Richard L. Robbins, Alexa R. Ross, for Jones.

James E. Bearing, Jr., for White.

Hunter, Maclean, Exley & Dunn, Christopher W. Phillips, for Khalil.

Ashe, Rafuse & Hill, William B. Hill, Jr., Joseph C. Sharp, for Brock.

Judgment reversed in Case No. A11A1047. Judgments affirmed in Case Nos. A11A1048 and A11A1050. Appeals dismissed in Case Nos. A11A1049 and A11A1051.

Ellington, C. J., and Doyle, J., concur.

       The Alisias Holding Company was substituted for The Alisias Group, which was the entity originally named in the complaint.

       Jones does not challenge the trial court’s grant of summary judgment to White and Alisias on her fraud claim.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A11A1110.
    FAIRWELL v. THE STATE.
    (717 SE2d 332)
   PHIPPS, Presiding Judge.

Priscilla Fairwell was convicted of reckless conduct as a lesser included offense of aggravated assault (Count 1), felony obstruction of an officer (Count 2), felony fleeing or attempting to elude a police officer (Count 3), failure to stop upon striking an unattended vehicle (Count 5), and failure to stop at or return to the scene of an accident (Count 6). Fairwell appeals, contending that the trial court gave improper jury instructions, she received ineffective assistance of counsel, the evidence was insufficient to support the verdict on several of the charges, the indictment was defective, and the conviction for fleeing or attempting to elude a police officer was unauthorized. For the reasons that follow, we affirm.

1. Fairwell claims the evidence was insufficient to convict her of felony fleeing or attempting to elude a police officer, failure to stop upon striking an unattended vehicle, and failure to stop at or return to the scene of an accident. We find the evidence, viewed in the light most favorable to the verdict, was sufficient for a rational trier of fact to find Fairwell guilty beyond a reasonable doubt of these offenses.

The evidence showed that on June 4, 2007, a bicycle-patrol uniformed police officer approached Fairwell in a parking deck to issue her a citation for a tag violation. Fairwell drove away from the officer but later encountered another bicycle-patrol uniformed officer whose badge was displayed. The officer motioned her hand and verbally commanded Fairwell to stop and exit her vehicle. The officer walked in front of Fairwell’s vehicle. According to the officer, Fairwell said “F” the police and that she was not stopping for the police. Thereafter Fairwell drove her vehicle into the officer, who jumped back to the side of the vehicle, and according to the officer, injury resulted to the officer. The injured officer, now intending to arrest Fairwell for striking her, gave her a visible sign to stop by placing her hand on the hood of the car and reaching inside the vehicle to grab the steering wheel, but Fairwell “just floored it,” striking two vehicles and the officer’s marked bicycle. A third uniformed officer, driving a marked police car, activated the siren and lights on his vehicle and followed Fairwell, but Fairwell refused to stop. She was later apprehended.

(a) Fleeing or attempting to elude a police officer. Count 3 of the indictment charged that Fairwell “did, while fleeing a pursuing police officer, after being given a visual signal to bring the vehicle to a stop, in an attempt to escape arrest for Aggravated Assault, strike another vehicle. ...” Fairwell argues that she did not know she had struck anyone with her vehicle and that therefore there was no evidence that she knew police officers were attempting to arrest her for aggravated assault.

The felony offense of fleeing or attempting to elude a police officer is defined in OCGA § 40-6-395 (a) and (b) (5) (A). OCGA § 40-6-395 (a) provides:

It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.

OCGA § 40-6-395 (b) (5) (A) pertinently provides:

Any person violating the provisions of subsection (a) of this Code section who, while fleeing or attempting to elude a pursuing police vehicle or police officer in an attempt to escape arrest for any offense, other than a violation of this chapter not expressly provided for in this paragraph: . . . (ii) Strikes or collides with another vehicle or a pedestrian . . . shall be guilty of a felony. . . .

A criminal intent is necessary to sustain a finding of guilt, and a person is not presumed to act with criminal intent. However, the factfinder may consider the circumstances surrounding the act for which the accused is being prosecuted in determining whether the requisite intent is manifested by the circumstances.

The evidence was sufficient for a jury to find that Fairwell knew she had struck the police officer because Fairwell, having fled from one police officer and then after encountering another officer in front of her vehicle ordering her to stop, indicated her intentions by stating that she would not stop for the police, cursing the police, and driving forward, striking the officer and causing the officer to jump out of the way. After the officer placed her hand on the hood and reached inside to grab the steering wheel, Fairwell fled, striking two vehicles. The evidence was sufficient to support the conviction for felony fleeing or attempting to elude a police officer.

(b) Failure to stop upon striking an unattended vehicle. Count 5 of the indictment charged Fairwell with colliding with an unattended vehicle and failing to locate and notify the operator or owner of the unattended vehicle of her (Fairwell’s) name and address. Fairwell contends there was only “slight” damage to the unattended vehicle, and that being so, there was no evidence she knew she had left the scene after striking the vehicle.

Fairwell’s reliance upon Lawrence v. State is misplaced because in Lawrence, unlike in this case, after a collision the defendant stopped to assess any damage and drove away after determining there was none. Indeed, in Lawrence, there was no proof the collision caused “even the slightest dent, ding, or smudge” on the victim’s car. Consequently, that conviction for misdemeanor hit and run was reversed.

At trial, the occupant of one of the vehicles Fairwell struck testified that “there was no room for [Fairwell] to drive through.” The witness stated that she parked her vehicle in a position to block Fairwell from exiting the parking deck, but that after a physical altercation occurred between Fairwell and the injured police officer, Fairwell “just floored it . . . and went through my truck and this other [unattended] car and she just kept pushing her way through.” A photograph of the unattended vehicle introduced at trial showed a dent and paint damage. Thus, not only was there evidence of damage, but the circumstances surrounding how the damage occurred were sufficient for a jury to find that Fairwell knew she had struck and caused damage to an unattended vehicle. The evidence was sufficient to support the conviction for failure to stop upon striking an unattended vehicle.

(c) Failure to stop at or return to the scene of an accident. Count 6 of the indictment charged Fairwell with colliding with a vehicle and failing to notify the operator or owner of the vehicle of her (Fair-well’s) name and address. Fairwell also contends there was no evidence she knew she struck an occupied vehicle.

The result reached in Division 1 (b) applies here, based on the facts of this case. A photograph of the damage to the attended vehicle was introduced at trial. It showed extensive scratches and paint damage. Thus, not only was there damage, but the circumstances surrounding how the damage occurred were sufficient for a jury to find Fairwell knew she had struck and caused damage to an attended vehicle. The evidence was sufficient to support the conviction for failure to stop at or return to the scene of an accident.

2. Fairwell claims the trial court violated her due process rights by instructing the jury that several of the crimes could be committed in manners other than as specified in the indictment.

OCGA § 17-8-5 (a), enacted effective July 1, 2007, controls the preservation of objections to jury charges. Under this statute, a criminal defendant is required to “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” Subsection (b) precludes appellate review where there is a “[flailure to object in accordance with subsection (a),” but this subsection also provides for review for “plain error which affects substantial rights.”

The trial of this case occurred in November 2008. Because Fairwell was tried after the effective date of the 2007 enactment of OCGA § 17-8-58 and did not object to the charges on the grounds which she now asserts, she has waived her right to urge error on appeal. Nevertheless, Fairwell’s claims will be reviewed for “plain error.”

A criminal defendant’s right to due process may be endangered when ... an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment. The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.

It is error to give a charge stating that an offense may be committed in more than one manner when (1) only one manner is alleged in the indictment, and (2) facts in evidence raise a reasonable probability that the jury may have convicted the defendant of committing the offense in a manner not charged in the indictment.

(a) Obstruction of an officer, Count 2. Fairwell contends the trial court erred by instructing the jury that “[a] person commits the offense of obstruction of an officer when that person knowingly and willfully resists, obstructs, or opposes any law enforcement officer in the lawful discharge of his official duties ...” when Count 2 of the indictment specifically charged, in pertinent part, that she did “knowingly and willfully obstruct . . ., a law enforcement officer,” by striking the officer with a motor vehicle. Fairwell claims that the court’s charge created a reasonable possibility the jury would convict her of a crime committed in a manner not charged in the indictment. We disagree.

Fairwell is correct that although the trial court instructed the jury the pattern charge which applies when a person knowingly and wilfully resists, obstructs, or opposes a law enforcement officer, the indictment only alleged that Fairwell knowingly and wilfully obstructed the officer. But Fairwell’s contention that the words “resist,” “oppose,” and “obstruct” have different meanings under the felony obstruction statute, OCGA § 16-10-24 (b), as evidenced by the legislature’s use of the word “or” instead of “and” in listing them in the statute, has no merit. In fact, these words, “obstruct, resist, or oppose,” all imply “forcible resistance” in regard to obstructing a police officer. Moreover, OCGA § 16-10-24 (b) requires, among other things, the commission of the offense by either offering to do violence or “doing violence to the person of such officer,” and the jury was instructed on the latter.

We conclude that Fairwell’s contention that the jury could have convicted her for “resisting” by failing to stop, or for “opposing” by driving away lacks merit because, unlike the act alleged in the indictment (striking the officer with a motor vehicle), the acts of failing to stop and driving away, in and of themselves, were not violent acts under the facts of this case, as required under the statute. The state did not introduce evidence that Fairwell did violence to the officer on the date in question other than by striking the officer with a motor vehicle and, as such, no due process violation occurred because there was no reasonable probability that the jury convicted Fairwell for obstructing the police officer in a manner not specified in the indictment.

Furthermore, because no reversible error occurred with respect to the jury instruction on obstruction of an officer, Fairwell cannot succeed on her related claim that trial counsel rendered ineffective assistance in failing to object to that instruction.

(b) Fleeing or attempting to elude a police officer, Count 3. Fairwell contends the trial court violated her due process rights by charging the jury that it could find that she committed the offense of fleeing or attempting to elude a police officer by failing to stop when given a visual or audible signal to stop, where the indictment alleged that she failed to stop upon being given (only) a visual signal to stop, and the evidence showed both visual and audible signals. We disagree.

The indictment charged that Fairwell did, “while fleeing a pursuing police officer, after being given a visual signal to bring the vehicle to a stop, in an attempt to escape arrest for Aggravated Assault, strike another vehicle. ...”

As indicted, the offense was completed when Fairwell struck another vehicle. During the period of time relevant to this count — namely, between striking the officer (the alleged aggravated assault) and striking the vehicle(s) — there was no evidence that Fairwell was given an audible signal to stop. Rather, the evidence showed that the officer gave a visual signal, using her hands to get Fairwell to stop by placing her hand on the hood of Fairwell’s car and reaching inside the car to grab the steering wheel. These were “clear signal[s]” to stop, as a “reasonable person would be compelled to conclude that he or she was not free to drive away and to leave.”

Because there was no evidence of an audible signal, no due process violation occurred because no reasonable probability exists that Fairwell committed the offense in a manner not specified in the indictment.

Furthermore, because no reversible error occurred with respect to the jury instruction on fleeing or attempting to elude a police officer, Fairwell cannot succeed on her related claim that trial counsel rendered ineffective assistance in failing to object to that instruction.

(c) Failure to stop upon striking an unattended vehicle, Count 5. Fairwell claims the trial court improperly instructed the jury that a violation of OCGA § 40-6-271 (a) occurs when an individual fails to “immediately” stop, in light of the fact that the indictment did not allege that Fairwell failed to “immediately” stop and evidence showed that she stopped later. We are not convinced.

While it is true that the trial court charged the jury that a violation of OCGA § 40-6-271 (a) is committed when an individual fails to immediately stop and the indictment did not allege that Fairwell failed to immediately stop, “[t]he trial judge must charge the jury on each crime specified in the indictment or accusation, unless the evidence does not warrant a conviction of such crime. . . .” OCGA § 40-6-271 (a) does not provide any method of violating the statute (regarding the duty to stop), other than by a failure to stop immediately. The evidence showed that after striking the unattended vehicle, Fairwell failed to immediately stop. Consequently, the trial court’s charge to the jury that the offense is committed by failing to “immediately” stop was not erroneous because it is only in this manner that the statute is violated, regarding the duty to stop.

Furthermore, because no reversible error occurred with respect to the jury instruction on failure to stop upon striking an unattended vehicle, Fairwell cannot succeed on her related claim that trial counsel rendered ineffective assistance in failing to object to that instruction.

(d) Failure to stop at or return to the scene of an accident, Count 6. Fairwell claims the trial court erred by instructing the jury that a violation of OCGA § 40-6-270 (a) is committed when a collision occurs resulting in damage to a vehicle driven or attended by a person, in light of the fact that the indictment did not allege the stricken vehicle was damaged. Again, we are not convinced.

While it is true that the trial court charged the jury that a violation of OCGA § 40-6-270 (a) is committed when a collision resulting in damage to a vehicle occurred and the indictment only alleged that the vehicle was struck, “[t]he trial judge must charge the jury on each crime specified in the indictment or accusation, unless the evidence does not warrant a conviction of such crime. . . ,” OCGA § 40-6-270 (a) does not provide any method of violating the statute (in regard to damage), other than by damage to the stricken vehicle. The evidence showed that after Fairwell’s vehicle struck the attended vehicle, as alleged in the indictment, damage resulted. Consequently, the trial court’s charge to the jury that the offense is committed when damage to a vehicle results is not erroneous because it is only in this manner that the statute is violated, in regard to damage.

Furthermore, because no reversible error occurred with respect to the jury instruction on failure to stop at or return to the scene of an accident, Fairwell cannot succeed on her related claim that trial counsel rendered ineffective assistance in failing to object to that instruction.

3. Fairwell claims the indictment was fatally defective because it failed to charge all the essential elements of failure to stop upon striking an unattended vehicle, failure to stop at or return to the scene of an accident, and fleeing or attempting to elude a police officer, thereby making it “impossible to ensure that the grand jury found probable cause to indict.”

A claim attacking the legality of an indictment is cognizable in a motion in arrest of judgment or habeas corpus when no demurrer to the indictment is interposed before judgment is entered on the verdict. Otherwise, the claim is improperly before this court. Because Fairwell failed to object to the indictment in any manner before judgment and did not move to arrest the judgment after her conviction, this claim was not properly raised in the lower court and is thus not properly before this court. Nor has Fairwell claimed her trial counsel’s performance, as it relates to this claim of error, was compromised such that counsel was ineffective.

4. Fairwell contends she was improperly convicted of fleeing or attempting to elude a police officer because: (a) there was a variance between the indictment and the evidence at trial and (b) the jury’s verdict was inconsistent.

(a) Fairwell contends that the facts show, if anything, that she was attempting to escape from being charged with an expired tag and not aggravated assault. Because we dealt with this issue in Division 1 (a), where we found the evidence was sufficient, we need not address it again here.

(b) Fairwell contends the jury’s verdicts of guilty for reckless conduct and fleeing or attempting to elude a police officer were inconsistent. This claim lacks merit because the inconsistent verdict rule in criminal cases has long been abolished in this state.

We note that the fleeing or attempting to elude statute requires only that Fairwell was attempting to escape an arrest, not that Fairwell was convicted of a crime.

We interpret a statute to give effect to the legislative intent; “(i)n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.’ ”[] To determine the legislative intent of a statute, we begin with the literal text; where the literal text of a statute is plain and does not lead to absurd or impracticable consequences, we apply the statute as written without further inquiry. The language of a statute is given its most natural and obvious import, without resorting to forced or subtle interpretations to either expand or limit the statute’s operation. We interpret a statute to give effect to the real legislative intent and meaning, however, and not so strictly as to defeat the legislative purpose.

Decided October 4, 2011

Zell & Zell, Rodney S. Zell, for appellant.

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

Fairwell has failed to present any authority that it is necessary for the state to prove the underlying offense that caused the officers to pursue her.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       Fairwell did not appeal the conviction for reckless conduct (Count 1). She was found not guilty of interference with government property (Count 4).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Burden v. State, 187 Ga. App. 778, 779 (1) (371 SE2d 410) (1988) (citing OCGA § 16-2-2).

       Id. (citing OCGA § 16-2-6).

        Riddle v. State, 145 Ga. App. 328, 330-331 (1) (243 SE2d 607) (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237 (6) (282 SE2d 305) (1981); OCGA § 16-2-6.

        Adams v. State, 293 Ga. App. 377, 380-381 (2) (667 SE2d 186) (2008).

       257 Ga. App. 592, 593-594 (571 SE2d 812) (2002).

       Id. at 593.

       Id. at 594.

        Miller v. State, 275 Ga. 32, 33-34 (1) (561 SE2d 810) (2002), citing Parrott v. State, 188 Ga. App. 564, 566 (373 SE2d 828) (1988) (guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinarily prudent man).

       See Crutcher v. State, 267 Ga. App. 410, 411-412 (1) (599 SE2d 353) (2004).

       Supra.

        Miller, supra.

       See Burden, supra.

        Metz v. State, 284 Ga. 614, 619 (5) (669 SE2d 121) (2008).

       Id. at 619-620 (5); OCGA § 17-8-58 (a).

       Id. at 620 (5); OCGA § 17-8-58 (b).

        Collier v. State, 288 Ga. 756, 758-759 (4) (707 SE2d 102) (2011).

       Id.

        Martin v. State, 303 Ga. App. 117, 120 (3) (692 SE2d 741) (2010) (citation omitted).

        Elrod v. State, 238 Ga. App. 80, 83 (2) (517 SE2d 805) (1999).

       (Emphasis supplied.)

        Harrison v. State, 26 Ga. App. 645, 646 (107 SE 90) (1921); Skop v. City of Atlanta, 485 F3d 1130, 1138 (1) (11th Cir. 2007) (citing Woodward v. Gray, 241 Ga. App. 847 (527 SE2d 595) (2000), overruled on other grounds by Stryker v. State, 297 Ga. App. 493, 495 (677 SE2d 680) (2009)).

       OCGA § 16-10-24 (b) provides, in pertinent part: “Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer ... is guilty of a felony. ...”

       Compare Priester v. State, 249 Ga. App. 594, 596 (1) (549 SE2d 429) (2001) (felony obstruction of an officer conviction affirmed where defendant rapidly accelerated his car while the officer was leaning into it and indictment charged that defendant obstructed the officer when he offered “to do violence” to the officer “by refusing to stop his vehicle and accelerating the vehicle forward while said officer was leaning into said vehicle to effectuate a lawful arrest.”).

       OCGA § 16-10-24 (b).

       See Martin, supra at 120-121 (3).

        Collier, supra at 759 (4).

        Bradford v. State, 287 Ga. App. 50, 52 (1) (651 SE2d 356) (2007) (to commit the offense of fleeing or attempting to elude a police officer, it is necessary that “some clear signal” be given that the driver is to stop).

        Smith v. State, 288 Ga. App. 87, 88 (653 SE2d 510) (2007) (explaining that when faced with a situation where an officer physically restrains an individual by opening his or her car door, “a reasonable person would be compelled to conclude that he or she was not free to drive away and to leave”).

       See Martin, supra at 120-121 (3).

        Collier, supra at 759 (4).

        Essuon v. State, 286 Ga. App. 869, 872 (2) (650 SE2d 409) (2007), citing Gardner v. State, 185 Ga. App. 184 (363 SE2d 843) (1987).

       OCGA § 40-6-271 (a) provides:
      The driver of any vehicle which collides with any vehicle which is unattended shall immediately stop and shall then and there either locate and notify the operator or owner of such vehicle of the name and address of the driver and owner of the vehicle striking the unattended vehicle or shall leave in a conspicuous place on the vehicle struck a written notice giving the name and address of the driver and the owner of the vehicle doing the striking.

        Martin, supra at 120 (3). Compare Castillo v. State, 263 Ga. App. 772, 774 (2) (589 SE2d 325) (2003) (no reversible error to instruct jury on trafficking in 28 grams or more of cocaine when indictment charged trafficking in a greater amount because an accused “can commit the crime of trafficking in only one way, by being involved with more than 28 grams of cocaine”) (punctuation omitted).

        Collier, supra.

        Essuon, supra.

       OCGA § 40-6-270 (a) provides, in part: “The driver of any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or shall stop as close thereto as possible and forthwith return to the scene of the accident. ...”

        Martin, supra.

        Collier, supra.

        Jackson v. State, 284 Ga. App. 619, 621 (2) (644 SE2d 491) (2007) (defendant’s claim that indictment charging him with eluding police was fatally defective because it did not charge that he was attempting to elude a “pursuing” police officer was not properly before this court because it was not raised before or during trial, nor after conviction in the form of a motion in arrest of judgment or habeas corpus); Seymour v. State, 210 Ga. 21 (77 SE2d 519) (1953); Abreu

        v. State, 206 Ga. App. 361, 363 (2) (425 SE2d 331) (1992) (if the indictments were void for any reason, the question should have been raised by demurrer before pleading to the merits, or by motion in arrest of judgment after conviction).

        Jackson v. State, supra.

        Abreu, supra at 363 (2).

        Harris v. State, 258 Ga. App. 669, 671 (1) (574 SE2d 871) (2002) (a motion for new trial is ordinarily not the proper method to attack the sufficiency of the indictment; but, this court has made an exception when the motion for new trial raises the ground of ineffective assistance of counsel).

       Supra.

        Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986).

       OCGA § 40-6-395 (b) (5) (A).

       OCGA § 1-3-1 (a).

        Spivey v. State, 274 Ga. App. 834, 835 (1) (619 SE2d 346) (2005) (citations omitted).

       See Whaley v. State, 175 Ga. App. 493, 494 (333 SE2d 691) (1985) (affirming conviction for obstruction of an officer, holding, inter alia, “It is not necessary for the State to prove the underlying offense that causes the officers to act; it is only necessary to prove the elements of the obstruction statute, i.e., that the act constituting obstruction was knowing and wilful, and that the officer was lawfully discharging his official duties.”).


author: Doyle, Judge.

text:
    A11A1158.
    TUNALI v. THE STATE.
    (717 SE2d 341)
   Doyle, Judge.

This appeal arises from this Court’s grant of Rauf Tunali’s application for interlocutory review of the denial of his motion to suppress evidence obtained during a traffic stop. Tunali contends that the trial court erred because (1) the State failed to demonstrate the basis for the investigating officer’s suspicion justifying the initial traffic stop, and (2) the investigating officer administered an alco-sensor test without first giving Tunali an implied consent warning. For the reasons that follow, we affirm.

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

Here, the relevant evidence is undisputed, and we therefore review the trial court’s legal rulings de novo.

The record shows that Tunali was driving on an interstate highway in a Ford F250 pickup truck, which displayed a hazardous materials placard. An officer from the Department of Public Safety (“DPS”) stationed at a commercial vehicle weighing and inspection station observed Tunali drive past the station without stopping. Based on Tunali’s failure to stop, the officer pursued him and conducted a traffic stop. As the officer spoke with Tunali and directed him back to the inspection station, he noticed an odor of alcohol on Tunali’s breath. When the officer asked Tunali if he had consumed any alcohol, Tunali said that he had done so eight hours before the officer stopped him. The officer asked Tunali if he would blow into an alco-sensor to detect the presence of alcohol. Tunali consented and blew into the sensor, which registered positive for alcohol.

The officer allowed Tunali’s passenger, who was properly licensed, to drive the vehicle to the inspection station where the officer performed an inspection of the vehicle for compliance with commercial vehicle standards. Based on his encounter with Tunali, the officer issued him citations for DPS rules violations based on exhibiting a detectable level of alcohol while driving a commercial vehicle and having a broken rear brake light/turn signal that the officer noticed after he executed the traffic stop.

The State returned an accusation alleging that Tunali drove a commercial vehicle with a detectable presence of alcohol about his person and operated a commercial vehicle without functioning lights. Tunali moved to suppress any evidence from the traffic stop, and following an evidentiary hearing, the trial court denied the motion and certified the ruling for immediate review. This Court then granted Tunali’s application for interlocutory review.

1. Tunali contends that the trial court erred by ruling that the initial traffic stop was justified by a reasonable articulable suspicion of criminal activity, arguing that the DPS rules are not subject to judicial notice and the State failed to introduce the DPS rules giving rise to the suspected violation justifying the traffic stop. We disagree.

In the context of a motion to suppress, the State bears the burden of proving that the traffic stop and subsequent search or seizure of evidence were lawful. Thus, the State must demonstrate the legal basis for the officer’s authority to stop the vehicle. Tunali correctly points out that the DPS rules relied upon by the officer and the State have not been made a part of the record, and historically, certain rules were not subject to judicial notice because they were not promulgated pursuant to the Georgia Administrative Procedure Act (“APA”). Thus, Tunali argues that the State cannot meet its burden because it cannot show the basis for the officer’s traffic stop.

Nevertheless, the Georgia Public Service Commission has formally adopted motor carrier safety regulations issued by the Federal Motor Carrier Safety Administration, as codified in the Rules and Regulations of the State of Georgia, which is the official compilation made by the Georgia Secretary of State under the APA. Under these rules, certain officers of DPS, such as the officer in this case, are authorized to stop commercial vehicles to conduct safety inspections under Georgia’s regulations. The traffic stop in this case occurred after the formal adoption of the federal rules; thus we take judicial notice of the rules as adopted.

In light of the authority of the officer to stop and inspect commercial vehicles, and in light of the evidence that Tunali drove a truck displaying a hazardous material placard as he failed to stop at an established interstate vehicle inspection station, we find no error in the trial court’s conclusion that the State met its burden to demonstrate the officer’s authority to conduct the traffic stop.

Decided October 4, 2011.

Allen M. Trapp, Jr., for appellant.

2. Tunali also challenges the admissibility of the breath test administered by the officer because the officer did not read him the implied consent warning. Nevertheless, the record shows that the breath test administered was an alco-sensor test designed to test for the presence of alcohol. That result, the presence vel non of alcohol, was the only evidence tendered at the hearing, and no blood alcohol concentration was at issue. OCGA § 40-5-153 (c) applies to commercial drivers and requires that an implied consent warning be given to drivers of commercial vehicles when an officer administers a test to determine the person’s “alcohol concentration or the presence of other drugs.” Thus, as this Court has held when analyzing the admissibility of testing of noncommercial drivers under OCGA § 40-6-392, which is explicitly referenced in OCGA § 40-5-153 (a), the implied consent warning requirement does not apply to alco-sensor tests, which merely detect the presence, not concentration, of alcohol. This is consistent with the plain meaning of the phrase “alcohol concentration or the presence of other drugs.” Had the legislature intended to require the implied consent warning for tests detecting only the presence — and not concentration — of alcohol, it could have used the phrase “presence of alcohol,” as it expressly did for drugs. Therefore, the officer was not required to give the implied consent warning under OCGA § 40-5-153, and this enumeration affords no basis for reversal.

Judgment affirmed.

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

Nina M. Baker, Solicitor-General, Julian A. Mack, Assistant Solicitor-General, for appellee.

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

       Tunali’s vehicle did not actually contain any hazardous materials.

       See Lucas v. State, 284 Ga. App. 450, 451 (644 SE2d 302) (2007); Teal v. State, 291 Ga. App. 488, 489 (662 SE2d 268) (2008).

       See, e.g., Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994) (“It is evident that the stop of a vehicle is authorized if an officer observes the commission of a traffic offense.”).

       See Ponce v. State, 279 Ga. App. 207, 210 (2) (630 SE2d 840) (2006) (“Because the [Public Service Commission’s] transportation rules were not promulgated in accordance with the APA, we cannot judicially notice them.”).

       See, e.g., Lucas, 284 Ga. App. at 451 (State could not rely on unproven city ordinance to demonstrate basis for officer’s reasonable articulable suspicion).

       See Taylor v. State, 305 Ga. App. 748, 749, n. 1 (700 SE2d 841) (2010) (“The Georgia [DPS] is charged with enforcing federal motor carrier regulations, which have been adopted under Georgia law, and officers of the department have authority to stop commercial vehicles for safety inspections.”); Solano-Rodriguez v. State, 295 Ga. App. 896, n. 2 (673 SE2d 351) (2009). See also Ga. Comp. R. & Regs. r. 515-16-4-.01; Ponce, 279 Ga. App. at 208-210 (2) (describing publication of rules by the Secretary of State under the APA).

       See Taylor, 305 Ga. App. at 749, n. 1; Solano-Rodriguez, 295 Ga. App. at 897, n. 3; see also Ga. Comp. R. & Regs. r. 570-31-.01 (“[DPS] Employees designated as Law Enforcement Officers of the Motor Carrier Compliance Division of the Department of Public Safety, shall have the authority to carry firearms, to make arrests, to stop and enter motor vehicles . . .”).

       See Solano-Rodriguez, 295 Ga. App. at 896, n. 2. Although not applicable here, we further note that, as of July 1, 2011, DPS has adopted a transportation rulebook, made available on its Internet site, stating that DPS officers “[h]ave the power to stop, enter upon, and inspect all motor vehicles using the public highways for purposes of determining whether such vehicles have complied with and are complying with laws, the administration or enforcement of which is the responsibility of the department.” DPS Transportation Rulebook, R. 1-5 (a) (3). See also OCGA § 40-1-23 (w) (2) (effective July 1, 2011, as noted in Ga. L. 2011, p. ¾79, § 26).

       Tunali did not argue in the trial court or in this Court that the officer’s inspection authority itself violated the Fourth Amendment, and we do not address that issue. See generally New York v. Burger, 482 U. S. 691, 699-712 (II)-(III) (107 SC 2636, 96 LE2d 601) (1987) (addressing the Fourth Amendment implications of regulatory inspection programs).

       Cf. Ponce v. State, 271 Ga. App. 408, 414 (3) (609 SE2d 736) (2005) (unusual avoidance of a police roadblock may give rise to a reasonable suspicion of criminal activity), vacated on other grounds, State v. Ponce, 279 Ga. 651 (619 SE2d 682) (2005).

       (Emphasis supplied.)

       See Keenan v. State, 263 Ga. 569, 571 (2) (436 SE2d 475) (1993) (no requirement to give implied consent warning for alco-sensor test); Turrentine v. State, 176 Ga. App. 145, 146 (1) (335 SE2d 630) (1985) (same).

       See Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 187 (674 SE2d 894) (2009) (“[W]e apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.”) (punctuation omitted).


text:
    A11A1198.
    In the Interest of A. C. R-M., a child.
    (717 SE2d 344)
   Doyle, Judge.

A. C. R-M. was adjudicated delinquent for committing the act of criminal damage to property in the second degree. He appeals following the denial of his motion for new trial, challenging the sufficiency of the evidence. For the reasons set forth below, we vacate and remand for adjudication and disposition consistent with this opinion.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged. Thus, the standard of review on appeal in a case of adjudication of delinquency of a juvenile is the same as that for any criminal case. In reviewing such cases, we do not weigh the evidence or determine witness credibility.

So viewed, the evidence shows that A. C. R-M. and D. S., another juvenile, lived in the Cedar Heights Mobile Home Park. The property manager inspected the property on Monday, March 29, 2010, after receiving a phone call from the maintenance worker regarding damage to several mobile homes. The manager observed what appeared to be holes from a pellet gun in nine of the mobile homes, including the one on Lot 99. The park owner testified that he did not receive any reports of damage to the mobile homes before March 27, and the investigating officer stated that he was not aware of any damage reports at the property before or after the weekend of March 27-29.

T. J., an 11-year-old girl who also lived in the mobile home park, testified on direct examination that she observed A. C. R-M. and D. S. “shooting the trailers with a BB gun,” including Lots 6 and 99. According to T. J., the damage occurred on a Saturday, and she told her mother and the property manager about the incident on the following Monday. During cross-examination, T. J. testified that she saw A. C. R-M. shoot a BB gun toward the home located on Lot 99 only, and that he did so some time after she spoke to the police. T. J. later indicated, however, that she was “not sure” when the damage to Lot 99 occurred, and she answered affirmatively when asked whether she had “been kind of confused on some of the dates.” Both T. J. and her father testified that T. J.’s brother sold a pellet gun to A. C. R-M.

The property manager and the maintenance worker inspected the damage to each of the approximately eight to ten mobile homes that sustained damage, which included approximately twenty to thirty broken windows total. The property owner then obtained an estimate from a wdndow installer, which indicated that each replacement wdndow would cost $56. According to the property owner, the damage to the property totaled $2,041.

The State filed a delinquency petition on April 22, 2010, charging A. C. R-M. with criminal damage to property in the second degree by intentionally damaging “the windows and door[s] of several homes in Cedar Heights.” At the conclusion of the trial, the juvenile court found that A. C. R-M. had committed criminal damage to property in the second degree and adjudicated him delinquent. A. C. R-M. filed a motion for new trial, which the juvenile court denied, and this appeal followed.

A. C. R-M. argues that the State failed to prove that he participated in damaging the trailers and that it failed to prove that the damage to the trailers exceeded $500.

OCGA § 16-7-23 (a) (1) provides that “[a] person commits the offense of criminal damage to property in the second degree when he . . . [intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00. . . .” “Questions of reasonableness are reserved for the factfinder, and we will not disturb its finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt unless the adjudication is unsupportable as a matter of law.”

T. J. testified that she observed A. C. R-M. “shooting the trailers with a BB gun.” A. C. R-M. argues that T. J.’s testimony was contradictory because she later testified that he shot at Lot 99 only, and he did so after she spoke to the police on March 29. A. C. R-M. cannot, he contends, be adjudicated delinquent based on actions that occurred after the delinquency petition was filed. Pretermitting the validity of this contention, the contradictions in the evidence do not require reversal.

Clearly, as she conceded, T. J. was confused regarding the dates of A. C. R-M.’s involvement. The juvenile court, explained, however, that “I’m going to give some leeway, as far as what that time period with an [ll]-year-old, as to her concept of time.” Thereafter, at the motion for new trial hearing, after noting that “11-year-olds are not the best on time sequence,” the trial court found that the State had proved that A. C. R-M. committed the property damage beyond a reasonable doubt based on testimony that A. C. R-M. purchased a pellet gun from T. J.’s brother, T. J.’s testimony that A. C. R-M. shot at the home on Lot 99, and testimony that all of the reported damage to the property occurred between March 27 and March 29.

[T]he weight and credibility of witnesses are questions for the trier[ ] of fact; that some evidence offered by a witness seems contradictory to h[er] own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness, or others, for it is the function of the trier [ ] of fact to determine to what evidence it gives credence. It is not for this Court to determine or question how the trier of fact resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict.

Viewed in the light most favorable to the delinquency adjudication, there was sufficient evidence to conclude that A. C. R-M. damaged property at the mobile home park.

A. C. R-M. also argues, however, that there was insufficient evidence to establish that the value of the damage exceeded $500, and we agree. The property owner based his $2,041 damage calculation on other people’s observations of the damage and a window installer’s estimate of the cost to replace each window; there was no evidence that the repairs occurred. As we held previously in a similar case, the estimate is inadmissible hearsay. Furthermore, the property owner’s estimate was for the cumulative damage done to the property, and there was no evidence admitted at trial regarding the number of windows that would have to be replaced in the home(s) that A. C. R-M. himself damaged. “This is clearly insufficient to establish the value of the damages to be in excess of $500. ”

Decided October 4, 2011.

Drummond & Swindle, Jason W. Swindle, for appellant.

“Thus, the juvenile court erred [by] finding that [A. C. R-M.] committed criminal damage to property in the second degree.” Nevertheless, based on our holding that the juvenile court did not err by finding that A. C. R-M. did shoot a pellet gun toward at least one mobile home, “the evidence is sufficient to support an adjudication of delinquency for committing an act which would support a conviction for the offense of criminal trespass to property as a lesser included offense of criminal damage to property in the second degree.”

OCGA § 16-7-21 (a) provides that “[a] person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less. . . .” Here, the evidence showed that A. C. R-M. shot a pellet gun toward a mobile home, which sustained a broken window.

Accordingly, we remand this case with direction that an adjudication of delinquency and a disposition thereof be entered for committing an act which would have supported a conviction for the offense of criminal trespass to property were [A. C. R-M.] an adult. This result does not violate [A. C. R-M.’s] due process right to be notified of the charges against him since a defendant is on notice of all lesser crimes which are included in the crime charged as a matter of law.

Judgment vacated and case remanded.

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

Peter J. Skandalakis, District Attorney, John M. Daley, Assistant District Attorney, for appellee.

       OCGA § 16-7-23 (a) (1).

       (Punctuation omitted.) In the Interest of C. H., 306 Ga. App. 834, 836-837 (3) (703 SE2d 407) (2010).

       D. S. was tried at the same time, and he was also adjudicated delinquent for committing criminal damage to property in the second degree.

        In the Interest of M. C. A., 263 Ga. App. 770, 772 (2) (589 SE2d 331) (2003).

       (Punctuation omitted.) In the Interest of J. S., 296 Ga. App. 144, 147 (2) (a) (673 SE2d 645) (2009).

       See Adams v. State, 300 Ga. App. 294, 300 (2) (b) (684 SE2d 404) (2009); J. S., 296 Ga. App. at 147-148 (2) (a).

        See Adams, 300 Ga. App. at 300 (2) (b). See also In the Interest of J. T., 285 Ga. App. 465, 466 (1) (646 SE2d 523) (2007); In the Interest of A. F., 236 Ga. App. 60 (1) (510 SE2d 910) (1999).

       The written estimate was not admitted at trial. It was, however, included as an attachment to the “Victim Impact/Damage and Loss Statement,” which is in the record. The attachment indicates that a single window was damaged in the home on Lot 99, for a total of $56.

       Adams, 300 Ga. App. at 300 (2) (b).

        J. S., 296 Ga. App. at 148 (2) (b).

       Id.

       (Citations and punctuation omitted.) Id. at 149 (2) (b). See also In the Interest of J. T., 285 Ga. App. at 466 (2).


text:
    A11A1225.
    HARGRAVE v. THE STATE.
    (717 SE2d 485)
   MILLER, Presiding Judge.

A jury found Thomas Hargrave guilty of child molestation. The trial court denied Hargrave’s motion for new trial. Hargrave appeals, contending that the trial court erred by (i) denying his motion for directed verdict as venue was not established beyond a reasonable doubt, and (ii) denying Hargrave’s motion for new trial because Hargrave’s guilt as to child molestation against the victim was not established beyond a reasonable doubt. Discerning no error, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497, 497 (699 SE2d 819) (2010).

We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain that the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [SJtate’s case, the jury’s verdict will be upheld.

(Citation omitted.) Vaughn v. State, 301 Ga. App. 391, 391 (687 SE2d 651) (2009).

So viewed, the evidence shows that Hargrave is the victim’s uncle. During the victim’s spring break in 2006, when she was nine years old, she traveled with her father from her home in Maryland to visit her relatives living in Georgia. On one evening during the visit, Hargrave came into the room where the victim was sleeping, pulled down his pants and rubbed his penis on the victim’s bare buttocks.

In September 2006, the victim decided to tell her mother about what Hargrave had done to her; when the victim had trouble saying what had transpired, she decided to write it down on a piece of paper. The victim wrote that Hargrave had raped her. Although the mother verified that the victim was never in fact raped by Hargrave, the victim revealed several incidents of molestation that had occurred in Maryland prior to the 2006 incident in Georgia. At trial, the victim described these prior Maryland incidents as follows:

Usually he would do it at night, or in the morning when I was basically asleep. But he would . . . push the bed to see if I was awake. And he would pull down my pants, pull up my shirt, and . . . touch me with his private.
He would blindfold me and he would say, “Guess what’s in your mouth.” And he would put his private in my mouth.

Hargrave was indicted with the offense of child molestation, OCGA § 16-6-4, by “rubbing and placing his penis on the buttocks of the [victim]” in 2006. Hargrave was tried before a jury. The trial court denied Hargrave’s motion for a directed verdict, and Hargrave was found guilty and convicted. Hargrave subsequently filed a motion for new trial. The trial court denied Hargrave’s motion for new trial, finding that “[ajfter reviewing the evidence presented at trial and during the hearing, as well as considering the arguments of counsel, . . . there was sufficient evidence to authorize the jury’s verdict.”

1. Hargrave argues on appeal that his motion for directed verdict should have been granted, because the State failed to prove venue. We disagree.

Under our Constitution, proper venue in all criminal cases is the county in which the crime was allegedly committed and is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt. The prosecution may prove venue by direct and circumstantial evidence. The standard of review is whether, considered in the light most favorable to the prosecution, the State proved the essential element of venue beyond a reasonable doubt.

(Citation omitted.) Stegall v. State, 308 Ga. App. 666, 666-667 (2) (708 SE2d 387) (2011). “Whether the evidence as to venue satisfied the reasonable-doubt standard is a question for the jury, and its decision will not be set aside if there is any evidence to support it.” (Punctuation and footnote omitted.) Barkley v. State, 302 Ga. App. 437, 438 (691 SE2d 306) (2010).

Hargrave argues that venue was not proven beyond a reasonable doubt because the victim’s trial testimony demonstrates her “lack of knowledge of where in Georgia any alleged molestation might have occurred.” Hargrave specifically points to the following testimony:

Q. And where did you stay once you came to Georgia?
A. My aunt’s house.
Q. And is that here in Fayetteville, Georgia?
A. I’m not sure.
Q. Do you know the address?
A. No.

Notwithstanding Hargrave’s attempts to parse the evidence, other testimony established that the crime in 2006 occurred in Fayette County. The trial testimony showed that the victim and her father, who is also Hargrave’s brother, traveled to Georgia in 2006. When they arrived in Georgia, the victim stayed at a home where her aunt, grandmother, and Hargrave all resided at the time. The testimony of the victim’s aunt showed that the home was located in Fayette County, Georgia. The victim’s mother testified that the victim and her father traveled to Fayetteville during the victim’s spring break in 2006, at which time the victim stayed with her grandmother in Fayette County.

During trial and her forensic interview, the victim described that the molestation incident occurred in 2006 during a visit to her aunt’s residence in Georgia. Two detectives likewise testified that the referenced 2006 visit and molestation incident took place at a residence in Fayette County.

This evidence sufficiently connects the location of the relevant act of child molestation to the county in which it occurred. See Stegall, supra, 308 Ga. App. at 667 (2) (concluding evidence was sufficient to prove venue in Clayton County as to aggravated child molestation and aggravated sodomy where victim’s family lived in Fayetteville, Clayton County; defendant lived with victim’s family in Fayetteville; victim testified that defendant committed acts of oral sodomy upon her in the same room where she had been raped, which was in Fayetteville; and, victim’s mother testified that victim told her defendant had committed oral sodomy upon her in Clayton County). The testimony, taken as a whole, including the victim’s testimony and her statements to the forensic interviewer, “was sufficient evidence from which the jury could conclude beyond a reasonable doubt that the crimes were committed in [Fayette] County.” (Citation and punctuation omitted.) Id. While Hargrave points to some confusion in the victim’s trial testimony, “any conflicts in the evidence were for the jury to decide.” Id.

2. Hargrave also contends that the trial court erred in denying his motion for new trial pursuant to OCGA §§ 5-5-20 and 5-5-21, because the jury’s verdict was contrary to the evidence, the principles of justice and equity, and the weight of the evidence. Again, we disagree.

‘‘The grant or denial of a motion for new trial is a matter within the sound discretion of the trial court and will not be disturbed if there is any evidence to authorize it.” (Footnote omitted.) Taylor v. State, 259 Ga. App. 457, 460 (2) (576 SE2d 916) (2003). “Notably, where a defendant raises a claim under OCGA §§ 5-5-20 and 5-5-21 in his motion for new trial, the law imposes upon the trial court an affirmative duty to exercise its discretion and weigh the evidence to determine whether a new trial is warranted.” (Citations omitted.) Hartley v. State, 299 Ga. App. 534, 540 (3) (683 SE2d 109) (2009). The trial court here exercised such discretion and weighed the evidence in determining that Hargrave was not entitled to a new trial.

Hargrave nevertheless contends that the trial court erred, relying upon alleged inconsistencies between the victim’s trial testimony and interview statements, the failure of the forensic interviewer “to adequately explore elements of [the victim’s] story that may weigh against the truth of her story,” and conflicting testimony from the victim’s family members regarding the specifics of the victim’s 2006 spring break trip. On appeal, however, this Court does not “weigh evidence or resolve conflicts in trial testimony . . . .” (Footnote omitted.) Herrington v. State, 241 Ga. App. 326, 329 (2) (527 SE2d 33) (1999). Rather, “[t]his Court can only review a lower court’s refusal to grant a motion for new trial under the standard espoused in Jackson v. Virginia to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.” (Footnotes omitted.) Taylor, supra, 259 Ga. App. at 460 (2).

Here, the victim testified at trial that when she was in Georgia for her spring break in 2006, Hargrave pulled down her pants and touched her on her back and buttocks. The victim’s videotaped forensic interview with a social worker was also played for the jury. Under the Child Hearsay Statute, OCGA § 24-3-16, “the jury was entitled to consider victim’s out-of-court statements as substantive evidence.” (Citation omitted.) Lopez v. State, 291 Ga. App. 210, 212 (1) (661 SE2d 618) (2008). During the interview, the victim recounted a night during her spring break trip to Georgia, when she was eight or nine years old, stating that while “[everybody was sleeping [Hargrave] took down my pants and he started . . . raping me.” When asked to further describe this incident, the victim explained that Hargrave “pulled down his pants and he started pushing himself on my back . . . [and] he started touching me in the wrong places . . . my chest and my arm . . . and my butt.” The victim also described Hargrave’s actions during the spring break trip by using anatomical dolls. She told the social worker, “I woke up and [Hargrave] pulled down his pants and started . . . going like that again,” and she showed the male doll rubbing its genital area against the buttocks of the female doll. Moreover, when the victim was presented with anatomical drawings, she indicated on a female drawing that Hargrave had touched her on the buttocks, chest, and her “private part.” She indicated on a male anatomical drawing that Hargrave used his penis when touching her.

“Viewed in the light most favorable to the prosecution, we conclude that the evidence was more than sufficient to support the conviction on each count beyond a reasonable doubt.” Herrington, supra, 241 Ga. App. at 329 (aggravated child molestation). “To the extent the [victim’s] testimony at trial was not entirely consistent with her former statements to the [social worker], this presented a credibility question to be resolved by the jury.” Green v. State, 212 Ga. App. 250, 251 (1) (441 SE2d 689) (1994). Likewise, “minor inconsistencies in the trial testimony go to the weight given the evidence, not to its sufficiency to support the jury’s verdict.” Herrington, supra, 241 Ga. App. at 329. Finally, the victim was made available at trial for confrontation and cross-examination, at which time the jury was allowed to judge the credibility of the child’s accusations. See Jones v. State, 200 Ga. App. 103, 103-104 (407 SE2d 85) (1991) (“The thrust of the child witness statute is to allow the jury, which must be convinced of guilt beyond a reasonable doubt, to judge the credibility of a child’s accusations.”) (citation and punctuation omitted). “A witness’ responsiveness or unresponsiveness, evasiveness or directness, verbal skills, intelligence, memory, perception, and apparent understanding are all factors which can be assessed by the jury and may raise a reasonable doubt.” (Citation and punctuation omitted.) Id. Thus, the jury was authorized to conclude that Hargrave was guilty of child molestation.

Decided October 4, 2011.

Christopher J. Ramig, Walker L. Chandler, for appellant.

Scott L. Ballard, District Attorney, David J. Younker, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       OCGA § 16-6-4 provides in relevant part that “[a] person commits the offense of child molestation when such person . . . [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person . . . .” OCGA § 16-6-4 (a) (1).

       OCGA § 5-5-20 provides that “[i]n any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury. ’ ’

       OCGA § 5-5-21 provides that “[t]he presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.”

       The Child Hearsay Statute currently provides:
      A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.
      OCGA § 24-3-16.