text:
    A12A2326.
    MECCA CONSTRUCTION, INC. et al. v. MAESTRO INVESTMENTS, LLC et al.
    (739 SE2d 51)
   PHIPPS, Presiding Judge.

Maestro Investments, LLC and Michael Foster (collectively “Maestro”) filed suit against Mecca Construction, Inc., Opportunity Investments/Developers, LLC, Khatra Mohamed, and Mikal Abdullah (collectively “Mecca”), alleging claims for, among other things, breach of contract and fraud. The trial court found that Mecca failed to timely answer the complaint and, after a trial on the issue of damages, entered a judgment of default and an award of damages and attorney fees against Mecca.

Mecca appeals, contending that (1) the trial court erred in denying its motion to extend the time to answer the complaint and in finding that it (Mecca) was in default; (2) the trial court erred in declining to open the default; (3) the trial court erred in not allowing it (Mecca) to contest the factual allegations of the complaint, which, Mecca asserts, were not well pled; (4) the trial court erred in granting judgment in favor of Foster when there was no evidence that Foster was a party to any contract or a participant in any transaction with Mecca; (5) there was no “well pled or proven” basis to hold Mohamed and Abdullah (officers of Opportunity Investments and Mecca Construction, respectively) personally liable; (6) a settlement agreement was unenforceable because there was no evidence the parties had reached an agreement; and (7) there was no evidentiary basis to award attorney fees. For the reasons that follow, we affirm.

“Since this appeal involves questions of law concerning the nature of damages in [Maestro’s] complaint and the trial court’s entry of default judgment for liquidated damages, this Court must review the record de novo and apply a plain legal error standard of review.” “When a question of law is at issue,... we owe no deference to the trial court’s ruling and apply the plain legal error standard of review.”

1. Mecca contends that the trial court erred in denying its motion for an extension of time to answer the complaint and in finding that it was in default. Mecca asserts that the trial court’s determination of when its answer was due was erroneous, and that instead of making a determination of when the answer was due, the trial court should have ruled that the time for filing the answer would not begin until there was a “clear record of service as required by OCGA § 9-11-4 (h).”

(a) Mecca contends that the trial court erred in denying its motion for an extension of time to answer the complaint. We disagree.

The record shows that Maestro filed suit against Mecca on April 5, 2011. In April and May 2011, service of the suit was attempted but was unsuccessful. On June 16,2011, Maestro sent to Mecca, pursuant to OCGA § 9-11-4, four documents (one for each defendant) entitled “Notice of Lawsuit and Request for Waiver of Service of Summons” (hereinafter, “the notices”). On July 13, 2011, four documents (each executed by the defendants) entitled “Waiver of Service of Summons” (hereinafter, “the waivers”) were filed with the clerk of court. On August 25, 2011, Mecca Construction and Opportunity Investments, vowing to retain counsel to defend against the lawsuit, moved for an extension of time to answer the complaint. On September 15, 2011, Mecca, acting pro se, filed an answer to the complaint. On October 4, 2011, the trial court entered an order denying the request for an extension of time to answer the complaint.

Mecca asserts that (1) in the October 2011 order, the trial court erroneously determined that Mecca’s answer to the complaint was due 30 days from the date on which the waivers were filed; and (2) the notices that were sent to Mecca correctly provided that Mecca’s answer was due 60 days from when Maestro sent the notices to Mecca.

Under OCGA § 9-ll-4(d) (3), to avoid costs, a plaintiff may notify a defendant of the commencement of the action and request that the defendant waive service of a summons. And OCGA § 9-11-4 (d) (3) (F) pertinently provides that the notice and request shall “[a]llow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent.” OCGA § 9-11-4 (d) (5) pertinently provides: “A defendant that, before being served with process, returns a waiver so requested in a timely manner is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent. .. .” Here, Mecca timely returned the waivers. Thus, Mecca’s answer was due within 60 days of June 16, 2011 (when the notices were sent), and not within 30 days of July 13, 2011 (when the waivers were filed), as the trial court had ruled. Notwithstanding, as Mecca filed its answer on September 15, 2011, it was outside either period of time for filing, which was August 15, 2011 or August 12, 2011, respectively.

OCGA § 9-11-6 (b) (2) pertinently provides:

When by this chapter or by a notice given thereunder ... an act is required... the court for cause shown may at any time in its discretion... upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect.

The motion for an extension was made after the time for filing an answer had expired. “It was therefore incumbent upon [Mecca Construction and Opportunity • Investments] to show excusable neglect.” “ ‘Excusable neglect’ means, among other things, ‘a reasonable excuse.’ The maxim that ‘ignorance of the law offers no legal excuse’ needs no citation.”

Despite a prior vow by Mecca Construction and Opportunity Investments to retain counsel to answer the complaint, these two defendants along with Mohamed and Abdullah, filed a joint, pro se answer to the complaint. On appeal, Mecca argues that it “f [oujnd the provisions confusing” as to when its answer was due. But ignorance of the law offers no legal excuse. The law is plain, and

[w]e cannot say [Mecca’s] explanation constituted excusable neglect as a matter of law. . .. Nor can we say that the trial court abused its discretion f] in refusing to grant, for the reason advanced, a judicial extension of the statutory time for filing the answer, in essence allowing a circumvention of the default status of the action.

Mecca asserts that “the lack of a requirement of filing something to make a record of the date on which the time for an answer can be calculated violates due process.” But Mecca fails to establish how, on the facts of this case, its due process rights were violated.

Prior to the trial court’s determination of when an answer was due, Maestro had filed a pleading opposing Mecca’s request for an extension; Maestro attached as exhibits to the pleading copies of the notices it had sent to Mecca. The notices provided that they were “being sent to [Mecca] on behalf of [Maestro] on this 16th day of June, 2011.” Accordingly, something was filed from which the trial court could have properly calculated when Mecca’s answer was due.

Mecca does not assert that it did not receive the notices, or that the form of the notices was improper. In fact, Mecca conceded in its appellate brief that the notices complied with the pertinent statutory requirements; and the record showed that Mecca executed waivers. Mecca argues, rather, that because the notices were not filed with the clerk of court as “separate document^]” (but rather as exhibits to a pleading), and did not contain certificates of service, the notices (exhibits) were insufficient for the court to determine when Mecca’s answer was due.

In this regard, Mecca’s reliance on OCGA § 9-11-4 (h) is misplaced, as that statutory provision pertinently provides: “Failure to make proof of service shall not affect the validity of the service.” Indeed, “[w]hen the plaintifffiles a waiver of service with the court,... no proof of service shall be required.” And Mecca points to no authority supporting its position that in order for the trial court to determine when Mecca’s answer was due, due process required that Maestro file as separate documents and/or with certificates of service, the notices it had sent Mecca.

In any event, Maestro subsequently filed an affidavit executed by its counsel, attesting that he had signed and mailed on June 16, 2011, to each defendant a notice. The alleged defects were cured by the filing of the affidavit. Accordingly, the trial court did not err in denying the motion for an extension of time to answer the complaint.

(b) Mecca contends that the trial court erred in finding that it was in default. “As this enumerat[ed] [error] is not supported by either argument or citation of authority, it is abandoned under Court of Appeals Rule [25] (c) (2).”

2. Mecca contends that the trial court erred in declining to open the default judgment. “[T]he trial court has broad discretion in deciding whether or not to open the default, and its decision not to open a default will not be interfered with unless that discretion is manifestly abused.” We find no abuse of discretion by the trial court.

On October 3, 2011, Maestro filed a motion to strike Mecca’s answer and to enter a default judgment, “as to all issues of liability with the issue of damages to be heard by the Court at a later date.” In an order filed on October 11, 2011, the trial court, in response to Maestro’s motion, cited OCGA § 9-11-55, recognizing that Mecca had automatically defaulted after it failed to timely file an answer. The court recognized that the statute also provided that after the period of time for opening a default had passed and the case was still in default, “the plaintiff at any time thereafter shall be entitled to verdict and judgment by default . . . unless the action . . . involves unliquidated damages,” as this case did. The court therefore issued an order denying Maestro’s motion for entry of a default judgment. On October 3, 2011, Maestro also filed a certificate of default, asserting that Mecca had failed to timely file an answer to the complaint.

On February 17, 2012, Mecca filed a “Motion to Reconsider this Court’s Order Filed on October 4, 2011, Denying the Extension of Time to Answer, or in the Alternative to Open Defendant’s Default.” On February 29, 2012, the trial court, finding that Mecca failed to show excusable neglect or to pay costs to open the default, denied Mecca’s motion for reconsideration or alternatively to open the default.

OCGA § 9-11-55 (b) provides:

Opening default. At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.

Thus, OCGA § 9-11-55 (b) establishes three legal grounds for opening a default: providential cause, excusable neglect, and where the judge from all the facts determines that a proper case has been made. “Generally, whether the trial court opens a default is a matter resting within its sound discretion, but for the relief to be granted, subsection (b) requires that there be a motion, a meritorious defense, a legal excuse for late filing, and payment of costs.”

First, Mecca filed a motion to open the default more than four months after Maestro moved for the entry of a default judgment and filed a default certificate which stated that Mecca had failed to answer the complaint. Second, the late-filed answer is “little more than a general denial and does not present what could reasonably be characterized as a meritorious defense.” Third, Mecca “did not present to the court a legal excuse for late filing. [It] relie [d] upon the ‘excusable neglect’ ground,” which it asserted was that “it could not be ascertained from the record when the Notice of Lawsuit and Request for Waiver of Service of Summons was sent,” and thus when the answer was due.

But as we discussed in Division 1 (a), when Mecca’s answer was due was ascertainable from the record; and ignorance of the law offers no legal excuse.

Therefore, some of the several conditions precedent to opening the default were not met, and the threshold for exercising discretion need not have been crossed. . . . Upon review of the circumstances, we cannot conclude as a matter of law the court’s denial of the request to open the default was a manifest abuse of discretion.

3. Mecca contends that the trial court erred in not allowing it to contest factual allegations of the complaint, which, Mecca asserts, were not well pled. Although Mecca is correct that “[a]fter a defendant defaults, we treat as true only the well-pled factual allegations [, and] forced inferences and conclusions of law cannot demonstrate a claim,” we do not agree that the factual allegations with which Mecca takes issue were not well pled.

(a) Mecca claims that as it concerns the “contract allegations” of the complaint, “conflicting information” between certain facts alleged in the complaint and certain facts provided in an exhibit attached to the complaint show that the complaint was not well pled.

Specifically, Mecca asserts that although a written agreement attached to the complaint provided that Maestro would tender to Mecca a particular sum of money, the complaint itself alleged that Mecca tendered a sum different than that mentioned in the agreement; and that although the complaint alleged that the agreement memorialized arrangements between the parties, the agreement “did not say anything about” Maestro tendering the sum of money that it ultimately disbursed to Mecca, as alleged in the complaint. Mecca argues that conflicts of these types in the complaint led to “ ‘forced inferences’ that cannot result in a default.”

Maestro incorporated by reference the agreement into the complaint. Mecca overlooks a memorandum that was attached to the agreement and also filed with the complaint. The memorandum reflected the parties’ modified agreement allowing Maestro to submit to Mecca the sum alleged in the complaint. Accordingly, we see no merit in Mecca’s claim that the allegations of the complaint dealing with the breach of contract count were not well pled.

(b) Mecca claims that the allegations of fraud in the complaint were not well pled and did not meet the requirements of OCGA § 9-11-9 (b). Again, we disagree.

“The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” “When alleging fraud, the circumstances constituting fraud must be stated with particularity.” A default does not “preclude a defendant from showing that under the facts as deemed admitted, no claim existed which would allow the plaintiff to recover. And a defendant is entitled to demonstrate that all the facts as admitted by default fail to state a claim upon which relief may be granted. . . ”

Maestro alleged that Mecca had made a false promise to loan Maestro $5 million after Maestro wired $150,000 to Mecca as a “service fee” for the loan; that in reality, Mecca never intended to deliver the loan proceeds; that in order to fraudulently induce Maestro into believing that Mecca had secured a line of credit for $5 million to fund the loan, Mecca presented Maestro with several documents purporting to show same; that a written agreement between Maestro and Mecca provided that in the event Maestro did not receive the loan proceeds within a specified period of time after submitting the “service fee,” Maestro would be refunded the “service fee” it submitted to Mecca; that in reliance on Mecca’s representations to Maestro, including the written agreement of the parties, Maestro submitted the service fee to Mecca; that after submitting the service fee, Maestro learned that Mecca misappropriated the service fee and invested the funds into a “pooled investment vehicle” or “security,” which Mecca was not legally registered to do; that at the time the agreement was executed, Maestro was not aware that Mecca had not in fact secured a line of credit; that in response to Maestro’s demands after the payment of the “service fee,” Mecca told Maestro that the “investments” were guaranteed and that Maestro would get back its “principal investment” plus interest; and that Mecca failed to return the service fee to Maestro.

“A promise made without a present intent to perform is a misrepresentation of a material fact and is sufficient to support a cause of action for fraud.” Here, Maestro’s allegations were sufficient to show that Mecca made a promise and did not intend to perform pursuant to the promise.

While fraud cannot generally be based on instances of misrepresentations as to future events, it may consist of such instances if, when the misrepresentation is made, the defendant knows that the future event will not take place. [I]t has been said that allegations of fraud should at the very least designate the occasions on which affirmative misstatements were made and by whom and in what way they were acted upon, [and] we conclude that the allegations in this [complaint] taken as a whole are sufficient to [allege a cause of action for fraud].

4. Mecca contends that the trial court erred in awarding damages to Foster when there was no evidence that Foster was a party to any contract or a participant in any transaction with Mecca. “The default[, however,] concludes [Mecca’s] liability and estops [Mecca] from offering any defenses which would defeat the right of recovery.” Accordingly, this claim is foreclosed.

In any event, at the trial on the issue of damages, Foster testified that he and Maestro Investments had an agreement: in exchange for submitting to Mecca $100,000, Foster would receive 50 percent of the profits from the business enterprise Maestro allegedly sought. Foster testified that he transferred the money to Mecca, and documentation showing same was admitted in evidence. Thus, Foster showed he was entitled to damages.

5. Mecca contends that there was no proven or well-pled basis to hold Mohamed and Abdullah, officers of Opportunity Investments and Mecca Construction, respectively, personally liable for the award of damages. Mecca argues that Maestro “did not allege in [its] Complaint a ‘veil piercing’ basis of liability and neither Khatra Mohamed nor Mikal Abdullah should have been hel[d] personally liable under any such theory.”

To support its argument, Mecca relies on Bonner v. Brunson, for the following proposition:

Just as the so-called “corporate veil” protects an individual shareholder of a corporation from personal liability for the debts of the separate corporate entity (so long as the corporate forms are maintained) so is a member of a limited liability company (LLC) “veiled” from personal liability for the debts of the separately maintained LLC entity.

But,

[t]he fundamental flaw in [Mecca’s] approach is a failure to distinguish an officer’s personal liability for torts he personally participated in, from an officer’s personal liability for corporate debts due to a piercing of the corporate veil. The former type of liability rests on the notion that an individual is responsible for his own tortious acts. Thus, the focus in this type of liability is whether the individual personally participated in a tort. The latter type of liability rests on the notion that a corporate officer, or owner, who has abused the corporate form by commingling personal and corporate assets, should be held liable for corporate debts and liabilities.

In this regard, the focus of the type of liability in this case is the personal participation of Mohamed and Abdullah in the commission of fraud, not whether they abused the corporate form by commingling personal and corporate assets. Accordingly, the piercing of a “corporate veil” need not have been pled in the complaint for the trial court to have entered judgment against Mohamed and Abdullah, personally.

As to whether allegations of personal liability were proved, we note that “[ljiability was established by [Mecca’s] default in this case.” Accordingly, there is no merit to Mecca’s contention.

6. Mecca contends that a purported settlement agreement awarding money to Maestro to settle Maestro’s claim against Mecca for recovery of the “service fee” was unenforceable because there was no evidence that the parties had agreed upon the terms.

To the extent that Maestro alleged in the complaint that the parties had “entered into a binding settlement agreement whereby [Mecca] agreed to pay [Maestro]” a sum of money, “[t]he default concludes [Mecca’s] liability [on the agreement] and estops [Mecca] from offering any defenses which would defeat the right of recovery.” Accordingly, there is no merit to this contention.

7. Mecca contends that there was no evidentiary basis to award attorney fees because Maestro’s counsel failed to establish the reasonableness of his fees, and failed to “state his education and experience and why’ the rate he charged was reasonable.

[T]o authorize an award of attorney fees there must be evidence presented as to what is a reasonable value of the services which have been rendered by the attorney. The evidence as to the reasonableness of the fee does not have to consist of hours devoted to the case, but might only consist of an opinion of an expert, which may include the claimant’s attorney.

Decided February 27, 2013.

James S. Altman, for appellants.

“Generally, a party will proffer the opinion testimony of his present counsel as well as that of other attorneys in an effort to show what constitutes a reasonable attorney fee in light of the litigation history of the case.” “[Ejvidence of the reasonableness of the fee arrangement is required, including evidence of hours, rates or other indication of the value of the professional services.” “A naked assertion that the fees are ‘reasonable,’ without any evidence of hours, rates, or other indication of the value of the professional services actually rendered is inadequate.”

Maestro’s attorney testified that his law firm handled the case from the time suit was filed to the time of trial, which the record reflects was from April 2011 to March 2012. He testified as to the number of hours the firm had worked on the case, and the hourly rate charged. The attorney stated that the fees were reasonable and “in line with the community standard.” Counsel’s testimony sufficiently established the reasonableness of his fees.

Judgment affirmed. Ellington, C. J., concurs. Dillard, J., concurs in judgment only.

Jason R. Doss, for appellees.

        GMC Group v. Harsco Corp., 304 Ga. App. 182 (695 SE2d 702) (2010) (citation and punctuation omitted).

        Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000) (citation and punctuation omitted).

       (Emphasis supplied.)

       Compare Satnam Waheguru Corp. v. Buckhead Community Bank, 304 Ga. App. 438, 440-441 (696 SE2d 430) (2010) (where counsel executed an acknowledgment and waiver pursuant to OCGA § 9-10-73, answer was due within 30 days after the acknowledgment and waiver); SRM Realty Svcs. Group v. Capital Flooring Enterprises, 274 Ga. App. 595, 601 (1) (617 SE2d 581) (2005) (because the time period to serve an answer is not extended by OCGA § 9-10-73, where service is acknowledged pursuant to that statute, an answer must be served within 30 days after service is acknowledged).

       See Barone v. McRae & Holloway, 179 Ga. App. 812, 813 (1) (348 SE2d 320) (1986).

       See id.

       Id. (citation omitted).

       Id. at 813-814 (1) (citation and punctuation omitted); see Ga. State Licensing Bd. for Residential and General Contractors v. Allen, 286 Ga. 811, 817 (2) (692 SE2d 343) (2010); OCGA § 1-3-6 (“After they take effect, the laws of this state are obligatory upon all the inhabitants thereof. Ignorance of the law excuses no one.”).

       Id. at 814 (1); Ga. State Licensing Bd., supra; OCGA § 1-3-6.

       See OCGA § 9-11-4 (d) (5) (providing time for service of answer when waiver of service of summons is executed).

       See OCGA § 9-11-6 (b) (pertinently providing: “[T]he court for cause shown may at any time in its discretion ... upon motion made after the expiration of the specified period, permit [an] act to be done where the failure to act was the result of excusable neglect....”) (emphasis supplied).

        Barone, supra at 813-814 (1).

       See King v. State, 272 Ga. 788, 792 (1) (535 SE2d 492) (2000) (procedural due process means notice and an opportunity to be heard); King v. Pioneer Regional Educational Service Agency, 301 Ga. App. 547, 553 (1) (a) (688 SE2d 7) (2009) (“The substantive component of the Due Process Clause protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them.”) (citations and punctuation omitted).

       See OCGA § 9-11-4 (d) (5).

       OCGA § 9-11-4 (d) (6).

       See generally Montgomery v. USS Agri-Chemical Division, 155 Ga. App. 189, 191 (2) (270 SB2d 362) (1980) (“If... the fact of service appears, and the officer’s return is irregular or incomplete, it should not be treated as no evidence, but rather as furnishing defective proof of the fact of service. The irregularity may be cured by an amendment which does not make or state a new fact, hut merely supplies an omission in the statement as to an existing fact.... If there has been service and a voidable or defective return, it may be amended even after judgment, so as to save that which has been done under service valid in fact but incompletely reported to the court. For ... it is the fact of the service, rather than the proof thereon by the return, which is of vital importance.”).

        Magnan v. Miami Aircraft Support, 217 Ga. App. 855, 856 (1) (b) (459 SE2d 592) (1995) (citation omitted); see Court of Appeals Rule 25 (c) (2).

        Sierra-Corral Homes v. Pourreza, 308 Ga. App. 543, 544 (1) (708 SE2d 17) (2011) (punctuation and footnote omitted); see Cheeks v. Barnes, 241 Ga. 22, 23 (243 SE2d 242) (1978).

       See BellSouth Telecommunications v. Future Communications, 293 Ga. App. 247, 248 (666 SE2d 699) (2008) (when no answer is filed within the statutory period and the time for responding has not been extended, the case is automatically in default); OCGA § 9-11-55 (a).

       See Barone, supra at 814 (2); see also BellSouth Telecommunications, supra.

        Barone, supra (citation omitted).

       See id. at 812,814 (2) (defendant first filed a written motion to open the default ten days after plaintiff’s motion for default judgment was heard); Vibratech, Inc. v. Frost, 291 Ga. App. 133, 145 (2) (661 SE2d 185) (2008) (a factor for determining whether opening a default would be appropriate in a particular case includes whether the defaulting party acted promptly to open the default upon learning no answer had been either filed or timely filed; any additional delay occasioned by a failure to file promptly for opening default upon its discovery can be considered in determining whether a defendant’s neglect was excusable; here, attorneys who undertook to act for the defendant failed to move to open the default judgment until three months after filing an untimely answer, which was five months after the initial service of the lawsuit, and the trial court found that the defendant failed to provide a reasonable excuse for these delays).

        Barone, supra at 814 (2) (citations omitted).

       Id.

       Supra.

        Barone, supra at 814-815 (2) (citations omitted).

        EnduraCare Therapy Mgmt. v. Drake, 298 Ga. App. 809, 814 (1) (681 SE2d 168) (2009) (footnote omitted); Bridges v. Wooten, 305 Ga. App. 682, 683 (700 SE2d 678) (2010); Service-master Co. v. Martin, 252 Ga. App. 751, 752 (1) (556 SE2d 517) (2001) (while a default may operate as an admission by the defendant of the well-pled factual allegations in the plaintiffs complaint, it does not admit allegations not well pled, forced inferences, or conclusions of law).

       See OCGA § 9-11-10 (c), which pertinently provides: “A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” See also Lord v. Lowe, 318 Ga. App. 222, 223 (741 SE2d 155) (2012) (a copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes, and thus, in ruling on a motion to dismiss, a trial court is authorized to consider exhibits attached to and incorporated into the complaint).

        Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989) (citation omitted).

        Holder v. Brock, 129 Ga. App. 732 (2) (200 SE2d 912) (1973) (citations omitted) (overruled on other grounds by Tucker v. Chung Studio of Karate, 142 Ga. App. 818,820 (3) (237 SE2d 223) (1977)); OCGA § 9-11-9 (b).

        Freese II, Inc. v. Mitchell, 318 Ga. App. 662, 664 (2) (734 SE2d 491) (2012) (citations omitted); Servicemaster Co., supra at 752-753 (1) (a default does not preclude a defendant from showing that under the facts as deemed admitted, no claim existed which would allow the plaintiff to recover).

        Howard v. Hammond, 216 Ga. App. 703, 706 (1) (455 SE2d 390) (1995) (citations and punctuation omitted).

        Hayes v. Hallmark Apts., 232 Ga. 307, 308-309 (1) (207 SE2d 197) (1974) (citations and punctuation omitted); Howard, supra (where evidence showed that at the time of signing an agreement, defendant had no intention of abiding by terms of agreement, cause of action for fraud was supported); State Farm Mut. Automobile Ins. Co. v. Health Horizons, 264 Ga. App. 443, 447-448 (2) (590 SE2d 798) (2003) (complaint sufficiently stated fraud claim where plaintiff contended that it relied on insurance carrier’s promise to pay proper medical claims, which it never intended to do and in fact did not do, to the plaintiff’s detriment); compare Servicemaster Co., supra at 756-757 (2) (b) (where plaintiff did not specify which facts would support a finding that defendant owed plaintiff any duty independent of those created by a written contract, and complaint did not allege any false statements or concealment inducing plaintiff to provide ongoing or future services, complaint failed to allege a claim for fraud); Holder, supra (part of the complaint which alleged claim for damages for fraud was insufficient as a matter of law where allegation of fraud was limited to legal conclusion that plaintiffs were induced to enter into a contract through fraud).

        Servicemaster Co., supra at 752 (1) (footnote omitted).

       2 62 Ga. App. 521 (585 SE2d 917) (2003).

       Id. (citations omitted).

        Pazur v. Belcher, 290 Ga. App. 703,705 (1) (659 SE2d 804) (2008) (citations and footnotes omitted; emphasis supplied).

        Freese II, Inc., supra at 665 (2).

        Servicemaster Co., supra (citation omitted).

        Medical Office Mgmt. v. Hardee, 303 Ga. App. 60, 66-67 (2) (b) (693 SE2d 103) (2010) (punctuation and footnotes omitted); see Gray v. King, 270 Ga. App. 855, 858 (2) (b) (608 SE2d 320) (2004) (testimony from plaintiffs own attorney would have sufficed to establish reasonableness of fees, but such was not introduced).

        First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (4) (285 SE2d203) (1981) (citations omitted).

        Nichols v. Main Street Homes, 244 Ga. App. 591, 594 (2) (b) (536 SE2d 278) (2000) (citations and punctuation omitted).

        Hsu’s Enterprises v. Hospitality Inti., 233 Ga. App. 309, 311 (2) (502 SE2d 776) (1998) (citation omitted).

       See Medical Office Mgmt., supra (where plaintiffs attorney described the services he provided on behalf of his client and stated in his place that the reasonable value of his services was $12,500, testimony was sufficient to establish reasonableness of fee); Long v. Marion, 182 Ga. App. 361, 366-367 (6) (355 SE2d 711) (1987) (attorney’s testimony that the appellee was charged at the bottom of the rate range of the prevailing attorney fees in the county and that the hours expended were within the range of the reasonable number of hours which would have been utilized to prepare the case was sufficient evidence of the reasonableness of the fees); compare In re Serpentfoot, 285 Ga.App. 325, 329 (4) (b) (646SE2d267) (2007) (although counsel stated in his place the amount of the fees paid by client, the hourly billing rate used to calculate those fees, and the fact that the time was expended to answer four petitions and discovery, counsel did not state the number of hours worked on the case or that the fees incurred were reasonable; court vacated portion of judgment awarding attorney fees and remanded the case to the trial court to hold an evidentiary hearing on the amount of the fees); Gray, supra (where plaintiff testified as to his attorney’s hourly rate, the number of hours spent by the attorney on depositions and trial preparation, and the amount of the fees, but there was no testimony by any witness as to the reasonableness of the fees, portion of judgment awarding attorney fees was vacated and case was remanded for a hearing on the amount of attorney fees).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A12A2405.
    THOMPSON v. THE STATE.
    (743 SE2d 24)
   McFadden, Judge.

Ayrton Thompson appeals from his conviction for burglary. A resident of the burgled house identified him in a pretrial photographic lineup and later in court at his jury trial. Thompson argues that the trial court should not have allowed evidence of either identification because the pretrial photographic lineup was impermissibly suggestive and it tainted the later in-court identification. We affirm, because there was evidence to show that the witness had an independent basis for the in-court identification and Thompson did not preserve for appellate review his objection to the pretrial identification.

1. Facts and procedural background.

The night of April 24, 2009, the witness awoke to find two men in her house and her grandson’s game console disconnected and placed on the floor near a door leading to her garage. She testified at trial that she got a clear view of the two men and recognized them as neighbors and acquaintances of her daughter. They had spent time at the witness’s house, and she had seen them around the neighborhood over a period of eight to ten years. She knew one of the men by his name, Cyrus Love, but did not know the second man’s name. The witness told the men to get out of her house, and they left; she then called the police.

The witness subsequently described the second man to her daughter, who told the witness that she knew him as “A. T.” The witness gave this information to the police, who determined that Ayrton Thompson was an acquaintance of Cyrus Love. On May 13, an officer showed the witness a photographic lineup containing Thompson’s picture. From the lineup, she immediately identified Thompson as the second man involved in the burglary.

Thompson moved to suppress this pretrial identification and any subsequent identification of him by the witness at trial. After a hearing, the trial court denied the motion on the grounds that the photographic lineup had not been impermissibly suggestive and that the witness knew Thompson and had recognized him at the time of the burglary. At trial, the state introduced evidence of the pretrial identification, to which Thompson’s counsel stated that she had no objection. Also at trial, the witness identified Thompson as one of the burglars.

2. In-court identification.

Thompson argues that the witness’s in-court identification of him was inadmissible because it was tainted by a pretrial identification based upon an impermissibly suggestive photographic lineup, and he advocates for us to adopt stricter requirements for pretrial identification procedures. But even if the pretrial identification was tainted, the witness’s later in-court identification of Thompson as the second burglar was not inadmissible, because it “[did] not depend upon the prior identification but ha[d] an independent origin.” (Citation and punctuation omitted.) Wilson v. State, 275 Ga. 53, 59 (3) (562 SE2d 164) (2002).

The witness testified that her identification of Thompson was based on her familiarity with him as a neighbor and friend of her daughter over a period of years. Consequently, her identification of Thompson in court was admissible even if the pretrial identification procedures were impermissibly suggestive. See Humphrey v. State, 281 Ga. 596, 597-598 (1) (642 SE2d 23) (2007) (witness’s identification of defendant at trial did not depend on prior identification but had independent origin where witness knew defendant by sight from living in same apartment complex, clearly viewed defendant leaving crime scene, and testified that he had “known all along” the identity of the person he had seen; thus, in-trial identification was admissible even if pretrial identification procedure was tainted). See also Escobar v. State, 279 Ga. 727, 729 (2) (620 SE2d 812) (2005); Fletcher v. State, 277 Ga. 795, 797 (3) (596 SE2d 132) (2004); Wilson, 275 Ga. at 59 (3).

3. Pretrial identification.

Thompson argues that the trial court erred in denying his motion to suppress evidence of the witness’s pretrial identification of him, but when, at trial, the state sought to admit evidence of the photographic lineup and the witness’s identification of Thompson from that lineup, Thompson’s counsel stated: “No objection.” “In so doing, counsel waived any objection, including those raised in his motion to suppress.” (Citation omitted.) Monroe v. State, 272 Ga. 201, 204 (6) (528 SE2d 504) (2000); see also Dyer v. State, 233 Ga. App. 770, 771 (505 SE2d 71) (1998) ([‘[flailing to object at trial is not a waiver of the motion to suppress grounds, but affirmatively stating there is no objection in effect concedes the point”) (citations omitted; emphasis in original).

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.

Decided February 27, 2013.

Mary Erickson, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.


author: PHIPPS, Presiding Judge.

text:
    A12A2546.
    HALL v. THE STATE.
    (739 SE2d 61)
   PHIPPS, Presiding Judge.

Steven Hall appeals his convictions for two counts of child molestation, two counts of enticing a child for indecent purposes, statutory rape, and sexual battery, involving two children. Hall contends that his convictions should be reversed because the trial court erred in excluding evidence which showed that one of the children had engaged in sexual intercourse with a man other than Hall approximately thirty minutes before her alleged molestation by Hall. We affirm.

The evidence, viewed in the light most favorable to the verdict, showed that Hall offered two girls under the age of sixteen money for sex. He then engaged in sexual intercourse with and performed oral sex on one of the girls, while in the presence of the other girl. The state’s witnesses included the two girls, the mother of one of the girls, a police officer who responded to the scene of the incident, and another police officer who interviewed the girls at a police station. Before the presentation of evidence, the state informed the court that it would not introduce any medical testimony (of injury that could have been attributed to sexual intercourse with the other individual) and, indeed, at trial, the state presented no testimony from medical experts.

Notwithstanding, Hall contends that, as to the victim against whom he was convicted of statutory rape, the state had elicited what amounted to medical testimony warranting the introduction of evidence that the victim had previously engaged in sexual intercourse with another individual. Hall points to the following colloquy:

Q: (By [prosecutor]) All right. And how has this incident affected you?
A: (No response)
Q: Well, let me ask you this. Are you usually this soft spoken?
A: No, ma’am.
Q: What do you — how are you normally in everyday life?
A: Happy, and feel comfortable to go outside.
Q: And how do you feel since this happened?
A: Embarrassed and ashamed, like I’d been taken advantage of.
Q: Have you had to seek counseling?
A: Yes, ma’am.
Q: And, finally, do you see the man that assaulted you that night in the courtroom?
A: Yes, ma’am.
Q: Can you point him out or say what he is wearing?
A: A yellow shirt.
Q: Okay.
[PROSECUTOR]: Let the record reflect that she has identified the defendant.
THE COURT: Okay. It will reflect that. [Defense attorney] do you have further questions?

Defense counsel argued at trial that by this colloquy, the state had opened the door to the introduction of the victim’s prior sexual involvement with another individual. But the trial court disagreed and ruled that the introduction of the victim’s alleged prior sexual involvement with another individual was not relevant to the case. We agree.

Relevant evidence is that “which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue.” “As a general rule, the admission or exclusion of evidence on the grounds of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed without a showing of a clear abuse of that discretion.”

Absent a showing of relevance, evidence of a child’s past sexual history, including acts committed by persons other than the accused, is inadmissible. Moreover, evidence of a prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or her preoccupation with sex. However, this court also has held that where the State introduces medical testimony indicating that the child has been sexually abused or evidence of child abuse accommodation syndrome and connects the child’s behavior to that syndrome, evidence that the victim may have been molested by someone other than the accused may be admissible to establish other possible causes for the behavioral and medical symptoms exhibited by the child.

The child sexual abuse accommodation syndrome has been described by experts as a “pattern of behavior” which is “used as an aid in determining whether a child has been abused.” In Keri v. State, an expert trained in psychiatry and psychology testified as to five categories of the child sexual abuse accommodation syndrome.

Here, however, Hall concedes that “in this case no evidence of child abuse accommodation syndrome is presented.” Relying on Hall v. State, and Blackwell v. State, he contends, rather, that as laid out above, the state elicited testimony that the victim received “psychological injuries of embarrassment, shame, and a need for counseling,” which could have been related to not just the sexual acts involving Hall, but the “combination of sexual acts during the course of the evening.” But Hall is distinguishable, and reliance on Blackwell is misplaced.

In Hall, a pediatrician who had examined an alleged victim of child molestation testified that he found evidence of both an old trauma to the victim’s hymenal ring and a fresh abrasion on the labia minor which was not more than two weeks old and was consistent with finger manipulation. A clinical psychologist testified that the victim was depressed, hostile toward adults, and that her behavior was consistent with the pattern of behavior known as child sexual abuse accommodation syndrome, which he described and explained. Reversing the conviction on the basis of the trial court’s exclusion of evidence showing a prior sexual molestation of the victim and a report of other previous sexual activity, this court held that although evidence of those prior acts may not be admissible to show either the victim’s reputation for nonchastity or her preoccupation with sex, such evidence may be admissible to “establish other possible causes for the behavioral symptoms exhibited by the child, which were described as typical of child sexual abuse accommodation syndrome, and to explain the medical testimony regarding her injuries.”

In Blackwell, there was no indication that medical expert testimony was presented at trial. The evidence adduced showed that not long after the defendant befriended a small child, the child began acting differently. The child was afraid to go to the bathroom alone; he wanted others to turn on the lights for him; and when the defendant stopped at his home, the child hid behind his mother’s legs and ignored the defendant’s request to shake his hand. Affirming the trial court’s ruling prohibiting the defendant from cross-examining the child’s mother about her prior denial of any knowledge of previous sexual abuse of the child, this court distinguished Hall, and held that there was no evidence adduced that the child had exhibited “physical or psychological injuries which would warrant the admission of proof that they were caused by someone other than [the defendant].” There, evidence about the child’s conduct did not amount to evidence of either physical or psychological injuries.

We do not agree with Hall that the victim’s testimony that she sought counseling after the incident with Hall constituted “medical testimony indicating that [she had] been sexually abused.” Nor has Hall shown that the victim’s testimony that she felt embarrassed and ashamed amounted to medical testimony, or that feelings of embarrassment and shame were “psychological injuries,” as he contends. Indeed, this court has found “medical testimony indicating that [a] child has been sexually abused” in cases where medical doctors testified as to their findings after they examined intimate body parts. Accordingly, the trial court did not abuse its discretion in excluding evidence of prior sexual abuse committed by a person other than Hall on the ground that such evidence was irrelevant.

Decided February 27, 2013.

Kristin I. Patten, for appellant.

Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District Attorney, for appellee.

Judgment affirmed. Ellington,

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

        Hall v. State, 282 Ga. 294, 297 (3) (647 SE2d 585) (2007) (on appeal, we must view the evidence in the light most favorable to the verdict).

       As to this child, Hall also was convicted of child molestation, enticing a child for indecent purposes, and sexual battery.

        Owens v. State, 248 Ga. 629, 630 (284 SE2d 408) (1981) (citations and punctuation omitted); Britt v. State, 282 Ga. 746, 749 (1) (653 SE2d 713) (2007).

        Holmes v. State, 275 Ga. 853, 855 (5) (572 SE2d 569) (2002) (citation and punctuation omitted).

        Chambers v. State, 213 Ga. App. 284, 286 (1) (b) (444 SE2d 833) (1994) (citations and punctuation omitted).

        Hall v. State, 196 Ga. App. 523, 524 (396 SE2d 271) (1990).

        Keri v. State, 179 Ga. App. 664, 665 (1) (347 SE2d 236) (1986).

       Id.

       Id. at 665-666 (1) (the five categories were secrecy, helplessness, entrapment and accommodation, delayed disclosure or conflicting disclosure, and retraction); see Allison v. State, 256 Ga. 851, 852 (1) (353 SE2d 805) (1987).

       Supra, 196 Ga. App. 523.

       229 Ga. App. 452 (494 SE2d 269) (1997).

       Supra, 196 Ga. App. 523.

       Id. at 523-524.

       Id.

       Id. at 524-526 (2).

       Id. at 525 (2).

       Supra.

       Id. at 452-453.

       Id. at 453.

       Supra, 196 Ga. App. 523.

        Blackwell, supra at 454 (2).

        Chambers, supra.

       Id.

       Id.

       Id.; Burris v. State, 204 Ga. App. 806-807, 810 (2) (420 SE2d 582) (1992); Hall, supra at 525 (2); compare Brown v. State, 280 Ga. App. 884, 886 (1) (635 SE2d 240) (2006) (no medical evidence adduced which showed that child had been sexually abused where the state did not call to the witness stand the doctor who had examined the child).

       See Segura v. State, 280 Ga. App. 685, 688 (3) (634 SE2d 858) (2006); Holmes, supra; Blackwell, supra at 454 (2).


author: Boggs, Judge.

text:
    A12A1693.
    SIX FLAGS OVER GEORGIA II, L.P. et al. v. MARTIN.
    (743 SE2d 25)
   Boggs, Judge.

We granted an interlocutory appeal in this case to consider whether the trial court erred by granting a motion in limine preventing defendants from arguing and seeking an apportionment of damages under OCGA § 51-12-33. In light of the Supreme Court of Georgia’s recent opinion in Couch v. Red Roof Inns, 291 Ga. 359 (729 SE2d 378) (2012), we reverse.

The record shows that Joshua Martin was assaulted by four individuals at a Cobb County Transit bus stop located near Six Flags Over Georgia. Martin subsequently filed a complaint for his injuries against these four individuals, Six Flags Over Georgia II, L.P, SFOG II, Inc., SFG-II, LLC, Six Flags Over Georgia, LLC (collectively “Six Flags”), and Midtown Lanier Parking, Inc. (“Lanier Parking”). Martin alleged that Six Flags and Lanier Parking negligently failed to provide adequate security and negligently failed to keep their premises safe. He also asserted that the four individuals assaulted and battered him and that as a result of their action and the inaction of Six Flags and Lanier Parking, he suffered damages.

Decided February 28, 2013.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Earl W. Gunn, Shannon V. Barrow, Carlock, Copeland & Stair, Charles M. McDaniel, Jr., Wayne D. McGrew III, Kim M. Ruder, for appellants.

Deitch & Rogers, Gilbert H. Deitch, Andrew T. Rogers, Michael L. Neff, for appellees.

Martin subsequently moved for “partial summary judgment that OCGA § 51-12-33 is not applicable and OCGA § 51-12-33 is unconstitutional as written or applied or in the alternative motion in limine to exclude all evidence and all arguments of apportionment pursuant to OCGA § 51-12-33.” Martin also sought to prevent “any apportionment instruction of law to the jury.” The trial court declined to rule on the constitutional issues and granted only the motion in limine, finding that apportionment under OCGA § 51-12-33 is not available “in premises liability cases where one Defendant is alleged to have committed an intentional tort.” The trial court reasoned that permitting apportionment “would effectively allow the premises owner to shield itself from any potential liability based upon an alleged breach of its own duty, if any, because the fact finder would apportion all damages against the criminal actor.”

Following the trial court’s ruling and while this case was pending on appeal, the Supreme Court of Georgia held in Couch, supra, that “proper statutory construction mandates a finding that ‘fault,’ as used in OCGA § 51-12-33, encompasses intentional torts.” 291 Ga. at 365. We therefore conclude that the trial court erred by granting Martin’s motion in limine. Id. See Accor North America v. Todd, 318 Ga. App. 317 (733 SE2d 846) (2012).

Judgment reversed.

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

       Willie Gray Franklin, Jr., Brad McGail Johnson, Deandre Evans, and Claude Morey III.

       Appellants’ remaining enumeration of error is therefore rendered moot.


author: MILLER, Presiding Judge.

text:
    A12A2462.
    H. J. WINGS AND THINGS v. GOODMAN et al.
    (739 SE2d 64)
   MILLER, Presiding Judge.

Patricia Goodman and Harold Goodman sued H. J. Wings and Things (“Wings and Things”) to recover for personal injuries that Mrs. Goodman allegedly sustained when she slipped and fell during a visit to a Wings and Things restaurant. Wings and Things filed a motion for summary judgment, which the trial court denied. We granted Wings and Things’s application for an interlocutory appeal of the trial court’s denial of its motion for summary judgment. On appeal, Wings and Things contends that it was entitled to summary judgment because the evidence showed that Mrs. Goodman could not identify any specific hazard that caused her to slip and fall, and that the restaurant did not have actual or constructive knowledge of any hazard on its premises. Since we agree that the evidence in the record does not show the presence of a hazard that caused Mrs. Goodman to fall, we reverse.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. A defendant may prevail on summary judgment by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.

(Citations and punctuation omitted.) Belk Dept. Store of Charleston, S.C. v. Cato, 267 Ga. App. 793, 793-794 (600 SE2d 786) (2004).

So viewed, the record shows that on an afternoon in January 2010, Mrs. Goodman visited the Wings and Things restaurant to pick up a food order, as she had done many times before. Mrs. Goodman entered through the front door, walked through the lobby, and proceeded to the order counter. When she was a few steps away from the order counter, Mrs. Goodman suddenly slipped and fell backward. Mrs. Goodman hit her neck and back on the concrete floor. Mrs. Goodman believed that she slipped and fell because the floor was heavily waxed. Mrs. Goodman stated that portion of the cement floor where she fell was “really slippery and shiny looking.”

Upon Mrs. Goodman’s fall, a Wings and Things employee helped Mrs. Goodman to her feet and directed her to the counter to speak with the restaurant’s manager. The manager confirmed that Mrs. Goodman was okay and collected Mrs. Goodman’s personal information. By the time Mrs. Goodman finished speaking with the manager, her food was ready. Mrs. Goodman paid for her food, and at the direction of the manager walked around the area where she slipped to exit the restaurant.

As a result of her slip and fall, Mrs. Goodman suffered injuries to her neck, arms, shoulders, and lower back, which required ongoing medical treatment. Mrs. Goodman filed the instant lawsuit against Wings and Things, contending that it had breached its duty of care to keep the restaurant safe by failing to remove the excess wax or viscous substance from the floor. Wings and Things denied liability and moved for summary judgment. The trial court denied Wings and Things’s motion for summary judgment, finding that issues of fact remained as to the existence of a hazard and whether Wings and Things had superior knowledge of the hazard.

1. On appeal, Wings and Things contends that the trial court erred in denying its motion for summary judgment because the evidence showed that Mrs. Goodman could not identify any specific hazard that caused her to slip and fall. We agree.

In order to recover in a premises liability case, a plaintiff must establish fault on the part of the owner and the invitee’s ignorance of the danger. See Flagstar Enterprises v. Burch, 267 Ga. App. 856, 857 (600 SE2d 834) (2004). “The true basis of a proprietor’s liability for personal injury to an invitee is the proprietor’s superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm.” (Citation and punctuation omitted.) Id. “Proof of a fall, without ihore, does not create liability on the part of a proprietor or landowner. It is common knowledge that people fall on the best of sidewalks and floors.” (Citations and punctuation omitted.) Id. at 856-857. “Indeed, to presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state.” (Citations and punctuation omitted.) Belk Dept. Store, supra, 267 Ga. App. at 794.

When the plaintiff cannot show the existence of a hazardous condition, she cannot prove the cause of her injuries and “there can be no recovery because an essential element of negligence cannot be proven.” (Citations and punctuation omitted.) Pinckney v. Covington Athletic Club and Fitness Center, 288 Ga. App. 891, 893 (655 SE2d 650) (2007); see also Belk Dept. Store, supra, 267 Ga. App. at 794. “A mere possibility of causation is not enough and when the matter remains one of pure speculation or conjecture, it is appropriate for the court to grant summary judgment to the defendant.” (Citation and punctuation omitted.) Pinckney, supra, 288 Ga. App. at 893. As a result, Mrs. Goodman “had to prove more than the existence of a slick or wet floor. [She] had to prove that the condition of the floor constituted an unreasonable hazard and that [Wings and Things] had superior knowledge of that hazard.” (Citation and punctuation omitted.) Flagstar Enterprises, supra, 267 Ga. App. at 858.

Here, Mrs. Goodman has not shown the existence of a hazardous condition that caused her to fall. Specifically, Mrs. Goodman testified that she did not see any foreign substance on the floor that caused her to fall. Mrs. Goodman speculated that she fell because the floor was heavily waxed, as it appeared to be “really slippery and shiny looking.” She pointed to no evidence, however, showing that the floor was waxed, much less heavily waxed. Rather, Wings and Things provided unrefuted evidence showing that the restaurant did not use wax on its floors.

While Mrs. Goodman relies upon evidence that the Wings and Things manager cleaned the area after she fell to show that Wings and Things had knowledge of a hazard, this evidence was inadmissible.

Evidence of subsequent remedial measures generally is inadmissible in negligence actions, because the admission of such evidence basically conflicts with the public policy of encouraging safety through remedial action, for the instituting of remedial safety measures might be discouraged if such conduct is admissible as evidence of negligence.

(Citation and punctuation omitted.) Henson v. Ga.-Pacific Corp., 289 Ga. App. 777, 780-781 (1) (658 SE2d 391) (2008). Such evidence may be admissible for the limited purpose of showing contemporary knowledge of the defect. See Thomas v. Dept. of Transp., 232 Ga. App. 639, 641 (1) (502 SE2d 748) (1998). However, it is presumed that evidence of subsequent remedial measures submitted by a plaintiff is for the purpose of showing that the defendant recognizes and admits his negligence. See id.

In this case, Mrs. Goodman failed to demonstrate that the evidence of Wings and Things’s subsequent cleaning was relevant for some purpose other than to show that the restaurant recognized and admitted its liability. The remedial measures could not show contemporary knowledge of a heavily waxed floor, since the undisputed evidence established that the floors were not waxed. Therefore, Mrs. Goodman failed to rebut the presumption that the evidence of subsequent remedial measures was inadmissible. See Henson, supra, 289 Ga. App. at 781 (1). Moreover, “the undertaking of remedial measures after the accident does not demonstrate that [Wings and Things] had knowledge of any hazardous condition prior to the accident.” (Punctuation omitted.) Thomas, supra, 232 Ga. App. at 642 (1).

Decided February 28, 2013.

Swift, Currie, McGhee & Hiers, Andrae P. Reneau, for appellant.

Kimberly A. Ellison, Graylin C. Ward, for appellees.

Although the floor was shiny, the fact that Mrs. Goodman fell does not prove that the floor’s condition constituted an unreasonable hazard. See Gross v. Frank’s Warehouse Foods, 192 Ga. App. 539, 541 (385 SE2d 688) (1989); Flagstar Enterprises, supra, 267 Ga. App. at 858. Since Mrs. Goodman has failed to present admissible evidence creating a genuine issue of material fact as to the existence of a hazardous condition, her and her husband’s causes of action must fail, and Wings and Things was entitled to summary judgment. See Gross, supra, 192 Ga. App. at 541 (summary judgment properly granted to defendant where plaintiff claimed that overwaxed floor caused her to slip and fall where she perceived the floor to be shiny, but offered no evidence showing that defendant negligently waxed the floor); see also Pinckney, supra, 288 Ga. App. at 893 (summary judgment properly granted to defendant because plaintiff “assumed” that slime caused her to fall). Accordingly, we reverse the trial court’s denial of Wings and Things’s motion for summary judgment.

2. In light of our decision in Division 1, we need not address Wings and Things’s other enumeration of error.

Judgment reversed.

Ray and Branch, JJ., concur.

       As part of the lawsuit, Mr. Goodman asserts a claim for loss of consortium.

       To the extent Mrs. Goodman relied upon the depositions of Carol McKnight and Eve Harness to show the existence of a hazardous condition, the deposition transcripts were not included in the appellate record.
      [T]he burden is upon the party asserting error to show it affirmatively in the record. Furthermore, it is the responsibility of the parties, not this [C]ourt, to ensure that all documents relevant to the disposition of an appeal are duly filed with the clerk of this [C]ourt before the issuance of our appellate decision.
      (Footnote omitted.) AdvanceMe, Inc. v. Finley, 275 Ga. App. 415,416 (1) (620 SE2d 655) (2005). In light of the absence of the deposition transcripts in the record, we cannot review the evidence cited to therein.


author: Branch, Judge.

text:
    A12A2001.
    MARRIOTT v. THE STATE.
    (739 SE2d 68)
   Branch, Judge.

Shane Elizabeth Marriott was tried by a Hall County jury and convicted of five counts of theft by receiving stolen property and one count of theft by deception. She now appeals from the denial of her motion for a new trial, asserting that the evidence was insufficient to sustain her convictions for theft by receiving. Marriott further contends that the trial court committed plain error in instructing the jury on the elements of theft by receiving and in refusing to instruct the jury as to her sole defense on the charge of theft by deception. We find no reversible error and affirm.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that on either June 4 or June 5, 2009, Marriott’s parents contacted the Hall County Sheriff’s Department and reported a burglary at their home. Specifically, Marriott’s father told the responding officer that a number of guns were missing from his gun closet. The father subsequently told the investigator assigned to the case that he suspected his daughter, Marriott, had stolen the guns. His suspicions were based on the facts that Marriott and her parents were not on good terms at the time, that Marriott had a key to the house, and that she was the only person other than her father who knew where he kept the keys to the gun closet. Additionally, on the day they discovered the guns missing, the parents had been contacted by their next-door neighbor who reported that she had seen a car resembling Marriott’s parked in the parents’ driveway while they were gone from the house. Marriott’s father testified to the foregoing facts at trial, and also stated that he had given Marriott neither any of his guns nor permission to sell any of them.

Based on this information, the investigator and a second officer with the Hall County Sheriff’s Department traveled to Marriott’s residence in Gwinnett County to interview her on June 18, 2009. During that interview, Marriott stated that she had no guns and that the only gun in the residence belonged to her boyfriend. After the officers asked for and received permission to search the apartment, she produced for them a bag of ammunition containing bullets of a number of different calibers. Marriott told the investigators that the ammunition belonged to her ex-husband, who owned a 9mm pistol. The bag, however, contained no 9mm ammunition, and Marriott’s ex-husband testified at trial and denied any knowledge of the bag or the bullets therein. Additionally, Marriott volunteered to the officers that the ammunition in the bag was similar in caliber to guns owned by her father.

After investigators found none of the missing guns in Marriott’s apartment, they asked her if she had pawned or sold any guns recently. Marriott responded that she had not, noting that the only item she had pawned recently was a necklace.

Officers interviewed Marriott a second time on July 29, 2009, at which time she indicated that she did have some knowledge of the missing guns, but that she wanted to speak with her father before discussing the matter further with law enforcement. Marriott told the lead investigator that she needed until 1:00 p.m. that day to reach her father and that she would call the investigator after that time. Marriott never contacted the officer.

On the day after his second interview of Marriott, the investigator discovered that on May 4 and June 10, 2009, she sold a total of six guns to a gun shop located in Hall County. Five of those guns were among those reported stolen by Marriott’s father. The proprietor of the store testified that Marriott told him that she had inherited the guns. He also explained that the store paid Marriott a total of $1,000 for the firearms, and that it then resold them to third parties. After learning that the guns had been stolen, the store repurchased them from its customers and returned the guns to law enforcement.

On July 31, 2009, the investigator learned that on May 27, May 28, and June 4, 2009, Marriott had sold eight guns to a gun shop in Gwinnett County. All of these guns were among those reported stolen from Marriott’s father. An employee of the store testified at trial that, when she sold the guns, Marriott told him that they had belonged to her father, who had recently passed away.

After discovering that Marriott had sold 13 of her father’s stolen guns, the investigator and another officer interviewed her for a third time. When confronted with the evidence that she had sold the firearms to a third party, Marriott stated that her father had given her the guns.

Marriott was subsequently indicted in Hall County on thirteen counts of theft by taking, thirteen counts of theft by receiving, and one count each of burglary and theft by deception. The trial court directed a verdict of acquittal on the eight counts of theft by receiving related to Marriott’s sale of guns to the store in Gwinnett County, based upon the State’s inability to prove venue as to those counts. The jury found Marriott not guilty of the burglary count and all thirteen counts of theft by taking, but found her guilty of the five counts of theft by receiving based on her sale of guns to the Hall County gun store. The jury also found her guilty of theft by deception, based on her taking $1,000 from the Hall County store in exchange for the stolen guns. Marriott now appeals from the denial of her motion for a new trial.

1. We first address Marriott’s claim that the evidence is insufficient to sustain her convictions for theft by receiving. “When we consider whether the evidence is sufficient to sustain a conviction, we ask 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 and punctuation omitted.) Louisyr v. State, 307 Ga. App. 724, 727-728 (1) (706 SE2d 114) (2011). As we have explained before,

it is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. So, if the record contains some competent evidence to prove each element of the crime [s] of which the defendant was convicted, even though that evidence may be contradicted, we must uphold the conviction.

(Citations and punctuation omitted.) Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010).

Under Georgia law, “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.” OCGA § 16-8-7 (a). The purpose of this offense is to punish a “person who buys or receives stolen goods, as distinct from the principal thief [of those goods]. An essential element of the crime of theft by receiving is that the goods Pie] stolen by some person other than the accused.” (Citations and punctuation omitted.) Thomas v. State, 261 Ga. 854, 855 (1) (413 SE2d 196) (1992). Thus, if at trial there is presented “direct and uncontested evidence [that] identifies the defendant as the original thief, the defendant cannot be convicted of theft by receiving.” (Punctuation and footnote omitted.) Fields v. State, 310 Ga. App. 455, 456-457 (1) (714 SE2d 45) (2011).

Relying on the foregoing law, Marriott argues that because the only evidence presented at trial showed she was the person who stole the guns, she cannot be convicted of receiving them. This argument, however, mischaracterizes the evidence of record and fails to take into account relevant law. That law shows that for an appellate court to overturn a conviction for theft by receiving on the grounds urged by Marriott, there must be “direct and uncontested evidence^]” as opposed to merely circumstantial evidence, “identifying] the defendant as the original thief.” (Citation omitted.) Phillips v. State, 269 Ga. App. 619, 631 (10) (604 SE2d 520) (2004) (overturning conviction for theft by receiving where defendant admitted taking jewelry in question and pawning it, but defended on the grounds that he was the rightful owner). See also Fields, 310 Ga. App. at 457 (1) (overturning conviction for theft by receiving where evidence showing that defendant stole the computers at issue included “video and still photographs, clearly revealing [defendant’s] unobstructed face and body from several angles, depicting him as the thief stealing the laptops”) (footnote omitted). A conviction for theft by receiving will not be overturned, however, where, as here, neither party offers conclusive evidence to establish the defendant’s identity as the thief and instead there is only “circumstantial evidence from which guilt of either theft by taking or receiving could be inferred.” Duke v. State, 153 Ga. App. 204-205 (264 SE2d 721) (1980).

For example, in Duke this Court rejected the defendant’s argument that as the evidence showed he had stolen the beer at issue, that evidence could not sustain his conviction for theft by receiving. The evidence showed that the beer was stolen from a tavern in which the defendant had been seen several times on the night of the theft; the beer was found in the defendant’s car, which was parked behind the tavern; the policeman responding to the report of the crime saw “a person closely resembling defendant leave the area and run up the street”; and when he was apprehended, the defendant had a white, chalky substance on his pants similar to a substance found on the window sill where the thief had entered the tavern. Id. at 204. The defendant, however, denied breaking into the tavern and stealing the items. Noting that this evidence was only circumstantial “from which guilt of either theft by taking or receiving could be inferred,” we declined to overturn the conviction. Id. at 205. See also Robinson v. State, 215 Ga. App. 125, 126 (1) (449 SE2d 679) (1994) (upholding defendant’s conviction for theft by receiving where there was “no uncontradicted evidence which demanded a finding that defendant was the thief” and instead “the evidence... was sufficient to establish defendant’s guilt of either theft by taking or theft by receiving”) (citation and punctuation omitted).

Moreover, and despite Marriott’s assertions to the contrary, in a prosecution for theft by receiving stolen property, where the identity of the principal thief is either uncertain or unknown, “there is no burden on the State to prove that the thief was not the defendant.” (Citation and punctuation omitted.) Petty v. State, 271 Ga. App. 547, 549 (1) (610 SE2d 169) (2005) (evidence sufficient to sustain defendant’s conviction for theft by receiving included fact that defendant was found driving stolen car without an ignition key; car’s steering column was damaged; screwdriver was found on seat next to defendant; when stopped by police, defendant claimed ownership of car; and there was no direct evidence identifying the car thief). Additionally, the State may charge a defendant with both theft by taking and theft by receiving the same property. Such charges may be brought in the alternative and the jury allowed to determine of which crime the defendant was guilty, depending on the State’s ability to carry its burden of proof with respect to the identity of the thief. Rivers v. State, 225 Ga. App. 558, 560 (1) (484 SE2d 519) (1997) (affirming defendant’s conviction for theft by receiving where he had also been charged with, but not convicted of, theft by taking of the same property).

Here, the evidence identifying Marriott as the person who took the guns from her parents’ house was neither direct nor conclusive. For example, the burglary with which Marriott was charged was reported on, and was believed to have occurred on, either June 4 or June 5,2009. Testimony and documentary evidence, however, showed that Marriott sold at least three of the guns before those dates, on May 4, 27, and 28, 2009. Additionally, although the parents’ next-door neighbor testified that she saw a car resembling Marriott’s parked in her parents’ driveway, the neighbor could not state conclusively the date on which she saw the car or that the car was, in fact, Marriott’s. Nor did the neighbor or any other witness testify that she actually saw Marriott at the house. And while Marriott’s father testified that he believed she was the only person other than himself who knew where the keys to the gun closet were located, he acknowledged that the keys were readily accessible in an unlocked cabinet located near the closet.

While this evidence, together with the evidence that Marriott had sold 13 of her father’s guns, may well have sufficed to sustain a conviction for theft by taking, it did not demand her conviction for that crime. Indeed, the fact that the jury acquitted Marriott of the one count of burglary and thirteen counts of theft by taking with which she was charged shows that it had doubts about her identity as the person who stole the guns. Accordingly, in the absence of direct, conclusive evidence identifying Marriott as the initial thief of the guns, “the jury could infer that [she] was guilty of theft by receiving.” (Citations omitted.) Petty, 271 Ga. App. at 548-549 (1).

2. We now turn to Marriott’s claims of error premised on the trial court’s jury instruction on theft by receiving. As Marriott acknowledges, she did not object to the jury charge at trial. Thus, we review these claims only for “plain error.” State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011); OCGA § 17-8-58 (b). And in determining whether a defendant can show plain error with respect to a jury charge, we ask:

whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings. If all three of these questions are answered in the affirmative, the appellate court has the discretion to reverse if the error seriously affects the fairness, integrity, or public reputation of the proceedings below. Satisfying all four prongs of this standard is difficult, as it should be.

(Citations and punctuation omitted.) Kelly, 290 Ga. at 33 (2) (a).

We find that Marriott cannot demonstrate plain error with respect to the charge of theft by receiving.

(a) Marriott contends that the court’s charge on theft by receiving was incorrect as a matter of law because it failed to inform the jury that the crimes of theft by taking and theft by receiving were mutually exclusive, and therefore to convict Marriott of theft by receiving they had to conclude that someone other than Marriott stole the firearms at issue.

We agree with Marriott that, under Georgia law, where a defendant has been charged with both theft by taking and theft by receiving, and the evidence would support a conviction for either, the jury should be charged “that it can convict of either..., but not both.” Thomas, 261 Ga. at 856 (2). See also Ingram v. State, 268 Ga. App. 149, 152 (5) (601 SE2d736) (2004). In light of the evidence in this case, therefore, the court should have so instructed the jury. Given that the jury acquitted Marriott of all thirteen counts of theft by taking, however, we cannot conclude that the trial court’s failure in this regard constitutes harmful, much less plain, error. In other words, we find it highly unlikely that the erroneous jury charge affected the outcome of Marriott’s trial. See Williams v. State, 300 Ga. App. 839, 844 (3) (a) (686 SE2d 446) (2009) (an erroneous jury charge is harmless where “it is highly probable that it did not contribute to the verdict”). Compare Thomas, 261 Ga. at 855 (overturning defendant’s conviction where trial court failed to charge the jury that he could not be convicted of both theft by taking and theft by receiving, and the jury found him guilty of both).

(b) Marriott also asserts that the trial court erred by failing to limit its instruction on the definitions of “deprive,” “property of another,” and “owner” to the crimes of theft by taking and theft by deception. Specifically, Marriott contends that the trial court should have informed the jury that these terms were irrelevant to the crime of theft by receiving, and that its failure to do so may have confused the jury about what evidence was sufficient to convict her for that crime. We disagree.

To determine whether a jury charge is likely to have misled or confused the jury about the elements of a particular crime, we must consider the charge as a whole, reading all of its parts in conjunction with each other. Daniel v. State, 296 Ga. App. 513, 518 (3) (675 SE2d 472) (2009). And “[wjhere a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as [it] could be ..., a reviewing court will not disturb a verdict amply authorized by the evidence.” (Footnote omitted.) Id.

Marriott is correct that the terms “deprive,” “property of another,” and “owner,” as defined and used in Georgia’s theft statute, apply to the crimes of theft by taking and theft by deception but not the crime of theft by receiving. See OCGA §§ 16-8-1 (definitions); 16-8-2 (theft by taking); 16-8-3 (theft by deception); 16-8-7 (theft by receiving). And while the jury was charged on these definitions immediately after hearing the charge on theft by receiving, to which they did not apply, these definitions immediately preceded the charges on theft by taking and theft by deception, to which they did apply. Accordingly, reading the charge as a whole we do not find that a juror would have been confused as to the evidence necessary to convict Marriott of theft by receiving. The trial court correctly charged the jury on the elements of theft by receiving, instructed that the State bore the burden of proving every element of the crime beyond a reasonable doubt, and sent the indictment out with the jury. “Taking the charge as a whole, we conclude that a jury of average intelligence would not have been confused by the charge, and that the trial court’s charge properly set forth the basis on which the jury was authorized to convict” Marriott of theft by receiving. (Punctuation and footnote omitted.) Clemens v. State, 318 Ga. App. 16, 20 (2) (733 SE2d 67) (2012).

Decided March 1, 2013.

Billy L. Spruell, Melinda D. Taylor, for appellant.

Lee Darragh, District Attorney, Randall C. Schonder, Assistant District Attorney, for appellee.

3. Marriott’s sole defense was premised on a claim of right, namely that her father had given her the guns. Although the trial court charged the jury that claim of right was a defense to the crimes of theft by taking and theft by receiving, it did not specifically instruct the jury that claim of right was also a defense to the charge of theft by deception. Marriott did not object to this failure at trial, but on appeal she contends that it constitutes plain error. We find no such error.

Marriott is correct that a claim of right is a defense to the crime of theft by deception and that the trial court should have so instructed the jury. Stratacos v. State, 312 Ga. App. 783, 785 (1) (720 SE2d 256) (2011); OCGA § 16-8-10. Marriott cannot show, however, that this error affected the outcome of trial. Had the jury found that Marriott’s claim of right was valid — i.e., that her father had given her the guns or that she believed he had given her the guns — it would have been obligated, under the instructions given by the trial court, to find that she was not guilty of the charges of theft by receiving. Given that it found her guilty of those crimes, however, we must conclude that the trial court’s error did not contribute to the guilty verdict on the crime of theft by deception. See Drake v. State, 274 Ga. App. 882, 883 (1) (619 SE2d 380) (2005) (evidence that, despite his knowledge that tools belonged to someone else, defendant represented himself as owner of tools when he sold them to pawn shop was sufficient to support his conviction for theft by deception).

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       OCGA § 16-8-7 (a).

       OCGA § 16-8-3 (a).

       The ex-husband further testified that during his marriage to Marriott, he owned only a single box of 9mm bullets.

       Marriott was both indicted and tried together with her then fiancé, Shane Michael Collins. Like Marriott, Collins was convicted of five counts of theft by receiving and one count of theft by deception, and was acquitted of all other charges. Collins, however, is not a party to this appeal.

       For purposes of the statute, “receiving” is defined as “acquiring possession or control or lending on the security of the property.” OCGA § 16-8-7 (a).

       The evidence also showed that Marriott sold six of her father’s guns on June 4, 2009.

       OCGA § 16-8-2 provides: “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”


text:
    A12A2300.
    LUNA-FRAIDE v. THE STATE.
    (739 SE2d 75)
   Branch, Judge.

On appeal from his conviction for rape, child molestation, aggravated child molestation, and false imprisonment, Omar Luna-Fraide argues that the evidence was insufficient and that the trial court’s charge on child molestation authorized the jury to find him guilty of that crime in a manner other than that charged in the indictment. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that on March 26, 2009, the nine-year-old victim told her mother that her private parts hurt. The mother noticed blood on the victim’s underwear and asked if anyone had touched her. The victim replied that Luna-Fraide had. LunaFraide was the family’s sole source of financial support at the time. The mother took the victim to the hospital, where the mother wrote a statement that the victim had told her that Luna-Fraide had wanted to sleep with the victim, that she was afraid of him doing so, and that he had put something like a finger inside her vagina four times. In a videotaped interview made shortly afterward at a child advocacy center, the victim said that Luna-Fraide had first groped her the previous Christmas. The victim testified that after her mother began working in 2009, the molestation “got worse and worse”: while Luna-Fraide was babysitting the victim, he took her into the bedroom he shared with the victim’s mother, pulled down her pants and underwear, touched and licked her privates, made her rub his penis, and penetrated her “bottom” with his penis.

Shortly after Luna-Fraide was arrested, the mother moved herself and the three children out of Luna-Fraide’s apartment and into the apartment of a couple, including a man named Carlos, who lived in the same complex. The mother admitted at trial that she continued to have “feelings” for Luna-Fraide after his arrest, that she had called him frequently, and that she had visited him in jail more than ten times.

A psychologist who conducted a series of follow-up interviews with the victim testified at trial that the mother was uncommunicative during their first session. During a second session, the victim handed the psychologist a written note naming Carlos as her attacker and also insisting that her mother had not told her to say so. To the psychologist, this suggested that the victim had been coached on the identity of her attacker. At the same session, the victim cried and said that she felt guilty for accusing Luna-Fraide because he “had learned his lesson,” would not hurt anyone else, and could not visit his dying mother from jail. During the third session, the victim said that she was angry because “[Luna-Fraide] hurt her.” During the fourth session, the victim again named Carlos as her assailant and said that she was scared of him. The mother missed three subsequent therapy appointments and failed to mention that the family had been living with Carlos. The psychologist also testified that it was “very common” for victims of child sexual abuse to change their accounts of the abuse depending on “how much support they feel is around them.”

Luna-Fraide was charged with one count of rape, two counts of child molestation, two counts of aggravated child molestation, and one count of false imprisonment. At trial, the victim confirmed her original account naming Luna-Fraide as her attacker. The victim also testified that Carlos had touched her a number of times. A treating doctor testified that the victim’s hymen was consistent with penetration, that she was suffering from vaginal and anal chlamydia, that these features were consistent with sexual assault, and that the only means of contracting the disease was through sexual contact with an infected person. Luna-Fraide tested positive for chlamydia. A jury found him guilty on all counts, and the trial court sentenced him to 35 years to serve. His motion for new trial was denied.

1. Luna-Fraide first argues that the victim’s recantation rendered the evidence against him insufficient. We disagree.

(a) The jury in this case heard not only the victim’s account of the abuse at trial, in which she returned to naming Luna-Fraide as her assailant, but also testimony from her mother and a caseworker concerning the circumstances of her recantation. The evidence also supported a conclusion that Luna-Fraide suffered from chlamydia and that the victim contracted that disease as a result of his attacks. Finally, the mother’s involvement with Luna-Fraide after his arrest explained the distress the victim showed at and after her recantation. “[I]t was for the jury, rather than this Court, to resolve conflicts and to assess witness credibility.” (Citation, punctuation and footnote omitted.) King v. State, 268 Ga. App. 707, 709 (603 SE2d 54) (2004). The evidence was thus sufficient to affirm Luna-Fraide’s conviction for rape, child molestation, and aggravated child molestation. OCGA §§ 16-6-1 (a) (defining rape); 16-6-4 (a) (defining child molestation); 16-6-4 (c) (defining aggravated child molestation as “an offense of child molestation which act physically injures the child or involves an act of sodomy”); King, supra at 709-710 (despite victim’s recantation at trial, which could have been the result of her mother’s “disapproval,” evidence including the victim’s previous videotaped interview was sufficient to sustain her father’s conviction for child molestation); Rollins v. State, 318 Ga. App. 311, 313 (733 SE2d 841) (2012) (testimony of child molestation victim, standing alone, was sufficient to sustain defendant’s conviction).

(b) Under OCGA § 16-5-41 (a), a person commits the offense of false imprisonment “when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” Thus “[a]ll that is required to prove false imprisonment is ... an arrest, confinement or detention of the person, without legal authority, which violates the person’s personal liberty (i.e., against his or her will).” (Citation and punctuation omitted.) Murrell v. State, 317 Ga. App. 310, 316 (1) (730 SE2d 675) (2012); see also OCGA § 16-5-41 (a). “A brief detention is sufficient[, and w]hether the detention amounted to false imprisonment was for the jury to decide.” (Footnote omitted.) Rehberger v. State, 235 Ga. App. 827, 828 (1) (510 SE2d 594) (1998).

The indictment alleged that Luna-Fraide “did unlawfully confine and detain” the victim, “a child under 14 years of age and not being the child of the accused ... without legal authority.” Construed in favor of the verdict, the evidence showed that Luna-Fraide took the victim into the room he shared with her mother and detained her there against her will as he sexually assaulted her. This evidence is sufficient to sustain Luna-Fraide’s conviction for false imprisonment. See Murrell, supra at 316-317 (1) (evidence that defendant convicted of child molestation entered victim’s room, placed his hand over her mouth, and lay on top of her was sufficient to sustain his conviction for false imprisonment as well); Rehberger, supra at 828 (1) (holding a child victim against her will, even briefly, amounted to false imprisonment); Herrin v. State, 229 Ga. App. 260, 263 (3) (493 SE2d 634) (1997) (OCGA § 16-5-41 (a) does not on its face require that imprisonment be for specific length of time).

2. Luna-Fraide also argues that the trial court did not sufficiently tailor its charge on child molestation to Count 2 of the indictment, which specified that he had touched the victim with his hand. We disagree.

OCGA § 16-6-4 (a) (1) provides that a person commits child molestation when that person “[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” Count 2 charged Luna-Fraide with committing an “immoral and indecent act... with the intent to arouse and satisfy the sexual desires of the accused by touching her vagina with his hand.”

Decided March 1, 2013.

Eric J. Taylor, for appellant.

Robert D. James, Jr., District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

The record shows that the trial court read the indictment verbatim to the jury and charged them that “no person shall be convicted of any crime unless and until each element of the crime as charged is proven beyond a reasonable doubt.” (Emphasis supplied.) The trial court then charged the jury that “a person commits the offense of child molestation when that person does an immoral and indecent act to a child less than 16 years of age with the intent to arouse and satisfy the sexual desires of that person.” Luna-Fraide did not object to this or any other portion of the charge.

In the absence of an objection, we review the charge only for plain error. See OCGA § 17-8-58 (b); State v. Kelly, 290 Ga. 29, 33 (2) (718 SE2d 232) (2011). “We have held that the child molestation statute does not set forth alternative methods by which the crime may be committed, so no error arises from reading the entire definition.” Edwards v. State, 253 Ga. App. 479, 482-483 (4) (559 SE2d 506) (2002). The charge was tailored to the indictment in that it specified that Luna-Fraide touched the victim with the intent of satisfying his rather than the victim’s desires. Even though the portion of the charge consisting of the reading of the statute did not specify the immoral or indecent act committed, the charge taken as a whole, including the indictment, did so specify, and thus “cannot be reasonably deemed to have presented the jury” with a basis for finding Luna-Fraide guilty of a crime not charged. Id. (trial court did not err in reading the statutory definition of child molestation when the court also read the indictment and charged the jury that it had to find the defendant guilty of the offense “as alleged in the indictment”) (punctuation and footnotes omitted; emphasis in original). It follows that there was no error, plain or otherwise, here. Kelly, supra at 34 (2) (where instruction was not erroneous, no plain error can be shown).

Judgment affirmed.

Miller, P. J., and Ray, J., concur.