author: McFADDEN, Judge.

text:
    A15A0857.
    STEAGALD et al. v. EASON et al.
    (778 SE2d 366)
   McFADDEN, Judge.

Lori and Gary Steagald appeal the grant of summary judgment to defendants David, Cheryl, and Joshua Eason in this dog-bite case. The Steagalds argue that whether certain behavior put the Easons on notice of the dog’s propensity to attack is a question of material fact that requires jury resolution. We hold that the incidents the Steagalds point to were simply evidence of the dog’s menacing behavior that did not put the Easons on notice of the propensity to attack. We therefore affirm.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.

Stennette v. Miller, 316 Ga. App. 425, 426 (729 SE2d 559) (2012) (citation omitted).

So viewed, the evidence showed that the Steagalds and David and Cheryl Eason were neighbors. In 2011, Joshua Eason, the Easons’ adult son, moved in with them because he and his wife were divorcing. Two-and-one-half months later, Joshua Eason asked his parents if he could keep his pit bull dog, Rocks, at the house; his former wife told him that she could no longer afford to care for the dog and that if Joshua Eason did not take it, she would take the dog to the pound. Joshua and his then-wife had rescued the dog from the side of the road six months before.

Cheryl Eason told Joshua Eason he could keep Rocks at the house temporarily if he built a pen for the dog inside the fenced back yard. Cheryl Eason wanted to ensure that the dog did not escape the yard, given that she did not know the dog’s history. Cheryl Eason had only seen the dog two times before, when she had gone to the home of Joshua Eason and his former wife. On both occasions, the dog was happy to see her. Although they did not know the dog’s history prior to its adoption, the Easons had never seen the dog act aggressively. There was no evidence that the dog ever had bitten any person before.

Gary Steagald testified that Cheryl Eason told him that on the first day that Rocks was at her house, he snapped at her when she went to feed him. That same day, Gary Steagald went to see the dog. He approached the dog in the pen and extended his fingers to the dog. The dog growled, barked, and snapped at him.

Six days later, Lori Steagald went over to the Easons’ house to borrow some tea bags. Joshua Eason was in the fenced back yard, playing with Rocks, who was on a lead. Joshua Eason walked to the gate, leading Rocks, and opened the latch. Lori Steagald entered the back yard to meet the dog. She extended her hand so that Rocks could smell her. The dog approached her, then jumped up, latched on to her arm, and started biting down. Joshua Eason was very surprised. He began screaming, hitting the dog, and squeezing the dog’s testicles, but he could not get the dog to release Lori Steagald. Joshua Eason’s father, David Eason, and a cousin came out of the house to help Joshua Eason force the dog to release Lori Steagald’s arm. Finally, the men succeeded in getting the dog off of Lori Steagald. As Lori Steagald was exiting the back yard, she slipped and fell, and the dog grabbed her leg. The men got the dog off her leg. Lori Steagald was taken by ambulance to the hospital, where she received stitches. She has undergone treatment with a neurologist and with pain specialists.

Our law as to negligence claims against dog owners provides that a dog owner will be liable for damages only if the owner has knowledge that the dog has the propensity to do the particular act which caused injury to the complaining party. Under this test, the plaintiff must show whether the dog had the propensity to do the act that caused the injury and, if so, whether the owner had knowledge of that propensity. ... [A] dog’s aggressive or menacing behavior alone is not sufficient to place its owner on notice of a propensity to do a particular act.

Green v. Wilson, 333 Ga. App. 631, 632-633 (773 SE2d 872) (2015) (citations and punctuation omitted).

The Steagalds argue that Rocks’s snapping at Cheryl Eason and Gary Steagald put the Easons on notice that Rocks had the propensity to bite someone without provocation. We disagree.

The Steagalds have presented no details about Rocks’s snapping at Cheryl Eason, other than Gary Steagald’s testimony that Cheryl told him Rocks snapped at her when she went to feed the dog. As for the snapping at Gary Steagald, he testified that, as he approached the dog confined in its pen, he could tell from Rocks’s body language that Rocks was uneasy. He saw Rocks “cower [ing] down” and “could almost see the ridge of hair standing up on his back.” Nonetheless, he “stuck his finger up to it,” causing Rocks to snap, growl, and bark. Gary Steagald conceded that it would not be unusual for a dog to feel uneasy on its first day in an unfamiliar place and that he believed that the dog was afraid “of the situation.” He also conceded that Rocks’s behavior was normal for some dogs.

Decided October 8, 2015

Smith, Welch, Webb & White, Andrew J. Gebhardt, Marc A. Avidano, for appellants.

Mabry & McClelland, Walter B. McClelland, James W. Scarbrough, for appellees.

We conclude that Rocks’s prior behavior, snapping at Cheryl Eason and Gary Steagald, was merely menacing behavior that “alone is not sufficient to place its owner on notice of a propensity to bite.” Wade v. American Nat. Ins. Co., 246 Ga. App. 458, 460 (1) (540 SE2d 671) (2000) (citations and punctuation omitted) (dog that bit plaintiff, who was familiar with it, previously had growled, chased and engaged in threatening actions toward strangers who approached its fenced enclosure). Indeed, Gary Steagald acknowledged that Rocks’s snapping — when he was afraid and at an unfamiliar location — was not unusual dog behavior. We conclude that, as a matter of law, the first-day snapping incidents did not put the Easons “on notice that the dog would launch an unprovoked attack on a stranger coming into the yard.” Rowlette v. Paul, 219 Ga. App. 597, 599 (466 SE2d 37) (1995) (dog that attacked and bit plaintiff, a stranger to it who had entered the defendant’s back yard, previously had bitten the defendant’s uncle when he startled the dog by banging on the porch where the dog was sleeping). “[T]he record is devoid of evidence of previous attacks on people or animals,” and the evidence the Steagalds presented was insufficient to show that the Easons had notice that Rocks had the propensity to attack. Wade, 246 Ga. App. at 460 (1). The trial court properly granted the Easons summary judgment.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A15A0868, A15A0869.
    HETTRICK v. THE STATE (two cases).
    (778 SE2d 369)
   McFADDEN, Judge.

After a joint jury trial, brothers James and Michael Hettrick were each convicted of felony theft by taking (OCGA § 16-8-2), and the trial court, among other things, ordered both defendants to pay restitution. In Case No. A15A0869, Michael Hettrick argues that the evidence was insufficient to support his conviction, but from that evidence a rational trier of fact could have found him guilty beyond a reasonable doubt. Michael Hettrick also argues that he received ineffective assistance of counsel, but he did not show that his trial counsel performed deficiently. In Case No. A15A0868, James Hettrick argues that the trial court erred in making both defendants jointly and severally liable for the ordered restitution, but OCGA § 17-14-7 (c) permitted that ruling. Accordingly, we affirm the judgments in both cases.

Case No. A1SA0869

1. Sufficiency of the evidence.

Michael Hettrick argues that the evidence was insufficient to support his conviction for theft by taking. That offense is committed when a person “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.” OCGA § 16-8-2. On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence

is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This [c]ourt does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.

Hayes v. State, 292 Ga. 506 (739 SE2d 313) (2013) (citations omitted). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence showed that brothers Michael and James Hettrick entered into an agreement with Damon Kirtland, the owner of Roof Doctor of Atlanta, LLC, under which, among other things, they would work as Roof Doctor’s office manager and sales manager, respectively, and would receive a set weekly amount of pay for that work. Michael Hettrick was authorized to sign checks on Roof Doctor’s bank account and to use a bank card tied to that account. Over the course of approximately seven months in 2009, without authorization from Kirtland, Michael Hettrick wrote numerous checks to himself and James Hettrick that exceeded the pay to which they were entitled. He also used the bank card to make several unauthorized purchases that were not for business use.

Michael Hettrick argues that there was insufficient evidence of his intent to deprive Roof Doctor of funds belonging to it, suggesting that the funds at issue were subject to a profit-sharing agreement between Kirtland and the Hettrick brothers. See generally Spray v. State, 223 Ga. App. 154, 156 (1) (476 SE2d 878) (1996) (where defendant is charged with unlawfully taking property belonging to another, “the evidence must show that the requisite intent to deprive the owner of the property was present at the time of the taking”) (citations omitted). But “[a]s a general rule the state must, of necessity, rely on circumstantial evidence in proving intent,” Snow v. State, 318 Ga. App. 131, 132 (1) (733 SE2d 428) (2012) (citation and punctuation omitted), and circumstantial evidence of intent existed in this case. There was evidence that the profit-sharing agreement did not apply to the funds involved in the challenged transactions because the business had not yet turned a profit. And there was evidence that Roof Doctor’s owner, Kirtland, did not authorize the challenged transactions. The jury could infer from this evidence that Michael Hettrick intended to take Roof Doctor’s funds when he engaged in the challenged transactions and thus was guilty beyond a reasonable doubt of the offense of theft by taking. See Brown v. State, 302 Ga. App. 641, 643-644 (1) (692 SE2d 9) (2010).

2. Ineffective assistance of counsel.

Michael Hettrick argues that he received ineffective assistance of trial counsel because his trial counsel did not discover and, consequently, did not inform the state of a defense witness until mid-trial, resulting in the trial court’s decision not to allow the witness to testify. To succeed on this claim, Michael Hettrick was required to show, under the standard set forth in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984),

both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. ... In reviewing the trial court’s decision [regarding ineffective assistance], we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

Perez v. State, 331 Ga. App. 164, 168 (3) (770 SE2d 260) (2015) (citations and punctuation omitted).

The defense witness at issue was a bookkeeper who did contract work for Roof Doctor in the fall of 2009 and who possessed electronic accounting records of the business. Michael Hettrick asserts that these records would have aided his defense. After an evidentiaryhearing on Michael Hettrick’s motion for new trial, the trial court found that Michael Hettrick knew of the bookkeeper’s existence but intentionally kept this information from his trial counsel, and the trial court concluded that trial counsel’s failure to discover the bookkeeper did not constitute deficient performance.

Evidence presented at the motion for new trial hearing supported the trial court’s ruling. The bookkeeper testified that he met with Michael Hettrick in connection with his work on Roof Doctor’s electronic accounting records. Trial counsel testified that, in preparing for trial, he had discussed the existence of the electronic accounting records with Michael Hettrick and had asked Michael Hettrick to provide him with names of possible defense witnesses, but Michael Hettrick did not identify the bookkeeper to him. Although at the hearing Michael Hettrick denied ever meeting or knowing of the bookkeeper, the conflict between his testimony and that of the bookkeeper was a matter for the trial court to resolve. Hartley v. State, 299 Ga. App. 534, 539 (2) (683 SE2d 109) (2009). The trial court was authorized to find that Michael Hettrick knew of the bookkeeper’s existence but

never identified [the bookkeeper] to trial counsel and never provided [trial counsel] with information prior to trial that would have reasonably led him to [that] witness [ ]. As such, [Michael Hettrick] has failed to show that his counsel was deficient in failing to [locate the bookkeeper before trial].

Id. (citations omitted). See also Hudson v. State, 284 Ga. 595, 598 (5) (a) (669 SE2d 94) (2008) (finding no deficient performance and, thus, no ineffective assistance where, despite good faith efforts, trial counsel failed to locate a potential witness about whom counsel had only limited information prior to trial); Freeman v. State, 278 Ga. 349, 350 (2) (a) (603 SE2d 214) (2004) (finding no deficient performance and, thus, no ineffective assistance where trial counsel could not locate witness despite extensive efforts because witness’s family had assisted in concealing her in another state); Harper v. State, 330 Ga. App. 561, 568 (3) (b) (768 SE2d 755) (2015) (holding that trial counsel was not ineffective for failing to call at trial an alibi witness that the defendant had never identified to him). Consequently, we need not address the prejudice prong of the Strickland analysis. See Perez, 331 Ga. App. at 168 (3).

Case No. A15A0868

3. Restitution.

James Hettrick argues that the trial court erred in ordering him jointly and severally liable for the amount of restitution because he was less culpable than his co-defendant, Michael Hettrick. We disagree.

“It is within the sound discretion of the trial court to sentence within the limits allowed by law; the sentence of one joint defendant is irrelevant in the sentencing of the other.” Manley v. State, 187 Ga. App. 773, 776-777 (4) (371 SE2d 438) (1988) (citations and punctuation omitted). The amount of restitution ordered in this case — $24,000, for which James and Michael Hettrick are jointly and severally liable — was within the limits allowed by law. The amount did not exceed the victim’s damages, which the trial court found to be $42,443.10. See OCGA § 17-14-9 (“The amount of restitution ordered shall not exceed the victim’s damages.”). And in setting this amount, the trial court specifically considered the factors set forth in OCGA § 17-14-10 (setting forth factors to be considered by trial court in determining nature and amount of restitution). In the restitution order, the trial court also specifically noted that James and Michael Hettrick “were each parties to the crime of the other[.]”

Under OCGA § 17-14-7 (c), where a court ordering restitution

finds that more than one offender has contributed to the loss of a victim, the court may make each offender liable for payment of the full amount of restitution or may apportion liability among the offenders to reflect the level of contribution to the victim’s loss and economic circumstances of each offender.

(Emphasis supplied.) The language of this Code section permitted, but did not require, the trial court to apportion liability to reflect James Hettrick’s level of contribution to the victim’s loss. See Turner v. State, 312 Ga. App. 799, 805 (3) (720 SE2d 264) (2011). James Hettrick argues that our decision in Rice v. State, 226 Ga. App. 770 (487 SE2d 517) (1997), requires apportionment, but unlike here, that decision involved a criminal defendant who had been convicted of a different and lesser offense than his co-defendants. Id. at 774 (3). James Hettrick has not shown that the trial court abused his discretion by ordering him jointly and severally liable for restitution in this case.

Judgments affirmed.

Ellington, P. J., and Dillard, J., concur.

Decided October 8, 2015.

Mary Erickson, for appellant (case no. A15A0868).

Clark & Towne, JessicaR. Towne, for appellant (case no. A15A0869).

Daniel J. Porter, District Attorney, Courtney R. Spicer, Assistant District Attorney, for appellee.


author: McEadden, Judge.

text:
    A15A0896.
    BIRDSONG v. BARNETT.
    (778 SE2d 372)
   McEadden, Judge.

Jeffrey Birdsong appeals from a trial court order holding him in criminal contempt for violating a stalking protective order. He claims that there was insufficient evidence to support the contempt order, that no foundation was laid for admission of a video recording at the contempt hearing and that he was denied due process because the date of the alleged violation was not set forth in the victim’s petition. However, there was sufficient evidence to support the finding of contempt beyond a reasonable doubt, a proper foundation was laid for admission of the video recording, and Birdsong’s due process rights were not violated. Accordingly, we affirm.

1. Sufficiency of the evidence.

Birdsong contends that there was insufficient evidence showing that he violated the stalking protective order. The contention is without merit.

[T]he evidence in any criminal contempt case must show that the defendant is guilty beyond a reasonable doubt. Indeed, criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. And on appeal of a criminal-contempt conviction, the appropriate standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Moton v. State, 332 Ga. App. 300 (722 SE2d 393) (2015) (citations and punctuation omitted).

So viewed, the record shows that Catherine Barnett and Birdsong were neighbors. On May 30, 2014, Barnett filed a petition in the Superior Court of Gwinnett County alleging that Birdsong had stolen property from her family’s back yard, thrown rocks and bricks through a window of their house, and verbally threatened her and other family members. The trial court granted Barnett an ex parte temporary protective order against Birdsong and set the matter down for a hearing. After the hearing on June 5, 2014, Birdsong consented to the trial court’s issuance of a 12-month stalking protective order which enjoined him from doing anything to threaten, harass, or intimidate Barnett or her immediate family. The order further prohibited Birdsong from following Barnett, placing her under surveillance or having contact of any type with her or her immediate family. Approximately two months later, on August 19, 2014, Barnett filed a motion for contempt, asserting that Birdsong had violated the 12-month stalking protective order by repeatedly shining a light on her when she took out the trash, shining the light into her house and yelling obscenities at her.

The trial court issued a rule nisi for a hearing on September 3, 2014. At the hearing, Barnett testified that on the night of August 17, 2014, she was taking garbage out to a back yard trash can when Birdsong, who was on his front porch, began shining a red light in her face. He continually shined the light at her and on her face as she pulled the trash can to the street and walked back to her house. Birdsong began yelling obscenities at Barnett. Her husband came outside, but Barnett told him to go back inside to avoid an altercation. Barnett also introduced a video recording of the incident from home security cameras which showed Birdsong on his property shining the light at Barnett and her house. Birdsong, who was represented by counsel, exercised his right not to testify and presented no other evidence.

The trial court found that Birdsong was in wilful contempt of court because he had violated the stalking protective order by “shining a light (flashlight) into the property and at the person of [Barnett] for purposes of harassing and intimidating [her].” The court ordered that Birdsong be incarcerated for ten days and that the protective order remain in effect until its expiration.

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-14-8. Thus, Barnett’s testimony was enough to establish that Birdsong had violated the protective order. In addition, the video evidence of the incident supplemented Barnett’s testimony. Accordingly, we conclude that “the evidence was sufficient to support the trial court’s finding that [Birdsong] was guilty of criminal contempt.” Moton, 332 Ga. App. at 303.

2. Admission of video recording.

Birdsong contends that under OCGA § 24-9-923 (c), Barnett did not lay a proper foundation for introduction of the video recording from the unmanned security cameras because, among other things, it did not contain a date and time as required by that Code section. However, even if we assume that Barnett did not strictly comply with that Code section, OCGA § 24-9-923 (d) provides: “This Code section shall not be the exclusive method of introduction into evidence of... video recordings,... but shall be supplementary to any other law and lawful methods existing in this state.” See Rodriguez-Nova v. State, 295 Ga. 868, 869 (2), n. 3 (763 SE2d 698) (2014) (noting that OCGA § 24-9-923 is the current codification of the provisions of former OCGA § 24-4-48, which “were carried forward into the new Evidence Code”).

In Georgia, “[generally, a videotape is admissible where ‘the operator of the machine which produced it, or one who personally witnessed the events recorded testifies that the videotape accurately portrayed what the witness saw take place at the time the events occurred.’ ” Sowell v. State, 327 Ga. App. 532, 536 (1) (759 SE2d 602) (2014), quoting Phagan v. State, 268 Ga. 272, 281 (5) (486 SE2d 876) (1997). In this case, Barnett, who witnessed the events recorded by her home security system cameras, testified that she had personally transferred the video from that system to the disc which she presented to the court and that the video accurately depicted the incident on the date in question. “Both this [c]ourt and our Supreme Court have affirmed trial courts’ admission of videotapes, in circumstances such as in this case, where even though there are no contemporaneous date and times on the videotapes, there is other evidence of reliability.” Holloway v. State, 287 Ga. App. 655, 657 (2) (653 SE2d 95) (2007) (citations omitted).

Birdsong further takes issue with the foundation laid for the video evidence because Barnett testified that the disc also contained two recordings of an incident other than the August 17 flashlight incident. But this issue provides no basis for finding error because the trial court expressly refused to look at those other recordings and only viewed the recordings from the August 17 incident. “Trial courts have broad discretion to determine whether a sufficient foundation has been provided for the introduction of evidence. We will not reverse the trial court’s ruling in this regard unless there has been an abuse of that discretion.” Sheppard v. State, 300 Ga. App. 631, 634-635 (2) (686 SE2d 295) (2009) (citation and punctuation omitted). Under the circumstances of this case, the trial court did not abuse its discretion in finding that a sufficient foundation had been laid for introduction of the video evidence.

3. Due process.

Birdsong complains that his due process rights were violated because Barnett’s motion for contempt of the stalking protective order failed to specify the date of the alleged violation, and therefore the trial court should have dismissed the motion. While it would have been the better practice to include the specific date in the motion, we find no due process violation in this case.

The constitutional right to due process applies in criminal contempt proceedings because a conviction can result in the loss of liberty and the levy of a penal fine. Both the United States and Georgia Constitutions require that an accused be given notice and an opportunity to be heard before being convicted, except in rare instances. The notice must be reasonably calculated to inform persons of the charges against them and their opportunity for a hearing at a specific time and place to present their objections.

Hedquist v. Hedquist, 275 Ga. 188, 189 (563 SE2d 854) (2002) (citations omitted).

[Wjhere the alleged contumacious conduct is disobedience to a mandate of the court, .. . the law requires that a rule nisi issue and be served upon the accused____The notice given by the rule nisi is to afford the accused a reasonable time in which to prepare his defense to the charge that he had violated the court’s order.

Crocker v. Crocker, 132 Ga. App. 587, 589 (1) (208 SE2d 602) (1974) (citations, punctuation and emphasis omitted).

In the instant case, the motion for contempt of the stalking protective order and the rule nisi setting the show cause hearing for September 3, 2014, were served by mail on Birdsong on August 19, 2014. Birdsong retained counsel, who filed a response to the motion and represented him at the hearing. Under these circumstances, we find that Birdsong was given adequate notice of, and opportunity to defend himself at, the hearing on the motion for contempt of the protective order. See Hedquist, 275 Ga. at 189 (noting that it has been held that service on party of motion for contempt and rule nisi 17 days before hearing complies with notice requirements of due process). Compare Salter v. Greene, 226 Ga. App. 384, 385-386 (1) (486 SE2d 650) (1997) (finding due process violation where no rule nisi was issued, appellant was not advised of contempt charge and did not have legal representation at hearing).

As for Barnett’s failure to include the specific date of the alleged violation in her motion for contempt, Birdsong cites statutory and case law pertaining to an indictment alleging a specific date on which the crime was committed. See OCGA § 17-7-54 (a); Demetrios v. State, 246 Ga. App. 506, 512 (6) (541 SE2d 83) (2000). Indeed, “[generally, to be perfect in form, an indictment must allege a specific date on which the crime was committed. It follows that an indictment that fails to specify the date upon which the crime occurred is subject to special demurrer.” Palatini v. State, 333 Ga. App. 523 (774 SE2d 818) (2015) (citations andfootnote omitted). While the instant case involves a party’s motion for contempt, not an indictment issued by a grand jury, even if we assume such law pertaining to indictments is applicable to this case, Birdsong’s bare assertion that he could not adequately prepare his defense “does not establish prejudice or surprise.” Demetrios, 246 Ga. App. at 512 (6) (citation omitted).

In prior cases where indictments failed to allege a particular date, but

the cases proceeded to trial, the defendants were convicted, and the defendants appealed[, b] ecause the trials had already occurred, this court was able to review all the evidence and conclude that the defendants had not in fact been surprised or otherwise prejudiced by the lack of specificity in the indictments.

State v. Gamblin, 251 Ga. App. 283, 284 (1) (553 SE2d 866) (2001) (citations omitted). Likewise, in this case, because the contempt hearing has already occurred, we can review all the evidence and conclude that Birdsong was not in fact prejudiced or surprised by the lack of a specific date in Barnett’s motion. As an initial matter, the motion for contempt was filed approximately two months after the stalking protective order was issued, so Birdsong was put on notice that the alleged violation occurred within that time frame. Indeed, his trial counsel acknowledged as much at the outset of the contempt hearing. Moreover, at the start of the hearing, Barnett stated that the incident alleged in her motion occurred on August 17 and that she had also filed a warrant application hearing request based on the same incident, which plainly stated the August 17 date. It appears from the transcript that she handed a copy of the warrant application to the court, and the trial court told Birdsong’s counsel that, based on the documents he was “inclined to find your client has had some sort of notice or idea what date she was talking about.” When the court subsequently asked counsel if he was claiming that Birdsong had not gotten notice of the warrant application, counsel replied, “No.” Finally, Birdsong has made no showing that he was actually surprised or deprived of a defense due to the lack of a specific date in the motion for contempt. Accordingly, “[i]t does not appear that the failure to allege a more specific date for the offense materially affected his ability to present a defense. We [thus] find no error in the court’s failure to dismiss the [motion].” Gentry v. State, 235 Ga. App. 328, 329-330 (3) (508 SE2d 671) (1998) (citation omitted).

Decided October 8, 2015.

Crawford & Boyle, Eric C. Crawford, for appellant.

Catherine Barnett, pro se.

Judgment affirmed.

Dillard, J., concurs. Ellington, P. J., concurs in judgment only.


author: Dillard, Judge. MCFADDEN, Judge,

text:
    A15A0902.
    LAFAVOR v. THE STATE.
    (778 SE2d 377)
   Dillard, Judge.

Following trial, a jury convicted Daniel Lafavor on one count of speeding. On appeal, Lafavor challenges the sufficiency of the evidence supporting his conviction and further contends that the trial court erred in (1) admitting laser-speed-detection-device evidence despite the State’s failure to comply with the requirements for admission of such evidence, (2) denying his motion for a continuance, (3) admitting exhibits that the State failed to disclose prior to trial, (4) violating his right to confront the witnesses against him, (5) improperly instructing the jury that its verdict could not be governed by sympathy, (6) inadequately responding to questions posed by the jury during its deliberations, and (7) admitting impeachment evidence. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on the night of July 31, 2011, a Covington police officer was parked alongside Interstate 20 and was monitoring west-bound traffic on a section of the highway where the speed limit was 65 miles per hour. At approximately 9:00 p.m., the officer observed a red Corvette approaching in the first lane and overtaking other vehicles “at a good rate of speed.” Believing that the Corvette was moving much too fast and exceeding the speed limit, the officer trained a laser-speed-detection device on the vehicle and obtained a reading that it was traveling at 108 miles per hour. Consequently, the officer initiated a traffic stop, during which he determined that Lafavor was the driver and owner of the vehicle and that his wife was the only other passenger. The officer then arrested Lafavor, and another officer, whose vehicle was equipped to transport arrestees, transported Lafavor to the county jail.

Lafavor was later charged, via accusation, with one count of speeding. At Lafavor’s jury trial, in which he proceeded pro se, the State’s sole witness was the arresting officer, who testified regarding the details of the traffic stop. In addition, Lafavor and his wife testified in Lafavor’s defense, and both asserted that he was not exceeding the speed limit. Nevertheless, at the conclusion of the trial, the jury convicted Lafavor of speeding.

Subsequently, Lafavor obtained counsel and filed a motion for new trial, which the trial court denied after conducting a hearing on the matter. This appeal follows.

1. Lafavor first contends that the evidence was insufficient to support his speeding conviction. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the jury’s verdict, and the appellant no longer enjoys a presumption of innocence. And, of course, in evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility, but only determine whether “a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Thus, the jury’s verdict will be upheld so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” With these guiding principles in mind, we will now address Lafavor’s specific contentions.

In order to be guilty of speeding, one need only “exceed the designated speed limit.” And in prosecuting someone for speeding, the State “need not prove that a driver was traveling at a precise rate of speed in order to obtain a conviction for speeding.” In fact, greater speeds by specified increment “affect only the punishment and are therefore not material allegations to prove the'crime of speeding.” Furthermore, an officer’s estimate of speed is “sufficient to support a conviction on a speeding violation[,]”

Here, the posted speed limit on the section of 1-20 where Lafavor was stopped was 65 miles per hour, and the arresting officer testified that he had been trained to visually estimate the speed of a moving vehicle within two miles per hour. Additionally, the officer recounted that when he first observed Lafavor’s vehicle, it was overtaking other vehicles, and that he “believed” him “to be speeding.” The officer further testified that his laser speed-detection device, in fact, indicated that Lafavor’s vehicle was traveling at a rate of 108 miles per hour, thereby confirming the officer’s estimate that Lafavor was indeed speeding. Accordingly, the evidence was sufficient to sustain Lafavor’s speeding conviction.

2. Lafavor next contends that the trial court erred in admitting the laser-speed-detection-device evidence, arguing that the State failed to comply with the requirements for admission of such evidence under OCGA § 40-14-17. This claim lacks merit.

Initially, we note that Lafavor failed to object to the introduction of the laser-speed-detection-device evidence during his trial. Nevertheless, because his trial occurred after January 1, 2013, we may review the purportedly improper admission of evidence for plain error. That being said, a finding of plain error requires “a clear or obvious legal error or defect not affirmatively waived by the appellant that must have affected the appellant’s substantial rights, i.e., it affected the outcome of the trial-court proceedings.”

Reviewing Lafavor’s claim in this regard, OCGA § 40-14-17 provides:

Evidence of speed based on a speed detection device using the speed timing principle of laser which is of a model that has been approved by the Department of Public Safety shall be considered scientifically acceptable and reliable as a speed detection device and shall be admissible for all purposes in any court, judicial, or administrative proceedings in this state. A certified copy of the Department of Public Safety list of approved models of such laser devices shall be self-authenticating and shall be admissible for all purposes in any court, judicial, or administrative proceedings in this state.

The text of this statutory provision provides that a certified copy of the Department’s “list of approved models . . . shall be self-authenticating” for adjudicatory purposes, but does not dictate that “only such a document can supply evidence that the device was so approved.” Indeed, as we have recently held in this very context, “circumstantial evidence arising from the testimony of the trained and certified individual who operated the machine and performed the test is sufficient to meet the statute’s authenticating procedures.”

Here, the arresting officer testified that he was certified to use laser-speed-detection devices and that the Department of Public Safety had approved the devices used by the Covington Police Department. The officer also provided lengthy testimony regarding his familiarity with calibrating the device and, more specifically, the fact that at the start of his shift on the night in question, he calibrated the device that he ultimately used to clock Lafavor’s vehicle. Given these particular circumstances, the State sufficiently complied with the authenticating procedures under OCGA § 40-14-17.

But even if we assumed for the sake of argument that the State failed to comply with OCGA § 40-14-17, the admission of this evidence did not constitute plain error. As we noted in Division 1 supra, the laser-speed-detection-device evidence was not necessary because the officer’s estimate that Lafavor was exceeding the speed limit was sufficient to sustain his conviction. Thus, the laser-speed-detection-device evidence was merely cumulative of the officer’s testimony, “and its admission did not in reasonable probability affect the outcome of the trial.”

3. Lafavor contends that the trial court erred in denying his request for a continuance, which he sought because the State did not provide him with the transporting officer’s out-of-state address. We disagree.

At the outset, we note that the grant or denial of a continuance is “addressed to the sound legal discretion of the trial court, and the court’s ruling will not be disturbed absent a clear abuse of discretion.” And under OCGA § 17-8-25, in order to obtain a continuance based upon a witness’s absence, a defendant is required to demonstrate

(1) that the witness is absent; (2) that he has been subpoenaed; (3) that he does not reside more than 100 miles from the place of trial; (4) that his testimony is material; (5) that the witness is not absent by permission of the movant; (6) that the movant expects to be able to procure the testimony of the witness at the next term of court; (7) that the continuance is not requested for purposes of delay [;] and (8) the facts expected to be proved by the absent witness must be stated.

Importantly, the trial court’s discretion is not abused “unless all of the requisites of OCGA § 17-8-25 are shown and the trial court still denied a continuance.”

In this matter, more than ten days prior to the start of trial, the State filed its witness list, which included the officer who arrived on the scene after Lafavor was arrested and transported him to jail. Later, the State issued a witness subpoena for the officer but his address was listed as “private,” despite the fact that Lafavor’s discovery request sought the contact information for all the investigating officers. On the first day of trial, Lafavor requested a continuance, arguing that he had been unable to interview the transporting officer, who would provide crucial testimony. Specifically, Lafavor claimed that after placing him in the patrol vehicle, the transporting officer asked the arresting officer if he had shown Lafavor the laser reading, and the arresting officer admitted that he had deleted the information. In response, the State explained that the transporting officer was no longer a member of the police department, that he currently lived in Ohio, and that the State did not intend to call him as a witness. Immediately thereafter, the trial court denied Lafavor’s request.

On appeal, Lafavor argues that the trial court erred in denying his request for a continuance to interview the transporting officer. But Lafavor failed to meet several of the requirements delineated in OCGA § 17-8-25, including showing that the transporting officer resided within 100 miles of the place of trial and that he could procure the officer’s testimony at the next term of court. Given these particular circumstances, the trial court did not abuse its discretion in denying Lafavor’s request for a continuance to secure the transporting officer’s testimony.

4. Lafavor similarly contends that the trial court erred in denying his request for a continuance because the State violated its discovery obligations and failed to disclose exculpatory evidence when it failed to provide him with the transporting officer’s out-of-state address. Both of these claims are wholly without merit.

(a) Lafavor opted into reciprocal discovery, and on July 10, 2012, more than a year before trial, the State disclosed its initial witness list, which consisted of only the arresting and transporting officers. The list indicated the police department’s address and telephone number as contact information for both of the officers. And this information was all the State was required to disclose under OCGA § 17-16-8 (b), which provides:

Nothing in this Code section shall be construed to require the prosecuting attorney to furnish the home address, date of birth, or home telephone number of a witness who is a law enforcement officer. Instead, in such cases, the prosecuting attorney shall furnish to the defense attorney the law enforcement officer’s current work location and work phone number.

On the first day of trial, as previously noted, Lafavor complained that the State had not provided him with contact information for the transporting officer, despite allegedly promising to do so, and therefore, he had been unable to interview the officer. The State’s prosecutor responded that the transporting officer had moved to Ohio and that she did not intend to call him as a witness. Now, on appeal, Lafavor argues that his right to a fair trial was denied by the State not providing more detailed contact information for the transporting officer. But the State, acting in its role as the prosecution, has no obligation to locate defense witnesses.

Moreover, a defendant asserting a discovery violation must “show harm as well as error to merit reversal of his conviction.” And here, even pretermitting that the State should have provided more detailed contact information for a witness it did not intend to call, the trial court allowed Lafavor to testify that the transporting officer would have corroborated his claim that the arresting officer deleted the laser-speed-detection-device’s recording of the exact speed of his vehicle. Thus, the jury heard, via uncontested hearsay, the evidence that Lafavor claimed the transporting officer would provide. Furthermore, this evidence was only relevant with regard to the reading of the laser-speed-detection device, which as noted in Division 1 was not necessary to sustain Lafavor’s speeding conviction. Accordingly, Lafavor has failed to show that any alleged discovery violation caused him harm.

(b) In the same enumeration of error, Lafavor also contends that the State’s failure to provide detailed contact information for the transporting officer constituted a violation of Brady v. Maryland

It is well established that the prosecution, upon a Brady motion, has “the duty to produce anything that is exculpatory or impeaching.” But in order to prevail on a Brady claim, a defendant must show that

the State possessed evidence favorable to the defendant; defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; the prosecution suppressed the favorable evidence; and had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceeding would have been different.

Here, the State did not suppress any information, but simply did not provide Lafavor with detailed contact information for a witness that he was more than aware of and which could have been discovered had he exercised reasonable diligence. Given these particular circumstances, the trial court did not err in ruling that there was no Brady violation.

5. Lafavor also contends that the trial court erred in admitting exhibits that the State failed to disclose prior to trial. Again, we disagree.

During Lafavor’s trial, the arresting officer testified regarding his certification to use the laser-speed-detection device that clocked Lafavor and further testified that the devices used by the Covington Police Department had been approved by the Department of Public Safety. Then, in conjunction with the officer’s testimony, the State introduced the officer’s certification, the Department of Public Safety’s certification, and several other documents related to the laser-speed-detection-device’s calibration.

Lafavor now argues that the admission of these documents constituted error because the State failed to disclose them prior to trial. But Lafavor failed to object to the documents’ admission during trial and, therefore, has waived this issue on appeal. Furthermore, as similarly discussed in Division 2 supra, the admission of these documents did not amount to plain error because the laser-speed-detection-device evidence was not necessary to sustain Lafavor’s conviction. As previously discussed, the officer’s estimate that Lafavor was exceeding the speed limit was sufficient to support his conviction. Consequently, the laser-speed-detection-device evidence in its entirety was merely cumulative of the officer’s testimony, “and its admission did not in reasonable probability affect the outcome of the trial.”

6. Lafavor further argues that his right to confront the witnesses against him under the Sixth Amendment to the United States Constitution was somehow violated when the transporting officer did not testify at trial. This claim is a nonstarter.

The Sixth Amendment’s Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” And in 2004, the Supreme Court of the United States clarified the original meaning and scope of the right to confrontation of one’s accusers in Crawford v. Washington, holding that “the admission of out-of-court statements that are testimonial in nature violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.”

Here, Lafavor seemingly argues that his Confrontation Clause rights were violated because the transporting officer did not testify at trial. But the State made no attempt during trial to admit any out-of-court statements the transporting officer may have made. In fact, Lafavor was the only witness who testified regarding statements allegedly made by the transporting officer at the time of his arrest. Given these particular circumstances, the Confrontation Clause does not apply, and Lafavor’s argument to the contrary is wholly without merit.

7. Lafavor also contends that the trial court erred in instructing the jury that its verdict was not to be governed by sympathy or prejudice, arguing, essentially, that such an instruction invaded the province of the jury. Again, we disagree.

During trial, Lafavor’s wife testified that her husband travels to Augusta three to four times each week to visit his elderly mother, who suffers from dementia, and that he was returning from such a trip on the night of his arrest for speeding. And during his own testimony, Lafavor similarly stated that he was returning home after visiting his elderly mother at the time of his arrest.

Based on this testimony, the State requested that the trial court instruct the jury that it should not be governed by sympathy. And over Lafavor’s objection, the court instructed the jury that

[y]our verdict should be a true verdict based upon your opinion of the evidence according to the laws given you in this charge. You are not to show favor or sympathy to one party or the other. It is your duty to consider the facts objectively without favor, affection or sympathy for either party.

Contrary to Lafavor’s argument, this instruction “neither shifted the burden of proof nor invaded the province of the jury.” Indeed, the instruction properly informed the jury that “they could not disregard evidence in favor of their sympathy or prejudice.” Additionally, a review of the charge as a whole shows that the trial court “thoroughly and correctly charged the jury with regard to the appropriate burden of proof.” Accordingly, the trial court did not err by instructing the jury in this regard.

8. Additionally, Lafavor contends that the trial court erred by failing to adequately respond to a question posed by the jury after it began deliberating. Yet again, we disagree.

After the jury was instructed and had begun its deliberations, it sent a note to the trial court asking “what do we do if we cannot come to a unanimous decision?” The court informed the parties that it would respond by explaining “you are asked to continue your deliberations.” The jury was then brought into the courtroom, at which point the court stated: “The response is, you are asked to continue your deliberations and reach a verdict.”

On appeal, Lafavor argues that the trial court’s response exceeded what it initially told the parties its response would be and that, in doing so, it improperly implied that the jury had to reach a guilty verdict. But Lafavor did not object to the court’s recharge in response to the jury’s question. Consequently, he failed to preserve this objection for appellate review and “is entitled to reversal only if the jury instruction constituted plain error,” which will only be found if “the jury instruction was erroneous; the error was obvious; the instruction likely affected the outcome of the proceedings; and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

Turning to Lafavor’s specific claim of error, it is axiomatic that, as a general rule, “the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.” Thus, when the jury requests a charge or recharge on a particular point, the court “has discretion to also give or not give additional instructions.” And here, the court’s recharge was not obviously erroneous nor did it likely affect the outcome of the trial. In fact, contrary to Lafavor’s argument, the court’s recharge merely indicated that the jury should continue deliberating to reach a verdict and did not imply that such a verdict had to be guilty. Furthermore, in its initial instructions, the court instructed the jury that “[wjhatever your verdict is, it must be unanimous that is, agreed to by all of you.” Then, shortly thereafter, it also explained that jurors should not “surrender an honest opinion in order to be congenial or to reach a verdict solely because of the opinions of other jurors.” Accordingly, reviewing the trial court’s charges as a whole, we conclude that the court’s recharge was not an abuse of discretion, much less plain error.

9. Finally, Lafavor contends that the trial court erred in admitting a past speeding conviction as impeachment evidence. Once again, we disagree.

During his testimony, Lafavor claimed that it was impossible for him to drive 108 miles per hour — the rate at which the arresting officer clocked him — because he has diabetes, which he claimed affects his ability to see far enough ahead to travel at such a speed. Immediately thereafter, the State requested a conference outside the presence of the jury, during which it requested that it be allowed to impeach Lafavor’s testimony with evidence that, in 2002, he had been cited for speeding at 106 miles per hour and had pleaded guilty. Lafavor objected that such evidence was prejudicial because he ultimately pleaded guilty to a reduced speeding charge. Nevertheless, the trial court ruled that the conviction was admissible, and the State questioned Lafavor regarding the incident after the jury returned.

Lafavor now contends that the trial court erred in admitting his 2002 speeding conviction for impeachment purposes, but in doing so, he makes a different argument than that made at trial. Specifically, he claims that if the trial court had engaged in further inquiry on the issue, it would have learned that he was not diagnosed with diabetes until 2010, and thus, the earlier conviction could not impeach his trial testimony that he currently was unable to drive at the rate of speed alleged. However, Lafavor having elected to represent himself, it was his responsibility, not the trial court’s, to ensure that the court was aware of his relevant medical history. Indeed, contrary to what Lafavor argues on appeal, “[t]here is no constitutional requirement that the trial court take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course.” Accordingly, Lafavor’s contention that the trial court erred in this regard lacks merit.

For all of the foregoing reasons, we affirm Lafavor’s conviction.

Judgment affirmed.

Ellington, P. J., concurs. McFadden, J., concurs fully in Divisions 1 and 3-9 and specially in Division 2.

MCFADDEN, Judge,

concurring fully and specially.

I write separately regarding Division 2, in which the majority concludes that admitting the laser-speed-detection-device evidence was not plain error. I agree with that conclusion, but my analysis is slightly different.

The state undertook to admit that evidence through OCGA § 40-14-17, under which a copy of the list of such devices approved by the Department of Public Safety is self-authenticating proof of their scientific reliability and acceptability and sufficient foundation for admission of evidence generated by them. That list appears to have been inadvertently omitted from the exhibit to which it was to have been attached. Neither party noticed the omission during the trial, and the state consequently had no opportunity to supply it. I would hold simply that whether or not it was error for the trial court to fail to notice it either and whether or not it was therefor error for the trial court to admit the evidence in question, it was not “obviously so” and therefore not plain error. See Barron v. State, 297 Ga. 706, 708 (2) (777 SE2d 435) (2015) (appropriate inquiry as to plain error is whether the trial court’s act or omission “was error; whether this was obviously so; and whether the error likely affected the outcome of the proceedings”).

Decided October 8, 2015.

Whatley & Associates, Lynn H. Whatley; Durant Law, M. Katherine Durant, for appellant.

Layla H. Zon, District Attorney, Christopher D. Sperry, Assistant District Attorney, for appellee.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

        See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Jones v. State, 318 Ga. App. 26, 29 (1) (733 SE2d 72) (2012) (punctuation omitted); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

        Frasard v. State, 322 Ga. App. 468, 468-69 (1) (a) (745 SE2d 716) (2013) (punctuation omitted).

        Id. at 468 (1) (a) (punctuation omitted).

        Id. at 469 (1) (a) (punctuation omitted).

        Id. (punctuation omitted).

        See id. (“Because an officer’s estimate of speed is sufficient to support a conviction on a speeding violation, the officer’s testimony that [defendant] was traveling above the speed limit was sufficient to sustain his conviction.” (punctuation omitted)); In the Interest of J. D. S., 273 Ga. App. 576, 577 (615 SE2d 627) (2005) (holding that officer’s testimony that defendant was traveling faster than the 65 miles per hour speed limit was sufficient to support defendant’s conviction on a speeding violation).

        See Rembert v. State, 324 Ga. App. 146, 152 (2), n.8 (749 SE2d 744) (2013) (noting that “Georgia’s new Evidence Code, which applies to cases tried after January 1,2013, allows a court to consider ‘plain errors affecting substantial rights although such errors were not brought to the attention of the court’ ”).

        Fraser v. State, 329 Ga. App. 1, 2 (763 SE2d 359) (2014) (punctuation omitted).

        Frasard, 322 Ga. App. at 472 (3) (o).

        Id. (punctuation omitted).

        See id. (holding that arresting officer’s testimony as to both his training in speed detection, including the use of laser devices, and the Department of Public Safety’s approval of the particular device he used, sufficiently complied with OCGA § 40-14-17).

        See supra note 9.

        Fraser, 329 Ga. App. at 2 (punctuation omitted).

        Brown v. State, 304 Ga. App. 168, 172 (2) (695 SE2d 698) (2010).

        Janasik v. State, 323 Ga. App. 545, 552-53 (4) (a) (746 SE2d 208) (2013) (punctuation omitted).

        Id. at 553 (4) (a) (punctuation omitted).

        See OCGA § 17-8-25.

        See Bailey v. State, 309 Ga. App. 473, 474-75 (710 SE2d 656) (2011) (holding that denial of defendant’s request for a continuance to secure witness’s attendance was not abuse of discretion given that defendant never asserted that he would be able to procure the witness’s testimony during an adjournment); Knox v. State, 227 Ga. App. 447, 448 (489 SE2d 582) (1997) (holding that the denial of request for continuance due to absence of witness was justified by defendant’s failure to satisfy requirements that witness could be procured by next term of court); Griggs v. State, 208 Ga. App. 768, 769-70 (2) (432 SE2d 591) (1993) (ruling that trial court did not abuse its discretion in denying continuance given that defendant could not show that witness resided within 100 miles of the place of trial).

        See OCGA § 17-16-1 et seq.

        See Brooks v. State, 285 Ga. 246, 251 (5) (674 SE2d 871) (2009) (holding that State did not engage in misconduct when it initially placed a witness on its witness list, hut ultimately decided against calling the witness at trial and did not provide the defendant with sufficient information to locate the witness).

        Walker v. State, 314 Ga. App. 714, 720 (6) (b) (725 SE2d 771) (2012).

        See id. (holding that even if State committed a discovery violation, in light of other evidence, defendant failed to show that he was harmed).

       3 73 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963).

        Hendricks v. State, 290 Ga. 238, 240 (2) (719 SE2d 466) (2011) (punctuation omitted).

        Blackshear v. State, 285 Ga. 619, 622 (5) (680 SE2d 850) (2009).

        See Swindle v. State, 274 Ga. 668, 670 (4) (558 SE2d 385) (2002) (holding that State’s failure to provide defendant with a witness’s address, which the defendant could have discovered by exercising reasonable diligence, did not constitute a Brady violation).

        See Frasard, 322 Ga. App. at 471 (3) (b) (holding that because defendant did not raise a proper objection to the documents and officer’s log showing that the speed-detection device had been calibrated, he waived the issue on appeal).

        See supra note 9.

        Fraser, 329 Ga. App. at 2 (punctuation omitted).

       U. S. Const, amend. VI; see also Ga. Const, art. 1, § 1, ¶ XIV (“Every person charged with an offense against the laws of this state . . . shall be confronted with the witnesses testifying against such person.”).

       541 U. S. 36, 68 (V) (C) (124 SCt 1354, 158 LE2d 177) (2004).

        Cuyuch v. State, 284 Ga. 290, 291-92 (2) (667 SE2d 85) (2008) (punctuation omitted) (describing holding of Crawford v. Washington).

        Dyer v. State, 287 Ga. 137, 140 (3) (695 SE2d 15) (2010); see, e.g., Heidler v. State, 273 Ga. 54, 62 (12) (537 SE2d 44) (2000).

        Dyer, 287 Ga. at 140 (3).

        Id.

        See id. (holding that trial court did not err in instructing the jury that its verdict should not be governed by sympathy or prejudice).

        Blake v. State, 292 Ga. 516, 517 (2) (739 SE2d 319) (2013) (punctuation omitted); see OCGA § 17-8-58 (b) (“Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.”).

        Blake, 292 Ga. at 517 (2).

        Harrelson v. State, 312 Ga. App. 710, 719 (4) (719 SE2d 569) (2011) (punctuation omitted).

        Id. (punctuation omitted).

        See Grier v. State, 276 Ga. App. 655, 660-61 (3) (624 SE2d 149) (2005) (holding that when read as a whole, trial court’s jury charges did imply that jurors must reach a verdict one way or the other).

        See Hall v. State, 292 Ga. 701, 702 (2) (743 SE2d 6) (2013) (“In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground.” (punctuation omitted)).

        See Kegler v. State, 267 Ga. 147, 148 (4) (475 SE2d 593) (1996) (holding that it is thepro se defendant’s responsibility, not the court’s, to effectively represent himself by issuing subpoenas for witnesses).

        Id. at 148-49 (4) (quoting McKaskle v. Wiggins, 465 U. S. 168, 184 (V) (B) (104 SCt 944, 79 LE2d 122) (1984)).


author: RAY, Judge.

text:
    A15A1364.
    AGYEMANG v. THE STATE.
    (778 SE2d 387)
   RAY, Judge.

A Forsyth County jury convicted Edward Agyemang of one count of simple battery. He appeals from that conviction, arguing that the trial court erred in denying his motion to introduce prior difficulties between the parties and that there was a fatal variance between the accusation and the evidence presented at trial. He also argues that the evidence was insufficient to support his conviction. For the following reasons, we vacate Agyemang’s conviction and remand the case to the trial court for a new trial.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the [defendant] is no longer entitled to the presumption of innocence.” (Citation omitted.) Newsome v. State, 324 Ga. App. 665, 665 (751 SE2d 474) (2013). In determining the sufficiency of the evidence, we neither weigh the evidence nor assess the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the appellant guilty of the crime charged beyond a reasonable doubt. Byrd v. State, 325 Ga. App. 24, 24 (752 SE2d 84) (2013).

The facts show that Agyemang and his wife, Vera Adu-Asah, were working together to bathe their ten-year-old special needs daughter when Agyemang became tired of holding the child aloft so the mother could clean her, and he dropped the child in the tub. Adu-Asah testified that she “had to hit him” to express her frustration at his act of dropping the child. Adu-Asah testified such hitting was “normal” for their relationship. However, Adu-Asah testified that Agyemang then retaliated by hitting her repeatedly all over her body while their child remained in the bathtub. Adu-Asah then called the police, and Agyemang left the house prior to their arrival.

Officer Sullivan with the Cumming Police Department responded to the call. Officer Sullivan testified that she observed a mark on Adu-Asah’s left arm that looked like a “raised reddish welt” in the shape of a hand print and that Agyemang had left the house before she arrived at the scene.

Agyemang testified that, on the evening of the incident, he assisted his daughter in using the bathroom and then helped his wife bathe her. Because the child had “zero motor skills,” Agyemang had to bend down and support the child’s full weight while Adu-Asah washed her. After the child was bathed, she soiled herself and required additional cleaning. As Adu-Asah cleaned the child, Agyemang again had to bend down to support the child’s weight. He told his wife that his “back is almost breaking” and that the child was slipping, and he asked her three times to allow him to set the child down; she said no. Agyemang testified that he then “got to the point I was so tired and the choice was between ... me breaking .... I was almost passing out. And I sat her down because if I did not set her down, it would have been fatal if she somehow slipped out of my hand.” He testified that as soon as he sat the child down, Adu-Asah “started throwing punches” in his face and hit him with a pail. Agyemang explained that he threw his hands up to defend himself and “without even knowing, [he] just threw [his] hands at her.” Agyemang testified that he did not intend to hit his wife, but that he swung his arm out in an effort to stop her blows. His wife continued to hit him while he attempted to reposition their child on the bathing chair. He then left the house.

The jury convicted Agyemang on one count of simple battery and acquitted him on every other count.

1. Agyemang argues that the evidence was insufficient to convict him of battery because the State failed to disprove his justification defense beyond a reasonable doubt. Once Agyemang raised the affirmative defense of justification and testified to the same, the State then bore the burden of disproving that defense beyond a reasonable doubt. Joachim v. State, 263 Ga. 816, 816 (1) (440 SE2d 15) (1994). Here, both Agyemang and Adu-Asah testified that Adu-Asah struck first. Although Agyemang testified that he merely threw his arms out in an effort to avoid Adu-Asah’s blows, Adu-Asah testified that Agyemang retaliated by hitting her several times. “The issue thus became one of credibility, which is for the jury to decide. The jury, by its verdict, indicated that it believed the evidence contrary to [Agyemang’s] justification defense.” (Citations omitted.) Id. at 817 (1). Our review of the evidence persuades us that it was sufficient to authorize a rational trier of fact to reject Agyemang’s theory of self-defense and to find that he was guilty of simple battery. Id.

2. Agyemang contends that the trial court erred in denying his motion to introduce prior difficulties between himself and Adu-Asah that would demonstrate that Adu-Asah had “a history of unprovoked violence” toward Agyemang. We agree.

Agyemang moved to admit evidence of prior difficulties between himself and Adu-Asah at trial. In support of his motion, Agyemang proffered testimony outside the presence of the jury that Adu-Asah had been violent toward him on previous occasions about a year prior: that, after a disagreement, she set the carpet of their home on fire and stabbed him in the hand when he tried to put out the fire; and that, after arguing, she had destroyed his phone by dropping it in water and had hidden his car keys so he could not leave the house. Agyemang described an additional incident where he and Adu-Asah were “discussing something[,]” and when he did not immediately respond to Adu-Asah’s question, she “got up and then stabbed [him] on [his] thigh three times.” After this proffer and argument by counsel, the trial court denied the motion, finding that “the prejudicial impact of [the] testimony far outweighs its relevance.”

“A defendant’s right to introduce evidence of prior acts by the victim against him is still contingent upon the defendant making out a prima facie case of justification.” (Citation and punctuation omitted.) Robinson v. State, 275 Ga. 143, 144 (3) (561 SE2d 823) (2002). To make such a prima facie showing, Agyemang “must show that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant was honestly seeking to defend himself.” (Citation and punctuation omitted.) Id. “Such evidence is admissible to show the victim’s character for violence or tendency to act in accordance with... her character as it relates to the defendant’s claim of justification.” (Punctuation and footnote omitted.) Owens v. State, 270 Ga. 199, 201 (2) (509 SE2d 905) (1998). Further, the evidence of such prior difficulties between the defendant and a victim “should not be admitted at all if there is no probative connection with the present case.” (Citation and punctuation omitted.) Maxwell v. State, 262 Ga. 73, 75 (2) (b) (414 SE2d 470) (1992) (overruled on other grounds by Wall v. State, 269 Ga. 506, 508-509 (2) (500 SE2d 904) (1998)).

As evidence that he acted in self-defense, Agyemang relies on testimony of Adu-Asah that she struck him first and that her act of striking him had nothing to do with any act of aggression on the part of Agyemang. He also relies upon his own testimony that he struck her only in his attempt to defend himself from his wife’s blows. As Agyemang set forth a prima facie case of self-defense, the trial court was authorized to allow him to present evidence of his prior difficulties with Adu-Asah in order to support his justification claim. See Stiles v. State, 242 Ga. App. 484, 487 (2) (b) (529 SE2d 913) (2000). And, contrary to the State’s assertion, the fact that he also argued that he did not intentionally strike his wife when attempting to protect himself did not render his prima facie case of self-defense invalid. See Turner v. State, 262 Ga. 359, 361 (2) (c) (418 SE2d 52) (1992) (“There is no hard and fast rule... that the law of accident and of self defense are always ‘mutually exclusive’ ”).

We find that the trial court’s determination that the evidence was more prejudicial to Adu-Asah than probative was in error. Here, Adu-Asah testified at trial that she had hit Agyemang in the past after disagreements in their marriage and that she was the initial aggressor during the present incident. In light of such evidence, it would not be unfairly prejudicial to allow the jury to hear of specific acts of violence she committed toward her husband in the past. Further, the evidence of Adu-Asah’s prior violent acts toward Agyemang was more probative than prejudicial. For a probative connection between the prior difficulties and the present case to exist, there must be “some link of association, something which draws together the preceding and subsequent acts, something which gives color of cause and effect to the transaction, and sheds light upon the motive of the parties.” (Citations and punctuation omitted.) Maxwell, supra at 75 (2) (b). Here, the evidence sheds light on how Adu-Asah reacted to Agyemang during arguments in their marriage. Further, the evidence of prior difficulties was probative for its impeachment value. Adu-Asah testified that although she first hit Agyemang, such hitting was not forceful. Agyemang testified otherwise, explaining that Adu-Asah was “throwing punches” at him and that she hit him with a pail. He was entitled to impeach her testimony with similar acts of violence she had exhibited toward him in the past.

In light of the conflicts in the testimony and the fact that the jury obviously believed portions of Agyemang’s testimony when it acquitted him of all other counts, save for the single count of simple battery, we find that the trial court’s exclusion of this evidence was not harmless as we cannot say that “it is highly probable that the error did not contribute to the judgment.” (Citation and punctuation omitted.) Hall v. State, 196 Ga. App. 523, 525 (2) (396 SE2d 271) (1990). Accordingly, we vacate Agyemang’s conviction and remand the case for a new trial.

3. Agyemang finally argues that there was a fatal variance between the accusation and the evidence presented at trial. We disagree.

Under OCGA § 16-5-23 (a), “A person commits the offense of simple battery when he . . . either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” The accusation charged Agyemang with simple battery by “intentionally making contact of an insulting and provoking nature ... by striking [Adu-Asah] on the left arm.” Agyemang argues that there was no evidence presented at trial that he made contact with Adu-Asah in an “insulting or provoking manner[,]” and that he should have been charged for causing physical harm to her. However, OCGA § 16-5-23 (a) (1) “concerns intentional contact of an insulting or provoking nature, contemplating a touching which does not injure but which is insulting.” Lyman v. State, 188 Ga. App. 790, 791 (2) (374 SE2d 563) (1988). Here, the evidence showed that Agyemang struck Adu-Asah on the left arm and that it left a welt. “Whether or not such contact was ‘insulting and provoking’ was a factual issue to be decided by the jury.” (Citation omitted.) Eberhart v. State, 241 Ga. App. 164, 166 (2) (526 SE2d 361) (1999) (evidence was sufficient to support a conviction of simple battery under OCGA § 16-5-23 (a) (1) when defendant “repeatedly kicked, slapped, and grabbed his wife[,]” as well as “nudged” her with his foot and tried to “control” her by grabbing her arm to prevent her from leaving). Here, we cannot say that there was a fatal variance. See Curtis v. State, 285 Ga. App. 298, 302 (3) (645 SE2d 705) (2007) (“A variance is not fatal if the accused is definitely informed as to the charges against him and is protected against another prosecution for the same offense”) (citation and punctuation omitted).

Judgment vacated and case remanded to the trial court.

Barnes, P. J., concurs. McMillian, J., concurs fully in Divisions 1 and 3 and in judgment only in Division 2.

Decided October 8, 2015.

Epps & Stidham, Jacob C. Stidham, for appellant.

William A. Finch, Solicitor-General, JennaN. Thomas, Assistant Solicitor-General, for appellee.

       Agyemang was accused of family violence battery, simple battery, simple family violence battery, disorderly conduct, and two counts of cruelty to children in the third degree. After the close of the State’s evidence at trial, the trial court directed a verdict of acquittal as to one count of family violence simple battery and as to one count of disorderly conduct. The jury acquitted Agyemang of the remaining counts of family violence battery, disorderly conduct and cruelty to children in the third degree.


author: Dillard, Judge.

text:
    A15A1624.
    In the Interest of J. M. S.
    (778 SE2d 391)
   Dillard, Judge.

J. M. S. was charged with various criminal offenses, via three delinquency petitions, when he was fifteen years old, and the Glynn County juvenile court granted the State’s motion to transfer his case to the superior court. J. M. S. appeals, arguing that there was no evidence to support the juvenile court’s finding that he was not amenable to treatment or rehabilitation and that the transfer order lacked sufficient detail to show that the court properly weighed his interest in remaining in juvenile court against the community’s interest in having him treated as an adult. For the reasons set forth infra, we affirm.

In relevant part, the evidence shows that, on September 27, 2014, an individual — later identified from surveillance footage as J. M. S. — burglarized a Glynn County pawn shop and stole a laptop computer. The next day, J. M. S. and an accomplice burglarized a second pawn shop and stole three laptop computers and a DVR recording device. The surveillance footage of the second burglary shows that the perpetrators were looking at the gun case, but they were unable to steal any guns. A few days later, on October 2, 2014, J. M. S. and his accomplice burglarized the second pawn shop yet again. But this time, a police officer responded to the scene while the burglary was still in progress. J. M. S. first brandished an AR-15 rifle at the officer before turning and running from him. During the foot chase that ensued, J. M. S. dropped the AR-15 and a backpack on the ground, but continued running through a residential area and then into some nearby woods. Although J. M. S. was “very aggressive” and “put up a fight,” the officer was ultimately able to apprehend him by deploying a taser.

Subsequently, in addition to the AR-15, police officers recovered 15 other firearms from the backpack that J. M. S. had discarded. And in his 14 years working in law enforcement, the responding officer stated that he had never seen a situation where a 15-year-old was in possession of that many firearms.

An investigating officer, who was an expert in gang activity, interviewed J. M. S., who admitted to being a member of a specific street gang. J. M. S. also showed the officer pictures of him “throwing gang signs,” and in one of the photographs, he was with an individual known to be a member of the same criminal street gang. J. M. S. also provided the names of other known gang members. The officer believed that the burglaries were gang related, in part, because there had been prior reports that J. M. S. criminally trespassed on several businesses with well-known gang members. In addition, during his past investigations of street-gang activity, the officer had encountered numerous situations in which adult gang members used juveniles to commit crimes because, if caught, they would be prosecuted in juvenile court. The officer believed that J. M. S. had been instructed to steal a large number of weapons, which would have caused “chaos” in Glynn County.

Ultimately, three delinquency petitions were filed in the juvenile court against J. M. S. related to the pawn-shop burglaries. Specifically, the first petition charged J. M. S. with second-degree burglary, second-degree criminal damage to property, obstructing or hindering a law-enforcement officer, obstructing or hindering a law-enforcement officer with violence, possession of a handgun by a person under the age of eighteen, and eight counts of participation in criminal gang activity. The other two petitions charged J. M. S. with one count each of second-degree burglary and participation in criminal gang activity. Thereafter, the State moved to transfer the case to superior court. After a probable cause hearing and a separate hearing on the State’s motion, the juvenile court granted the motion and transferred the case to the superior court. This appeal by J. M. S. follows.

1. J. M. S. first argues that the juvenile court abused its discretion in transferring his case to superior court because the State failed to meet its burden of showing that he is not amenable to treatment or rehabilitation. We disagree.

We begin by noting that the function of this Court is limited to ascertaining whether there was “some evidence to support the juvenile court’s determination, and absent an abuse of discretion, we will affirm the order transferring jurisdiction.”

Under former OCGA § 15-11-562 (a), the criteria that the juvenile court must consider in determining whether to transfer an alleged delinquent child to superior court includes, but is not limited to:

(1) The age of such child; (2) The seriousness of the alleged offense, especially if personal injury resulted; (3) Whether the protection of the community requires transfer of jurisdiction; (4) Whether the alleged offense involved violence or was committed in an aggressive or premeditated manner; (5) The culpability of such child including such child’s level of planning and participation in the alleged offense; (6) Whether the alleged offense is a part of a repetitive pattern of offenses which indicates that such child may be beyond rehabilitation in the juvenile justice system; (7) The record and history of such child, including experience with the juvenile justice system, other courts, supervision, commitments to juvenile institutions, and other placements; (8) The sophistication and maturity of such child as determined by consideration of his or her home and environmental situation, emotional condition, and pattern of living; (9) The program and facilities available to the juvenile court in considering disposition; and (10) Whether or not a child can benefit from the treatment or rehabilitative programs available to the juvenile court.

As previously mentioned, J. M. S. argues that the juvenile court abused its discretion in transferring his case to superior court because the State failed to present sufficient evidence that he was not amenable to treatment or rehabilitation in the juvenile system. At the transfer hearing, a juvenile-court probation officer, who completed a predisposition risk assessment for J. M. S., testified that he scored an eight on the assessment and that anyone who scores higher than six is considered high risk. The officer further testified that, although J. M. S. had not been previously adjudicated as a delinquent child, he had three prior “informal adjustments” for various offenses, including simple battery, criminal trespass, curfew violation, possession of alcoholic beverages by a person below the legal age, and ungovernable behavior. As to whether the officer believed that the case should be transferred, she testified that she was “straddling the fence” because, although her personal opinion was that the case should not be transferred, her professional opinion “was the total opposite.”

Further, while the officer did not know what type of services the Department of Juvenile Justice could provide to J. M. S., she indicated that the juvenile court has various therapy programs. And related to his prior “informal adjustments,” J. M. S. had been placed in one of these programs, but he only attended once or twice and was ultimately considered to be non-compliant with that program. The officer testified that she was unaware of any programs that could deter J. M. S. from being a gang member, and she believed that the lack of adult supervision in his home contributed to his “roaming the streets and stuff like that.” When asked if she could think of any reason that J. M. S. would not be amenable to treatment, the officer responded that the charge that he stole an “excessive amount of guns” was deeply concerning. The officer further testified that she “most definitely” had concerns for the community in light of the serious nature of the charges.

Faced with the foregoing, we cannot say that there was no evidence to support the juvenile court’s determination that it was “doubtful” J. M. S. was amenable to treatment in the juvenile system. Indeed, J. M. S. had been non-compliant with a juvenile-treatment program in the past, and despite his history in the juvenile-court system, he continues to engage in criminal activity that has escalated in severity. In this respect, we have held that, “[e]ven if there is evidence that the child may be amenable to treatment, the juvenile court may still transfer the case if it finds that the amenability factor is outweighed by the interest of the community in treating the child as an adult.” Indeed, under former OCGA § 15-11-562, a child’s amenability to treatment is only one of ten factors to be considered by the court in determining whether the community’s interest in treating the child as an adult outweighs the child’s interest in treatment in the juvenile system. And here, even assuming J. M. S. was amenable to treatment, the juvenile court’s determination that the community’s interest in transferring his case to superior court outweighed J. M. S.’s interest in remaining in the juvenile system was supported by the evidence.

Specifically, J. M. S.’s criminal conduct escalated from a history of minor offenses, such as trespass and curfew violations, to three commercial burglaries that occurred within the span of a few days. And during the last of these burglaries, J. M. S. stole sixteen firearms, aimed an AR-15 rifle at a police officer, and engaged in aggressive behavior toward the officer until he was finally subdued by a taser. There was also evidence that the last burglary “was very sophisticated and well thought out.” Additionally, an expert in gang activity believed that the burglaries were gang-related based in part on J. M. S.’s own admission to being a gang member and his prior association with well-known gang members. The expert also testified in detail about the serious danger that criminal street gangs pose to. the community and noted that there had been an increase in gang-related criminal violations in Glynn County since 2012. Further, he testified that the potential danger to the community if J. M. S. had successfully stolen such a large number of firearms was “very alarming.” Under these particular circumstances, we simply cannot say that the juvenile court abused its discretion in determining that the community’s interest in transferring the case to the superior court outweighed J. M. S.’s interest in remaining in the juvenile-court system.

2. J. M. S. also contends that the juvenile court’s transfer order merely recites the relevant statutory factors without showing that it properly weighed the community’s interest in transferring him to the superior court against his interest in potential rehabilitation in the juvenile system. This argument is belied by the record.

Contrary to J. M. S.’s contention, the juvenile court’s seven-page transfer order reflects that it engaged in the appropriate balancing test in finding that a transfer was warranted in this case. Indeed, the court specifically found that, due to the egregious nature of his most recent offenses, J. M. S.’s interest in being prosecuted in the juvenile-justice system was outweighed by the community’s interest in having him prosecuted in superior court. Thus, this argument is entirely without merit.

Decided October 8, 2015.

Mcllvaine Law Group, J. Wrixam Mcllvaine, for appellant.

Jacquelyn L. Johnson, District Attorney, Whitney J. Hunter, Assistant District Attorney, for appellee.

For all of the foregoing reasons, we affirm the juvenile court’s order transferring J. M. S.’s case to the superior court.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.

        See In the Interest of R. W., 299 Ga. App. 505, 505, n.1 (683 SE2d 80) (2009) (“An order transferring a case from juvenile to superior court is a final order that is directly appealable.”).

        In the Interest of A. W., 312 Ga. App. 513, 514 (718 SE2d 865) (2011) (punctuation omitted).

       We note that the current version of OCGA § 15-11-562 didnot become effective untilJuly 1, 2015, and J. M. S.’s offenses and transfer hearing occurred in 2014. Thus, former OCGA § 15-11-562, which was effective from January 1,2014, until May 4,2015, applies in this case. See Ga. L. 2013, p. 294, § 1. Nevertheless, the only substantive difference between the two versions of the statute is that the current version includes one additional factor for the juvenile court’s consideration — “[t]he impact of the alleged offense on the alleged victim, including the permanence of any physical or emotional injury sustained, health care expenses incurred, and lost earnings suffered.” See OCGA § 15-11-562 (a) (5) (2015).

        See In the Interest of K. P., 305 Ga. App. 670, 670-71 (700 SE2d 665) (2010) (“On appeal from a transfer order, the function of this Court is limited to ascertaining whether there was some evidence to support the juvenile court’s determination that the [statutory] requirements . . . have been met.” (punctuation omitted; emphasis supplied)).

        See In the Interest of J. B. H., 241 Ga. App. 736, 739-40 (2) (527 SE2d 18) (1999) (holding that there was sufficient evidence to support the juvenile court’s decision to transfer the case to superior court based in part on the serious nature of the offenses and the minor’s history in the juvenile system); In the Interest of K. S. K., 216 Ga. App. 257, 259 (2) (454 SE2d 165) (1995) (concluding that juvenile court’s determination that the child was not amenable to treatment was supported by the evidence when the child had engaged in “habitual acts of delinquency”); see also former OCGA § 15-11-562 (a) (7) (2014) (providing that one factor to be considered in determining whether a transfer to superior court is warranted is the record and history of such child, including experience with the juvenile-justice system).

        In the Interest of D. M., 299 Ga. App. 586, 591 (2) (683 SE2d 130) (2009) (punctuation omitted); accord In the Interest of D. C., 303 Ga. App. 395, 398 (1) (b) (693 SE2d 596) (2010); see also State v. M. M., 259 Ga. 637, 640 (3) (386 SE2d 35) (1989) (holding that the State was not required to prove that the child was not amenable to treatment when the community’s interest in treating the child as an adult outweighed the child’s interest in remaining in the juvenile system due to the heinous nature of the charged offenses involved).

        See M. M., 259 Ga. at 639-40 (2) (a), (c) (explaining that “a child’s amenability or non-amenability to treatment is hut one factor to consider in determining the child’s and the community’s interests,” and that a court “must balance the child’s interest in treatment in the juvenile system, including but not limited to his amenability to treatment, against the community’s interest in treating the child as an adult”).

        See former OCGA § 15-11-562 (a) (6) (2014) (providing that one factor to be considered in determining whether a transfer to superior court is warranted is whether the alleged offense is a part of a repetitive pattern of offenses which indicates that such child may be beyond rehabilitation in the juvenile-justice system).

        See id. (a) (2), (4)-(5) (providing that factors to he considered in determining whether a transfer to superior court is warranted include the seriousness of the alleged offense, whether the alleged offense involved violence or was committed in an aggressive manner, and the culpability of such child including such child’s level of planning and participation in the alleged offense).

        See id. (a) (4) (providing that one factor to be considered in determining whether a transfer to superior court is warranted is whether the alleged offense involved was premeditated).

        See id. (a) (3) (providing that one factor to be considered in determining whether a transfer to superior court is warranted is whether the protection of the community requires transfer of jurisdiction).

       J. M. S.’s appellate counsel asserts that we should take “judicial notice” that there are far more “egregious” crimes committed by juveniles in Georgia than burglary in the second degree and criminal gang activity and that the State presented no evidence that J. M. S. was not amenable to treatment other than insisting that J. M. S. had committed “the proverbial crimes of the century.” We reject this contention, which disregards the serious risk of violence to the Glynn County community if J. M. S. had successfully disseminated sixteen firearms among gang members. Indeed, J. M. S. aimed an AR-15 at a police officer and aggressively attempted to elude him in such a way that could have resulted in serious bodily injury or death.

        See In the Interest of M. J., 326 Ga. App. 574, 576 (757 SE2d 184) (2014) (holding that the juvenile court did not abuse its discretion in determining that the community’s interest in treating the minor as an adult outweighed the minor’s interest in remaining in the juvenile system when, inter alia, his gang-related action of committing an unprovoked assault on a stranger caused serious injury to the victim and his gang’s actions “cast a net of fear and intimidation over the community which members of the community must confront every day.” (punctuation omitted)); In the Interest of D. M., 299 Ga. App. at 591 (2) (holding that the record supported the juvenile court’s conclusion that the community’s interest in a transfer outweighed the child’s interest in remaining in the juvenile court when, inter alia, the escalating nature of the criminal conduct authorized a finding that the child posed a serious threat to the community); In the Interest of J. B., 234 Ga. App. 775, 775, 777 (2) (507 SE2d 874) (1998) (holding that the juvenile court did not err in ordering the transfer when the court’s finding that a 15-year-old gang member was a potential threat to other youths and the community at large was supported by evidence that he ‘brandished a gun on school property threatened six youths, and stated that he would have shot them if he had had ammunition”).