text:
    A12A0622.
    STENNETTE v. MILLER et al.
    (729 SE2d 559)
   McFadden, Judge.

Maureen Stennette was injured when she was bitten multiple times by Robin Miller’s dog, Milo, while Stennette was at Miller’s house providing nursing services to Miller’s elderly mother, Helen Amonds, who also lived in the house. Stennette appeals from the trial court’s grant of summary judgment to Miller in Stennette’s personal injury action. As detailed below, we affirm the grant of summary judgment to Miller on Stennette’s claims of liability based on the dangerous animal liability statute (OCGA § 51-2-7) and the premises liability statute (OCGA§ 51-3-1), because Stennette failed to point to evidence showing triable issues on whether Milo had a vicious propensity and whether Miller knew of that propensity. But we reverse the grant of summary judgment to Miller on Stennette’s claim that Miller negligently performed a voluntarily-undertaken duty to keep the dog away from her when she was at the house, because the evidence created genuine issues of material fact as to this claim. (The trial court also granted summary judgment to Miller on Stennette’s claim of liability based upon OCGA § 4-8-26, but Sten-nette has raised no claim of error on appeal regarding that ruling.)

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.

(Citations and punctuation omitted.) Stolte v. Hammack, 311 Ga. App. 710 (716 SE2d 796) (2011).

So viewed, the evidence showed that at the time of the incident Stennette worked for a company that provided in-home nursing services to patients. On Stennette’s first visit to Miller’s house to provide services to Amonds, Milo jumped on her in an aggressive manner but did not attempt to scratch or bite her. Stennette asked Miller to keep Milo and Miller’s other dogs away from her during that visit, and Miller did so. Stennette later informed her employer about the dogs and was told that it was company policy for dogs to be confined during a home health care visit. It became Stennette’s practice to call Miller before visiting the house to ask that the dogs be confined away from her and, upon arriving, to check that the dogs were so confined before entering the house.

The day of the incident, December 1, 2008, Stennette informed Miller that she would be coming to the house and asked that the dogs be confined. Miller put the six dogs — Milo (a male bulldog), two female bulldogs, and three smaller dogs — into her fenced back yard. She then departed to run an errand, leaving Amonds and the housekeeper at the house.

When Stennette arrived at the house she was greeted by the housekeeper who told her that the dogs were confined. As Stennette entered the house through the front door, however, the dogs managed to get into the house through the back door. As Milo approached Stennette, the housekeeper unsuccessfully attempted to stop him or call him back. The two female bulldogs began chewing on Stennette’s shoe, and Milo bit her leg. Stennette jumped onto a couch, followed by Milo, who continued to bite her. She was bitten more than 20 times and sustained significant injuries before the housekeeper managed to pull Milo away from her. Amonds, who was in her eighties at the time, witnessed the incident but did not attempt to control Milo.

1. Stennette argues that a genuine issue of material fact exists as to Miller’s liability under OCGA § 51-2-7, which “sets forth the liability of owners of vicious or dangerous animals for injuries caused by those animals.” Durham v. Mason, 256 Ga. App. 467, 468 (1) (568 SE2d 530) (2002). That Code section pertinently provides:

A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash. . . .

OCGA § 51-2-7. “Unless there is evidence that the animal was not ‘at heel or on a leash’ as required by local ordinance at the time of the incident, a plaintiff in a dog bite case [under OCGA § 51-2-7] must show that the owner had knowledge that the dog had the propensity to commit the act that caused the injury.” (Citations omitted.) Durham, 256 Ga. App. at 468 (1). Accord Oertel v. Chi Psi Fraternity, 239 Ga. App. 147, 148-149 (2) (521 SE2d 71) (1999); Fields v. Thompson, 190 Ga. App. 177 (378 SE2d 390) (1989). As explained below, we find no genuine issue of material fact that, at the time of the incident, Milo was required to be at heel or on a leash or that Miller had knowledge that Milo had the propensity to bite a human, and thus the court did not err in granting summary judgment on Stennette’s OCGA§ 51-2-7 claim.

(a) Stennette argues that Miller violated section 10-11 (a) (1) of Cobb County’s animal control ordinance, which pertinently provided that “[i]t shall be unlawful for the owner of any animal to permit such animal to be out of his immediate control and restraint. . . .” The ordinance, however, did not require Milo to be “at heel or on a leash” at the time of the incident. Where, as here, a dog is on its owner’s premises, section 10-11 (a) (2) a. of the ordinance permits three alternative means of restraining the dog:

Restraint of dogs and/or animals shall be maintained as follows:... When upon the premises of the owner, all animals shall be kept [1] indoors or [2] in a primary enclosure as defined by this chapter in such a manner as to contain the animal within the bounds of the owner’s premises, or [3] on a leash in the hands of a person that possesses the ability to restrain the animal.

It is undisputed that, at all relevant times, Milo was kept either inside Miller’s house or in her fenced back yard, which was a “primary enclosure” as defined by section 10-1 of the ordinance.

Nevertheless, Stennette argues that Miller was in violation of more general requirements of the ordinance relating to the control of animals, which she contends was enough to raise an issue of Miller’s liability under OCGA § 51-2-7. She cites Johnston v. Warendh, 252 Ga. App. 674 (556 SE2d 867) (2001), in support of this argument. We find Johnston distinguishable because the dog in that case was not within its owner’s house or fenced yard but was running free in front of the owner’s house when it bit the plaintiff. Id. In any event, we must follow the plain meaning of the language in construing statutes and local ordinances. Huff v. Dyer, 297 Ga. App. 761, 764 (2) (678 SE2d 206) (2009). OCGA § 51-2-7 provides that an animal’s vicious propensity may be proved by a showing of a specific type of violation of an animal control ordinance — a violation of a requirement that the animal be at heel or on a leash. But OCGA § 51-2-7 says nothing about violations of other requirements within an animal control ordinance. Because Stennette did not make the showing of the type of animal control ordinance violation specified by the plain language of OCGA § 51-2-7, she was required instead to show that Miller had knowledge of Milo’s vicious propensity in order to establish Miller’s liability under that Code section. See Durham, 256 Ga. App. at 468 (1).

(b) “In order to support an action for damages under OCGA § 51-2-7, it is necessary to show that the dog was vicious or dangerous and that the owner had knowledge of this fact.” (Citation omitted.) Rowlette v. Paul, 219 Ga. App. 597, 599 (466 SE2d 37) (1995). “[T]o infer the requisite knowledge there must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury.” (Citation omitted.) Durham v. Mooney, 234 Ga. App. 772, 773 (1) (507 SE2d 877) (1998).

In support of her motion for summary judgment, Miller offered evidence that Milo had not previously bitten or attempted to bite anyone. See Custer v. Coward, 293 Ga. App. 316, 318-319 (1) (667 SE2d 135) (2008) (summary judgment was appropriate where there was no evidence that dog had bitten or attempted to bite anyone prior to incident). In response, Stennette failed to point to specific evidence giving rise to a triable issue on Miller’s knowledge that Milo had a vicious propensity. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Stennette conceded in deposition testimony that she was not aware of any prior instance in which Milo had bitten a person and that, although Milo jumped on her in an aggressive manner on her first visit to the house, he did not attempt to bite or scratch her. A dog’s menacing behavior alone does not demonstrate its vicious propensity or place its owner on notice of such propensity. See Huff, 297 Ga. App. at 763 (1); Raith v. Blanchard, 271 Ga. App. 723, 725 (2) (611 SE2d 75) (2005); Wade v. American Nat. Ins. Co., 246 Ga. App. 458, 460 (1) (540 SE2d 671) (2000). Although Stennette points to evidence that the female bulldogs were in heat, which could make a male dog more aggressive, this is not relevant to whether Milo had the propensity to bite a human and whether Miller knew of such propensity.

Finally, Stennette points to the testimony of a law enforcement officer who had asked Amonds about an older wound on her leg and who “believe[d] that Mrs. Amonds told [him] she was bit by the dog.” By the summary judgment stage of the proceedings, Amonds had passed away, and the parties to this appeal have not addressed whether her out-of-court statement could be competent evidence against Miller. See generally Chapel v. State, 270 Ga. 151, 154-155 (4) (510 SE2d 802) (1998) (describing circumstances under which a statement made by a deceased person may be admissible under the necessity exception to the hearsay rule). Even so, Stennette’s assertion that “the dog” to which Amonds referred was Milo rather than one of the other five dogs in the household amounts only to conjecture and does not establish a genuine issue of material fact. See Bashlor v. Walker, 303 Ga. App. 478, 482 (1) (b) (693 SE2d 858) (2010). The record contains no other evidence supporting the conjecture that Milo had bitten Amonds, and Stennette’s own deposition testimony contradicts this conjecture — despite being familiar with Amonds’s wounds, Stennette testified that she had no information that, prior to Milo’s attack against her, any dog in the household had bitten or harmed, or had attempted to bite or harm, any person.

2. Stennette argues that the trial court erred in granting summary judgment on her premises liability claim under OCGA § 51-3-1. But a plaintiff asserting a premises liability claim for injuries sustained from a dog bite is “required to produce evidence of the vicious propensity of the dog in order to show the dangerous condition of which the premises owner had superior knowledge.” (Citation, punctuation and emphasis omitted.) Wade, 246 Ga. App. at 461 (1). As explained in Division 1 (b), Stennette has not pointed to evidence giving rise to a genuine issue of material fact on Milo’s vicious propensity and Miller’s knowledge thereof. Consequently, Miller was entitled to summary judgment on this claim.

3. We agree with Stennette, however, that the trial court erred in granting summary judgment on her claim that Miller breached a voluntarily-assumed “duty to secure the dogs from the area where [Stennette] was providing medical services.” In Osowski v. Smith, 262 Ga. App. 538 (586 SE2d 71) (2003), a dog bite case, we held that a plaintiff’s claims under the dangerous animal liability statute and the premises liability statute were subject to summary judgment for lack of evidence that the dog had any dangerous propensities or that its owner knew about such propensities. Id. at 540 (1). We held, however,

that does not end our analysis, because a person may be held liable for the negligent performance of a voluntary undertaking. Under this principle, one who undertakes to do an act or perform a service for another has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous, and he was not under any obligation to do such act or perform such service, or there was no consideration for the promise or undertaking sufficient to support an action ex contractu based thereon. When one undertakes an act that he has no duty to perform and another person reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care. The person assuming such responsibility may be held liable for negligently performing the duties so assumed.

(Citations and punctuation omitted.) Id. Applying this principle, we held in Osowski that the court erred in granting summary judgment to a dog owner on the plaintiff’s negligence claim in light of the following evidence: that the plaintiff, who was scheduled to perform work at the defendant’s house, asked the defendant whether the dogs were aggressive or would pose a problem to him; that the defendant offered to restrain the dogs if that would make the plaintiff “feel better”; that the plaintiff did not leave the safety of his vehicle until he had discussed with the defendant “the safety issue regarding restraining the dogs”; and that some of the dogs were not under restraint or confined away from the plaintiff at the time of the plaintiffs injury. Id. at 540-541 (1). This evidence, we reasoned, presented jury questions “as to whether [the defendant] explicitly or implicitly agreed to undertake ensuring that the dogs would not pose a risk of harm to [the plaintiff],” whether the defendant breached that duty, and whether such breach caused the plaintiff’s harm. Id. at 541 (1).

The evidence in this case is similar to that in Osowski. Stennette was at Miller’s house to perform a job. Previously she had expressed concern to Miller about the dogs and had asked that they be confined away from her on her visits to the house. Miller had complied with Stennette’s requests. On the day of the attack, Stennette asked that the dogs be confined and did not enter the house until she received confirmation from the housekeeper that the dogs were in the back yard. In addition, Stennette presented evidence that Miller had left the dogs in the care of Amonds and the housekeeper on the day in question, but that Amonds and the housekeeper were not capable of controlling the dogs.

Decided June 26, 2012.

Robertson, Bodoh & Nasrallah, Mathew G. Nasrallah, for appellant.

Lloyd B. Hedrick, Jr., for appellees.

This evidence created a genuine issue of material fact as to whether Miller had undertaken a duty to keep the dogs away from Stennette while she was in the house, whether Miller breached that duty, and whether such breach caused Stennette’s injuries. Osowski, 262 Ga. App. at 540-541 (1). Consequently, the court erred in granting summary judgment to Miller on Stennette’s negligence claim.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Adams, J., concur.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A12A0790, A12A0791.
    GIBBS v. THE STATE (two cases).
    (729 SE2d 563)
   McFadden, Judge.

Carl Gibbs and his son, Scottie Gibbs, appeal from their convictions for aggravated assault. Construed in favor of the verdict, see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), evidence presented at trial shows that after a motor vehicle collision, both Carl and Scottie Gibbs fired gunshots at their neighbors, Dennis and Leigh Ann Cox. On appeal, the Gibbses argue that their trial attorneys were ineffective in failing to introduce testimony from an accident reconstruction expert to contradict the Coxes’ testimony that the collision occurred on their property and not on the dirt road in front of their property. The argument is without merit.

To obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel’s performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. To establish deficient performance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. In considering adequacy of performance, trial counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

(Citations and punctuation omitted.) Brown v. State, 310 Ga. App. 285, 287-288 (6) (712 SE2d 521) (2011).

In this case, the defense strategy was not to contest the circumstances of the collision, but was to show that Carl and Scottie Gibbs did not fire any shots at the victims. Moreover, the attorneys explained that they did not think an accident reconstruction expert would be helpful because, by the time they could have hired one, the conditions of the dirt road had changed significantly and the vehicles were not in the same condition they were in immediately after the collision. “Decisions based on counsel’s reasonable trial strategy do not constitute deficient performance, and reviewing courts do not evaluate trial counsel’s tactics and strategic decisions in hindsight.” (Citation and punctuation omitted.) Davis v. State, 293 Ga. App. 799, 802 (3) (668 SE2d 290) (2008). Accordingly, the appellants have failed to show that their respective trial counsel’s performance was deficient. See Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008) (strategic decisions regarding which witnesses to call within exclusive province of the attorney).

Furthermore, even if we were to presume for the sake of argument that the performance of the trial attorneys was deficient, the appellants have not shown that they were prejudiced by the decision of their attorneys not to call an expert to testify that the location of the collision was in the roadway and not on the Coxes’ property. At trial, the sheriff’s lieutenant who investigated the incident testified that there was no doubt, based on debris found in the roadway and on statements given by the Coxes and Carl Gibbs, that the collision occurred in the middle of the road. Therefore, neither of the appellants can “show that he was prejudiced by his counsel’s failure to call an expert to provide cumulative evidence about the alleged [location of the collision] r Duran v. State, 274 Ga. App. 876, 879 (3) (619 SE2d 388) (2005). See also Johnson v. State, 257 Ga. App. 30, 31 (1) (570 SE2d 344) (2002) (failure to present cumulative evidence through additional witness testimony does not amount to ineffective assistance of counsel).

Judgments affirmed.

Barnes, P. J., and Adams, J., concur.

Decided June 26, 2012.

Donna A. Seagraves, for appellants.

J. Bradley Smith, District Attorney, for appellee.


author: BARNES, Presiding Judge.

text:
    A10A2167.
    GEORGIA SOCIETY OF AMBULATORY SURGERY CENTERS v. GEORGIA DEPARTMENT OF COMMUNITY HEALTH et al.
    (729 SE2d 565)
   BARNES, Presiding Judge.

The Georgia Society of Ambulatory Surgery Centers (“GSASC”) brought this action against the Georgia Department of Community Health and its commissioner (collectively, “DCH”) for declaratory judgment and injunctive relief, alleging that a 2009 annual survey issued by DCH to ambulatory surgery centers (“ASCs”) sought information beyond the scope of OCGA § 31-6-70. The trial court denied GSASC’s request for an interlocutory injunction on the ground that DCH was “authorized to request the information at issue under Georgia law.”

In a 4-3 decision, this Court reversed the trial court, concluding that the 2009 survey sought information beyond what was statutorily authorized. See Ga. Society of Ambulatory Surgery Centers v. Ga. Dept. of Community Health, 309 Ga. App. 31, 33-37 (1) (710 SE2d 183) (2011). This Court further concluded that GSASC and its members were not required to exhaust administrative remedies before bringing suit for declaratory and injunctive relief because (1) resorting to those remedies would be futile and (2) GSASC was challenging DCH’s power to act. Id. at 37-40 (2).

The Supreme Court of Georgia subsequently reversed the judgment of this Court on the ground that neither of the two exceptions upon which we relied to dispense with the administrative exhaustion requirement was applicable. See Ga. Dept. of Community Health v. Ga. Society of Ambulatory Surgery Centers, 290 Ga. 628 (724 SE2d 386) (2012). Consequently, we vacate our previous opinion and adopt the opinion of the Supreme Court as our own.

The Supreme Court also remanded the case to this Court for further proceedings not inconsistent with its opinion. On remand from the Supreme Court, “it is the responsibility of this Court then to determine the impact of the reversal on our previous decision and to resolve any reopened issues.” St. Paul Reinsurance Co. v. Ross, 276 Ga. App. 135, 136, n. 1 (622 SE2d 374) (2005). In this Court’s previous decision, the majority did not address GSASC’s additional argument that the administrative remedies available to its members, which own and operate licensed ASCs, are inadequate. We address that argument now.

As explained in our previous decision,

if an ASC is fined, sanctioned, or has its exemption status revoked for failure to fully respond to an annual survey, the ASC is entitled to notice and an administrative hearing under the Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq., before any such fine or sanction is exacted. See OCGA §§ 31-6-40 (c) (2); 31-6-47 (a) (18). After an administrative hearing, the ASC may appeal to the Commissioner of DCH, and then petition for judicial review. See OCGA§ 50-13-19; Ga. Comp. R. & Regs. r. 111-2-2-.05 (2) (e).

Ga. Society of Ambulatory Surgery Centers, 309 Ga. App. at 37 (2). Because these procedures are available to ASCs before DCH takes any final adverse action against them for failing to provide the required survey information, the procedures afford adequate administrative remedies to aggrieved ASCs.

In arguing otherwise, GSASC relies upon Moss v. Central State Hosp., 255 Ga. 403 (339 SE2d 226) (1986), and Thomas v. Ga. Bd. of Dentistry, 197 Ga. App. 589 (398 SE2d 730) (1990), but both of those cases are distinguishable. Both cases stand for the proposition that an administrative remedy is inadequate if “the remedy is available only upon exposure to loss of livelihood,” such that “the administrative remedy exacts a price which causes it to be no remedy at all.” Moss, 255 Ga. at 404. See Thomas, 197 Ga. App. at 590 (1). Here, the existing record does not demonstrate that any of the potential sanctions to which members of GSASC might be exposed for failing to provide the required survey information would likely result in a complete loss of livelihood for those members. Accordingly, GSASC’s reliance on Moss and Thomas is misplaced.

Decided June 27, 2012.

McGuire Woods, Victor L. Moldovan, Kevin C. Watters, for appellant.

Thurbert E. Baker, Attorney General, Sidney R. Barrett, Jr., Senior Assistant Attorney General, AlexF. Sponseller, Assistant Attorney General, for appellees.

“When an adequate administrative remedy exists that has not been taken, dismissal of any declaratory judgment or equitable action is appropriate.” USA Pay day Cash Advance Centers v. Oxendine, 262 Ga. App. 632, 635 (585 SE2d 924) (2003). Because GSASC represents the interests of members that have adequate administrative remedies, and it is undisputed that those members have not exhausted those remedies, the trial court was required to dismiss the case. See Northeast Ga. Cancer Care v. Blue Cross & Blue Shield of Ga., 297 Ga. App. 28, 32 (1) (676 SE2d 428) (2009). Accordingly, we vacate the trial court’s ruling on the merits of GSASC’s interlocutory injunction claim and remand with the instruction that the case be dismissed. See generally Atmos Energy Corp. v. Ga. Public Svc. Comm., 290 Ga. App. 243, 249 (1) (c) (659 SE2d 385) (2008), aff’d, 285 Ga. 133 (674 SE2d 312) (2009); Blue Cross & Blue Shield of Ga. v. Deal, 244 Ga. App. 700, 707-708 (3) (536 SE2d 590) (2000).

Judgment vacated and case remanded with instruction.

Mikell, P. J., Andrews, Adams, Blackwell, Dillard and Boggs, JJ., concur.

       Relying upon Thomas, GSASC also argues that its members might be criminally prosecuted if they give false or inaccurate information in response to the required survey, and that, as a result, the administrative remedies afforded to them are inadequate. But, as Judge Blackwell noted in his original dissent in this case, “no one contends that the members of the [GSASC] have a right to give false information to [DCH]; the [GSASC] merely contends that its members have a right to give no information at all in response to these questions.” Ga. Society of Ambulatory Surgery Centers, 309 Ga. App. at 42, n. 6 (Blackwell, J., dissenting). It therefore follows that the threat of criminal prosecution for supplying false or inaccurate information in response to a required survey “has [no] bearing upon the effectiveness of administrative remedies in this case.” Id.


text:
    A12A0004.
    PILGRIM v. THE STATE.
    (729 SE2d 586)
   BARNES, Presiding Judge.

On June 3, 2009, Abedi Pilgrim entered a nonnegotiated guilty plea to six counts of armed robbery and six counts of aggravated assault. He was sentenced to 40 years, to serve 20. On June 22, 2009, Pilgrim, pro se, filed a motion to withdraw his guilty plea and for appointment of counsel. At a June 26, 2009 hearing, Pilgrim withdrew his motions to withdraw his guilty plea and for appointment of new counsel, and was resentenced to 30 years, with 12 to serve. On August 30, 2010, Pilgrim filed a motion to vacate a void sentence, which the trial court denied on September 1, 2010. Pilgrim, thereafter, on January 27, 2011 filed a motion for an out-of-time appeal to appeal the denial of the motion to vacate his sentence, which the trial court denied on February 2, 2011. On June 24, 2011, Pilgrim filed an extraordinary motion in arrest of judgment alleging that the indictment failed to properly establish venue, which the trial court denied. It is from that order that he appeals, contending that his indictment was flawed in multiple ways, including that it lacked the essential elements of the crimes charged, and failed to state the proper venue.

Decided June 27, 2012.

Abedi Pilgrim, pro se.

Amotion in arrest of judgment must be based on a nonamendable defect that appears on the face of the record or pleadings and “must be made during the term at which the judgment was obtained.” OCGA§ 17-9-61 (b); Lay v. State, 289 Ga. 210, 211 (2) (710 SE2d 141) (2011). Pilgrim’s motion in arrest of judgment was not filed in the term in which the judgment was obtained, and was thus untimely. Under OCGA § 15-6-3 (20), the terms of court for the Superior Court of Gwinnett County commence on the “First Monday in March, June, and December and second Monday in September.” Pilgrim’s conviction occurred in the June term of 2009, but he filed his motion in June 2011.

[T]he untimely filing of a motion in arrest of judgment in the trial court is not a defect in appellate jurisdiction that will subject an appeal from the trial court’s ruling on such a motion to dismissal, as would an untimely filed notice of appeal. Instead, the untimeliness of the motion is simply a defect that limits the trial court’s authority to grant the motion.

(Citation omitted.) Lay, 289 Ga. at 212 (2).

Thus, as Pilgrim’s motion was clearly untimely, the trial court did not have authority to grant the motion, and accordingly did not err in denying his motion. We affirm the trial court’s denial, and advise Pilgrim that habeas corpus is the only means now available for challenging his guilty plea. See McGruder v. State, 307 Ga. App. 379, 380 (2) (705 SE2d 175) (2010).

Judgment affirmed.

Adams and McFadden, JJ., concur.

Daniel J. Porter, District Attorney, William C. Akins, Assistant District Attorney, for appellee.


text:
    A12A0032.
    IN THE INTEREST OF K. F., a child.
    (729 SE2d 575)
   BARNES, Presiding Judge.

K. F. was adjudicated delinquent for acts which would have constituted theft by receiving stolen property, three counts of burglary, and one count of attempted burglary if committed by an adult. He was also adjudicated delinquent for possession of a firearm by a person under 18. The juvenile court sentenced him as a designated felon and committed him to the custody of the Department of Juvenile Justice for five years in restrictive custody in a youth detention center. K. F. appeals, contending that his counsel was ineffective, and that the juvenile court abused its discretion in sentencing him as a designated felon. For the reasons that follow, we affirm.

1. K. F. contends his trial counsel was ineffective by failing to communicate the State’s plea offer to him and the evidence it planned to present, and that had he been informed he would have taken any recommendation for less than the five years he was sentenced.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that his counsel’s performance was deficient and that the deficiency so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that counsel’s performance falls within the broad range of reasonable professional conduct. The trial court’s findings with respect to effective assistance of counsel will be affirmed unless clearly erroneous.

In the Interest of T. M., 303 Ga. App. 322, 324-325 (2) (693 SE2d 574) (2010). In the context of the plea process, “the proper question at the prejudice step is whether [K. F] demonstrated that, but for counsel’s deficient performance, there is a reasonable probability that he would have accepted the State’s plea offer.” Cleveland v. State, 285 Ga. 142, 145 (674 SE2d 289) (2009).

A defendant “is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him. For counsel to do otherwise amounts to less than reasonably professional assistance.” Lloyd v. State, 258 Ga. 645, 648 (2) (a) (373 SE2d 1) (1988). Moreover, “(p)rior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.” (Punctuation omitted.) Cleveland, 285 Ga. at 144.

At the ineffective assistance hearing, K. F.’s trial counsel testified that she met with K. F. from ten to twelve times, with the last visit occurring the day before the trial. She testified that she discussed the facts of his case extensively with K. F., including the discovery as it became available, and that she was confident that K. F. understood all of the evidence against him. Trial counsel testified that she “knew this would be a ... designated felony, since it would be [K. F.’s] fourth felony” and that she explained to K. F. that he could receive a five-year sentence if adjudicated guilty, but that she worked out a plea offer of three years which she communicated to K. F. She testified that the first offer of three years was “early, on before the arraignment” and she conveyed the offer to K. F. that same day. Trial counsel testified that the three-year offer was later rescinded, but that on the day of K. F.’s disposition, she convinced the State to renew the three-year offer but that K. F.’s parents thought that it was too much time and wanted to “leave it up to the judge.”

K. F. testified at the hearing that trial counsel visited him only twice, and never communicated any information about the evidence that would be presented at trial, or that the State had presented any plea offers. He testified that had he known about an offer for less time, based on the evidence the State had, and the five-year sentence he was facing, he would have pled guilty. Despite K. F.’s testimony otherwise, the trial court was authorized to believe counsel’s testimony over his. Curry v. State, 238 Ga. App. 511, 522 (5) (b) (519 SE2d 269) (1999).

2. K. F. also contends that the trial court erred in sentencing him as a designated felon. He maintains that the sentence was not warranted under OCGA § 15-11-63 because it was not in the best interest of the child, his past felony charges were nonviolent, he has a loving and supportive home, the nature and circumstances of his current offense were not serious, and none of the victims were present when the crimes were committed.

“ ‘Designated felony act’ means . . . [an] act which, if done by an adult, would be a felony, if the child committing the act has three times previously been adjudicated delinquent for acts which, if done by an adult, would have been felonies.” OCGA § 15-11-63 (a) (2) (B) (vii). “Where a child is found to have committed a designated felony act, the order of disposition ... shall include a finding based on a preponderance of the evidence as to whether... the child does or does not require restrictive custody under [OCGA§ 15-11-63].” OCGA§ 15-11-63 (b).

To determine whether restrictive custody is warranted, the juvenile court must consider and make written findings about these factors: (1) the needs and best interest of the child; (2) the record and background of the child; (3) the nature and circumstances of the offense, including whether any injury sustained by the victim was actually inflicted by the child or another; (4) the need to protect the community; and (5) the age and physical condition of the victim. OCGA § 15-11-63 (c); In the Interest of J. W., 306 Ga. App. 339, 341 (3) (702 SE2d 649) (2010). The weight to be accorded each factor, and the ultimate decision about whether restrictive custody is warranted, is committed to the sound discretion of the juvenile court. In the Interest of I. C., 300 Ga. App. 683, 686 (2) (a) (686 SE2d 279) (2009).

Here, the juvenile court’s commitment order reflected that the court considered the factors in OCGA § 15-11-63, and found, among other things, that K. E had three prior separate felony adjudications, and that although none of the burglary victims were home when K. F. committed the crimes, “the victims uniformly express [ed] continuing ill ease in their homes.” Additionally, the juvenile court found that K. F. had a pistol during the commission of the crimes, had shown “no regard for anyone but himself” and that the community needed protection from him. In the order under the heading “The needs and best interests of the child,” the juvenile court found that K. F. needs a more structured environment and has demonstrated that he cannot control his actions. It further found that it was in his best interest to receive control and assistance to prevent him from entering the adult system.

The trial court’s written findings must afford this Court a basis for meaningful appellate review by showing that the determination as to restrictive custody was not arbitrary, and that the court gave due consideration to each of the required statutory findings. The court’s findings in this case were sufficient.

In the Interest of I. C., 300 Ga. App. at 686 (2) (a).

Judgment affirmed.

Adams and McFadden, JJ., concur.

Decided June 27, 2012.

Anne P. Rodman, for appellant.

Larry Chisolm, District Attorney, Diane M. McLeod, Bess L. Walthour, Assistant District Attorneys, for appellee.

       After K. F. filed a notice of appeal of his adjudication, the trial court appointed new counsel to represent him on appeal. In Case No. A11A1461, we remanded the case for a hearing on the merits of his ineffective assistance claim. Following a hearing on K. F.’s ineffectiveness claim, the juvenile court determined that K. F. failed to overcome the presumption of effective assistance of counsel.


text:
    A12A0179.
    MORGAN v. AARON RENTALS.
    (729 SE2d 585)
   BARNES, Presiding Judge.

Acting pro se and asserting his status as a pauper, seeking thereby to avoid the payment of costs, Michael R. Morgan sought to file a complaint in the Superior Court of Dooly County. The trial court found that the pleading showed on its face no justiciable issue of law or fact and directed the clerk of court not to file it. Morgan appeals, and for the reasons that follow, we reverse and remand this case with direction to the superior court clerk to file the complaint.

1. OCGA § 9-15-2 addresses the filing of a pauper’s affidavit by a party unable to pay the costs required in the court. OCGA § 9-15-2 (d) provides:

When a civil action is presented for filing under this Code section by a party who is not represented by an attorney, the clerk of court shall not file the matter but shall present the complaint or other initial pleading to a judge of the court. The judge shall review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading____

We construe a pleading that was not filed pursuant to subsection (d) of OCGA § 9-15-2 in the light most favorable to the losing party, as we would if the action were dismissed under OCGA § 9-11-12 (b) (6) for failure to state a claim upon which relief may be granted. Grant v. Byrd, 265 Ga. 684, 684-685 (1) (461 SE2d 871) (1995). The complaint need not be perfect in form or set out all of the issues with particularity; it need only place the defendant on notice of the claim against him. Evans v. City of Atlanta, 189 Ga. App. 566 (377 SE2d 31) (1988).

Here, while the plaintiff’s statement of facts is convoluted and somewhat difficult to follow, he basically contends that Aaron Rentals denied him credit based on racial discrimination and that the company falsely advertised its credit policies. The Equal Credit Opportunity Act makes it unlawful for a creditor to discriminate against a credit applicant on the basis of, among other things, “race, color, religion, national origin, sex or marital status, or age.” 15 USCS § 1691 (a) (1). See Cherry v. Hughes Supply Co., 246 Ga. App. 26, 27 (1) (539 SE2d 536) (2000) (addressing burden of proof in case alleging credit discrimination based on marital status in violation of Act). Additionally, OCGA§ 10-1-420 (a) prohibits companies from offering goods or services “with intent, design, or purpose not to sell the merchandise, commodities, or services so advertised or offered for sale at the price or upon the terms stated therein or otherwise communicated, or with intent not to sell the merchandise, commodities, or services so advertised.”

Decided June 27, 2012.

Michael R. Morgan, pro se.

“We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears beyond doubt that the appellant can prove no set of facts in support of his [claim].” (Citation and punctuation omitted.) Evans, 189 Ga. App. at 567 (liberal reading of complaint reveals potential civil rights action under 42 USCA § 1983); Acker v. Veal, 183 Ga. App. 297 (359 SE2d 7) (1987) (reversing superior court’s order directing clerk not to file complaint sufficient under OCGA § 9-11-8 to place defendants on notice of tort claims against them); Battle v. Seago, 208 Ga. App. 516, 517 (431 SE2d 148) (1993) (“While plaintiff’s allegations are somewhat bizarre, we cannot assume that they did not occur.”). Accordingly, the order of the trial court directing the clerk of the superior court not to file this civil action is reversed, and the case is remanded with direction to the superior court clerk to file the complaint.

2. Morgan has filed a motion for contempt against the appellee for failing to file an appellate brief within 40 days of docketing or 20 days after the filing of the appellant’s brief, as required by Court of Appeals Rule 23 (b). We note that this civil action has not been filed in the trial court, that the appellee has never been served with process, and that no attorney of record appears on this court’s docket for the appellee. The motion is denied.

Judgment reversed and case remanded with direction.

Adams and McFadden, JJ., concur.


author: Barnes, Presiding Judge.

text:
    A12A0326.
    JONES v. THE STATE.
    (729 SE2d 578)
   Barnes, Presiding Judge.

A jury convicted Javonti Jones of family violence battery. During the trial, the State introduced evidence of three similar transactions to prove bent of mind, course of conduct, and intent. On appeal, Jones contends that the trial court erred in allowing the State to introduce the similar transaction evidence. Jones further contends that the trial court should have ruled on whether the State would be allowed to introduce evidence of his prior criminal convictions for impeachment purposes before he made the decision whether to testify. For the reasons discussed below, we affirm.

Following a criminal conviction, we construe the evidence in the light most favorable to the verdict, and the defendant is no longer presumed innocent. Cochran v. State, 300 Ga. App. 92 (684 SE2d 136) (2009). Construed in this manner, the evidence showed that Jones and the victim were involved in an intimate relationship and lived together for approximately three years. During that time, they had a son together. Over the course of their relationship, Jones had a history of pushing and striking the victim when they argued. In 2005, the victim broke up with Jones after a violent episode that culminated in Jones pleading guilty to misdemeanor battery under the family violence section of the battery statute, OCGA § 16-5-23.1 (f) (l). Although their relationship ended in 2005, the victim and Jones maintained contact over the ensuing years because of their son and tried to remain civil with one another for that reason.

The encounter between Jones and the victim forming the basis for the present case occurred on January 7,2009. On that date, in the early morning hours, Jones stopped at the victim’s home in Hall County on his way home from a business trip. Jones asked the victim if he could come inside and get a few hours sleep because he was exhausted from his trip and was too tired to finish his drive. The victim obliged, and Jones came inside her home and slept for several hours.

Later that day, after taking their son to school, the victim was upstairs in the child’s playroom putting together a toy storage unit. Jones awoke and came into the playroom. He walked over to the window and looked outside but then went back to the bedroom across the hall where he had been sleeping. The victim noticed that her cell phone, which had been in a chair by the window, was no longer there when Jones left the room.

Once the victim realized that her cell phone was missing, she yelled out for Jones to return it to her. When Jones failed to respond, the victim went across the hall to confront him. She still had a screwdriver in her hand from working on the storage unit. When the victim entered the bedroom, Jones was hiding underneath the comforter on the bed. The victim went over to the bed, pulled back the comforter, saw that Jones was looking through the phone numbers and texts on her phone, and began wrestling with him to get her phone back. While grabbing for her cell phone, the victim accidentally poked Jones with the screwdriver that was in her hand, but Jones sustained no visible injuries as a result of the accident. Jones then jumped out of the bed, grabbed the victim by the throat, picked her up, and threw her against the doorframe of the playroom across the hall, causing her to drop the screwdriver.

After she was thrown against the doorframe, the victim started to scream, at which point Jones shut the playroom windows. The victim tried to get up from the floor, run downstairs, and escape from her home. Jones responded by picking up a toy bat, chasing the victim downstairs, grabbing her by the hair, and throwing her onto a couch. Jones struck the victim across her arms and legs with the toy bat and kicked her in the back of her leg. Eventually, Jones calmed down, and he forced the victim to go back upstairs. He promised the victim that “[it] would never happen again,” warned her not to “make a big deal out of this,” and asserted that she “would go to jail for aggravated assault” if she called the police because she had “stabbed” him with the screwdriver. Jones then left the home, and the victim called the police.

A police officer responded to the call and interviewed the victim, who disclosed how Jones had attacked her. The officer also took photographs of the victim. As a result of the attack, the victim sustained several visible injuries, including red marks on her neck and right thigh. She also developed bruises on her shoulder, her right thigh, and the back of her head.

Jones was arrested, indicted, and tried for felony battery under the recidivist subsection of the family violence section of the battery statute, OCGA § 16-5-23.1 (f) (2). At trial, the victim testified about how Jones had attacked her in the January 7, 2009 incident and about the prior instances of violence that Jones had perpetrated against her. The State also called the responding officer, among other witnesses, and introduced the photographs of the victim’s injuries that were taken by the officer. Additionally, the trial court, after conducting a pretrial hearing and giving a limiting instruction to the jury, allowed the State to introduce similar transaction evidence for the purpose of showing Jones’s bent of mind, course of conduct, and intent.

The first prior transaction occurred in January 2005 when a woman on her way to work honked her car horn at Jones’s vehicle after he almost ran her off of the road. She testified that a few minutes later, when she arrived at work and got out of her car to walk inside, Jones drove up beside her, got out of his car, and began screaming and cursing at her. According to the woman, Jones repeatedly pushed his body up against her and spit on her. She finally got past Jones and ran into her workplace, where she called security.

The second and third prior transactions occurred in October 2008 when Jones physically attacked his then-current girlfriend on two successive days. Regarding the first of the two transactions, the girlfriend testified that after a heated argument, Jones shut a car door on her wrist, bent her fingers backward, and later drove her to a remote location where he choked her and attempted to shove her into the trunk of an abandoned vehicle. According to the girlfriend, Jones stopped attacking her when he heard someone else on the property, after which he calmed down and drove her home.

The next transaction occurred the following day, when Jones became upset with his girlfriend for talking on the phone with her mother and crying when her mother asked her if everything was alright. The girlfriend testified that after the phone call, Jones kicked her repeatedly, shoved her into a closet, and tried to burn her with a hot iron. Jones eventually left, and she called the police.

After introducing this combined evidence, the State rested. Jones chose not to testify at trial, but he called several witnesses in an attempt to show that the victim in the present case and his former girlfriend involved in the October 2008 transactions were fabricating their version of events. In closing argument, Jones’s defense counsel argued that the victim in the present case had been inconsistent in her statements regarding the January 7, 2009 encounter, that the encounter did not occur as she had described it, and that the evidence indicated that the victim “was the aggressor” with the screwdriver and that Jones simply “fought her off.” Defense counsel further contended that the first prior transaction, which occurred in January 2005, was a “road rage incident” that had no bearing on the current case, and that the two October 2008 transactions involving his then-current girlfriend had been fabricated.

After hearing all of the testimony and argument, the jury convicted Jones of the charged offense of family violence battery, and the trial court denied his motion for a new trial. Jones now appeals.

1. The testimony discussed above was sufficient to enable a rational jury to find Jones guilty beyond a reasonable doubt of the charged offense. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA § 16-5-23.1 (f) (2). “Questions regarding the weight of the evidence and credibility of the witnesses were for the jury, rather than this Court, to decide.” Kelley v. State, 308 Ga. App. 418, 421 (1) (707 SE2d 619) (2011).

2. Jones contends that the trial court erred in allowing the State to present similar transaction evidence of the three prior incidents that occurred in January 2005 and October 2008.

To obtain admission of similar transaction evidence, the State must show (1) that it seeks to introduce the evidence for a proper purpose; (2) that there is sufficient evidence that the accused committed the independent offense or act; and (3) that sufficient similarity exists between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Citation and footnote omitted.) Alvarez v. State, 309 Ga. App. 462, 464 (2) (710 SE2d 583) (2011). See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). If the State makes these three affirmative showings, the trial court still may exclude the similar transaction evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Kelley, 308 Ga. App. at 421 (2). Absent an abuse of discretion, we will affirm a trial court’s ruling on the admissibility of similar transaction evidence. Alvarez, 309 Ga. App. at 464 (2).

Jones argues that the trial court abused its discretion in this case because the three prior transactions were not sufficiently similar to the crime charged of family violence battery and their probative value was substantially outweighed by the danger of unfair prejudice. We are unpersuaded.

(a) The trial court acted within its discretion in finding that a sufficient similarity existed between the three prior transactions and the crime charged so that proof of the former tended to prove the latter. With regard to the first prior transaction that occurred in January 2005, it is true that the female victim in that incident did not have a prior relationship with Jones and that it did not involve domestic abuse. But “[t]here is no requirement that the independent acts be identical to the crime charged; the proper focus is on the similarity, not the differences, between the separate crimes and the crime in question.” (Citation and punctuation omitted.) Hickson v. State, 308 Ga. App. 50, 52 (2) (706 SE2d 670) (2011). Moreover, when the State introduces prior transactions to show the defendant’s bent of mind, course of conduct, and intent, “a lesser degree of similarity is required than when such evidence is introduced to prove identity.” (Citations and punctuation omitted.) Neal v. State, 290 Ga. 563, 564 (2) (722 SE2d 765) (2012).

In the January 2005 transaction, Jones became enraged when a woman honked her horn at him and approached her at her workplace, screamed and cursed at her, shoved her with his body, and spit on her. The prior transaction was similar to the encounter in the present case in that in both instances, Jones became enraged and reacted impulsively and aggressively in response to a perceived challenge from a woman. Accordingly, the transaction helped to show Jones’s bent of mind, course of conduct, and intent with regard to the present case. See, e.g., Hickson, 308 Ga. App. at 53 (2) (prior incident showed defendant had propensity of “drastically escalating” an encounter “with little or no provocation for doing so”); Willis v. State, 214 Ga. App. 479, 480 (3) (a) (448 SE2d 223) (1994) (prior incident showed defendant’s temper and his propensity “to act violently and impulsively to disappointment, jealousy or misunderstanding”).

Furthermore, evidence of prior attacks committed by a defendant with little or no provocation is relevant to show intent and bent of mind in cases where the defendant claims self-defense. See Farley v. State, 265 Ga. 622, 624 (2) (458 SE2d 643) (1995); Smith v. State, 232 Ga. App. 290, 296 (501 SE2d 523) (1998). Jones’s theory of the case in closing argument was that the victim was the aggressor and that he merely fought back to defend himself. The prior January 2005 transaction, which illustrated that Jones had a propensity to react violently when only slightly provoked, tended to disprove his claim of self-defense. See id. The trial court therefore committed no error in finding a sufficient similarity between the January 2005 transaction and the charge in the current case.

The trial court likewise did not err in finding a sufficient similarity between the current charge and the second and third prior transactions that occurred in October 2008. Like in the present case, both of those prior transactions involved a female victim who had an intimate relationship with Jones, and both involved Jones reacting violently and disproportionately in response to little or no provocation.

[I]n cases of domestic violence, prior incidents of abuse against family members or sexual partners are more generally permitted because there is a logical connection between violent acts against two different persons with whom the accused had a similar emotional or intimate attachment. Such acts can demonstrate the accused’s attitude or mindset (i.e., his bent of mind) as to how sexual partners should be treated. Prior acts can also show an accused’s course of conduct in reacting to disappointment or anger in such a relationship, evidencing a pattern. Such evidence may be particularly important in domestic violence cases where the incidents often occur at home, in private, and may involve only the conflicting testimony of the two parties involved.

(Citations and punctuation omitted.) Brigman v. State, 282 Ga. App. 481, 485 (2) (639 SE2d 359) (2006). See also Neal, 290 Ga. at 564 (2); Hall v. State, 287 Ga. 755, 757 (2) (699 SE2d 321) (2010). It follows that the trial court did not abuse its discretion in finding that a sufficient similarity existed.

(b) The trial court also acted within its discretion in finding that the probative value of the three prior transactions was not substantially outweighed by the danger of unfair prejudice. There was no abuse of discretion in this regard because the trial court gave detailed limiting instructions before the similar transaction evidence was admitted and at the close of the case, and the prior transactions corroborated the victim’s testimony and rebutted Jones’s claim that the victim’s version of events was fabricated. See Neal, 290 Ga. at 564 (2); Rivera v. State, 282 Ga. 355, 359 (3) (647 SE2d 70) (2007); Kelley, 308 Ga. App. at 422 (2).

3. Jones filed a motion in limine seeking to prevent the State from introducing two of his prior criminal convictions for impeachment purposes if he chose to testify at trial. The trial court reserved ruling on the motion, concluding that the issue would not be ripe for decision until Jones took the stand and the State sought to impeach him with the prior convictions on cross-examination. On appeal, Jones argues that the trial court should have ruled on whether the State would be allowed to introduce the prior convictions for impeachment purposes before he made the decision whether to testify. According to Jones, he could not make an informed decision about whether to testify in the absence of a ruling by the trial court on the admissibility issue.

Decided June 27, 2012

Anne L. Watson, Travis A. Williams, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, Juliet Aldridge, Assistant District Attorney, for appellee.

The trial court committed no error. It is well established that “[t]he trial court has discretion to hear a motion in limine prior to trial or to reserve ruling on the admissibility of evidence until it is offered during trial.” Holland v. State, 176 Ga. App. 343, 344 (3) (335 SE2d 739) (1985). See Wiggins v. State, 249 Ga. 302, 303 (1) (b) (290 SE2d 427) (1982). Moreover, Jones clearly was aware of his prior convictions that the State sought to introduce for impeachment purposes, and, therefore, he was able to weigh the risk of those convictions being introduced into evidence when deciding whether to testify in his own defense. Consequently, Jones’s argument that he could not make an informed decision over whether to testify is without merit.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       OCGA § 16-5-23.1 (f) provides in relevant part:
      (f) If the offense of battery is committed between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household, then such offense shall constitute the offense of family violence battery and shall be punished as follows:
      (1) Upon a first conviction of family violence battery, the defendant shall be guilty of and punished for a misdemeanor; and
      (2) Upon a second or subsequent conviction of family violence battery against the same or another victim, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years. . ..

       Jones does not contest that the prior transactions were admitted for a proper purpose or that the State presented sufficient evidence that he committed the prior transactions. Nor does he argue that the passage of time between the prior transactions and the current charge was so large as to justify exclusion of the evidence.

       Jones also argues that the trial court erred in admitting testimony regarding the October 2008 prior transactions because he pled nolo contendere to charges based on those transactions. However, introducing testimony of a prior similar transaction that culminated in such a plea is not error, where, as here, no reference to the plea came into evidence. See Hansen v. State, 205 Ga. App. 604, 607 (1) (423 SE2d 273) (1992); Proulx v. State, 196 Ga. App. 303 (1) (395 SE2d 668) (1990).


text:
    A12A0745.
    WEEKS v. THE STATE.
    (729 SE2d 570)
   BARNES, Presiding Judge.

A Cherokee County jury convicted Bernard William Weeks, Jr., of aggravated child molestation, and the trial court denied his motion for new trial. On appeal, Weeks contends that there was insufficient evidence to convict him because a fatal variance existed between the allegations in the indictment and the proof at trial; that the trial court erred in giving an overly broad jury charge on child molestation and an abbreviated charge on witness credibility; and that his trial counsel rendered ineffective assistance by requesting a jury charge on witness credibility that was legally inaccurate. For the reasons discussed below, we affirm.

On appeal after a criminal conviction, we construe the evidence in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent. Boring v. State, 303 Ga. App. 576, 577 (1) (694 SE2d 157) (2010). So viewed, the evidence showed that Weeks lived in a trailer in Cherokee County with his wife and two stepchildren. On December 15, 2007, Weeks’s stepdaughter, L. H., left a note in the trailer for her mother in which she disclosed that Weeks “always make me suck his private parts.” L. H. was 11 years old at the time. When the mother found the note from L. H., she called 911. A police investigation ensued, culminating in the arrest and indictment of Weeks on the charge of aggravated child molestation.

At the subsequent jury trial, the State introduced into evidence the December 15 note from L. H. to her mother alleging that Weeks was abusing her sexually. L. H. confirmed that she wrote the note and testified that Weeks would call her into his bedroom and then force her to “suck” on his “private part” while “mov[ing] [her] head up and down.” According to L. H., the sexual abuse occurred over a period of time and would take place when her mother was at work or in the shower and her brother was in his room or outside. L. H. further testified that “white stuff” sometimes would come out of Weeks’s private part, and she described the area around his private part as being hairless.

During L. H.’s direct examination, the State also introduced an anatomical drawing of a male figure used during her prior forensic interview. When asked during the interview to circle the area on the male figure that represented Weeks’s “private part,” L. H. had circled the front genital area.

L. H.’s brother testified that sometimes L. H. and Weeks would be in the trailer alone together. According to the brother, sometimes Weeks would tell him he could go outside to play and then would lock him out of the trailer while Weeks remained inside with L. H.

Weeks did not testify. However, he gave a videotaped statement to the investigating detective, and the State played the statement to the jury, subject to certain redactions agreed upon by both parties. While Weeks denied to the detective that he had sexually abused L. H., he confirmed that he shaved his front genital area and locked L. H.’s brother out of the trailer on occasion.

After hearing all of the testimony, the jury convicted Weeks of the charged offense. Weeks moved for a new trial, asserting, among other errors, that his trial counsel rendered ineffective assistance. Following a hearing, the trial court denied the motion, leading to this appeal.

1. A person commits child molestation by doing “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (l). The crime is elevated to aggravated child molestation when the “person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c). Sodomy is “any sexual act involving the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2 (a) (1).

The indictment charged Weeks with aggravated child molestation in that he “did unlawfully then and there perform an immoral and indecent act of sodomy to a child under the age of 16 years, to wit: [L. H.], with the intent to arouse and satisfy the sexual desires of the accused and of the said child, contrary to the laws of this State, the good order, peace and dignity thereof.” The indictment did not specify what particular body parts or acts of sodomy constituted the charged offense.

According to Weeks, the indictment, by averring that he did unlawfully perform an immoral or indecent act of sodomy to the victim, required evidence of an act involving his mouth and the victim’s sex organ. Because there was no evidence of such an act introduced in this case, Weeks maintains that there was a fatal variance between the allegations in the indictment and the proof at trial, and thus insufficient evidence to support his conviction of aggravated child molestation. We disagree.

As an initial matter, Weeks failed to raise the fatal variance issue in the trial court. Consequently, he has waived the issue for consideration on appeal. See Hanson v. State, 305 Ga. App. 900, 902 (2) (700 SE2d 896) (2010); Palmer v. State, 286 Ga. App. 751, 753-754 (2) (650 SE2d 255) (2007).

In any event, “Georgia courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality.” (Citation and punctuation omitted.) Haley v. State, 289 Ga. 515, 529 (3) (a) (712 SE2d 838) (2011).

The true inquiry... is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal.

(Citation omitted.) Roscoe v. State, 288 Ga. 775, 776 (3) (707 SE2d 90) (2011).

Applying these tests to the case-at-hand, we conclude that there was no fatal variance. As noted above, the indictment did not spell out what particular body parts or acts of sodomy constituted the charged offense, and thus the indictment could reasonably be construed as encompassing an act of oral sodomy either involving Weeks’s mouth and L. H.’s sex organ, or involving L. H.’s mouth and Weeks’s sex organ. Moreover, the allegation in the indictment that Weeks did “perform an immoral and indecent act of sodomy to a child” did not necessarily require that the act involve Weeks’s mouth and the victim’s sexual organ. As the State points out in its brief, a man who places his penis in the mouth of a child reasonably can be said to “perform” an act of sodomy “to” that child.

In arguing for a more narrow definition of the word “perform,” Weeks relies upon Turner v. State, 231 Ga. App. 747, 748-749 (1) (500 SE2d 628) (1998), and Carolina v. State, 276 Ga. App. 298, 304-305 (5) (b) (623 SE2d 151) (2005). Based upon these two cases, Weeks asserts that if the word “perform” is used in an indictment in a case involving oral sodomy, it necessarily follows that the person doing the “performing” is the one using his or her mouth. We are unpersuaded because both cases are plainly distinguishable.

Neither Turner nor Carolina involved charges of aggravated child molestation. Moreover, in Turner the indictment and jury charge used both the words “perform” and “submit” in describing the prohibited act of oral sodomy, and in Carolina the jury charge distinguished between “performing” and “submitting” to an act of sodomy. Clearly, if an indictment or jury charge uses both the words “perform” and “submit” in a case involving oral sodomy, then the person “performing” is the person whose mouth was involved in the act, and the person “submitting” is the person whose sexual organ was involved in the act. But we decline to interpret the word “perform” so narrowly where, as here, the indictment alleged aggravated child molestation, and neither the indictment nor the jury charge used both the words “perform” and “submit.”

For these combined reasons, we conclude that the indictment was sufficient to put Weeks on notice that he could be convicted for an act of oral sodomy involving L. H.’s mouth and his sex organ. Nor does Weeks allege that the indictment misinformed or misled him in any manner that surprised him at trial or impaired his defense. Furthermore, given that the indictment was broad enough to encompass an act of oral sodomy involving either Weeks’s mouth and L. H.’s sex organ, or L. H.’s mouth and Weeks’s sex organ, there is no danger that Weeks could be prosecuted again for the same offense. Under these circumstances, there was no fatal variance between the allegations and proof at trial, and, therefore, there was sufficient evidence to sustain Weeks’s conviction of aggravated child molestation.

2. Weeks also argues that the trial court erred by giving an overly broad jury charge on the definition of child molestation. In this regard, he notes that the trial court charged the jury that “[a] person commits child molestation when that person does any immoral or indecent act to or with any child under the age of 16 years,” while the indictment alleged only tbat he performed an immoral or indecent act to the child. (Emphasis supplied.) We discern no error by the trial court.

The trial court relied upon OCGA § 16-6-4 (a) (2007) in defining child molestation, and this court has repeatedly held that this statutory provision, now codified at OCGA § 16-6-4 (a) (1) (2011), “does not set forth alternate methods of committing child molestation.” Day v. State, 193 Ga. App. 179, 180 (3) (387 SE2d 409) (1989). See Edwards v. State, 253 Ga. App. 479, 482-483 (4) (559 SE2d 506) (2002); Buice v. State, 239 Ga. App. 52, 59 (5) (520 SE2d 258) (1999), aff’d on other grounds, 272 Ga. 323 (528 SE2d 788) (2000). Thus, under the child molestation statute, an act committed “to” or “with” a child is a distinction without a difference.

In any event, the prosecutor read the indictment to the jury during closing argument; the trial court charged the jury to return a guilty verdict only “[i]f, after considering the testimony and evidence presented to you together with the charge of the Court[,] you should find and believe beyond a reasonable doubt that the Defendant in Cherokee County, Georgia did commit the offense alleged in this indictment”-, and the jury was provided a copy of the indictment to review during its deliberations. (Emphasis supplied.) Because the elements of the crime thus were properly limited to those charged in the indictment, the trial court committed no error in its charge to the jury. See Edwards, 253 Ga. App. at 483 (4); Buice, 239 Ga. App. at 59 (5); Day, 193 Ga. App. at 180 (3).

3. Weeks further asserts that the trial court erred by giving an abbreviated charge on witness credibility. We do not agree.

The Suggested Pattern Jury Instructions on the credibility of witnesses provides as follows:

You must determine the credibility or believability of the witnesses. It is for you to determine which witness or witnesses you believe or do not believe, if there are some whom you do not believe.
In deciding credibility, you may consider all of the facts and circumstances of the case, the manner in which the witnesses testify, their interest or lack of interest in the case, their means and opportunity for knowing the facts about which they testify, the nature of the facts about which they testify, the probability or improbability of their testimony, and the occurrences about which they testify. You may also consider their personal credibility insofar as it may have been shown in your presence and by the evidence.

(Punctuation and footnote omitted.) Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.31.10. as to require reversal). Subsequently, in its charge to the jury on witness credibility, the trial court omitted the list of specific factors for deciding witness credibility.

Contrary to Weeks’s assertion, the trial court committed no error by giving an abbreviated charge on witness credibility. A trial court does not err in omitting the list of specific factors for deciding witness credibility contained in the second paragraph of the pattern instruction, in the absence of a proper request for such a charge. See Damerow v. State, 310 Ga. App. 530, 533 (2) (714 SE2d 82) (2011). See also Giles v. State, 113 Ga. App. 629 (149 SE2d 432) (1966); Benton v. State, 185 Ga. 254, 257 (6) (194 SE 166) (1937). Because Weeks did not submit a proper written request to charge on the specific factors that can be considered by the jury in deciding witness credibility, the trial court’s omission of those factors was not erroneous. See id.

4. In a related enumeration of error, Weeks maintains that his trial counsel was constitutionally ineffective for failing to request a legally accurate charge on the specific factors that a jury can consider in deciding witness credibility, and that he is entitled to a new trial as a result. We are unpersuaded.

The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.

(Citation and punctuation omitted.) Martinez v. State, 303 Ga. App. 166, 171-172 (4) (692 SE2d 766) (2010).

Even if his trial counsel was deficient for failing to request a legally accurate charge on witness credibility, we conclude that Weeks cannot establish that the deficiency prejudiced him. In an effort to establish prejudice, Weeks argues that if he had requested a legally accurate charge, the trial court likely would have instructed the jury on the specific factors for determining witness credibility. According to Weeks, because a proper charge was not requested, the trial court gave its abbreviated charge on witness credibility, immediately followed by charges regarding impeachment of a witness and prior difficulties. The net effect of these charges, in Weeks’s view, was that the members of the jury were erroneously led to believe that the only factors that they could consider in deciding the credibility of a witness were whether the witness had been impeached and whether the defendant had prior difficulties with the witness..

Decided June 27, 2012.

Bowers & Roch, Donald R. Roch II, for appellant.

Garry T. Moss, District Attorney, Wallace W. Rogers, Jr., Cliff Head, Assistant District Attorneys, for appellee.

Weeks’s argument is without merit. First, the transcript of the charge conference reflects that the trial court ultimately chose not to instruct the jury on a list of specific factors for deciding witness credibility because the court was concerned that providing the jury with a “laundry list” of a few factors would overemphasize those particular factors in an inappropriate manner. Hence, the record shows that the trial court would have omitted a specific list of factors from its charge on witness credibility, even if Weeks had made a proper request. Second, Weeks’s assertion notwithstanding, there is nothing in the trial court’s abbreviated charge on witness credibility that indicated that the jury was restricted to only considering impeachment and prior difficulties when deciding whether a witness was credible. Consequently, Weeks cannot demonstrate that there is a reasonable probability that the outcome of the proceedings would have been different, but for his counsel’s alleged deficiency in requesting a legally inaccurate jury charge on witness credibility.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       In 2007, when the alleged sexual abuse occurred in this case, OCGA § 16-6-4 (a) did not have separately delineated subparagraphs (a) (1) and (a) (2). See OCGA § 16-6-4 (a) (2007). OCGA § 16-6-4 subsequently was amended, effective May 5, 2009, and the new subparagraph designations were added. Ga. L. 2009, p. 729, § 1. OCGA§ 16-6-4 (a) remained substantively the same and became OCGA § 16-6-4 (a) (1). Ga. L. 2009, p. 729, § Í. See OCGA § 16-6-4 (a) (1) (2011). A new subparagraph (a) (2) was added to the statute, which provides that child molestation also is committed when a person “[b]y means of an electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” Ga. L. 2009, p. 729, § 1. See OCGA § 16-6-4 (a) (2) (2011).

       While the indictment could have been drafted using more specific language, Weeks did not pursue a special demurrer as to the form of the indictment and thus has waived any argument in that regard on appeal. See Flournoy v. State, 299 Ga. App. 377, 380-381 (2) (682 SE2d 632) (2009).

       Compare Ross v. State, 195 Ga. App. 624, 624-625 (1) (b) (394 SE2d 418) (1990) (fatal variance occurred, where the indictment averred that the accused committed aggravated sodomy “in one manner and in one manner only, that is, “by putting his mouth to the sex organ of the alleged victim,’ ” but the evidence at trial showed that the accused forced the victim “to perform oral sex upon him, and that he thereafter committed an act of anal intercourse upon her”) (punctuation omitted); Legg v. State, 207 Ga. App. 399, 401 (4) (428 SE2d 87) (1993) (fatal variance occurred, where the indictment averred that the accused committed aggravated sodomy and sodomy “in one manner and in one manner only, that is, ‘an act involving the sex organs of the accused and the mouth of the victim,’ ” but the evidence at trial showed only “two acts involving the mouth of the accused and the sex organs of the victim”) (punctuation omitted).


author: Andrews, Judge.

text:
    A12A0772.
    WALLIN et al. v. WALLIN.
    (729 SE2d 567)
   Andrews, Judge.

Cassie Wallin sued her father-in-law Gene Wallin, claiming that he breached an oral agreement to deed a parcel of property to her and her husband Jeremy Wallin. Cassie alleged that she and her husband took over the property, made improvements to the property, and paid the mortgages; in return, Gene promised them that the property would be theirs after the mortgages were paid.

At the time of the filing of this suit, Cassie and Jeremy were going through a divorce proceeding. When Jeremy refused to join Cassie in the suit against his father, Cassie added Jeremy as a defendant. After trial, the jury returned a verdict on Cassie’s claim of quantum meruit against both Jeremy and his father, who now appeal. Because there is evidence to support the award of damages in quantum meruit against Gene, but no evidence to support the award against Jeremy, we affirm in part and reverse in part.

The evidence at trial was, according to Cassie, that Gene agreed to let Cassie and Jeremy use the property in question if they paid the two mortgages, approximately $2,700 a month, and the taxes. When the mortgages were paid, he would deed the property to Cassie and Jeremy.

Cassie testified that before she and Jeremy were able to take possession of the building on the property, they had to haul off trash in dump trucks. She stated that she and Jeremy and Jeremy’s mother worked to clean up the property, and Jeremy painted the building. Cassie and Jeremy ran two businesses on the property for several years, paying the mortgages, insurance and taxes. When the original building was destroyed, they used the insurance money to build a new structure. Cassie submitted evidence that she and Jeremy paid $80,000 toward one mortgage and paid $73,740 toward the other mortgage. Cassie stated that, at the time of trial, the building on the property was insured for $262,000.

After the close of evidence, the jury was charged on the law of contracts and quantum meruit. The jury found that Gene did not make an oral agreement to transfer the property to Cassie and Jeremy, but awarded damages to Cassie of $276,000 against Gene and Jeremy on her quantum meruit claim. Both Gene and Jeremy now appeal.

1. Gene argues that the evidence was insufficient to support the award of damages against him. In order to recover on a claim for damages based upon quantum meruit, Cassie had to present evidence that (1) her services were valuable to Gene; (2) her services were either at the request of Gene or were knowingly accepted by him; (3) Gene’s receipt of the services without compensating Cassie would be unjust; and (4) Cassie expected compensation for her services at the time she provided them. Memar v. Jebraeilli, 303 Ga. App. 557, 561 (694 SE2d 172) (2010). Further, the award on a quantum meruit claim is based on the “reasonable value” of the work to the recipient. Zampatti v. Tradebank Intl. &c. Corp., 235 Ga. App. 333, 340 (508 SE2d 750) (1998). “The finder of fact must determine in what amount the party receiving was benefitted or enriched by the materials and services.”Langford v. Robinson, 272 Ga.App. 376, 380 (612 SE2d 552) (2005).

Gene claims that there was insufficient evidence of the value to him of the money and effort expended by Cassie on the property. In reviewing an appeal from a jury verdict, we note that

the jury is not bound by the exact limits of the evidence. The jury may consider the nature of the property involved and any other facts or circumstances within their knowledge, and a verdict which exceeds or falls short of the value testified to will be sustained where there are sufficient facts in evidence from which they may draw a legitimate conclusion, and the verdict is not palpably unreasonable under all the evidence so as to be excessive as a matter of law.

Yoh v. Daniel, 230 Ga. App. 640, 641 (497 SE2d 392) (1998).

In this case, there was evidence that Cassie and Jeremy paid taxes and insurance on the property and also paid over $153,000 toward the mortgages on the property. They cleaned out and renovated the existing building on the property, then built a new one, which was insured for $262,000. Accordingly, there was sufficient evidence of the value of the improvements on Gene’s property and of the mortgage payments made on his behalf, to support the jury’s award of $276,000. See Terrell v. Pippart, 314 Ga. App. 483, 487 (724 SE2d 802) (2012) (evidence sufficient where appraiser testified that the house itself was worth $94,000, and that was the amount awarded by the jury); Memar, supra at 561 (evidence regarding the fair market value of Tract 2 was circumstantial evidence from which the court could determine the conferred benefit to Memar).

2. Jeremy appeals contending that Cassie could not recover from him on a quantum meruit claim because he did not own the property. The record shows that Cassie wanted Jeremy to join her in the suit against Gene, but he refused. Cassie then added him as a defendant and, when Jeremy did not file an answer, a default judgment was entered against him, with only the issues of damages and relief going to the jury.

At trial, the evidence was that the improvements and payments were made jointly by Cassie and Jeremy, and therefore there was no evidence to support Cassie’s quantum meruit claim against her husband.

“Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof. However, this presumption does not usually arise in cases between very near relatives.” OCGA § 9-2-7. As previously stated, Cassie had to present evidence that (1) her services were valuable to Jeremy; (2) her services were either at the request of Jeremy or were knowingly accepted by Jeremy; (3) Jeremy’s receipt of the services without compensating Cassie would be unjust; and (4) Cassie expected compensation for her services at the time she provided them. Memar, supra at 561.

Decided June 27, 2012.

John R. Emmett, James R. Rogers, for appellants.

Joseph E. Willard, Jr., for appellee.

There was no evidence at trial to support any of these required elements. The only evidence submitted as to the value of Cassie’s services to Jeremy is the testimony of Gene that Jeremy and Jeremy’s sister would inherit the property when he died. Even if this was some evidence that Jeremy would possibly receive some benefit in the future, there was no present benefit because Jeremy does not own the property nor any interest in the property.

Further, there is no evidence that there was ever any expectation by either party that Cassie would be compensated by Jeremy for her contributions to their businesses while they were a married couple.

The law will not imply a promise to pay for services contrary to the intention of the parties. There can be no recovery for services rendered voluntarily and with no expectation at the time of the rendition that they will be compensated. Under such circumstances no obligation is incurred. A subsequent change of intention by the parties performing the services does not alter the rule.

Smith Dev. v. Flood, 198 Ga. App. 817, 820-821 (403 SE2d 249) (1991); OCGA § 9-2-7. Accordingly, because there is no evidence to support it, the judgment for damages against Jeremy must be reversed.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Boggs, J., concur.