text:
    A17A0668.
    BRADLEY v. THE STATE.
    (804 SE2d 144)
   Self, Judge.

Following a jury trial, Shelton Bradley was found guilty of aggravated child molestation, rape, and incest for sexually abusing his 15-year-old stepdaughter. Bradley appeals the denial of his motion for new trial, contending that the trial court erred by not answering a question from the jury and by commenting on the credibility of the victim. He also alleges ineffective assistance of counsel. For the reasons set forth below, we affirm Bradley’s convictions but remand for his claim that counsel was ineffective for failing to present evidence that DNA recovered from the victim was male DNA that did not match Bradley

Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence adduced at trial shows that on the evening of December 10, 2007, Q. H. was watching television in the den of her family’s home when Bradley took her into the laundry room and asked if he could touch her. When Q. H. refused, Bradley pulled down her pants and licked her vagina. Q. H. ran to the bedroom she shared with her sister and locked the door. Bradley knocked on the door and told Q. H. to come out because he wanted to talk to her. When Q. H. left the bedroom, Bradley took her into the den where he forced her to have sex with him. Following the incident, Bradley took Q. H. into the bathroom, at which point Bradley removed the condom he had used and put it in the sink. Bradley told Q. H. that if she said anything, he would hurt her mother.

Q. H.’s brother helped her escape with her sister through a bedroom window and the two girls ran to a neighbor’s house. The neighbor testified that Q. H. and her sister came into her house screaming and crying and told her that Bradley had sex with Q. H. Q. H. also told the neighbor that Bradley left a condom in the bathroom sink. The neighbor called the police. A physical examination conducted at The Haven Rape Crisis Center showed an abrasion of the labia consistent with friction, such as forced sexual intercourse.

Officers arrested Bradley that night, and during a walk-through of the home, a detective discovered a condom in the sink, a condom wrapper on the couch in the den, and a tissue with blood on it in the laundry room. At trial, Q. H. testified that she lied about the entire incident to get Bradley out of the house because he was strict and would argue with her mother. When asked why she did not recant her allegation sooner, Q. H. testified that she was told that if she changed her story she would be prosecuted.

1. Bradley complains that the trial court erred in not answering a question from the jury about whether “unconsented” oral sex constitutes rape. In response, the trial court stated, “I cannot — or none of us can enter into a general discussion with [you] concerning these issues.” The trial court then recharged the jury on the definitions of rape and aggravated child molestation as follows:

A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of a female sex organ with a male sex organ. The law of Georgia provides that a person not married to the defendant under the age of 16 is legally incapable of giving consent to sexual intercourse. This means such act would be against the will of the victim. . . .
A person commits the offense of aggravated child molestation when that person does an immoral or indecent act to a child less than 16 years of age with the intent to arouse or satisfy the sexual desires of the person and the act involves the act of sodomy The act of sodomy is defined as performing or submitting to a sexual act involving the sex organs of one and the mouth or anus of another. The State must also prove beyond a reasonable doubt that the child was under the age of 16 at the time of any such act.

A juror asked the trial court to read the rape charge one more time, and the court acquiesced. The jury then asked if there is a difference between statutory rape and rape, to which the trial court responded: “Legally there is of the definition, but [you] are not concerned with statutory rape. That’s not one of the issues for [you] to consider in this case.” Bradley did not object.

Initially, it is important to note that [Bradley] did not object to any portion of the trial court’s jury charges, and under OCGA § 17-8-58, “any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” And the failure to so object precludes appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error. . . .

(Citations and punctuation omitted.) Wheeler v. State, 327 Ga. App. 313, 318 (3) (758 SE2d 840) (2014). “[P]lain error . . . will only be found if the jury instruction was erroneous; the error was obvious; the instruction likely affected the outcome of the proceedings; and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” (Citation and punctuation omitted.) Tran v. State, 340 Ga. App. 546, 548 (1) (798 SE2d 71) (2017). Because Bradley failed to object, our review is limited to whether the trial court’s response constituted plain error. See Redding v. State, 296 Ga. 471, 473 (2) (769 SE2d 67) (2015).

Bradley contends the exchange between the trial court and the jury proves the jury was confused about the rape charge and likely convicted Bradley of rape based on conduct that did not constitute rape. He further argues that the trial court committed plain error by not answering the jury’s question with a simple “no.” “The trial court had discretion to decline to answer the jury’s question directly We have never held that the court must engage in a question and answer session with the jury or instruct the jurors individually on how to apply the law to the facts.” (Punctuation omitted.) Redding, 296 Ga. at 473 (2). In this case, the trial court sought to avoid any “problematic situation” by recharging the jury on rape and aggravated child molestation, which effectively answered the question posed. See id. The trial court’s recharge specifically instructed the jury that rape involves the penetration of a female sex organ with a male sex organ and that aggravated child molestation involves the sex organs of one and the mouth or anus of another. We conclude that the trial court’s decision to answer the jury’s question by recharging on rape and aggravated child molestation does not amount to plain error, was not obviously erroneous, and likely did not affect the outcome of the proceeding.

2. Bradley contends that the trial court violated his due process rights and OCGA § 17-8-57 by commenting on Q. H.’s credibility and expressing its opinion as to Bradley’s guilt. At the close of the neighbor’s testimony, the following colloquy occurred between the trial court and the neighbor:

THE COURT: Let me ask a question. We’re trying to arrive at the — reach the truth of this case. Is this the first — you said a minute ago that you were not that — I’m rephrasing, okay? This is not exactly what you said, but I took it that you were not that close or friendly with, or that well acquainted with the people, or the girls, is that right?
[NEIGHBOR]: Right, I just knew them because of my kids. My girls hung with their daughters.
THE COURT: Had you ever seen them crying or upset before
[NEIGHBOR]: No, sir.
THE COURT: — this time? Well, did anybody say why the brother didn’t go with them?
[NEIGHBOR]: No, sir.

Bradley did not object.

OCGA § 17-8-57 was amended effective July 1, 2015. While the former version of OCGA § 17-8-57 was in effect at the time of Bradley’s trial, the amended version applies. See Quiller v. State, 338 Ga. App. 206, 207-209 (789 SE2d 391) (2016) (amendment to OCGA § 17-8-57 entitled to retroactive effect). As amended, OCGA § 17-8-57 provides:

(a) (1) It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.
(2) Any party who alleges a violation of paragraph (1) of this subsection shall make a timely objection and inform the court of the specific objection and the grounds for such objection, outside of the jury’s hearing and presence. After such objection has been made, and if it is sustained, it shall be the duty of the court to give a curative instruction to the jury or declare a mistrial, if appropriate.
(b) Except as provided in subsection (c) of this Code section, failure to make a timely objection to an alleged violation of paragraph (1) of subsection (a) of this Code section shall preclude appellate review, unless such violation constitutes plain error which affects substantive rights of the parties. Plain error may be considered on appeal even when a timely objection informing the court of the specific objection was not made, so long as such error affects substantive rights of the parties.
(c) Should any judge express an opinion as to the guilt of the accused, the Supreme Court or Court of Appeals or the trial court in a motion for a new trial shall grant a new trial.

“The purpose of this limitation at least in part is to prevent the jury from being influenced by any disclosure of the judge’s opinion regarding a witness’s credibility” Craft v. State, 274 Ga. App. 410, 411 (1) (618 SE2d 104) (2005). However, “[i]t is well settled that a trial court may propound a clarifying question in order to develop the truth of a case” or to verify witness testimony. (Citation and punctuation omitted.) Littlejohn v. State, 320 Ga. App. 197, 203 (2) (739 SE2d 682) (2013). See Bush v. State, 317 Ga. App. 439, 442 (2) (731 SE2d 121) (2012).

Bradley did not object at trial to the court’s questions and did not assert this alleged error in his motion for a new trial. “[T]he failure to object to the error at trial precludes appellate review unless such violation constituted plain error.” Quiller, 338 Ga. App. at 208. We do not find that the trial court’s question constituted plain error requiring us to reverse. The trial court’s questioning of the neighbor was asked for the purpose of developing the truth of the case. The court did not express or intimate an opinion as to proof or as to guilt, or bolster the credibility of the neighbor or victim. Compare Craft, 274 Ga.App. at 412 (1). Additionally, shortly before the trial court posed its questions, defense counsel also asked the neighbor if she was well-acquainted with the victim and her sister, and the neighbor said “[N]o.” The intent of the trial court’s question was to clarify the neighbor’s familiarity with the girls and her previous interactions with the girls. There was no violation of OCGA § 17-8-57 or Bradley’s due process rights. See Finley v. State, 286 Ga. 47, 51 (9) (a) (685 SE2d 258) (2009) (trialcourt didnotviolate OCGA § 17-8-57by questioning witness regarding defendant’s whereabouts immediately after shooting and his behavior toward her at the scene). Compare Callaham v. State, 305 Ga. App. 626, 628 (1) (700 SE2d 624) (2010) (violation of statute where trial court asked defendant if neighbor who implicated him was related to anybody; question clearly intimated court’s opinion that neighbor’s testimony was believable because he was an independent witness unrelated to any of the parties).

3. Finally, Bradley contends that he received ineffective assistance of trial counsel in four ways and that his claim should be remanded to the trial court for consideration.

Under the well-established standards set out in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), to show a denial of effective assistance, a defendant must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. To prove that the performance of his lawyer was deficient, a defendant must show that the lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. The failure to make a futile motion does not constitute ineffective assistance.

(Citation and punctuation omitted.) Lane v. State, 324 Ga. App. 303, 310 (4) (750 SE2d 381) (2013).

As a threshold matter, we must address whether Bradley has waived appellate consideration of this claim for failing to raise it in his motion for new trial. Bradley’s trial counsel represented him both at trial and at the hearing on his motion for new trial and did not raise this issue. In several post-hearing pro se documents seeking dismissal of trial counsel and appointment of appellate counsel, Bradley raised the issue for the first time and asked for remand. Given these circumstances, we find that Bradley asserted his claim of ineffective assistance of trial counsel at the earliest practicable moment.

Next, we must consider Bradley’s request to remand for a hearing. Generally, we remand to the trial court claims of ineffective assistance of counsel raised for the first time on appeal. Hunt v. State, 247 Ga. App. 464, 469 (6) (542 SE2d 591) (2000). However, “[r]emand is not mandated... if we can determine from the record that [Bradley] cannot satisfy the two-prong test set forth in Strickland v. Washington.” (Citation and punctuation omitted.) Godfrey v. State, 274 Ga. App. 237, 241 (2) (617 SE2d 213) (2005). The record here is sufficient to allow us to consider Bradley’s first three enumerated errors in this regard, but not his fourth enumerated error. Accordingly, we remand the case to the trial court solely for a determination of whether trial counsel was ineffective for failing to present evidence that DNA recovered from Q. H. was male DNA that did not match Bradley. We discuss the remaining three enumerated errors below.

(a) Bradley contends that trial counsel was ineffective for failing to object when the State, during re-direct examination of Q. H., read a lengthy letter written by Q. H. and her mother and signed by Q. H. a month after the incident, in which they explained that they were hurt by someone they love, but chose to forgive and not feel resentment. According to Bradley, “the letter contained numerous references to irrelevant and prejudicial matters” and the biblical references had the effect of bolstering the witness’s credibility. During questioning, Q. H. acknowledged that she signed the letter. Q. H. did not deny the incident in the letter and admitted that she helped her mother write the letter. The letter outlines four steps they took to deal with the incident, including (1) prayer and forgiveness; (2) surrender feelings of anger “at him”; (3) lay down all claims of retribution and “choose to pardon him” because they “still love him”; and (4) pursue counseling for him over prison and require him “to go to the jails and prisons and minister to them about this.” The letter proclaims the strength and love of God and how that strength and love has helped to heal the family. Bradley claims the letter is irrelevant and prejudicial and had no bearing on the issue of guilt or innocence.

Bradley’s defense at trial was that Q. H. made up the accusation because she wanted him out of the house. During cross-examination, defense counsel questioned Q. H. about her objective in making the accusation and why she recanted; stressed how important it was for her to tell the truth; and implied that Q. H. went along with the State’s version of events because she felt threatened by the sheriff’s department and the district attorney’s office. Defense counsel also questioned Q. H. about how she and her siblings would often play with condoms that belonged to her brother by making them into water balloons and throwing them at each other.

Because Q. H. claimed at trial that she had made up the accusation, the jury’s ultimate determination was whether to believe her initial accusation or to believe her subsequent recantation. After Q. H. denied during direct and cross-examinations that Bradley sexually abused and raped her, the State introduced the letter and questioned her about it in order to show that Q. H. still believed Bradley was guilty one month after the incident. In Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982), the Supreme Court of Georgia held that a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible both to impeach the witness and as substantive evidence. Id. at 862. See also former OCGA § 24-9-83. Because the letter was admissible as a prior inconsistent statement, counsel cannot be ineffective for failing to object to its admission. See, e.g., Riddick v. State, 320 Ga. App. 500, 502-503 (3) (740 SE2d 244) (2013) (where child was reluctant to testify at trial about father’s molestation of her, child’s prior written statement to the police detailing molestation was admissible at trial); Wheeler v. State, 281 Ga. App. 158, 159-160 (2) (635 SE2d 415) (2006) (letter to attorney used as prior inconsistent statement).

(b) Bradley next contends that trial counsel was deficient for failing to object when the State asked Q. H. whether Bradley attended counseling because of the incident. During re-direct questioning of Q. H. about the letter, the following colloquy transpired between the State and Q. H.:

[STATE]: You didn’t deny it happened, did you?
[Q. H.]: Not at the time.
[STATE]: In fact, you thought give him a second chance, let him go get some counseling is what you thought, right?
[Q. H.]: Yeah.
[STATE]: And if he didn’t do this, he wouldn’t need any counseling, would he?
[Q. H.]: No.
[STATE]: But on the 20th of January, about a month [and] ten days after it happened, then at that time you were wanting him to get counseling, but you wanted to forgive him, is that correct?
[Q. H.]: Huh?
[STATE]: I said about a month [and] ten days after this happened, at that time you wanted him to get counseling, but you wanted to forgive him, is that —... You wanted him to be in counseling, is that correct?
[Q. H.]: Yeah.

As discussed in Division 3 (a), the letter was admissible as a prior inconsistent statement. Accordingly, counsel cannot be ineffective for failing to object to the State questioning Q. H. about its contents.

(c) Bradley further claims that trial counsel was deficient for failing to object when the lead detective testified that ultraviolet light will only show semen or blood. Bradley asserts that the detective testified about the ultraviolet light and its findings “without having first been qualified as an expert and without any testimony that the [detective] was competent to testify regarding the matter.”

“To qualify as an expert, generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge may be derived from experience as well as study Formal education in the subject at hand is not a prerequisite for expert status.” (Citations and punctuation omitted.) Billings v. State, 293 Ga. 99, 104 (5) (745 SE2d 583) (2013). At trial, defense counsel asked the detective whether he had taken a course to learn how to use the ultraviolet light. He responded, “Oh, I’ve been through crime scene processing courses; I’ve [taken] advanced training in different areas of crime scene processing, photographing, blood spatter pattern analysis, and so forth.” He further testified that he had a “16 hour block ... of training” on the ultraviolet light. The detective acknowledged that substances other than blood and semen — such as petroleum jelly — will glow under ultraviolet light, but that the substance on the tissue found in the bathroom was red and from an unknown source, either human or animal. Defense counsel then engaged in a thorough cross-examination of the detective regarding the use and reliability of ultraviolet light on other substances. Although the State did not prove the detective’s qualifications before asking him about the ultraviolet light findings, defense counsel secured such testimony during cross-examination and then proceeded to extensively challenge the detective about his findings. It follows that any objection raised by Bradley’s counsel to the detective’s qualifications would have been futile, and therefore cannot serve as the basis for a claim of ineffective assistance. See Fielding v. State, 278 Ga. 309, 311 (3) (602 SE2d 597) (2004) (where a witness’s qualifications are established, he does not have to be formally tendered and accepted as an expert in order to give expert opinion testimony).

Decided August 4, 2017.

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

Richard L. Perryman III, District Attorney, Rebekah M. Ditto, Charles M. Stines, Assistant District Attorneys, for appellee.

(d) As noted above, we remand for a hearing Bradley’s claim that trial counsel was ineffective for failing to present evidence that the DNArecovered from Q. H. was male DNAthat did not match Bradley.

Judgment affirmed and case remanded with direction.

Dillard, C. J., and Ray, P J., concur.

       We note that there has been considerable delay in this case since Bradley’s conviction. Bradley was convicted on June 3, 2009. His sentence was entered on June 3, 2009. Trial counsel filed a motion for ne w trial on June 17,2009, and an amendment to that motion on May 10, 2011. Following a hearing on May 10, 2011, the trial court denied the motion for new trial. Trial counsel filed a notice of appeal on May 20, 2011. Bradley filed the aforementioned pro se documents on July 8, 2011. On August 19, 2013, appellate counsel filed an entry of appearance . Appellate counsel filed an amended motion for new trial on May 16, 2016. The case was docketed in this court on November 21, 2016.

       OCGA § 24-9-83 was in effect at the time of Bradley’s trial. It was repealed effective January 1, 2013, and is now codified at OCGA § 24-6-613 (b).


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    A17A0843.
    BARNWELL v. DOUGLASVILLE AUTO DETAIL, LLC et al.
    (804 SE2d 142)
   McMillian, Judge.

Kenneth Barnwell filed suit against Douglasville Auto Detail, LLC (“DAD”) and its owner, LaGrand Thornton, alleging that DAD caused over $5,000 in damage to his recreational vehicle. Following a bench trial, the trial court entered an order holding that Barnwell had not properly served DAD and, therefore, it was without jurisdiction to adjudicate any claims against DAD. Barnwell now appeals, asserting that the trial court erred in its findings because (1) service was perfected against DAD; (2) DAD waived any defense of insufficiency of service; and (3) DAD is in default. For the reasons that follow, we reverse and remand.

“A defendant who challenges the sufficiency of service bears the burden of showing improper service[.]” (Citation and punctuation omitted.) Molette v. City of Forest Park, 335 Ga. App. 222, 224 (2) (780 SE2d 780) (2015). “On appeal, absent a showing of an abuse of discretion, a trial court’s finding of insufficient service of process must be affirmed.” (Citation omitted.) Oduok v. Wedean Props., Inc., 319 Ga. App. 785, 787 (1) (b) (738 SE2d 626) (2013). The record shows that in October 2015, Barnwell brought his recreational vehicle to DAD to have it detailed. When Barnwell returned the following day, he allegedly discovered body damage and a crack in the vehicle’s windshield. When Thornton, the principal owner of DAD, later refused to reimburse him for the damage, Barnwell filed suit against both DAD and Thornton in December 2015.

On January 19, 2016, a sheriff’s entry of service was filed, indicating that Thornton had been served at DAD’s business address on January 14, 2016. On January 28, 2016, a second entry of service was filed, this time showing that Thornton had been personally served at his home address on January 17, 2016. Thornton filed a pro se answer on February 1, 2016, denying liability. On February 23, 2016, counsel filed an entry of appearance on behalf of both Thornton and DAD. Thereafter, the record indicates that all parties engaged in discovery

A bench trial was conducted on October 5, 2016, and with the assistance of counsel, all parties presented evidence. Following the defendants’ closing argument, the trial court inquired into whether an amended answer had ever been filed. It was then discovered that although defense counsel had e-mailed to plaintiff’s counsel a courtesy copy of an amended answer on behalf of both Thornton and DAD in March 2016, it had mistakenly never been filed with the court. In his closing argument, Barnwell conceded that he was unable to recover against Thornton individually but argued that DAD had never filed an answer and was therefore in default. On October 7, 2016, the trial court entered an order finding that Barnwell had failed to perfect service on DAD and that it was therefore without jurisdiction to adjudicate any claims against DAD. This appeal followed.

1. It is well settled that “[a] defendant who has not been served with process waives any defect in service when he fails to raise the defenses of lack of personal jurisdiction or lack of sufficiency of process by either motion or an answer as required by OCGA § 9-11-12 (h) (1) (B).” (Citations omitted.) Ahmad v. Excell Petroleum, Inc., 276 Ga. App. 167, 168 (1) (623 SE2d 6) (2005). Thus, pretermitting whether Barnwell properly served DAD with process, if DAD failed to raise this defense, it is waived. See id.

It is clear that the pro se answer filed by Thornton on February 1, 2016 cannot suffice as an answer for DAD. See Eckles v. Atlanta Tech. Group, Inc., 267 Ga. 801, 805 (2) (485 SE2d 22) (1997) (corporations are not allowed to appear pro se in a court of record). And, as confirmed at the bench trial, DAD did not later file an answer on its behalf. Nor does the record contain a motion in which DAD raised the defense of insufficient service of process. Therefore, DAD has waived this defense and consented to the jurisdiction of the trial court. See Brown v. Fokes Props. 2002, Inc., 283 Ga. 231, 232 (1) (657 SE2d 820) (2008) (where court otherwise has subject matter jurisdiction, defendant’s waiver “confers jurisdiction of his person regardless of the fact that process was not served on him or that the service may have been defective”) (citation omitted); McNeil v. McCollum, 276 Ga. App. 882, 889 (3) (625 SE2d 10) (2005) (defense of insufficiency of service of process is waived if it is neither made by motion nor included in a responsive pleading as originally filed). Accordingly, the trial court erred in finding it did not have jurisdiction over DAD, and that portion of its order must be reversed.

Decided August 4, 2017.

Levenson & Associates, P. Cory Barnwell, for appellant.

Hartley, Rowe & Fowler, Kenneth B. Crawford, for appellees.

2. Barnwell also asserts that the trial court erred in failing to find that DAD was in default. However, because the trial court found that it did not have jurisdiction to adjudicate any claims against DAD, it did not reach this issue. “Where the trial court has not ruled on an issue, we will not address it.” Barnes v. Smith, 339 Ga. App. 607, 608, n.1 (794 SE2d 262) (2016).

Judgment reversed and case remanded for further proceedings.

Barnes, P. J., and Mercier, J., concur.

       With respect to Barnwell’s claims against Thornton individually, the trial court found in favor of Thornton. Barnwell does not appeal this portion of the trial court’s order.

       We note that this answer did not include a defense of insufficiency of service of process.

       Moreover, the parties prepared a consolidated pretrial order in this case, and neither defendant raised any defense regarding insufficient service of process. And where a claim or issue is omitted from a pretrial order, it is waived. See Rice v. Cropsey, 203 Ga. App. 272, 273 (1) (416 SE2d 786) (1992) (defendant waived defenses of lack of personal jurisdiction and insufficient service of process by omitting them, without objection, from the pretrial order).


author: RAY, Presiding Judge.

text:
    A17A0677.
    WOODWARD v. THE STATE.
    (804 SE2d 153)
   RAY, Presiding Judge.

Dontavious Woodward was indicted on two counts of aggravated assault — family violence (OCGA § 16-5-21) anda separate count of arson (OCGA § 16-7-60). A jury found Woodward guilty of arson and of the second count of aggravated assault — family violence. Woodward appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support the verdict. For the reasons that follow, we affirm.

On appeal of the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to discern whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

The evidence adduced at trial showed that Woodward, who was 17 years old, lived in a two-story house in DeKalb County with his mother, his stepfather, and his four younger siblings. At about 11:00 p.m. on March 28,2010, as the family was getting ready for bed or had gone to bed, Woodward’s parents and siblings heard a loud crash from Woodward’s bedroom followed by the smoke detector going off. When family members came out of their rooms, they saw fire coming from Woodward’s bedroom. The floor was on fire, and Woodward was laughing. Woodward was setting things on fire with a grill lighter and with an aerosol spray can he was using as a torch to set the walls, floor, and his bed alight. Family members also saw him setting the couch afire. Woodward’s burning stereo or television was lying on the floor of his bedroom, and his window blinds were on fire.

Using his makeshift torch, Woodward was shooting flames “three feet” out toward his family, saying “Get back, nobody come in here,” although he forced one of his younger siblings back into the room. No one had threatened Woodward in any way Woodward’s parents eventually got the younger children out of the house, but when his stepfather tried to get Woodward to leave, Woodward would use his “man-made torch” with lighter fluid that he would light and would “spray [his stepfather] back” while laughing. He told his stepfather, “I only want you.”

After the rest of the family had evacuated, his stepfather ran back to the house to try to get Woodward to leave. Woodward had locked the door, and his stepfather used a key to get back in. Eventually, Woodward came out. Though accounts differ, testimony showed that Woodward began walking toward his stepfather’s car with the lighter and spray can in his hands. One of the siblings and the stepfather testified that they believed Woodward intended to set the car on fire.

The stepfather had at some point picked up a hand-weight or dumbbell, and he began walking or running toward Woodward to fend him off. However, he dropped the dumbbell and did not strike Woodward with it. Woodward struck his stepfather on the head with the spray can. After his stepfather had dropped the dumbbell, Woodward then ran at his stepfather with a knife in each hand, saying, “I’m gonna kill you[,]” and stabbed him multiple times. Family members saw a “knife going up and down.” One of Woodward’s siblings testified that, earlier in the evening, she had seen Woodward put kitchen knives in his pocket.

Eventually, Woodward was subdued by family members until firefighters came on the scene. His mother took one of the knives from him, and firefighters took the others. Woodward was arrested, but even after being restrained by law enforcement, he continued laughing and smirking. Woodward was uninjured, but his stepfather was bleeding heavily from knife wounds and was transported to the hospital for treatment.

1. Woodward argues that the evidence was insufficient to sustain his conviction for aggravated assault — family violence. He argues that the State failed to disprove his contention that he was acting in self-defense. We disagree.

When a justification defense has been raised, the State’s evidence must be sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Woodward did not act in self-defense. Noble v. State, 282 Ga. App. 311, 312 (638 SE2d 444) (2006). This Court does not weigh the evidence or determine the credibility of witnesses, as that is the function of the jury. This Court will sustain a jury’s verdict if there is competent evidence, even if contradicted, to support that verdict. Waller v. State, 267 Ga. App. 608, 608 (600 SE2d 706) (2004).

The count of the indictment under which Woodward was convicted charged him with injuring his stepfather by stabbing him with a knife. OCGA § 16-5-21 (a) (2) provides that “a person commits the offense of aggravated assault when he or she assaults . . . [wjith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.j” In order to prevail on a justification defense, the person who is claiming self-defense must not have been the aggressor. OCGA § 16-3-21 (b) (3).

Woodward argues that he presented evidence that he acted in self-defense, that his stepfather was armed with the dumbbell and followed him outside, and that he defended himself because he thought he was in imminent danger. He testified that he hit his stepfather with the spray can because his stepfather chased him out of the house, and that when his stepfather charged him again with the dumbbell, he used a knife to defend himself. As outlined above, however, there was conflicting evidence indicating that Woodward stabbed his stepfather only after his stepfather had dropped the dumbbell.

Whether the State has met its burden of proof that Woodward was the aggressor and not entitled to a justification defense was for the jury, Noble, supra, as was the resolution of conflicts in the evidence. Waller, supra. Woodward’s evidence conflicted with the State’s evidence, as outlined above, which showed that Woodward was the aggressor in using a knife as a deadly weapon to injure his stepfather. We find that the evidence was sufficient. See Hazelwood v. State, 265 Ga. App. 709, 710 (595 SE2d 564) (2004) (finding the evidence sufficient to uphold defendant’s conviction for aggravated assault where jury believed the victim’s story regarding how a stabbing occurred instead of the defendant’s version of events).

2. Woodward also argues that the evidence was insufficient to support his conviction for arson in the first degree because the State failed to disprove his defense that he accidentally started the fire. Again, we disagree.

OCGA § 16-7-60 (a) (5) states that “[a] person commits the offense of arson in the first degree when, by means of fire or explosive, he or she knowingly damages . . . [a]ny building . . . under such circumstances that it is reasonably foreseeable that human life might be endangered.” (Emphasis supplied.)

Woodward alleges that the evidence failed to show that he intentionally started the fire. He argues that he started the fire accidentally when he fashioned a makeshift flamethrower out of curiosity, based on things he had seen at the circus or on his computer, using a lighter and an aerosol spray can to project a flame which accidentally set fire to a paper shopping bag filled with trash.

It is true that there is a presumption that “any fire is a result of accident and providential cause rather than criminal design.” Frost v. State, 200 Ga. App. 267, 270 (3) (b) (407 SE2d 765) (1991). The State bears the burden of overcoming this presumption by proving “from either direct or circumstantial evidence, beyond a reasonable doubt, that the fire was of incendiary origin and that the defendant was the guilty party” Id. Moreover, “[a] person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6.

However, pretermitting whether the very first spark was initiated by accident or design, the evidence and testimony, as outlined above, certainly supports the conclusion that Woodward intentionally used his makeshift flamethrower to start additional fires in his home, which he must have known would cause damages. Family members testified that, after they initially saw flames issuing from Woodward’s room, they saw him using the makeshift flamethrower to, among other things, start additional fires on the walls and sofa. The State’s fire investigator testified that the damage caused to the house was consistent with that of fires set by a blow torch, and a detective from the police department testified that the whole top portion of the house was on fire. The fire caused smoke damage, melted the eaves of the house, and burned the roof and Woodward’s bedroom floor.

The State’s evidence was sufficient to disprove Woodward’s claim of accident. The State showed that he set fire to the walls and the sofa and, pursuant to OCGA § 16-7-60 (a), “knowingly damage[d]” the building in which he lived, while his family was in upstairs bedrooms near where he was setting fires. As outlined above, it was “reasonably foreseeable that human life might be endangered.” OCGA § 16-7-60 (a) (5).

Decided August 8, 2017.

Genevieve A. Holmes, for appellant.

Robert D. James, Jr., District Attorney, Lenny I. Krick, Deborah L. Venuto, Assistant District Attorneys, for appellee.

Judgment affirmed.

Dillard, C. J., and Self J., concur.

       In rendering this opinion, we rely upon the version of the statute in effect at the time the crimes were committed in March 2010. See OCGA § 16-5-21, Ga. L. 2006, p. 379, § 4, effective July 1, 2006. The statute has since been amended several times, though the sections pertinent to this opinion remain unchanged.


author: Doyle, Judge.

text:
    A17A0687.
    KOOL SMILES/NCDR, LLC et al. v. GONZALEZ.
    (803 SE2d 795)
   Doyle, Judge.

Pursuant to the grant of a discretionary appeal under OCGA § 5-6-35 (a) (1), employer Kool Smiles/NCDR, LLC, appeals the judgment of the superior court reversing in part the award of the State Board of Workers’ Compensation (“the Board”) to Hansel Gonzalez. Kool Smiles contends the superior court’s judgment is a nullity because the award of the full Board was affirmed by operation of law when the judgment was not entered within 20 days of the hearing as required by OCGA § 34-9-105 (b). For the reasons that follow, we vacate the superior court’s order.

In 2005, Gonzalez sustained an on-the-job injury for which he was awarded temporary total disability benefits due to the classification of the injury as catastrophic. In 2015, the parties requested a hearing before a State Board of Workers’ Compensation Administrative Law Judge (“ALJ”) to address a change of physician authorization requested by Kool Smiles and requests by Gonzalez for additional treatments and for attorney fees against Kool Smiles for its unreasonable defense of denial of the treatments and request for change of physician. On October 18, 2015, the ALJ denied Kool Smiles’s request for the change of physician, granted Gonzalez’s requests for additional treatments, and awarded attorney fees to Gonzalez based on Kool Smiles’s unreasonable defense.

Kool Smiles appealed the order to the Board, and after a hearing, the Board issued an order on March 4, 2016, upholding the ALJ as to the issues of the physician change and the additional treatments, but reversing the ALJ as to the issue of attorney fees. Gonzalez filed a timely notice of appeal from the Board’s order in the Superior Court of Gwinnett County pursuant to OCGA § 34-9-105 (b). On August 1, 2016, the superior court conducted a judicial review hearing. The court did not enter its order reversing the Final Decision until August 31, 2016. Kool Smiles filed an application for discretionary appeal on September 20, 2016, which application was granted by this Court in an order entered on October 12, 2016. Thereafter, Kool Smiles filed a timely notice of appeal.

Decided August 8, 2017.

Drew Eckl & Farnham, John A. Ferguson, Jr., Matthew D. Walker, for appellants.

Cruz & Associates, Ronald J. Pellitero, for appellee.

1. Under OCGA § 34-9-105 (b), the superior court order disposing of a workers’ compensation appeal must be “entered” within 20 days of the hearing on the appeal or the award of the Board will be affirmed by operation of law. Here, because the superior court failed to satisfy that time limit, its order is a nullity. As this Court has explained “the language of the statute is clear and this [Cjourt is without power to avoid the ill-effect created by the statute as written.” Accordingly, we are constrained to hold that the superior court lost jurisdiction of the case on August 20, 2016, and its subsequent order was therefore a nullity.

2. Based on the holding of Division 1, Kool Smiles’s other enumerations of error are moot.

The judgment of the superior court is hereby vacated because the decision of the full Board was affirmed by operation of law.

Judgment vacated.

Miller, P. J., and Reese, J., concur.

       See Coronet Carpets v. Reynolds, 199 Ga. App. 383, 383-384 (405 SE2d 103) (1991) (dismissing appeal).

       See, e.g., Buschel v. Kysor/Warren, 213 Ga.App. 91, 93 (1) (444 SE2d 105) (1994); Coronet Carpets, 199 Ga.App. at 383-384. Cf. Synthetic Indus. v. Camp, 196 Ga.App. 637 (396 SE2d 518) (1990) (holding that the superior court lost jurisdiction of the case when it failed to hold a hearing on the appeal within 60 days of the time from which the appeal was filed).

       (Citation and punctuation omitted.) Coronet Carpets, 199 Ga. App. at 384.

        See Buschel, 213 Ga.App. at 95 (5). Cf. Kennestone Hosp. v. Cartersville Med. Center, 341 Ga. App. 28, 30-32 (1) (798 SE2d 381) (2017) (vacating untimely issued order under similar statutory scheme). Compare with Holder v. City of Atlanta, 294 Ga. App. 568, 570 (669 SE2d 504) (2008) (reversing superior court order after holding that it was a nullity); Coronet Carpets, 199 Ga. App. at 384 (dismissing appeal in same circumstance).


author: BARNES, Presiding Judge.

text:
    A17A1280.
    BARKER v. THE STATE.
    (803 SE2d 792)
   BARNES, Presiding Judge.

James Barker appeals pro se from the denial of his motion for an out-of-time appeal. He contends that the arrest warrant and affidavit were insufficient to establish probable cause, that the indictment was fatally defective, that he was unaware of his Boykin right against self-incrimination, and that plea counsel was ineffective. Following our review, we affirm.

After being indicted on charges for aggravated child molestation, Barker entered a negotiated guilty plea to child molestation on August 14, 2014. He was sentenced to twenty years to serve five. On January 31, 2017, Barker filed a motion for an out-of-time appeal in which he asserted, among other things, that his arrest warrant and indictment were invalid, that plea counsel was ineffective, and that his sentence was vague and ambiguous. The trial court denied Barker’s motion, and it is from that order that he appeals.

In order to receive an out-of-time appeal from a judgment entered on a guilty plea, [Barker] must show (1) that the claims he seeks to raise on appeal can be resolved on the existing record; and (2) that the failure to pursue a timely appeal was due to the ineffective assistance of his plea counsel. But if the claims [Barker] seeks to raise can be resolved against him on the face of the record, so that even a timely appeal would not have been successful, then plea counsel cannot be said to have rendered ineffective assistance in failing to advise the appellant or otherwise assist him in pursuing an appeal. Accordingly, in reviewing [Barker’s] claims, we first assess whether they may be resolved on the record before us. For those that cannot, no relief is available; for those that can be resolved on the record but only against [Barker], relief is also unavailable; and for any claims that remain, we must proceed to consider whether plea counsel rendered ineffective assistance in failing to pursue such claims.

(Citations omitted.) Waye v. State, 301 Ga. 469 (801 SE2d 818) (2017). “The denial of a motion for out-of-time appeal is a matter within the discretion of the trial court,” and the “decision to deny such a motion will not be overturned absent an abuse of discretion.” Brown v. State, 290 Ga. 321, 321 (1) (720 SE2d 617) (2012).

1. Barker first contends that the arrest warrant and attached affidavits were insufficient to establish probable cause because certain information was omitted, including the source of the officer’s information.

[A] plea of guilty generally waives all defenses except that based on the knowing and voluntary nature of the plea, [and] [a]n exception will only be made if the error goes to the very power of the State to bring the defendant into court. No such situation is presented here. It follows that [Barker] was not entitled to challenge the validity of the arrest warrant by way of an out-of-time appeal.

(Citations and punctuation omitted.) Moore v. State, 285 Ga. 855, 858 (2) (684 SE2d 605) (2009).

2. Barker next contends that his indictment was fatally defective in that it alleged that the crime occurred between May 1, 2013 and August 30, 2013, and thus failed to track the language of OCGA § 17-7-54, which provides, in pertinent part, that an indictment must state with “sufficient certainty” the date of the alleged offense. However, if the State can show that the evidence does not permit it to allege a specific date on which the offense occurred, the State is permitted to allege that the crime occurred between two particular dates. O’Rourke v. State, 327 Ga. App. 628, 631-632 (2) (760 SE2d 636) (2014).

The true test of the sufficiency of the indictment is . . . whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Citations and punctuation omitted.) Jordan v. State, 220 Ga. App. 627, 629 (2) (470 SE2d 242) (1996).

We first note that Barker did not challenge the indictment, and “[g]iven that [Barker] pled guilty to the crime charged, his only possible challenge to the indictment would be the sufficiency thereof.” Golden v. State, 299 Ga. App. 407, 411 (3) (683 SE2d 618) (2009).

In the order denying his motion for an out-of-time appeal, the trial court found that “[substantive defects did not exist in the indictment,” and at the plea hearing the State presented as a factual basis for the charges that the time period at which the acts occurred was during the time that Barker lived with the family of the victim, which put Barker on notice with “sufficient certainty” of the date of the offense. See OCGA § 17-7-54 (a). Accordingly, Barker’s claim that the indictment was invalid is without merit, and the trial court did not err in so finding and denying his motion for an out-of-time appeal on that basis.

Moreover, to the extent that Barker argues that he was not present in the county during that time period, a motion for an out-of-time appeal is not appropriate for developing claims of error that cannot be resolved by facts appearing in the record. See Golden v. State, supra, 299 Ga. App. at 411 (3).

3. In his third and fourth enumerations, Barker contends that he was not advised of his Boykin right against self-incrimination at the plea hearing and that plea counsel was ineffective for failing to inform him of that right. Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969), held that when a defendant pleads guilty, he must be adequately advised of his rights (1) against self-incrimination, (2) to trialby jury, and (3) to confront his accusers. Id., 395 U. S. at 243.

The State bears the burden of showing that the plea was entered into knowingly and voluntarily. Phelps v. State, 293 Ga. 873, 875-876 (2) (750 SE2d 340) (2013).

The State may meet this burden by showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea, or by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary

(Citation and punctuation omitted.) Id. Thus, we consider the record as a whole to determine if the defendant voluntarily entered his plea. State v. Cooper, 281 Ga. 63, 65 (2) (636 SE2d 493) (2006).

Contrary to Barker’s contention, the record shows that, at the plea hearing, and upon ascertaining a factual basis for the plea, the trial court first advised Barker of his Boykin rights, including that against self-incrimination, specifically advising Barker that “you have the right not to incriminate yourself in any way,” and confirmed that Barker understood the rights. The trial court then confirmed that Barker’s plea was not the result of “undue influence, compulsion, [or] duress,” and that he was pleading guilty freely and voluntarily, and was doing so after being “fully advised of his right to a trial by jury and all the rights attendant thereto.” See Williams v. State, 334 Ga. App. 311, 313-314 (779 SE2d 91) (2015) (in a state court proceeding, all that the record must show is an inquiry into the voluntariness of the plea, advice to the defendant as to the rights he is giving up, and an inquiry into the factual basis for the plea).

Decided August 8, 2017.

James L. Barker III, pro se.

C. Paul Bowden, District Attorney, Kimberly W. Schwalls, Assistant District Attorney, for appellee.

Accordingly, this contention fails.

4. We also find no merit to Barker’s contention that plea counsel was ineffective for failing to challenge the indictment and for failing to advise him of his right against self-incrimination.

In this case, as shown in Divisions 2 and 3, Barker’s contentions of ineffective assistance of plea counsel can be resolved adversely to him by the existing record, and the trial court did not err in denying his motion for an out-of-time appeal on these grounds. Waye, supra, 301 Ga. at 469. See also Marion v. State, 287 Ga. 134, 135 (2) (695 SE2d 199) (2010).

Judgment affirmed.

McMillian and Mercier, JJ., concur.

       The indictment charged Barker with “the offense of AGGRAVATED CHILD MOLESTATION for that said accused in the County of Tift, between the 1 st day of May, 2013, and the 30th day of August, 2013, the exact date of the offense being unknown to the Grand Jury.”


text:
    A17A1303.
    FOSTON v. THE STATE.
    (804 SE2d 151)
   RAY, Presiding Judge.

Arturo Foston was indicted in Fayette County for aggravated assault, burglary, criminal trespass, and family violence battery After a trial, a jury found Foston guilty of family violence battery and acquitted him of all other charges. Foston was sentenced to five years in prison pursuant to OCGA §§ 16-5-23.1 (f) (2) and 17-10-7 (a), (c). Foston appeals from his conviction and sentence, as well as the denial of his motion for new trial, contending that the evidence was insufficient to support his conviction and that the trial court erred in not granting his motion for directed verdict. For the reasons set forth infra, we affirm.

We review a denial of a motion for directed verdict under the same standard as that for determining the sufficiency of the evidence to support a conviction. Thornton v. State, 331 Ga.App. 191, 196-197 (2) (770 SE2d 279) (2015). Therefore,

we view the evidence in the light most favorable to the jury’s verdict. The accused is no longer entitled to a presumption of innocence, and we do not weigh the evidence or determine witness credibility but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

Id. at 197 (2).

Under the version of the statute in effect at the time of the offense, OCGA § 16-5-23.1 (a) provides that “[a] person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” If the offense of battery is committed, inter alia, between persons who are parents of the same child, the offense shall constitute family violence battery OCGA § 16-5-23.1 (f). Upon a second or subsequent conviction of family violence battery, “the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.” OCGA § 16-5-23.1 (f) (2).

Here, the evidence adduced at trial shows that Foston and the victim, Christa Smith, formerly lived together and that Foston was the father of three of Smith’s children. On September 28,2011, Foston returned to Smith’s residence to pick up some of his belongings and discovered that Smith had visitors. An altercation between Foston and Smith ensued outside the residence, and Foston hit Smith with his fist, causing her lip to split and bleed. A neighbor, Melanie Ellington, heard the noise and came outside immediately after the incident. Ellington testified that she saw a man running away and that “there was blood all over [Smith’s] lip, and blood on the ground.” The police officer who responded to the 911 call also testified that she observed that Smith was bleeding from the mouth. Based on the foregoing evidence, the jury found Foston guilty of family violence battery

Prior to trial, the State provided notice of its intent to use Foston’s prior convictions in aggravation of sentencing and to seek the maximum sentence as a recidivist. The record shows that in 2002, Foston pled guilty to an offense of family violence battery, and a certified copy of his conviction was admitted into evidence without objection at the sentencing hearing. The trial court sentenced Foston to five years in confinement, the maximum sentence authorized by OCGA § 16-5-23.1 (f) (2).

1. On appeal, Foston contends that the evidence was insufficient to support his conviction for felony family violence battery and that the trial court thus erred in failing to grant his motion for directed verdict. Specifically, he argues that there was no evidence that his present and prior family violence battery convictions involved a family member or substantial physical harm or visible bodily harm to the victims. His arguments are without merit.

Here, the offense of family violence battery was established by the evidence that Foston and Smith were the parents of three children together and that Foston punched Smith during an altercation, causing her lip to split and bleed. See OCGA § 16-5-23.1 (f) (a battery committed between parents of the same children constitutes the offense of family violence battery); Simmons v. State, 285 Ga. App. 129, 129-130 (645 SE2d 622) (2007) (concluding that evidence was sufficient to support conviction of family violence battery by intentionally causing visible bodily harm to the victim where the victim testified, inter alia, that the defendant hit her in the head with his fist, causing her to bleed, and the responding officer observed that the victim was visibly upset and had a cut on her head); Gilbert v. State, 278 Ga. App. 765, 766 (629 SE2d 587) (2006) (holding that there was sufficient evidence to sustain defendant’s family violence battery conviction under OCGA § 16-5-23.1 where the responding officer testified that the victim’s face was red from the defendant’s blow, establishing that the victim’s visible harm (reddened face) was capable of being perceived by a person other than the victim); Babb v. State, 252 Ga. App. 518, 518, 520 (5) (556 SE2d 562) (2001) (concluding that evidence was sufficient to support jury’s verdict of family violence battery, which required a showing of substantial physical harm or visible bodily harm, where the victim’s neighbor and friend both testified that the victim’s face appeared red and puffy or swollen after defendant struck her in the face). Accordingly, we conclude that the evidence was sufficient to support Foston’s conviction for family violence battery

2. With regard to the sufficiency of Foston’s prior conviction for family violence battery, we find that Foston failed to preserve this issue for appellate review by failing to object to the admission of the certified copy of his conviction for the purpose of sentencing. See Rubi v. State, 258 Ga. App. 815, 820 (4) (575 SE2d 719) (2002) (“Objections to evidence cannot be raised for the first time either in a motion for new trial or on appeal, and the admission of evidence will not be reviewed by this [Cjourt where no objection was made below to its admission”) (citation and punctuation omitted). Moreover, this appeal is not the proper remedy for challenging any deficiency in his prior conviction. See Grogan v. State, 297 Ga. App. 251, 251-253 (676 SE2d 764) (2009).

Decided August 8, 2017.

James E. Bischoff, for appellant.

Benjamin D. Coker, District Attorney, B. Ashton Fallin, Assistant District Attorney, for appellee.

Judgment affirmed.

Dillard, C. J., and Self, J., concur.

       The offense occurred in 2011.


text:
    A17A1338.
    A17A1339.
    A17A1340.
    WOOTEN et al. v. WILLIAMS et al. WILLIAMS et al. v. WOOTEN et al. WILLIAMS et al. v. WOOTEN et al.
    (803 SE2d 782)
   RAY, Presiding Judge.

Olin Wooten, Guy P. Brown, and Perry Brown (collectively “Wooten”) filed an action seeking to establish a private way over and across the property of Darrell and Bonnie Williams (collectively “the Williamses”). Wooten also sought the removal of any obstructions that had been placed on the alleged private way. The Williamses filed a response and counterclaim, alleging that certain actions by Wooten had deprived them of the use and enjoyment of their property. After a trial, a jury returned a verdict finding that Wooten had established a prescriptive easement across the Williamses’ property, but the jury also awarded $5,000 in damages against Olin Wooten and in favor of the Williamses on their counterclaim. The trial court subsequently entered a judgment based on the verdict. Neither the verdict nor the judgment specified the location of the prescriptive easement or directed the removal of obstructions from the right of way. These cross-appeals ensued. In Case No. A17A1338, Wooten contends that the Williamses were not entitled to recover damages for any interference with the use and enjoyment of their property resulting from the prescriptive easement, and that the trial court erred: (i) in failing to conform its judgment to the verdict and evidence; (ii) in failing to direct the Williamses to remove the obstructions from the right of way; and (iii) in refusing to allow a rebuttal witness to testify at trial. In Case Nos. A17A1339 and A17A1340, the Williamses bring two identical appeals from the trial court’s denial of their motions for directed verdict and for judgment notwithstanding the verdict, arguing that Wooten failed to prove the location and width of the right of way and was therefore not entitled to a prescriptive easement. We consolidate the appeals for the purposes of review. For the reasons that follow, we affirm in part, reverse in part, vacate in part, and remand with direction in Case No. A17A1338, and we affirm in Case No. A17A1340. We dismiss the identical appeal in Case No. A17A1339 as redundant.

Case No. A17A1338

1. As a preliminary matter, we take up the Williamses’ motion to dismiss Wooten’s appeal in Case No. A17A1338, which argues that we lack jurisdiction because Wooten filed the notice of appeal on the same day that the Williamses filed a motion for judgment notwithstanding the verdict. We see no basis for dismissal.

Upon examination of the record, we note that Wooten’s notice of appeal was filed at 1:15 p.m. on September 26, 2016, and that the Williamses’ motion for judgment notwithstanding the verdict was filed 19 minutes later, at 1:34 p.m. In dealing with the co-existence of a timely notice of appeal and a subsequent timely motion for post-judgment relief, our Supreme Court has held:

Even though a notice of appeal may divest the trial court of jurisdiction, we conclude that such divestiture does not become effective during the period in which a motion for [judgment notwithstanding the verdict] may be filed. In the event a motion for [judgment notwithstanding the verdict] is timely filed . . . , the effectiveness of the divestiture of jurisdiction is then delayed until the motion for [judgment notwithstanding the verdict] is ruled upon and a notice of appeal to the ruling has been filed or the period for appealing the ruling has expired.

(Emphasis supplied.) Housing Auth. of City of Atlanta v. Geter, 252 Ga. 196, 197 (312 SE2d 309) (1984). Accord Jones v. State, 309 Ga. App. 149, 149-150 (1) (709 SE2d 593) (2011) (where notice of appeal had not yet ripened when subsequent motion for new trial was timely filed, the trial court’s jurisdiction to hear the motion for new trial was preserved).

As both parties are seeking post-judgment relief, we conclude that this rule controls the instant case. Here, the timely notice of appeal was filed on the same day and just minutes before the timely motion for judgment notwithstanding the verdict. Furthermore, we note that the trial court has since ruled on the Williamses’ motion for judgment notwithstanding the verdict, denying the motion in its entirety, and the Williamses have now appealed from the trial court’s ruling. Therefore, the Williamses’ motion to dismiss is denied. Wooten’s request for attorney fees regarding the motion to dismiss is also denied.

2. At trial, Wooten objected to the trial court’s decision to allow the Williamses’ claim for damages for deprivation of the use and enjoyment of their property to remain for the jury’s consideration in the event the jury found that Wooten had established a prescriptive easement. On appeal, Wooten contends that the jury’s finding that Wooten had established a prescriptive easement precludes the Wil-liamses from recovering damages for their claim. This argument fails.

Here, the record shows that the Williamses’ claim for damages arises out of Olin Wooten’s intimidation, threats of physical harm, and acts which interfered with the Williamses’ use and enjoyment of their property, not Wooten’s use of the disputed private way. Specifically, the evidence shows that, on one occasion, Olin Wooten went upon the Williamses’ property and informed Mr. Williams that he had a gun, and he asked Mr. Williams to get a gun so that the two could resolve their differences right then and there. On several other occasions, Olin Wooten would pull his vehicle onto the Williamses’ property and just sit there.

It is well settled that

[wjhen a deprivation of use and enjoyment [of property] has occurred, a plaintiff may recover both nominal damages and whatever the jury determines the defendant ought to pay, in view of the discomfort and annoyance to which the plaintiff and his family have been subjected by the [defendant’s actions].

(Citations and punctuation omitted.) Davis v. Overall, 301 Ga. App. 4, 6 (1) (686 SE2d 839) (2009).

Based on the pleadings and the foregoing evidence, the jury was authorized to find that Olin Wooten’s harassment deprived the Williamses of the peaceful use and enjoyment of their property, separate and apart from Wooten’s claim for a prescriptive easement. Accordingly, we find no error.

3. Wooten next contends that the trial court erred in denying the motion to amend the judgment to conform to the pleadings, verdict, and evidence. Specifically, Wooten argues that the judgment should be conformed: (i) to include a particular plat tendered into evidence to designate the location and size of the access road upon which the jury awarded Wooten a prescriptive easement; and (ii) to order the Williamses to remove the obstructions that they placed across the access road, as pled in the complaint. We shall address each issue in turn.

(a) Wooten first argues that the judgment should be amended to incorporate a certain plat that was tendered into evidence to establish the location of the prescriptive easement. We agree.

We note that Wooten’s attorney prepared the initial jury verdict form and did not object to the final version that was submitted to the jury, and the verdict form did not ask the jury to determine the location and size of the prescriptive easement. Ordinarily, the failure to object to the verdict form waives any error relating to the manner in which questions on a verdict form are submitted to the jury. See Auto-Owners Ins. Co. v. Dolan, 342 Ga. App. 179, 182 (2) (803 SE2d 104) (2017). However, we also acknowledge that

[a] judgment must conform to the verdict [OCGA § 9-12-9]; and likewise it must follow the true meaning and intent of the finding of the jury ... In determining whether a judgment conforms to the verdict, the judgment must be construed with reference to the pleadings and the evidence.

Taylor v. Taylor, 212 Ga. 637, 638 (1) (94 SE2d 744) (1956).

Here the evidence shows that the property of both parties lies adjacent to the Little Ocmulgee River in Wheeler County The Wil-liamses’ property at issue in this case consists of two parcels, Parcel 2 and Parcel 5, which are the last lots before one reaches Wooten’s property A public road leads to the Williamses’ property, but terminates approximately 240 feet shy of Wooten’s property line.

At trial, several plats of survey of the property at issue were tendered into evidence and submitted to the jury. The most recent plat was prepared in 2006 and recorded in Plat Book 7, Page 362 of the Wheeler County Records (hereinafter referred to as “the Perry Brown plat”). The Perry Brown plat indicates that an access road 20 feet in width runs through the Williamses’ property into Wooten’s property The Perry Brown plat also provides the precise directional bearings and the length of the specific portions of the access road, designated as L18 and L19, that runs through the Williamses’ property Furthermore, we note that the evidence is undisputed that there is a metal gate across the access road where it enters into Wooten’s property Based on the placement of the gate and the directional bearings, length, and width of the portions of the access road designated as L18 and L19, we conclude that the location and size of the access road has been sufficiently established by the Perry Brown plat. However, our analysis does not end here.

We note that there were other plats of survey that were tendered into evidence which appear to contradict the location and size of the access road that was indicated in the Perry Brown plat. However, those plats were prepared years before the Perry Brown plat. Furthermore, both Olin Wooten and Guy Brown testified that the location and size of the access road that they used for decades was that which is shown in the Perry Brown plat. Brown further testified that he observed Wheeler County road crews grading and maintaining the portions of the roadbed designated as L18 andL19 as reflected in the surveyor’s note on the Perry Brown plat.

Notably, there is no evidence to indicate that the course or size of the access road that Wooten had used for decades had changed. Although Olin Wooten testified that they kept the access road maintained to a width of 50 to 60 feet, he explained that they only used the existing dirt road and that they maintained both sides of the road to shore up and support the existing road bed. Similarly, Thomas Wooten testified that they maintained approximately 30 feet in order to keep supporting dirt on both sides of the existing road.

Lastly, in its charge to the jury, the trial court stated, in pertinent part, that in order “[t]o establish a private way over another’s land, the party claiming the right must demonstrate . . . that the private way was not more than 20 feet.” (Emphasis supplied.)

Although the underlying facts in Floyd v. Thurman, 242 Ga. 428 (249 SE2d 230) (1978), are not identical to those presented in this case, we find that the holding in Floyd is instructive. In Floyd, the central issue in the dispute between the parties was the location of the boundary line between their properties. Id. at 428 (1). After trial, the jury returned a verdict that simply stated that “[w]e the jury find in favor of the defendants.” Id. at 428 (2). The form of the verdict was previously agreed on by the parties. Id. On appeal, the plaintiff contended that the verdict and the resulting judgment were void because the jury failed to make a factual finding as to where the disputed boundary line was actually located, and that the judgment was void because it described that boundary line in its judgment based on information gleaned from a plat that had been tendered into evidence. Id. Our Supreme Court held:

[I]n view of the pleadings and the issues made by the evidence, this verdict was not uncertain. The survey used by the judge in describing the boundary line in the judgment was that [which was] relied upon by the appellees [during] the trial, and the finding by the jury in their favor was a finding that this was the correct line.

(Citations omitted.) Id. at 429 (2).

In light of the trial court’s instruction to the jury in this case that a prescriptive easement cannot exceed 20 feet, as well as the uncon-tradicted testimony of Olin Wooten and Guy Brown confirming that the access road that they had used for decades was accurately depicted in the Perry Brown plat, the jury’s finding that a prescriptive easement had been established over roadway located on the lands of the Williamses is consistent only with the access road depicted in the Perry Brown plat. Accordingly, we conclude that the judgment should be amended to conform with the evidence and to “follow the true meaning and intent ofthe finding of the jury” Taylor, supra at638(l). Therefore, the trial court’s denial of Wooten’s motion to amend the judgment is reversed, the portion of the judgment regarding the establishment of the prescriptive easement is vacated, and the case is remanded to the trial court with direction that it enter an amended judgment which incorporates the Perry Brown plat, as recorded in Plat Book 7, Page 362 ofthe Wheeler County Records, to establish the location and size of the prescriptive easement.

(b) Wooten also contends that the judgment should be amended to require that the Williamses remove all of the obstructions from the prescriptive easement, as pled in the complaint. We disagree.

Here, the jury was presented with two issues to resolve in the jury verdict form: (i) whether Wooten had established a prescriptive easement over the roadway located on the lands of the Williamses; and (ii) whether Wooten had interfered with the Williamses’ peace, happiness, or feelings. The jury was not asked to find what obstructions blocked the prescriptive easement or to require the removal of any such obstructions. “A verdict may be amended in mere matter of form after the jury has dispersed. However, after a verdict has been received and recorded and the jury has dispersed, it may not be amended in matter of substance[.]” OCGA § 9-12-7. Here, an amendment of the judgment and verdict to make findings as to what obstructions had been placed on the right of way and to direct the removal of those obstructions would constitute a substantive change in the jury’s findings.

Moreover, we find no error in the trial court’s conclusion that Wooten has the viable alternative of petitioning the probate court to remove any obstructions that the Williamses placed on the prescriptive easement which render the access road unfit for use. See OCGA § 44-9-59 (a) (“In the event the owner ... of land over which a private way may pass . . . obstructs, closes up, or otherwise renders the private way unfit for use, the party ... injured by the obstructions ... may petition the judge of the probate court in the county where the private way has been in use to remove the obstructions”).

For the above reasons, the trial court did not err in failing to amend the judgment with regard to this issue.

4. In light of our holding in Division 3 (a) above, we need not address Wooten’s remaining enumeration of error.

Case No. A17A1340

5. In two related enumerations of error, the Williamses argue that the trial court erred in denying their motions for directed verdict and for judgment notwithstanding the verdict, arguing that Wooten failed to prove the location and width of the right of way and was therefore not entitled to a prescriptive easement. We disagree.

On appeal from the denial of a motion for a directed verdict or for j.n.o.v., we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict.

(Citation and punctuation omitted.) Park v. Nichols, 307 Ga. App. 841, 845 (2) (706 SE2d 698) (2011).

Based on our holding and the evidence set forth in Division 3 (a), the trial court did not err.

Case No. A17A1339

6. In Case No. A17A1339, the Williamses’ brief simply adopts the brief that they filed in Case No. A17A1340. As they are asserting the same errors as those asserted in Case No. A17A1340, we therefore dismiss Case No. A17A1339 as redundant. See First Southern Bank v. C & F Svcs., 290 Ga. App. 305, 309 (5) (659 SE2d 707) (2008).

Decided August 8, 2017.

Straughan & Straughan, Mark W. Straughan, for Wooten et al.

Kaufold & Everett, Howard C. Kaufold, Jr., for Williams et al.

Judgment affirmed in Case No. A17A1340. Judgment affirmed in part, reversed in part, and vacated in part, and case remanded with direction in Case No. A17A1338. Appeal dismissed in Case No. A17A1339.

Dillard, C. J., and Self, J., concur.

       G. P. Brown, LLC, was later substituted as a party plaintiff in place of Guy P. Brown.

       Another witness, Keith Rentz, testified that the access road was “probably 12 [to] ... 15 [feet]” wide, but he acknowledged that he did not measure it and that it was “[pjrobably somewhere in that neighborhood.”

       The verdict form used the plural term “lands.” The only plat in evidence in which the access road appears to run across two of the Williamses’ properties (Parcel 2 and Parcel 5) is the Perry Brown plat.