text:
    A16A0149.
    YARBER v. THE STATE.
    (785 SE2d 677)
   PHIPPS, Presiding Judge.

So Young Yarber was turning right from one street onto a cross street when her vehicle collided with another. Police soon arrived at the scene and conducted an investigation. The state thereafter accused Yarber of DUI (less safe), failure to maintain lane, and improper turn at an intersection. A jury found Yarber guilty as charged. Challenging her judgment of conviction, Yarber contends that the trial court erred by allowing the jury to hear a recording of the roadside call made to 911 by the other driver (who did not testify at trial). For reasons that follow, we affirm.

On September 30, 2014 at about 5:30 a.m., two police officers in their separate patrol cars happened upon the scene of the apparently recent two-vehicle collision. As the officers’ trial testimony revealed, in light of events that quickly unfolded after their encounter with Yarber, one officer pursued a DUI investigation, while the other officer focused on ascertaining the driving maneuvers that had precipitated the collision.

The latter of these officers gave the following account. When they stopped at the scene, Yarber (as she was soon identified) was in the driver’s seat of her vehicle. The engine was still running, and there was one passenger with Yarber. The driver of the other vehicle, as that officer testified, “was standing outside of his vehicle and was still on the phone with 911, so it had just happened.” The officer approached Yarber, who already had her window down. He asked for her driver’s license. Yarber was “slow to respond,” but handed the officer her license. The officer saw that Yarber’s eyes were watery, and he detected an odor of alcoholic beverage emanating from her breath. Yarber told the officer that she had consumed a couple of alcoholic beverages during the preceding two to three hours. Discerning that Yarber was “displaying manifestations of possible impairment,” the officer so notified the other officer whose expertise included DUI investigation (“the DUI officer”), before focusing on “working the accident scene.”

At trial, the prosecuting attorney elicited from the officer his background in investigating car accidents, then asked the officer, “[W]hat took place in the accident?” The officer summarized, “Based on the statement from the other driver and the physical evidence, [Yarber] was on [one street] attempting to make a right turn. She turned wide and into the path of the second vehicle that was [on a cross-street] in the left-turn lane waiting to turn left.” The prosecuting attorney asked the officer to stand and “draw that out . . . and illustrate [that] to the jury” As the officer thereupon drew an illustration, he recapped, “[Yarber’s vehicle] was . . . turning right and swung wide and struck [the other vehicle] as he was sitting in the left-turn lane waiting to turn.” Additionally, the officer described that, when he and the DUI officer arrived at the scene, “[Yarber’s] vehicle was directly in front of the second vehicle involved.”

When the DUI officer took the stand, he first recounted his specialized training and experience in DUI investigation and detection, then provided the following account of what had occurred at the scene. Upon approaching Yarber sitting in her vehicle, the officer detected a strong odor of alcoholic beverage. He immediately asked Yarber whether she had been injured or needed emergency medical services; Yarber answered that she was not hurt and did not need any such help. In response to the officer’s inquiry, Yarber told the officer that she was coming from a club. Next, the officer recalled, “I asked her what happened in the accident. She told me that she was making a right turn from [one street] onto [a cross-street].”

To ascertain whether the odor of alcohol was emitting from Yarber’s person (as opposed to her passenger’s), the DUI officer asked Yarber to step outside the vehicle. As Yarber complied, she stumbled, and “[the officer] had to grab her arm to keep her from falling down.” While talking with Yarber outside her vehicle, the officer detected a “stronger odor of alcoholic beverage coming from her person.” He also observed that Yarber’s eyes were bloodshot and watery, and that “her speech was slurred, mumbled, and sometimes incoherent.” Yarber told the officer that she had consumed two shots of a hard liquor, although she did not specify a time frame for that consumption. The officer conducted on Yarber an alco-sensor test, which results were positive for alcohol.

The DUI officer attempted to conduct field sobriety evaluations. After giving Yarber instructions on taking a horizontal gaze nystag-mus (HGN) test, the officer asked Yarber whether she understood them. But Yarber “basically didn’t answer.” As the officer recounted at trial, “I kept going over my instructions several times. She didn’t answer at which point ... I could not determine whether or not the HGN test would be a viable option for her because she wouldn’t follow the instructions.” So the officer turned to a different, evaluation.

The DUI officer began instructing Yarber on the specifics of the walk and turn test — including directing her not to start until specifically told to do so. But while the officer was physically demonstrating how to perform the test, Yarber’s body “swayed.” Then she began walking. The officer described, “[W]hile she was walking she stumbled, almost fell to the ground at which point I had to grab her arm again to keep her from falling so she wouldn’t fall into traffic on the roadway.” The officer abandoned further roadside sobriety testing, having formed the opinion that Yarber was under the influence of alcohol to the extent that she was a less safe driver. He placed Yarber under arrest.

The DUI officer read Yarber the Georgia implied consent warnings, and gave her the opportunity to submit to a chemical test of her breath. When the officer thereafter attempted to administer such a test to Yarber using the Intoxilyzer 5000, Yarber did not blow into the (designated) tube as directed; instead, “she began sucking air into her body.” The officer stopped Yarber’s behavior. Despite the officer’s subsequent, repeated instructions and demonstrations on how Yar-ber should blow into the (designated) tube, Yarber continued to suck air into her body. Consequently, the results of the Intoxilyzer 5000 testing read “insufficient sample,” which the officer explained, “mean[t] that she did not blow, provide a breath sample.”

Yarber neither testified, nor called any witness.

In her sole claim of error on appeal, Yarber complains that the jury was allowed to hear a recording of the 911 call placed at the collision scene by the driver of the other vehicle. The recording captured the driver reporting to the 911 operator, “I just got hit,” then providing the intersection of the collision. The operator asked him to repeat his location, and he did, adding, “This lady just ran into my car.” The operator asked for the color and make of the vehicles involved. Although the driver began describing one of the vehicles, he soon paused. When he spoke again, he said, “Oh, here’s the cop right here.” Afterward, the driver’s voice can be heard as part of the background of the call: “. . . then ran into me . . . tapped me . .. pulled right in front of me . . . bumped me.” When the call abruptly disconnected, about a minute had lapsed from the driver’s initial report to the 911 operator that “I just got hit.”

As the record reveals, Yarber sought a pretrial ruling to exclude the recording, objecting that the driver’s statements were “testimonial in nature,” and that, because the state had acknowledged that it would not be calling the driver to the stand, his recorded statements would violate her right to confront the driver. The trial court overruled Yarber’s objection, noting that “it was a phone call made at the time of the incident... to report the incident,” and adopting the state’s position that the recorded statements were admissible as the driver’s “present sense impression[s].”

According to Yarber, the trial court erred by allowing the state to present to the jury

[the other driver’s] “conclusions” and “impression” of how the accident took place without subjecting him to cross-examination by the Defense. Said 911 audio recording was the only evidence of any less safe act of the Defendant. [Cit.] This Court should reverse the trial court and rule that, under this set of facts, the 911 tape of [the driver] is inadmissible.

Here, even assuming arguendo that the recording should have been excluded under Crawford v. Washington and its progeny, the requisite harm did not result. An error of constitutional magnitude can be harmless when “the evidence at issue is cumulative of other properly-admitted evidence or when the evidence against the defendant is overwhelming.”

Yarber challenges her DUI (less safe) conviction on the ground that the recording supplied the only evidence of an essential element — a “less safe act,” but her argument misconstrues Georgia law. “Commission of an unsafe act is not an element of that crime. Therefore, it was not incumbent upon the state to prove that [Yarber] committed an unsafe act while [s]he was behind the wheel.”

Moreover, even without the 911 recording, there was overwhelming evidence that Yarber was guilty of DUI (less safe). Through the testimony of the officers, the state showed that within moments of the collision, Yarber admitted that she had just left a club, that she had recently consumed alcoholic beverages, and that she had been the driver of her vehicle when it collided with another one. The results of the aleo-sensor test showed that Yarber had consumed alcohol, and the odor of alcoholic beverage emitting from her breath was strong. Yarber’s eyes were watery and bloodshot. Her speech was slurred and mumbled. And at times, she was incoherent. She was “slow to respond” to a rudimentary request by police for her driver’s license. She was unable to convey whether she understood the instructions for the HGN test. She failed to follow preliminary instructions in connection with the walk and turn test. During her roadside encounter with police, her body “swayed,” and she twice stumbled, nearly falling to the ground. And when the officer thereafter attempted to chemically test Yarber’s breath, she either could not or would not comply with repeated instructions and demonstrations so as to provide a sufficient breath sample. Given the foregoing, there was overwhelming evidence that Yarber had committed DUI (less safe).

Turning to the traffic infractions, we reach a similar conclusion. Even without the 911 recording, there was overwhelming evidence that Yarber was guilty of failure to maintain lane and improper turn at an intersection. Through the testimony of the officers, the state showed that police found Yarber in the driver’s seat of her vehicle, with its engine still running, and the vehicle positioned “directly in front of the second vehicle involved.” When Yarber was asked by an investigating officer what had happened in the apparent collision, she described only her maneuver of making a right turn from one street onto another. Indeed, the officer with a background in investigating car accidents testified and illustrated that Yarber had been attempting to make a right turn when she “turned wide” and into the path of the second vehicle that was waiting to turn left. And as explained above, the state adduced overwhelming evidence that at the time Yarber’s vehicle collided with the other, she was under the influence of alcohol to the extent that it was less safe for her to drive.

Decided May 4, 2016.

Stephen W. Adkins, Jr., for appellant.

Sherry Boston, Solicitor-General, WystanB. Getz, Assistant Solicitor-General, for appellee.

Because Yarber’s claim that the “911 audio recording was the only evidence of any less safe act” is unavailing, because the driver’s statements to the 911 operator were cumulative of other admissible evidence, and because the evidence adduced — excluding the other driver’s statements to the 911 operator — as to all charges against her was overwhelming, any error in admitting the recording was harmless beyond a reasonable doubt.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

       OCGA § 40-6-391 (a) (1) (“A person shall not drive or be in actual physical control of any moving vehicle while: . . . Under the influence of alcohol to the extent that it is less safe for the person to drive [.] ”)•

       OCGA § 40-6-48 (1) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety [.] ”).

       OCGA § 40-6-120 (1) (“. . . Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway[.]”).

       While Yarber has raised no objection to this officer’s testimony, we note that pursuant to Georgia’s new Evidence Code, “if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.” OCGA § 24-8-802; see Bradshaw v. State, 296 Ga. 650, 653 (2), n. 2 (769 SE2d 892) (2015). Accord Hatley v. State, 290 Ga. 480, 483 (I) (722 SE2d 67) (2012) (“The Melendez-Diaz [Cjourt observed that ‘(t)he right of confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections.’ ”), quoting Melendez-Diaz v. Massachusetts, 557 U. S. 305, 313 (III) (A), n. 3 (129 SCt 2527, 174 LE2d 314) (2009) (citation omitted).

       The Confrontation Clause of the Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]” “The confrontation clause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant.” Gay v. State, 279 Ga. 180, 181-182 (2) (611 SE2d 31) (2005), citing Crawford v. Washington, 541 U. S. 36, 40 (124 SCt 1354, 158 LE2d 177) (2004); Billings v. State, 293 Ga. 99, 103 (4) (745 SE2d 583) (2013) (“The admission of an out-of-court statement into evidence at a criminal trial comes within the scope of the Confrontation Clause only if the statement was ‘testimonial.’ ”) (citations omitted).

       See Davis v. Washington, 547 U. S. 813, 822 (II) (126 SCt 2266, 165 LE2d 224) (2006) (“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”) (footnote omitted; emphasis supplied).

       See Thomas v. State, 284 Ga. 540, 543-544 (2) (668 SE2d 711) (2008) (“Once a determination is made that a statement is nontestimonial in nature, normal rules regarding the admission of hearsay apply.”) (citation and punctuation omitted); see also OCGA § 24-8-803 (1) (“The following shall not be excluded by the hearsay rule, even though the declarant is available as a witness: . . . Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.”) (emphasis in original).

       Supra.

       See, e.g., footnotes 5 and 6, supra; see further, e.g., Davis, supra at 823 (III) (A), n. 2 (“If 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers.”); Pitts v. State, 280 Ga. 288-290 (627 SE2d 17) (2006) (holding that “the determination of whether the recording of a 911 phone call is testimonial should be made on a case-by-case basis,” and noting that a 911 recording was nontestimonial “where the call was made while the crime was in progress, by a panicked caller whose primary purpose was to seek assistance to prevent the completion of an ongoing crime”); see also Brown v. State, 288 Ga. 404, 408 (3) (703 SE2d 624) (2010) (explaining that where the victim’s statement of “past events was delivered at some remove in time from the danger she described and was not providing information enabling officers immediately to end a threatening situation,” the statement was testimonial in nature) (citation and punctuation omitted; emphasis supplied); Wright v. State, 285 Ga. 57, 60 (3) (a) (673 SE2d 249) (2009) (reasoningthat “statements [made] in response to a question by law enforcement after the emergency had already ended and were reflective of past events . . . were testimonial in nature”) (citations omitted). Cf. Owens v. State, 329 Ga. App. 455-458 (1) (a) (765 SE2d 653) (2014) (determining that the victim’s calls to 911 concerning a domestic dispute were nontestimonial, where the first call was made while the victim was still in the house with the defendant and the second call was made after the victim had fled the house, but remained in the residential area and thus fearful that the defendant would “start looking for” him, and where trial court redacted portions of call arguably involving victim’s narration of past events).

       See generally Hatley, supra at 485 (II) (resolving whether any error was harmless beyond a reasonable doubt, while declining to determine whether out-of-court statements were testimonial or non-testimonial, where the out-of-court statements could not be “categorized easily [as testimonial or non-testimonial] because the moment when police neutralized any threat to the public [was] unclear”).

        Brown, supra (citation omitted); see Hatley, supra at 484 (II) (“[W]hen hearsay evidence is erroneously admitted in violation of the Confrontation Clause, the error can be deemed harmless beyond a reasonable doubt where the hearsay is cumulative of other admissible evidence.”); Vaughn v. State, 248 Ga. 127, 131-132 (2) (281 SE2d 594) (1981) (“Overwhelming evidence of the defendant’s guilt can negate the possibility that the constitutional error contributed to the conviction.”) (citation omitted).

        Brent v. State, 270 Ga. 160, 161 (1) (510 SE2d 14) (1998) (citations omitted).

        See Morgan v. State, 181 Ga.App. 150, 151 (351 SE2d 497) (1986) (determining that the evidence of DUI less safe conviction was overwhelming, where, despite lack of evidence of field sobriety tests, defendant had crashed his vehicle, fallen down while exiting his car, had a strong odor of alcohol on him, could not stand alone, had bloodshot eyes, and exhibited speech so slurred he could hardly be understood).

       See generally Dunn v. State, 291 Ga. 551, 552 (2) (732 SE2d 524) (2012) (determining that the evidence was overwhelming, based upon the evidence collected at the scene of the crime and defendant’s own admission).

       See Hatley, supra at 485 (II) (explaining that any error in admitting the out-of-court statements was harmless beyond a reasonable doubt, given the cumulative nature of the contested statements and the remaining overwhelming evidence); see also Bell v. State, 294 Ga. 443, 448 (3) (754 SE2d 327) (2014) (“Even though [out-of-court] statements to the officer were testimonial in nature and thus were subject to exclusion pursuant to the Confrontation Clause protections set forth in Crawford[, supra,] admission of this testimony was harmless beyond a reasonable doubt because it was cumulative of other admissible evidence.”); Brown, supra (determining that the admission of hearsay admitted in violation of Crawford, supra, was harmless error because the hearsay was cumulative of other evidence, namely the testimony of officers who had responded to emergency calls for assistance).


source: Caselaw Access Project

author: Mercier, Judge.

license: Public Domain

text:
    A16A0300.
    BELL v. GILDER TIMBER COMPANY et al.
    (785 SE2d 682)
   Mercier, Judge.

We granted Kenneth Bell’s application for discretionary appeal to review the decision of the Superior Court of Laurens County affirming the decision of the appellate division of the State Board of Workers’ Compensation, which had denied Bell’s claim for permanent partial disability income benefits. In his sole enumeration of error, Bell contends that the State Board of Workers’ Compensation erred as a matter of law by failing to toll, or carve out an exception to, the four-year statute of limitation found in OCGA § 34-9-104 (b), and thereby denying him benefits because his compensable injury took place outside the statutory four-year time period. Finding no error, we affirm.

In reviewing a workers’ compensation award, this Court must construe the evidence in the light most favorable to the party prevailing before the appellate division. The findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and neither the superior court nor this Court may substitute itself as a factfinding body in lieu of the State Board.

Laurens County Bd. of Ed. v. Dewberry, 296 Ga. App. 204, 205-206 (674 SE2d 73) (2009) (citation, punctuation and footnote omitted). However,

[w]hile the findings of fact of the appellate division are conclusive and binding when supported by any evidence, reviewing courts, including this court and the superior courts, may review the appellate division’s legal determinations and reverse an award based on an erroneous theory of law.

Mechanical Maintenance, Inc. v. Yarbrough, 264 Ga. App. 181, 183 (590 SE2d 148) (2003) (footnote omitted).

The facts in this case are undisputed. Bell sustained a compensable injury to his neck in January 1992 while working for Gilder Timber Company (Gilder). As a result of the injury, Bell underwent cervical fusion surgery in February 1992. Bell was not assigned a permanent partial disability (“PPD”) rating at that time. However, Bell was granted temporary total disability (“TTD”) income benefits for a period of approximately four months until he returned to work. Bell returned to work in 1992 until he retired in 2009, but between 1992 and 2009 he experienced continued pain in his neck and eventually elected to have a second surgery as recommended by his doctors. The question of whether Gilder would pay for the second surgery was litigated before the State Board of Workers’ Compensation. Gilder was ordered to pay for the surgery because it resulted from an injury that arose during the course of Bell’s employment. The surgery was performed in September 2013. After the surgery was performed, Bell’s doctor assigned him a 15% PPD rating. Bell then sought payment of PPD income benefits from Gilder at a hearing of the State Board of Workers’ Compensation in November 2014. The surgery Bell underwent in 2013 was directly related to the original injury he suffered in 1992. However, Bell’s 2014 claim for PPD income benefits was denied because the State Board of Workers’ Compensation found that it was barred by the statute of limitation set forth in OCGA § 34-9-104 (b). Bellappealed this decision, and in March 2015, the appellate division of the State Board of Workers’ Compensation affirmed the denial of PPD income benefits as being barred by the statute of limitation. Bell then appealed the ruling to the Superior Court of Laurens County, where the decision of the State Board of Workers’ Compensation was affirmed. This appeal followed.

Bell contends that although his claim for PPD benefits was not filed within four years of the last time he received TTD benefits and thus would normally be barred by the statute of limitation, we should create an exception to the statute of limitation and permit his claim to go forward. The statute of limitation at issue in this case can be found in OCGA § 34-9-104 (b). The statute pertinently provides, “any party may file for benefits solely under Code Section 34-9-263 [PPD benefits] not more than four years from the date the last payment of income benefits pursuant to Code Section 34-9-261 [TTD] or 34-9-262 [temporary partial disability, “TPD”] was actually made under this chapter.” It is undisputed that Bell’s claim for PPD benefits in 2014 was not filed within four years of the last payment of TTD income benefits in 1992. However, Bell argues that because the application of the statute of limitation will lead to a harsh result in this case, we should create a limited exception to the rule.

We recognize that the application of the statute of limitation under these circumstances leads to a harsh result. Bell’s need for the surgery in 2013 relates back to his original compensable injury in 1992. It would seem obvious that his permanent partial disability rating should also relate back to the 1992 injury, regardless of the passage of time. Bell argues that this application of the statute of limitation leads to an absurd and inequitable result in that an employee with an otherwise meritorious claim for PPD benefits would be barred from receiving those benefits because he chose to return to work, while a similarly situated employee who chose not to return to work, and received TTD benefits until a subsequent surgery was performed and PPD rating assigned, would not be barred by the statute of limitation. We agree with Bell’s argument that this is a harsh and inequitable result. However, we do not agree that this Court should create an exception to the statute of limitation.

“When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted). “[W]here the language of a statute is plain and susceptible of only one natural and reasonable construction, an appellate court must construe the statute accordingly.” In the Interest of L. T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014) (punctuation and footnote omitted). In the instant case, the statute is clear and unambiguous, and its plain and ordinary meaning is that the statute bars claims for PPD benefits made more than four years from the last payment of either TTD benefits or TPD benefits. See OCGA § 34-9-104 (b).

Statutes of limitation are considered as beneficial and resting on principles of a sound public policy, and as not to be evaded except by the methods provided therein. . . . And courts cannot engraft on such statutes exceptions not contained therein, however inequitable the enforcement of the statute, without such exceptions, may be.

Harrison v. Holsenbeck, 208 Ga. 410, 412 (67 SE2d 311) (1951) (citation and punctuation omitted). Here, Bell presents a compelling policy argument as to why an exception should be created; however, those arguments are properly addressed to the General Assembly See Unified Govt. of Athens-Clarke County v. Athens Newspapers, 284 Ga. 192, 199(2) (663 SE2d 248) (2008) (policy arguments as to reasonableness of statutory time limits for Open Records Act request responses, should be addressed by the legislature). Although the result under these facts may be harsh, we cannot construe OCGA § 34-9-104 (b) to force an outcome that the legislature did not expressly authorize. See generally Turner v. Georgia River Network, 297 Ga. 306, 308 (773 SE2d 706) (2015). Therefore, the State Board of Workers’ Compensation did not err by failing to toll, or carve out an exception to, the four-year statute of limitation found in OCGA § 34-9-104 (b), nor did the superior court err by affirming the decision of the State Board of Workers’ Compensation.

Judgment affirmed.

Ellington, R J., and Branch, J., concur.

Decided May 4, 2016.

Buzzell, Graham & Welsh, Stephen M. Welsh, for appellant.

McNatt, Greene & Peterson, Troy L. Greene, for appellee.


author: Barnes, Presiding Judge.

text:
    A16A0569.
    WHALEY v. THE STATE.
    (785 SE2d 685)
   Barnes, Presiding Judge.

A Richmond County jury found Meguel Demarcus Whaley guilty of hijacking a motor vehicle, possession of marijuana with intent to distribute, possession of a firearm during the commission of a crime, fleeing or attempting to elude a law enforcement officer, reckless driving, violation of a Class C learner’s permit, and obstruction of a law enforcement officer. Whaley filed a motion for new trial, which the trial court denied. On appeal, Whaley contends that there was insufficient evidence to convict him of hijacking a motor vehicle, possession of marijuana with intent to distribute, and reckless driving. For the reasons discussed below, we affirm Whaley’s convictions for hijacking a motor vehicle and possession of marijuana with intent to distribute, but reverse his reckless driving conviction.

“On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict.” Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001). We neither weigh the evidence nor judge witness credibility, but only determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). “So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld.” McLeod v. State, 245 Ga. App. 668, 669 (1) (538 SE2d 759) (2000).

So viewed, the evidence shows that around 10:30 p.m. on July 5, 2010, the victim received a call from his friend Chris asking if the victim wanted to hang out. The victim did not know Chris very well, but agreed to pick him up at a gas station. After meeting up with Chris, the victim drove them around until Chris asked to stop at someone’s house for a few minutes. The victim drove Chris to the house, and Chris went inside while the victim remained in his car. After Chris returned to the car, they continued to ride around until Chris received a call on his cell phone. The victim pulled his car into another gas station and let Chris out of the car so that he could talk on the phone privately. After talking on his phone, Chris got back into the car and asked the victim to drive to a nearby elementary school so that they could meet up with two men whom Chris identified as his cousin and his friend.

After Chris directed the victim to the elementary school, the victim drove into a lot on the side of the school to wait for Chris’ cousin and friend to approach the car. Once the victim had driven into the lot, however, Chris asked the victim to turn off his car and walk with him behind the school to meet up with his cousin and friend there. Although he “felt kind of suspicious” at that point, the victim agreed to walk with Chris behind the school. Upon walking behind the school, the victim saw two men, later identified as Whaley and his co-defendant Todderius McNorrill, sitting on some steps. Chris approached Whaley and McNorrill, gave them a high-five, and spoke with them privately for a few minutes while the victim stood nearby

The victim thought they were going to walk back to his car, but Whaley suddenly approached the victim and pointed a handgun at him. Whaley said, “You know what time it is,” which the victim understood to mean that he was being robbed. Whaley held the gun to the victim’s head as he went through the victim’s pockets with his other hand. Chris began protesting, but Whaley told McNorrill to “shut him up,” and McNorrill pulled out a handgun and pointed it at Chris. The victim later told the police that one of the guns was a .22 caliber weapon and the other was a .380 caliber black and silver weapon.

Whaley told the victim to lie down on the ground and asked McNorrill for a roll of duct tape. After the victim lay on the ground, Whaley got the duct tape from McNorrill and wrapped it around the victim’s eyes, mouth, and hands. Whaley placed his gun against the victim’s head and again went through the victim’s pockets, taking $125 in cash, a cell phone, the victim’s keys, and his driver’s license. Whaley warned the victim that he and McNorrill had the victim’s identification and would kill the victim if he called the police. Before running from the scene, Whaley and McNorrill kicked the victim in the legs, ribs, and head.

The victim was able to free himself from the duct tape in time to see Whaley and McNorrill get inside his car and drive away from the school. The victim then walked to a gas station a few minutes away and used the phone to call the police. A sheriff’s deputy arrived at the gas station shortly thereafter, and the victim told the deputy about what had happened, described the two suspects, and provided a description of his stolen car. The deputy radioed the information to his dispatcher, and other deputies in the area were told to be on the lookout for the victim’s car.

A few minutes later, another deputy saw the victim’s car stopped at a red light at an intersection, confirmed that it matched the description of the stolen vehicle, and attempted to initiate a traffic stop. When the deputy activated the emergency lights on his marked patrol car, the driver of the victim’s car ignored the lights and drove away, resulting in a police chase.

A deputy in a second marked patrol car activated his emergency lights and took over the chase. As the chase continued, Whaley jumped out of the driver’s side door while the victim’s car was still moving and ran toward the woods. McNorrill remained in the front passenger seat after Whaley jumped out, and the victim’s car crashed through a fence and came to a stop against a tree. Deputies pursued Whaley on foot and gave several verbal commands for him to stop, but he continued running from them. One of the deputies caught up with Whaley and was able to apprehend him. The deputy discovered that Whaley had a learner’s permit that required him to have a licensed driver over 21 years of age riding with him in the passenger seat. McNorrill was under 21.

Another deputy approached the crashed car and arrested McNor-rill, who was still in the passenger seat. The deputy searched McNor-rill and discovered twelve .22 caliber bullets in his pocket. The victim subsequently was driven to the scene where the car chase had concluded, and he confirmed that Whaley and McNorrill were the perpetrators in a show-up identification.

Deputies searched the victim’s car that had been taken by Whaley and McNorrill. Marijuana weighing a total of 4.5 grams was in plain view on the passenger seat and on the driver’s side floorboard. From the way the marijuana was packaged, it appeared to be for distribution. The victim later testified at trial that the marijuana did not belong to him. Additionally, deputies found a loaded Hi-Point .380 caliber handgun on the driver’s seat, and the victim testified that it was the gun that Whaley had pointed at him.

Deputies also searched behind the elementary school, where they found an empty roll of duct tape and a baseball cap that belonged to the victim. However, the victim’s cell phone, cash, and other personal items were never found.

Whaley and McNorrill were jointly charged with hijacking a motor vehicle, armed robbery, false imprisonment, possession of marijuana with intent to distribute, and two counts of possession of a firearm during the commission of a crime. Whaley also was charged with fleeing or attempting to elude a law enforcement officer, reckless driving, violation of a Class C learner’s permit, and obstruction of a law enforcement officer. Whaley and McNorrill subsequently were tried together. The victim and responding deputies testified to the events as summarized above, and the State introduced and showed to the jury a video recording of the police car chase and photographs of the items seized at the elementary school and from the victim’s car. Whaley and McNorrill elected not to testify and did not present any defense witnesses.

After reviewing all the evidence, the jury found both Whaley and McNorrill guilty of hijacking a motor vehicle, possession of marijuana with intent to distribute, and one count of possession of a firearm during the commission of a crime. The jury also found Whaley guilty of fleeing or attempting to elude a law enforcement officer, reckless driving, violation of a Class C learner’s permit, and obstruction of a law enforcement officer. The jury acquitted Whaley and McNorrill of armed robbery, false imprisonment, and one count of possession of a firearm during the commission of a crime. Whaley filed a motion for new trial, which the trial court denied, resulting in this appeal in which Whaley challenges the sufficiency of the evidence on several counts.

1. Whaley first contends that there was insufficient evidence to support his conviction for hijacking a motor vehicle. Specifically, Whaley maintains that the State failed to prove that the victim’s car was taken from the person or presence of the victim, given that Whaley took the car keys from the victim while behind the elementary school, but then fled and retrieved the car from the school parking lot. We are unpersuaded because Whaley’s argument is predicated on too narrow of a reading of the hijacking-a-motor-vehicle statute.

“A person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.” (Emphasis supplied.) OCGA § 16-5-44.1 (b). By its plain language, OCGA § 16-5-44.1 (b) requires only presence, not immediate presence, but even the more restrictive term “immediate presence” used in the armed robbery statute

has been held to extend “fairly far,” and robbery convictions are upheld even out of the physical presence of the victim. Further, the concept of immediate presence is broadly construed if the object taken was under the victim’s control or responsibility and the victim is not too distant.

(Citations and punctuation omitted.) Heard v. State, 287 Ga. 554, 555 (1) (697 SE2d 811) (2010).

Here, the evidence showed that Whaley took the car keys directly from the person of the victim upon threat of violent injury and then retrieved the victim’s car that was parked in a lot on the side of the school where the attack had just occurred. Under these circumstances, the jury was authorized to find that Whaley took the car from the victim’s “presence” for purposes of the offense of hijacking a motor vehicle. See Heard, 287 Ga. at 555 (1) (defendant entered business and took keys from victim, who then hid in closet while defendant retrieved car that was approximately 200 yards away in a parking lot); Kollie v. State, 301 Ga. App. 534, 541 (4) (687 SE2d 869) (2009) (physical precedent only) (defendants bound victim inside house and retrieved car from garage); Johnson v. State, 246 Ga. App. 109, 112 (3) (539 SE2d 605) (2000) (defendant took car keys from victim inside store and retrieved car that was parked outside).

2. Whaley also contends that there was insufficient evidence to support his conviction of possession of marijuana with intent to distribute. He argues that the State failed to prove beyond a reasonable doubt that he possessed the marijuana in the victim’s car because the evidence did not exclude the reasonable alternative hypothesis that the marijuana belonged to the victim or McNorrill. We disagree because there was sufficient evidence that Whaley was in joint constructive possession of the marijuana with McNorrill.

The law recognizes that possession can be actual or constructive, sole or joint. A person has actual possession of a thing if he knowingly has direct physical control of it at a given time. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. If one person alone has actual or constructive possession of a thing, possession is sole, but if two or more persons share actual or constructive possession of a thing, possession is joint.

(Citations and punctuation omitted.) McNeal v. State, 326 Ga. App. 429, 431 (1) (756 SE2d 660) (2014).

“A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity,” and mere presence at the scene of the crime is insufficient, without more, to show constructive possession. (Citations and punctuation omitted.) Noble v. State, 225 Ga. App. 470, 471 (484 SE2d 78) (1997). But “[circumstantial evidence that multiple occupants of a car had equal access to hidden contraband may support the theory that all the occupants were guilty as parties to the crime and had joint constructive possession of the contraband.” Maddox v. State, 322 Ga. App. 811, 815 (2) (746 SE2d 280) (2013).

Additionally, where a constructive possession case is based solely on circumstantial evidence,

the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Whether this burden has been met is a question for the jury, and its determination will not be disturbed unless the verdict is insupportable as a matter of law.

(Citation and punctuation omitted.) Noble, 225 Ga. App. at 471.

Mindful of these principles, we conclude that the totality of this evidence was sufficient to establish beyond a reasonable doubt that Whaley was, at a minimum, in joint constructive possession of the drugs with McNorrill, and that every other reasonable hypothesis except the guilt of Whaley had been excluded. The evidence adduced at trial showed that Whaley was the driver of the victim’s car shortly before the marijuana packaged for distribution was found in plain view on the front passenger seat and the driver’s side floorboard near a handgun linked to Whaley. And when the police attempted to stop the car and apprehend Whaley, he sped away in the car and then fled on foot. Furthermore, the victim denied that the marijuana belonged to him, and the evidence showed that Whaley and McNorrill had acted in concert with one another throughout the night in question.

This combined evidence, construed in favor of the verdict, authorized a finding by the jury that Whaley constructively possessed the marijuana and was guilty of the charged offense. See Prather v. State, 293 Ga. App. 312, 314 (1) (667 SE2d 113) (2008) (jury could find that the defendant driver rather than the car owner possessed marijuana found in the car, where the owner testified that there were no drugs in the car when she allowed the defendant to borrow it); Moody v. State, 232 Ga. App. 499, 502-503 (1) (502 SE2d 323) (1998) (defendant’s “attempts to avoid arrest and the presence of contraband in plain view” supported finding that the defendant “knew about the drugs and, at a minimum, jointly possessed the drugs”); Doe v. State, 189 Ga. App. 793, 794-795 (377 SE2d 546) (1989) (although defendant did not own truck where marijuana was found and had passengers with him during part of his trip, there was sufficient evidence to show that he possessed the drugs, given that he was driver of the truck and the drugs were found in the open ashtray, on the seat, and under the seat within reach of the defendant).

3. Whaley further contends that there was insufficient evidence to convict him of the misdemeanor offense of reckless driving as alleged in the indictment. We agree.

“Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” OCGA § 40-6-390 (a). The indictment alleged that Whaley committed the offense of reckless driving “by running several red lights at a high rate of speed.”

As the State concedes on appeal, the State failed to prove that Whaley committed reckless driving in the manner alleged in the indictment. More specifically, there was no evidence presented at trial that Whaley ran several red lights at a high rate of speed while driving the victim’s car.

While an unnecessary description of an unnecessary fact averred in an indictment need not be proved, in criminal law even an unnecessarily minute description of a necessary fact must be proved as charged. If the indictment sets out the offense as done in a particular way, the proof must show it so[.] No averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid[.]

Decided May 4, 2016.

Rodney A. Quesenberry, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

(Footnote omitted.) Ford-Calhoun v. State, 327 Ga. App. 835, 836 (1) (761 SE2d 388) (2014). See Griffin v. State, 294 Ga. 325, 328 (751 SE2d 773) (2013). Because the State admittedly did not prove the material allegation in the indictment that Whaley ran several red lights at a high rate of speed, we reverse his conviction for misdemeanor reckless driving.

Judgment affirmed in part and reversed in part.

Boggs and Rickman, JJ., concur.

       The victim did not know Chris’ last name or where he lived.

       Chris apparently ran off separately, but the record is unclear on this point.

       McNorrill is not a party to this appeal.

       OCGA § 16-5-44.1 has been amended twice since the time ofthe offense committed in this case, but not subsection (b), the provision at issue here. See Ga. L. 2014, p. 432, § 2-4; Ga. L. 2015, p. 693, § 2-1.

       We decline Whaley’s request to overrule any of our prior case law construing the term “presence.” We also note that our construction of the term “presence” is based on Heard, which is binding Supreme Court precedent.


author: Ellington, Presiding Judge.

text:
    A16A0471.
    HARPER v. THE STATE.
    (785 SE2d 691)
   Ellington, Presiding Judge.

A Coweta County jury found Christopher Harper guilty beyond a reasonable doubt of 11 offenses arising out of a series of confrontations with detention officers at the Coweta County jail during May, June, and July 2013. Following the denial of his motion for a new trial, Harper appeals, challenging the sufficiency of the evidence with regard to three counts of the offense of a terroristic threat, OCGA § 16-11-37 (a); and one count of the offense of interference with government property, OCGA § 16-7-24 (a). For the reasons explained below, we affirm.

On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are 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 State’s case, [the appellate court] must uphold the jury’s verdict.

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

In particular, the intention with which an act is done is peculiarly for the finder of fact. It is often difficult to prove with direct evidence an individual’s intent as it existed at the time of the act for which he is being prosecuted. Thus, intent is often proved through the use of circumstantial evidence.

(Citation and punctuation omitted.) Smith v. State, 319 Ga. App. 640 (738 SE2d 95) (2013). A jury may infer that a person acted with criminal intent after considering the “words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6.

Viewed in the light most favorable to the verdict, the record shows the following. Harper arrived at the jail in May 2013. On May 28, after Harper had been moved to an isolation cell because of disciplinary problems, he covered a ceiling-mounted security camera and the inside of his cell door, including a viewing window, with feces. The security camera and the jail cell were the property of the Coweta County Sheriff’s Office. With the lens obscured by feces, the camera was unable to record video. When officers entered the cell, Harper threw a cup of feces at one of the officers. After the incident, the befouled equipment and surfaces were cleaned by an inmate worker.

An officer, E. S., testified that, on June 30, after another feces-smearing incident, Harper said, in the presence of other officers,

that he was going to steal a gun; he was going to come to my house and break in and that he would kill me and my family, whoever was there with me. He said he was going to torture me; ... he said he was going to blow my brains out, and anybody that was there with me would get the same.

The next day, July 1, Harper resisted being placed in a restraint chair, and then he threatened to kill one of the officers involved in the restraint, J. M., and Officer J. M.’s children. Again, other officers witnessed the threat.

On July 18, during another confrontation, Harper told Officer E. S., “[r]emember what I told you last time. I don’t care if your wife dies, your kids die. . . . I’m going to get your ass.” Officer E. S. understood Harper to be referencing the threats he made to Officer E. S. on J une 30. Harper then threw a cup of urine on Officer E. S. and another officer, J. G. This interaction between Harper, Officer E. S. and Officer J. G., during which the threats were made, was recorded without audio; the recording was admitted into evidence and played for the jury.

The indictment charged Harper with the offense of a terroristic threat by “threaten[ing] to murder” Officer E. S. on June 30, 2013 (Count 6), by “threaten[ing] to commit battery to” that officer on July 18, 2013 (Count 9), and by “threatening] to murder” Officer J. M. on July 1, 2013 (Count 7), each of the threats “being a crime of violence, with the purpose of terrorizing” the named victim.

Count 4 charged Harper with the offense of interference with government property in that, on May 28, 2013, he “unlawfully deface[d] the Coweta County Jail, property of Coweta County Sheriff’s Office, by wiping feces on a jail cell camera, wall, floor, door, and window[.]”

At trial, Harper did not present an insanity defense.

1. Harper contends that the evidence was insufficient to convict him of a terroristic threat, as charged in Counts 6, 7, and 9 of the indictment, in that no reasonable person would have believed that his words constituted “a true threat” under the circumstances, and that there was no evidence that he uttered the threats with the purpose of terrorizing the victims. In arguing that the evidence was insufficient, he contends that the evidence established that his jailers instigated the confrontations with him, his words were said only after he was physically restrained, he was not capable of acting on his words, two of the three threats were “conditional,” and he was mentally unstable and incapable of understanding the consequences of his actions.

[T]he determination of whether a defendant has made a terroristic threat focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize. In this regard, direct evidence that the threats were made for the purpose of terrorizing another is not necessary if the circumstances surrounding the threats are sufficient for a trier of fact to find the threats were made for such a purpose.

(Punctuation and footnotes omitted.) Layne v. State, 313 Ga. App. 608, 611 (1) (722 SE2d 351) (2012). None of the factors identified by Harper precluded the jury from finding that he threatened the victims with violence, and that his purpose was to terrorize them. See Smith v. State, 319 Ga. App. 640, 641-642 (738 SE2d 95) (2013) (The evidence authorized a finding that the defendant intended to terrorize the owner of a hair salon and a customer, where he went into the salon and loudly cursed the victims, threatened to make them get on the floor and to “spray” them, and where there was no evidence that the defendant had any purpose for his threatening statements other than terrorizing victims, such as humor.); Reeves v. State, 288 Ga. App. 544, 545 (654 SE2d 449) (2007) (The evidence was sufficient to support a conviction of a terroristic threat where the defendant was handcuffed and being placed in a patrol car to be transported to jail, and he threatened to kill his wife when he got out of jail, even though he lacked the immediate ability to carry out the threat.); Moss v. State, 139 Ga. App. 136, 137 (1) (228 SE2d 30) (1976) (The evidence was sufficient to support a conviction of a terroristic threat where the defendant threatened to kill some of the police officers present at the jail where he was being held, even though the police officers were armed and the defendant was not.). See also Layne v. State, 313 Ga. App. at 611 (1) (The evidence authorized the jury to find that, in threatening to blow up his house, the defendant intended to terrorize police officers responding to a disturbance, even though the defendant had a history of mental illness and had not been taking his mental health medication, where he did not plead the affirmative defense of insanity.). The evidence in this case was sufficient for the jury to find that Harper intended to terrorize the victims.

2. Harper contends that the evidence was insufficient to show that his conduct rose to the level of defacing government property, as charged in the indictment, in that, although there was evidence that he “dirtied” the property at issue, the property was then “simply cleaned.” The applicable statute provides: “A person commits the offense of interference with government property when he destroys, damages, or defaces government property[.]” OCGA § 16-7-24 (a).

The term “deface[ ]” is not defined.

[I]n considering the meaning of a statute, our charge as an appellate court is to presume that the General Assembly meant what it said and said what it meant. And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, and read the text in its most natural and reasonable way, as an ordinary speaker of the English language would.

Decided May 5, 2016.

Genevieve A. Holmes, for appellant.

Peter J. Skandalakis, District Attorney, John H. Cranford, Jr., Assistant District Attorney, for appellee.

(Punctuation and footnotes omitted.) Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013). In addition, “the fundamental rules of statutory construction require us ... to avoid a construction that makes some language mere surplusage.” (Punctuation and footnote omitted.) Algren v. State, 330 Ga. App. 1, 6 (3) (764 SE2d 611) (2014).

The plain and ordinary meaning of “deface” in both legal and lay parlance is to mar the face or impair the surface appearance of the object. Monroe v. State, 250 Ga. 30, 34, n. 4 (295 SE2d 512) (1982); Sabel v. State, 248 Ga. 10, 12-13 (2) (282 SE2d 61) (1981), overruled on other grounds by Rower v. State, 264 Ga. 323 (443 SE2d 839) (1994). Just as, when a thing is damaged, the damage may be reparable or irreparable, we conclude that the appearance of a thing may be impaired permanently or temporarily. See Sifuentes v. State, 293 Ga. 441, 442 (746 SE2d 127) (2013) (buildings were “deface[d]” by spray-painted graffiti or tagging); Sabel v. State, 248 Ga. at 13 (2) (Spraying government buildings and monuments with black spray paint “defaced” them and constituted interference with government property). The fact that the camera and cell surfaces could be cleaned and restored to their previous appearance did not preclude the jury from finding that Harper defaced them by wiping feces on them. The evidence was sufficient for the jury to find the elements of interference with government property

Judgment affirmed.

Branch and Mercier, JJ., concur.

       The jury found Harper not guilty of a second count of interference with government property and the offense of public indecency. Harper raises no claim of error with regard to the remaining counts to which the jury returned a verdict of guilty: three counts of obstruction of a law enforcement officer, OCGA § 16-10-24; one count of simple assault, OCGA § 16-5-20 (a) (2) (as a lesser included offense of aggravated assault); two counts of simple battery, OCGA § 16-5-23 (a) (1); and one count of disorderly conduct, OCGA § 16-11-39 (a) (1) (as a lesser included offense of a terroristic threat).


author: PHIPPS, Presiding Judge.

text:
    A16A0010.
    LAMB v. THE STATE.
    (785 SE2d 898)
   PHIPPS, Presiding Judge.

Following a jury trial, Andre Lamb was convicted of child molestation. He appeals, asserting that the trial court erred in replacing a juror during trial. For reasons that follow, we affirm.

The record shows that jury selection took place on May 6, 2014. Although the selection proceedings were not fully transcribed, the parties agree that during voir dire, a prospective juror (“Juror 19”) disclosed that he had a cardiologist appointment at 3:00 p.m. on May 8, 2014, in Rome, Georgia, approximately 30 minutes away from the courthouse. Despite the disclosure, both parties accepted Juror 19 onto the jury.

The trial proceeded over the next two days. On the morning of May 8, the case was submitted to the jury, which deliberated for a period of time, then recessed for lunch. During the recess, Juror 19 reminded the court about his 3:00 p.m. appointment. The court discussed the issue with the parties, noting that they had several options: (1) inform Juror 19 that he might miss his appointment; (2) do nothing and wait to see if the jury reached a verdict before Juror 19 needed to leave at approximately 2:00 p.m.; (3) immediately replace him with an alternate juror; or (4) suspend deliberations for the day and have the jury (including Juror 19) return the next morning.

The State argued for immediately replacing Juror 19 so that the appointment would not be “pressing on his mind” and deliberations could continue. Defense counsel objected, asserting that he did not “want the Court to make any changes to the composition of the jury.” After hearing argument, the trial court noted that the “worst thing” would be to do nothing and simply hope for a verdict by 2:00 p.m. The court also opposed suspending deliberations until the following day because the closing arguments and jury instructions were still “fresh on [jurors’] minds” that afternoon. The judge ultimately decided to dismiss Juror 19 and replace him with an alternate, explaining: “I find that this was a properly disclosed medical appointment. Neither [the prosecution nor the defense] chose to strike him, obviously, or he wouldn’t be there. So I am going to replace him.”

The court called the jury into the courtroom, confirmed with Juror 19 that he had not cancelled his medical appointment, and excused him from the case so that he would not have the appointment “weighing on [his] mind during the deliberative process.” The court replaced Juror 19 with an alternate, then instructed the jury to start over with its deliberations to include the new juror. The jury subsequently found Lamb guilty of child molestation.

Lamb argues that the trial court erred in replacing Juror 19 during deliberations. We disagree. Pursuant to OCGA § 15-12-172:

If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.

A trial court exercises its discretion in replacing a juror under this provision, and removal may occur after the jury has begun its deliberations. But “[tjhere must be some sound basis upon which the trial judge exercises his discretion to remove the juror.” In short, the trial court may remove a juror when it “is convinced that the removed juror’s ability to perform [his] duties is impaired.” We will not reverse the trial court’s decision to replace a juror absent an abuse of discretion.

The medical issue in this case was not a surprise. Lamb knew during voir dire about Juror 19’s upcoming appointment but nevertheless accepted him on the jury panel. When the juror reminded the court that he needed to leave for his appointment on May 8, the trial court thoroughly reviewed the options for handling the situation and determined that replacing him would be best. In reaching this determination, the trial court noted that it did not want Juror 19 to deliberate with the appointment weighing on his mind.

Ultimately, the trial court concluded that the impending medical appointment prevented Juror 19 from performing his duties on May 8. Although it considered delaying deliberations until the following day, the court elected not to do so because the case was fresh on jurors’ minds that afternoon. Given these circumstances, as well as Lamb’s original decision to accept Juror 19 onto the jury panel despite his medical conflict, the trial court did not abuse its discretion in replacing the juror.

Decided May 6, 2016.

Scott J. Forster, for appellant.

Rosemary M. Greene, District Attorney, Mark J. Boyd, Assistant District Attorney, for appellee.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

        Bryant v. State, 320 Ga.App. 504, 506 (1) (740 SE2d 247) (2013).

       Id. (citation omitted).

        Weathersby v. State, 263 Ga. App. 341, 343 (4) (587 SE2d 836) (2003) (punctuation and footnote omitted).

       See id.

       See Cleveland v. State, 218 Ga.App. 661, 664 (4) (463 SE2d 36) (1995) (“Hurrying to a verdict because of anxiety about keeping an important medical appointment relating to the juror’s own health could itself infect the verdict.”), overruled in part on other grounds by Scott v. State, 295 Ga. 39, 42 (3), n. 4 (757 SE2d 106) (2014). See also Bryant, supra at 508 (1) (trial court did not err in removing juror when it made an informed exercise of discretion); Taylor v.

        State, 285 Ga. App. 697, 702 (4) (647 SE2d 381) (2007) (trial court properly replaced juror with alternate after determining that juror could not perform her duties because her child had been admitted to hospital); Cloud v. State, 235 Ga.App. 721, 722 (1) (510 SE2d 370) (1998) (trial court did not abuse its discretion in replacing juror after making “an informed finding of incapacity”).


author: DOYLE, Chief Judge.

text:
    A16A0177.
    GORDON v. THE STATE.
    (785 SE2d 900)
   DOYLE, Chief Judge.

Following a bench trial, Sherome Gordon was convicted of possession of cocaine, aggravated assault, felony obstruction of a police officer, and misdemeanor obstruction of a police officer. Gordon appeals from the denial of his motion for new trial, contending that the trial court erred by (1) sentencing him for aggravated assault in violation of the rule of lenity, and (2) failing to merge his convictions for aggravated assault and felony obstruction. For the reasons that follow, we affirm.

Construed in favor of the verdict, the record shows that an officer stopped a vehicle because its brake lights were not functioning. As he spoke to the driver, Gordon, the officer smelled alcohol on Gordon’s breath and observed a beer bottle in plain view in the back seat. The officer inquired about the bottle, and Gordon responded “oh, Lord,” and handed the officer the bottle, which was partially full of beer. The officer elected to arrest Gordon for an open container violation and asked Gordon to exit the vehicle, which he did. As the officer attempted to handcuff Gordon, Gordon forcefully attempted to flee, and a struggle ensued. As the officer held Gordon’s neck, Gordon attempted to burn the officer’s eye with a lit cigarette. The officer blocked the attempt, and the two fell to the ground, grappling in a stalemate until a group of young men from a nearby fraternity house assisted the officer in subduing Gordon. Ultimately, after deploying a taser, the officer was able to successfully handcuff Gordon. The officer then searched Gordon and found cocaine.

Gordon was charged with possession of cocaine, aggravated assault, felony obstruction of an officer, misdemeanor obstruction of an officer, obstructing the highway, possession of an open container of alcoholic beverage while operating a vehicle, and driving with no working brake lights. Gordon pleaded guilty to the cocaine charge, and the State nolle prossed the charges for obstructing the highway, having an open container, and having no working brake lights. Following a bench trial, Gordon was found guilty of aggravated assault and both obstruction charges. The trial court sentenced Gordon to serve ten years on the cocaine charge consecutive to ten years on the aggravated assault charge, with five-year and twelvemonth concurrent sentences on the felony and misdemeanor obstruction charges. Gordon unsuccessfully challenged his sentences in a motion for new trial, giving rise to this appeal.

1. Gordon contends that the rule of lenity requires that he can only be sentenced for felony obstruction of an officer (and not aggravated assault) because the evidence shows that both offenses served as alternative charges for the same conduct. We disagree.

As this Court recently recounted in Gordon v. State, a whole-court case decided after the briefing in this case,

the rule of lenity finds its roots in the vagueness doctrine, which requires fair warning as to what conduct is proscribed. The rule of lenity, more specifically, ensures that if and when an ambiguity exists in one or more statutes, such that the law exacts varying degrees of punishment for the same offense, the ambiguity will be resolved in favor of a defendant, who will then receive the lesser punishment. But if after applying the traditional canons of statutory construction the relevant text remains unambiguous, the rule of lenity will not apply The fundamental inquiry when making this assessment, then, is whether the identical conduct would support a conviction under either of two crimes with differing penalties, i.e., whether the statutes define the same offense such that an ambiguity is created by different punishments being set forth for the same crime.
In explaining the appropriate analysis to apply in making this assessment, however, the Supreme Court of Georgia has cautioned that simply because a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity. By way of example, . . . [we note that] depending upon attendant circumstances, it is possible for the act of striking another person with an object to meet the definitions of each of the crimes of: simple battery, OCGA § 16-5-23, a misdemeanor; aggravated battery, OCGA § 16-5-24, a felony; simple assault, OCGA § 16-5-20, a misdemeanor; aggravated assault, OCGA § 16-5-21, a felony; and malice murder, OCGA § 16-5-1, a felony In the foregoing circumstance, a defendant could be prosecuted for multiple crimes. But when a defendant is prosecuted for and [found guilty] of multiple crimes based upon a single act, the injustice that must be avoided is sentencing the defendant for more than one crime following [a guilty verdict for] multiple crimes based upon the same act.

Therefore, to decide whether the rule of lenity applies, we look to whether there is any ambiguity in the two statutes such that “both crimes could be proved with the same evidence.”

Here, Gordon was accused of aggravated assault and felony obstruction of an officer. The aggravated assault statute provides, in relevant part: “A person commits the offense of aggravated assault when he or she assaults[] . . . with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Likewise, a person commits felony obstruction when he “knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his or her official duties by offering or doing violence to the person of such officer or legally authorized person. . . T

Based on these two statutory provisions, Gordon’s indictment accused him of committing aggravated assault and felony obstruction in the following ways:

Count 2
And the grand jurors . . . further charge and accuse . . . Gordon with having committed the offense of AGGRAVATED ASSAULT, for that . . . Gordon did . . . make an assault upon the person of Deputy Mark Guarino, with an object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury to wit: a lit cigarette by attempting to insert the lit cigarette into the deputy’s eye during arrest, contrary to the laws of this state ....
Count 3
And the grand jurors . . . further charge and accuse . . . Gordon with having committed the offense of OBSTRUCTION OF AN OFFICER, for that . . . Gordon did . . . knowingly and willfully resist Deputy Mark Guarino, a law enforcement officer in the lawful discharge of his official duties by doing violence to such officer by . . . attempting to insert a lit cigarette into the deputy’s eye during lawful arrest, contrary to the laws of this state . . . .

A close reading of the indictment and the applicable Code sections reveals that the two counts do not address the same criminal conduct, even though the indictment predicated both offenses on the same act of attempting to insert a lit cigarette into the eye of the deputy. Under the indictment and the statutory definitions, Gordon could commit felony obstruction only if he offered violence against an officer while the officer was in the lawful discharge of his official duties. Moreover, felony obstruction can occur regardless of whether it involved the use of an offensive weapon likely to result in serious bodily injury, unlike aggravated assault. Thus, the two offenses, as described in the indictment and the Code, are not proved by the same evidence, and the rule of lenity does not apply.

If we were to hold otherwise, any defendant who wrestles a gun away from an officer and murders him could only be punished for felony obstruction, which carries a maximum sentence of five years, as opposed to a sentence of death or life imprisonment for murder. We decline to hold that this is what the legislature intended when it defined the offenses. Simply because “a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity.” What is required is a statutory ambiguity such that identical evidence, not merely a single act, results in different punishments. We do not have that scenario here.

2. Gordon also contends that the trial court erred by sentencing him for both aggravated assault and felony obstruction because they should have merged as a matter of fact. We disagree.

When a defendant is convicted of multiple crimes based upon the same act, the principle of factual merger operates to avoid the injustice [of multiple sentences for the same offense]. In Drinkard v. [Walker],[ ] [the] Supreme Court of Georgia adopted the “required evidence” test set forth by the Supreme Court of the United States to resolve these situations. Thus, to determine whether convictions for multiple crimes merge for purposes of sentencing, the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each [statutory] provision requires proof of a fact which the other does not.

“The test focuses on the evidence required to establish the statutory elements of each criminal offense, not the actual evidence presented at trial.”

Here, a review of the statutory elements of felony obstruction and aggravated assault demonstrates that they are two separate offenses. As stated in Division 1, to commit felony obstruction, one must obstruct or resist by offering or doing violence to a law enforcement officer who is engaged in the lawful discharge of his official duties. Having such a law enforcement victim is not an element of aggravated assault, which requires as an additional element the use of “any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” Although the felony obstruction statute requires offering or using “violence,” regardless of whether a weapon is used, it does not, by its plain terms, require that this violence be the type that likely will or actually does result in serious bodily injury. We recognize that in certain cases the use of fists, for example, can suffice as a weapon for purposes of aggravated assault. But felony obstruction can encompass other conduct, such as verbal threats to kill or slapping, that can occur without the use of an object as a weapon that is likely to or actually does result in serious bodily injury. It is of no moment that the violence offered in this case — attempting to burn the officer’s eye with a cigarette — also satisfies the elements of aggravated assault. Under Drinkard, the relevant inquiry focuses on the elements of the offenses, and even though both offenses result from the same act, each offense required proof of an additional element that the other did not. Accordingly, the trial court did not err by failing to merge the convictions for aggravated assault and felony obstruction.

We note that Gordon relies on Taylor v. State, which addressed a scenario involving a defendant charged with aggravated assault upon a peace officer and felony obstruction based on “fighting” the officer. Relying on Dobbs v. State, the Court concluded that the two offenses should have merged because they encompassed the same crimes. Nevertheless, in both Dobbs and Taylor, the offense of aggravated assault upon a peace officer contained the additional element that the assault was “upon a peace officer while the peace officer is engaged in, or on account of the performance of, his or her official duties,” which is not the case here. Therefore, because the aggravated assault offense at issue in this case does not contain that element, the obstruction charge did contain an element not in the aggravated assault charge, and the two do not merge under the Drinkard analysis.

Decided May 6, 2016.

Stuart H. Patray, for appellant.

Richard A. Mallard, District Attorney, Keith A. McIntyre, Joseph B. Black, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       OCGA § 16-13-30 (a).

       OCGA § 16-5-21 (b) (2).

       OCGA § 16-10-24 (b).

       OCGA § 16-10-24 (a).

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

       334 Ga. App. 633 (780 SE2d 376) (2015) (whole court). The defendant in that case was Kyle Lee Gordon, not Sherome Gordon.

       (Punctuation and footnotes omitted; emphasis supplied.) Id. at 634-636, citing United States v. Lanier, 520 U. S. 259, 266 (II) (117 SCt 1219, 137 LE2d 432) (1997) (“[A]s a sort of ‘junior version of the vagueness doctrine,’ . . . the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.”) (citation omitted)); McNair v. State, 293 Ga. 282, 283 (745 SE2d 646) (2013); Banta v. State, 281 Ga. 615, 617-618 (2) (642 SE2d 51) (2007).

       (Punctuation omitted.) Gordon, 334 Ga. App. at 637, quoting Quaweay v. State, 274 Ga. App. 657, 658 (618 SE2d 707) (2005).

       “A person commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20.

       OCGA § 16-5-21 (b).

       OCGA § 16-10-24 (b).

       (Emphasis supplied.)

       See, e.g., Land v. State, 259 Ga. App. 860, 863 (2) (578 SE2d 551) (2003) (“An essential element of the offense of obstruction of an officer is that the State prove beyond a reasonable doubt that the obstruction occurred while the officer was in the lawful discharge of his official duties.”) (punctuation omitted).

        See Bant a, 281 Ga. at 618 (2) (misdemeanor obstruction under OCGA § 16-10-24 (a) is distinct from making a false statement to a government agency under OCGA § 16-10-20 even though the act of lying to an officer could satisfy both statutory definitions). See also Chynoweth

        v. State, 331 Ga. App. 123, 126 (2) (768 SE2d 536) (2015) (finding that the rule of lenity was not implicated by convictions for riot in a penal institution and felony obstruction).

         See Banta, 281 Ga. at 618 (2).

       See OCGA §§ 16-5-1 (e) (1); 16-10-24 (b).

        Banta, 281 Ga. at 618 (2).

       See, e.g., Dawkins v. State, 278 Ga. App. 343, 345 (629 SE2d 45) (2006) (recognizing that it is not possible to give a false name to a police officer in violation of OCGA § 16-10-25 (a misdemeanor) without also making a false statement in violation of OCGA § 16-10-20 (a felony)).

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

       (Punctuation and footnotes omitted.) Gordon, 334 Ga. App. at 636, quoting Drinkard, 281 Ga. at 215, and citing Blockburger v. United States, 284 U. S. 299 (52 SCt 180, 76 LE 306) (1932). See also Cordero v. State, 296 Ga. 703, 710 (3) (770 SE2d 577) (2015) (“In Drinkard v. Walker, we adopted the ‘required evidence’ test for determining when one crime is ‘included in’ another under OCGA § 16-1-6 (1) and therefore merges as a matter of fact,” pursuant to OCGA § 16-1-7 (a) (1)) (citation and punctuation omitted).

        Nolley v. State, 335 Ga. App. 539, 545 (2) (782 SE2d 446) (2016).

       See OCGA§ 16-10-24 (b).

       OCGA § 16-5-21 (b) (2). We note that aggravated assault may occur in other ways not at issue here: intent to murder, to rape, or to rob; use of an object to strangulate; or discharging a firearm from within a vehicle. See id.

       See Steillman v. State, 295 Ga. App. 778, 781 (2) (673 SE2d 286) (2009).

       See Drinkard, 281 Ga. at 217 (explaining how different crimes with overlapping elements do not merge even when crimes occurred by a single act by the defendant), citing Sanford v. State, 169 Ga. App. 769 (315 SE2d 281) (1984).

       327 Ga. App. 882 (761 SE2d 426) (2014).

       See id. at 887-888 (5), citing Dobbs v. State, 302 Ga. App. 628, 630 (2) (691 SE2d 387) (2010).

       302 Ga. App. at 628.

       See id.

       OCGA § 16-5-21 (b) (2), (d). See Taylor, 327 Ga. App. at 888 (5); Dobbs, 302 Ga. App. at 630 (2).


text:
    A16A0315.
    PETERSON v. THE STATE.
    (785 SE2d 905)
   DOYLE, Chief Judge.

In the second appearance of this case before this Court, Paul Clifford Peterson appeals his conviction of one count of aggravated child molestation and five counts of child molestation. In Peterson’s initial appeal, we granted his motion to remand the case to the trial court for rehearing on an issue of ineffective assistance of trial counsel. Following that hearing, the trial court denied the motion for new trial. In this subsequent out-of-time appeal, Peterson argues that: (1) the trial court erred by admitting certain similar transaction evidence; (2) he was denied effective assistance of counsel when

(a) trial counsel failed to move for a mistrial after certain witness testimony, and (b) trial counsel failed to recuse himself and his office after becoming elected as the District Attorney three years after Peterson’s trial; and (3) the evidence was insufficient to support the verdict. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[ ] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, [the appellate court] must uphold the jury’s verdict.

So viewed, the evidence shows that when the victim was four years old, she and her ten-year-old sister, S. C., were sent to Michigan after their mother died to live with Peterson, his wife, and their two children. According to the victim, Peterson began molesting her soon after she moved in, and he instructed her not to tell anyone about their “secret.”

In 2003, the victim and S. C. moved with the Petersons to Haralson County, Georgia. When she was 14 years old, Peterson showed the victim a picture of a ring and told her that he would buy it for her if she “let [him] get something.” Peterson then inserted his fingers and his penis into the victim’s vagina, despite her request that he stop; he subsequently gave her the ring he promised her. On another occasion, Peterson instructed the victim to drink liquor, grabbed her breasts, and inserted his penis into her vagina. In a third incident, Peterson forced her to touch his penis, and in a separate incident, he came into her room while she was sleeping and licked her vagina, despite her protestations.

The victim disclosed the molestation to her boyfriend, several friends, S. C., and Peterson’s wife, Kim. Soon thereafter, S. C. told Peterson’s sister-in-law that Peterson had molested both the victim and S. C. Thereafter, the victim disclosed the molestation to a friend and her mother, Paulette Fulton, a registered nurse. When Fulton confronted Peterson, he admitted the molestation, stating that “it [was] a secret [he would] take to [his] grave.” Peterson also repeatedly apologized to the victim, stating that he “never meant to hurt [her] Fulton reported the abuse to the Department of Family and Children Services, and Peterson was subsequently arrested and charged.

During the trial and following a hearing, the State introduced similar transaction evidence from S. C., who testified that when she was 11 or 12 years old, Peterson pulled down her underwear and penetrated her vagina with his finger. S. C. also testified that when she was approximately 17 years old, she asked Peterson for money to go shopping, and he gave her $50 after she complied with his request to lift her shirt and bra and show him her breasts.

At the conclusion of the trial, the jury found Peterson guilty of aggravated child molestation and five counts of child molestation. On March 12, 2009, trial counsel, Oliver Jack Browning, filed a motion for new trial on Peterson’s behalf. On March 31, 2010, another attorney filed an entry of appearance on Peterson’s behalf, and on December 15, 2010, appellate counsel filed an entry of appearance.

In 2013, Browning was elected the district attorney for the Tallapoosa Judicial Circuit, and he took office on January 2, 2014. Soon thereafter, Browning obtained from the Prosecuting Attorney’s Council of Georgia (“the PAC”) a “white paper” containing instructions on how to build an effective ethical screen to isolate attorneys from cases in which they have a conflict of interest. Pursuant to the white paper, Browning then caused a memorandum to be placed in each file in which he represented defendants in Haralson County, which memorandum directed that Browning was to have no contact with the file whatsoever, and he had placed on each such file a sticker with the word “CONFLICT” on it. Browning also hired Chuck Rooks, an experienced prosecutor, as deputy chief assistant district attorney to manage the Haralson County office. The physical files of all conflict cases remained in the Haralson County office with Rooks, who had complete discretion as to the disposition of each. Browning also arranged, through a computer-based case management system managed by PAC through an independent consulting firm, to block his own computer access to all of the conflict cases.

On January 12, 2014, Peterson filed an amended motion for new trial, arguing in part that Browning was ineffective. The trial court denied the motion, and Peterson appealed. On September 23, 2014, Browning sent a letter to the Attorney General disqualifying his entire office from Peterson’s case, citing McLaughlin v. Payne, and the Attorney General appointed the Executive Director (or his designee) of the PAC to prosecute the case. Peterson then filed a motion for remand to allow him to raise a new claim of ineffective assistance of counsel based upon Browning’s failure to disqualify his office prior to Peterson’s motion for new trial, and on November 21, 2014, this Court granted the motion.

At the subsequent March 18, 2015 hearing, Browning testified that he took no further action in Peterson’s case after filing the initial motion for new trial because he knew Peterson was going to raise an ineffective assistance claim. Shortly after the trial ended, Browning’s office sent the physical file to newly-appointed appellate counsel, and he had no access to the file thereafter nor the opportunity to review it before testifying at the initial hearing. After the second hearing, the trial court denied the amended motion for new trial, and this appeal followed.

1. Peterson argues that the trial court erred by admitting similar transaction evidence involving the victim’s sister, S. C. We disagree.

In order to establish the admissibility of similar transaction evidence, the State is required to make three affirmative showings.

First, the [S]tate must identify a proper purpose for admitting the transaction; second, the [S]tate must show that the accused committed the separate offense; and third, the [S]tate must show a sufficient similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter.

“It is within the discretion of the trial court whether to admit such evidence^] and we will not disturb that decision absent an abuse of discretion.”

The exception to the general rule that evidence of other crimes is not admissible has been most liberally extended in the area of sexual offenses: In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.

Given the similarity and connection between it and the offenses at issue here, the similar transaction evidence involving Peterson’s digital penetration of S. C., as well as him giving her money in exchange for her exposing her breasts, was admissible to show Peterson’s lustful disposition toward minors and to corroborate the victim’s testimony.

2. Peterson further argues that (a) trial counsel was ineffective by failing to move for a mistrial following certain testimony of Fulton, the nurse who reported Peterson’s molestation of the victim, and (b) he was denied effective assistance of counsel when Browning, his former attorney, failed to recuse himself and his entire office from the case after he became the district attorney.

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

(a) Peterson contends that trial counsel was ineffective by failing to contemporaneously move for a mistrial after Fulton gave improper opinion testimony regarding the ultimate issue in the case. This enumeration presents no basis for reversal.

The first time Fulton stated that Peterson “sexually abused” and “molest[ed]” the victim, trial counsel immediately objected, and the trial court sustained the objection and instructed the jury to disregard her comment. Shortly thereafter, Fulton again testified that Peterson “had molested [the victim],” and before trial counsel could object, the court immediately interjected and instructed her to answer only the questions posed. A few minutes later, Fulton testified that when she confronted Peterson, she told him that she knew that “it has been going on since [the victim] was four years old.” At the conclusion of Fulton’s testimony, trial counsel made a motion for mistrial, which the trial court denied.

At the hearing on Peterson’s motion for new trial, trial counsel testified that he did not make a motion for mistrial at the time Fulton made the statements because he thought “it would probably be best to wait till the conclusion of her testimony to see what else came out of her mouth, with the idea that probably the accumulative [sic] effect of her testimony would be a basis for granting a mistrial.” Trial counsel also explained that he made the strategic decision to point out during closing argument that Fulton “had a little bit of an axe to grind,” believing that the jury might find her lacking credibility and that “maybe [she] wasn’t hurting [Peterson’s] case at all.”

“Trial strategies do not equate to ineffective assistance merely because appellate counsel would have pursued a different, strategy[, and n]o evidence has been presented to indicate that the failure to [earlier] move for a mistrial was an unreasonable strategy in this case.”

(b) Peterson further contends that “he received ineffective assistance] of counsel when his former attorney, [Browning], failed to recuse himself and his office from the case [after becoming the district attorney].” We find no basis for reversal.

Peterson relies upon McLaughlin v. Payne, which was decided after Browning took office and after he testified at the initial motion for new trial hearing. In that case, the Supreme Court of Georgia held that when an “elected district attorney is wholly disqualified from a case, the assistant district attorneys — whose only power to prosecute a case is derived from the constitutional authority of the district attorney who appointed them — have no authority to proceed,” and pursuant to OCGA § 15-18-5, the district attorney is required to notify the Attorney General’s office of the disqualification, and the Attorney General is required to appoint or designate a prosecuting attorney to act in the place of the district attorney.

Here, Peterson contends that Browning’s failure to recuse himself and his entire office pursuant to McLaughlin constituted ineffective assistance of counsel entitling him to a new trial. But as Peterson concedes, Browning was no longer advocating as defense counsel at the time he testified at the initial motion for new trial; subsequent counsel filed notices of appearance on Peterson’s behalf shortly after the trial, which concluded three years before Browning took office; and Peterson was represented by such counsel at the hearing. Therefore, even assuming that Browning had an obligation to recuse himself and his entire office, his failure to do so did not constitute ineffective assistance of counsel because he was not acting as Peterson’s attorney at the time.

3. Finally, Peterson challenges the sufficiency of the evidence. Having reviewed the evidence, including the testimony of the victim, we conclude that the evidence was sufficient to support the convictions, notwithstanding the victim’s initial recantation at Peterson’s insistence. “It is for the jury and not this Court to resolve conflicts and to assess witness credibility.”

Judgment affirmed.

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

Decided May 6, 2016

Angela B. Dillon, for appellant.

Charles A. Spahos, District Attorney, Charles C. Olson, Gary D. Bergman, Assistant District Attorneys, for appellee.

       OCGA § 16-6-4 (c). Peterson was charged with an additional count of aggravated child molestation, but the State entered a nolle prosequi as to that charge after the victim testified that the acts supporting it occurred in Michigan.

       OCGA § 16-6-4 (a)(1).

        SeePeterson v. State, Case No. A15A0244(unreportedorderentered November21, 2014).

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

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

       Peterson is the girls’ second cousin.

       Browning was the Chief Assistant Public Defender for the Tallapoosa Judicial Circuit.

       Rooks had no conflict with any of the cases in the Tallapoosa Judicial Circuit.

       295 Ga. 609 (761 SE2d 289) (2014).

        Houston v. State, 270 Ga.App. 456, 458 (1) (606 SE2d 883) (2004). Because this case was tried before January 1, 2013, our new Evidence Code does not apply. See Ga. L.2011, pp. 99,214, § 101. Nevertheless,
      [w]e observe that, in general, the new Evidence Code eliminates bent of mind and course of conduct as permissible purposes for the admission of similar transaction evidence . But in criminal proceedings in which the defendant is accused of a sexual assault or child molestation, the new Code includes provisions for the admission of certain prior sexual assaults or child-molestation offenses for bearing on any matters to which they are relevant.

        Arbegast v. State, 332 Ga. Ápp. 414, 417 (2) (a), n. 1 (773 SE2d 283) (2015) (citation and punctuation omitted). See also OCGA §§ 24-4-413; 24-4-414.

        Leaptrot v. State, 272 Ga. App. 587, 596 (3) (612 SE2d 887) (2005).

       (Punctuation omitted.) Id., quoting Hogan v. State, 272 Ga. App. 19, 21 (1) (611 SE2d 689) (2005).

        See Hilliard v. State, 298 Ga. App. 473, 476-477 (3) (680 SE2d 541) (2009).

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

       (Citations and punctuation omitted.) Young v. State, 327 Ga. App. 852, 857 (5) (761 SE2d 801) (2014).

       (Citation and punctuation omitted.) Pearce v. State, 300 Ga. App. 777, 786 (7) (a) (686 SE2d 392) (2009).

       295 Ga. 609 (761 SE2d 289) (2014).

       Id. at 613.

       Peterson does not argue that subsequent counsel was ineffective for not challenging Browning’s failure to recuse himself and his office before the hearing.

       We note again that McLaughlin had not yet been issued when Browning took office or when he testified at the initial hearing, and he did recuse himself and his office shortly after the opinion was issued. And as Peterson concedes on appeal, “he cannot show that Browning had an actual conflict of interest or that an actual attorney-client confidence was violated.”

       See Cheek v. State, 265 Ga. App. 15, 16-17 (1) (593 SE2d 55) (2003). See also OCGA § 16-6-4 (a) (1), (c).

       (Punctuation omitted.) Cheek, 265 Ga. App. at 16 (1).