text:
    A13A2301.
    BURKE v. PRIME RATE PREMIUM FINANCE CORPORATION.
    (754 SE2d 802)
   Boggs, Judge.

Thomas Burke d/b/a American Transport (“Burke”) appeals from the trial court’s denial of his motion for summary judgment, and the grant of summary judgment in favor of Prime Rate Premium Finance Corporation (“Prime”) on Prime’s claim for the remaining balance owed under a finance agreement. Because there exists no genuine issue of material fact, we affirm.

On appeal from the grant or denial of summary judgment, this court applies a de novo standard of review. Higginbotham v. Knight, 312 Ga. App. 525, 526 (719 SE2d 1) (2011).

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the non-moving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

So viewed, the record reveals that Burke entered into a finance agreement with Prime for the purpose of financing the insurance premiums for his commercial transportation company. The agreement listed Truck Insurance Group, LLC (“TIG”) as the “Agent/ Broker/Producer,” Nova Casualty Company (“Nova”) as the insurance company, Prime as the creditor, and Burke as the insured. An individual named “Jacoway” signed the agreement on behalf of TIG. The agreement provided that the “insurance agent or broker named in this Agreement is the Insured’s agent, not [Prime’s], and [Prime] is not legally bound by anything the agent or broker represented to the Insured. . . .”

The finance agreement was signed by Burke on September 29, 2010, and the effective date of the insurance policy was October 1, 2010. The total premium for the policy was $54,692. Burke financed $43,753 after paying a $10,939 deposit, and was required to make nine payments of $5,017.51 on the first day of each month beginning on November 1, 2010.

On December 19, 2010, however, the policy was canceled. While not clear from the record which of the parties involved canceled the policy or the reason for cancellation, Burke asserts that TIG canceled the policy. On September 13, 2011, Prime filed suit to recover the remaining balance of $36,421.91 under the finance agreement. Neither Nova nor TIG was added as a party to this action.

Burke argued below that Prime’s exclusive remedy is provided in OCGA § 33-22-14 (a), and that therefore it has no cause of action against him. OCGA § 33-22-14 (a) provides:

Whenever an insurance policy is canceled and the premiums have been paid by an insurance premium finance company on behalf of the insured, if the insurer has been notified of the existence of the insurance premium finance agreement as required in Code Section 33-22-12, the insurer shall return whatever unearned premiums are due to the insurance premium finance company for the account of the insured. Whenever an insurer, after receiving notification of the existence of the insurance premium finance agreement, returns any unearned premium to anyone other than the insurance premium finance company named in the agreement, the insurer shall be directly responsible to such insurance premium finance company for any and all unearned premiums due as a result of the cancellation. The insurer shall furnish to the agent, agency, or broker placing the insurance a report setting forth an itemization of the unearned premiums under the policy.

(Emphasis supplied.) This Code section does not create an exclusive remedy for a premium finance company for a claim against an insured pursuant to the finance agreement; rather it “creates a chose in action or statutory lien right in the unearned premiums in favor of the premium finance company.” Paulsen Street Investors v. EBCO Gen. Agencies, 224 Ga. App. 507, 510 (481 SE2d 246) (1997). “[T]he premium financing agreement with the insured constitutes an account receivable entitling the finance company to recapture its [principal] one way or the other, as well as any fees and penalties. [Cits.]” Id.

Decided February 18, 2014.

Michael L. Wetzel, for appellant.

Simpson, Uchitel & Wilson, A. Christian Wilson, Andrew L. Hagenbush, for appellee.

As the trial court found and Prime asserted by affidavit, no unearned premiums were returned to Prime. So Burke’s attempt to assert OCGA § 33-22-14 (a) as Prime’s exclusive remedy fails. And under the finance agreement, Burke agreed to pay the amount financed, and pay the unpaid balance due to Prime immediately upon default and cancellation of the policy. Therefore, pursuant to the terms of the finance agreement, Burke was obligated to pay Prime the balance remaining once the policy was canceled. See OCGA § 13-6-2.

While Burke attempts to adjust his position on appeal: “Burke’s liability, if any, is for the loan balance after offset of unearned premiums,” as explained above, there is no evidence that Prime received unearned premiums. And had the legislature intended to require an insurance premium finance company to first obtain unearned premiums and offset it against the balance owed before filing suit against the insured, it could have done so. Burke did not seek to add Nova, the insurer, to this action to recover his losses from its alleged failure to remit any unearned premium directly to Prime, nor did he file a third-party action against TIG for its alleged unlawful retention of any unearned premium. See, e.g., OCGA § 33-22-14 (b) (l)-(4).

Because there is no genuine issue of material fact concerning Burke’s obligation under the finance agreement, we must affirm the trial court’s rulings on the motions for summary judgment.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       An account summary from Prime lists entries indicating “Insured Cancellation” on November 18, December 19, and January 18,2011. An entry on January 24indicates “Company Cancellation.” We note that the finance agreement provided that Prime could cancel the policy “in the event of a default in payment or any installment,” and that “[i]n case of cancellation, the unpaid balance due to [Prime] shall be immediately payable by the Insured.”

       Burke also argued that because pursuant to the finance agreement, he assigned any interest he had in unearned premiums to Prime, Prime became the real party in interest.

       Burke claimed that TIG and Jacoway received the unearned premiums hut failed to remit the funds to Prime. Burke filed a complaint with the Department of Commerce and Insurance in the state of Tennessee claiming that he had been the victim of fraud. Burke also claimed that on January 11, 2011, Jacoway obtained new coverage replacing the Nova policy with a policy through Accident Insurance Company, and secured financing for Burke though Imperial Credit Corporation. Burke asserted that TIG also canceled this policy, and failed to remit to the finance company the unearned premiums submitted to TIG from the insurer.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A13A2500.
    MILLER v. THE STATE.
    (754 SE2d 804)
   BARNES, Presiding Judge.

A jury convicted Ivan Dale Miller of rape, and the trial court denied his motion for new trial. On appeal, Miller challenges the sufficiency of the evidence. He further contends that the trial court erred in admitting similar transaction evidence and in limiting his direct examination of a witness. Lastly, Miller contends that his trial counsel rendered ineffective assistance in several respects. For the reasons that follow, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. See Wynn v. State, 322 Ga. App. 66 (744 SE2d 64) (2013). So viewed, the evidence showed that around midday on March 25, 2009, the female victim was stranded by the side of a highway after her car broke down. She was alone and did not have a working cell phone. Miller pulled over to the side of the highway in his pickup truck and offered the victim a ride. After Miller assured the victim that he had a wife and children and only wanted to help her, she got in his truck. Once Miller began driving, his demeanor changed and he became aggressive, grabbing the victim by the hair and forcing her head down in the seat. Miller drove to a secluded wooded area where he repeatedly struck the victim and “kept pounding [her] in [her] ribs,” verbally abused her, and forced her to have vaginal intercourse with him. He then warned the victim to “keep [her] mouth shut” and fled from the scene in his truck.

The victim made her way back to the road and continued walking until she saw a house. The homeowner’s daughter was sitting on the porch and saw the victim coming down the driveway. According to the daughter, the victim was holding her side, she “looked real disheveled,” and she was shaking and crying. The victim approached the house, told the daughter what had happened to her, and asked the daughter to call an ambulance. The daughter observed that the victim “was just to the point of [being] almost hysterical,” had “red marks like scrapes” on her body, and was “real red in the face.” The daughter called 911, and sheriff’s deputies and an ambulance arrived shortly thereafter.

The victim was taken to the hospital, where a medical exam was conducted and a sexual assault kit was administered. The victim complained of rib pain and was crying and distraught over the sexual assault. A police investigator arrived at the hospital and spoke with the victim, who explained what had happened and provided a detailed physical description of her assailant. The victim later identified Miller as her assailant in a photographic lineup. Following the identification, Miller was arrested and charged with rape. Subsequent testing showed that DNA found on the vaginal-cervical swabs taken from the victim as part of the sexual assault kit matched Miller’s DNA profile.

At trial, the victim testified to the events as summarized above and positively identified Miller as her assailant. The State also called as witnesses the homeowner’s daughter who first saw the victim after the attack, the sheriff’s deputies and an emergency medical technician (“EMT”) who responded to the scene, the investigators assigned to the case, and the nurse who administered the sexual assault kit. Additionally, the defense stipulated that DNA found on the vaginal-cervical swabs taken from the victim matched Miller’s DNA profile.

The State also presented evidence of two similar transactions committed by Miller a few years before the current incident occurred. The victim of the first similar transaction testified that a man offered her a ride from a gas station after her car had a flat tire. When she got into his pickup truck, his demeanor changed, and he took her to a secluded location and forced her to remove her clothes. The secluded location where she was taken was near where the rape in the instant case took place. She later told police investigators that she had been beaten and raped during the incident and positively identified Miller as her assailant in a photographic lineup.

The victim of the second similar transaction testified that a man had offered her a ride home from a restaurant one evening but then drove her to a secluded location where he assaulted and raped her. She sustained bite marks on her knee and breast as well as scratches and bruises as a result of the assault. The victim positively identified Miller as the assailant in a photographic lineup and at trial.

Miller chose not to testify. He relied upon a stipulation by the State that the victim in the present case tested positive for cocaine and opiates on the day of the alleged rape. He also called two witnesses and elicited testimony from them aimed at casting doubt on the severity of the injuries sustained by the victim of the second similar transaction.

After hearing all of the evidence, the jury found Miller guilty of rape. Miller moved for a new trial, alleging, among other things, that his trial counsel was ineffective. Following a hearing, the trial court denied Miller’s motion, resulting in this appeal.

1. Miller first contends that there was insufficient evidence presented at trial to convict him of rape. “A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” (Punctuation and footnote omitted.) Wynn, 322 Ga. App. at 67 (1). See OCGA § 16-6-1 (a) (1). In determining whether the evidence was sufficient to support Miller’s rape conviction,

we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010). See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

We conclude that a rational jury was authorized to find Miller guilty beyond a reasonable doubt of rape. The victim testified that Miller forced her to have vaginal intercourse with him against her will, and her testimony, standing alone, was sufficient to sustain the conviction. See former OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). See also Wynn, 322 Ga. App. at 68 (1); Harris v. State, 283 Ga. App. 374, 376-377 (1) (a) (641 SE2d 619) (2007). While Miller argues that there were inconsistencies in the victim’s testimony, “[it] is for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Citations and punctuation omitted.) Farris v. State, 290 Ga. 323, 324 (1) (720 SE2d 604) (2012). Because there was sufficient evidence to support the verdict, the trial court did not err in denying Miller’s motion for new trial on this basis.

2. Miller next contends that the trial court erred in admitting the similar transaction evidence of the two prior rapes he allegedly committed. It is well established that before presenting similar transaction evidence,

the State must show that it is seeking to introduce the evidence for a permissible purpose; there is sufficient evidence that the accused committed the independent offense or act; and there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Implicit also are the concepts that the evidence must be relevant to an issue in the case and that its probative value outweighs its prejudicial effect.

(Citations and punctuation omitted.) Newton v. State, 313 Ga. App. 889, 890-891 (1) (723 SE2d 95) (2012). Atrial court’s decision to admit similar transaction evidence is reviewed only for an abuse of discretion. Moore v. State, 288 Ga. 187, 190 (3) (702 SE2d 176) (2010).

The trial court conducted a similar transaction hearing and held that the two prior rapes were admissible to prove Miller’s bent of mind, course of conduct, and lustful disposition, and to corroborate the victim’s testimony of no consent. The trial court gave a limiting instruction before the similar transaction testimony was introduced and in its final charge to the jury. On appeal, Miller does not contest that the similar transaction evidence was admitted for a permissible purpose or that there was a sufficient similarity between that evidence and the charged offense. Rather, Miller limits his challenge to two arguments: (a) that the State failed to prove that the two prior rapes actually occurred or that he was the perpetrator of them and (b) that the evidence of the rapes was unduly prejudicial.

(a) “Absolute proof is not required that a defendant committed the offense in a similar transaction.” (Citations and punctuation omitted.) Dean v. State, 321 Ga. App. 731, 733 (1) (a) (742 SE2d 758) (2013). See Martin v. State, 198 Ga. App. 488, 488-489 (402 SE2d 95) (1991). Rather, the State need only prove that the defendant committed the prior offense by a preponderance of the evidence. Dean, 321 Ga. App. at 733 (1) (a). Preponderance of the evidence is defined as “that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.” See former OCGA § 24-1-1 (5). Under the preponderance of the evidence standard, the trial court did not err in finding that there was sufficient evidence that the two prior rapes occurred and were committed by Miller to authorize their admission at trial.

(i) With respect to the first similar transaction, the victim of that incident testified that a man offered her a ride from a gas station after her car had a flat tire, that she got into his pickup truck, that his demeanor then changed, and that he took her to a secluded location where he forced her to remove her clothing. The victim testified that she had been assaulted, but not sexually assaulted, and she denied telling police investigators that she had been raped. According to the victim, she had “bad nerves,” suffered from “short-term memory loss,” and was unsure of when exactly the incident had occurred. The victim further testified that she was “scared” Miller might not be the man who had attacked her because he was “a lot younger” when the assault occurred and did not look “the same anymore.”

Nevertheless, during her testimony, the victim was able to authenticate a photographic lineup that she had previously been shown by police investigators in which she had identified Miller as her assailant. Moreover, police investigators testified that during their initial interview of the victim, she told them that she had been raped during the incident, which had occurred “5 1/2 to 6 years ago,” and had given a description of her assailant. The investigators further testified that the victim had positively identified Miller as her assailant in the photographic lineup shown to her and had exhibited no signs of hesitation or doubt. One of the investigators also testified that Miller had changed his appearance after his arrest, and the State introduced Miller’s booking photograph to show the difference.

The credibility of a similar transaction victim is a question for the trier of fact, and any inconsistencies in the victim’s testimony go to the weight of the evidence, not its admissibility. See Wright v. State, 313 Ga. App. 829, 832 (1) (a) (723 SE2d 59) (2012); Williams v. State, 264 Ga. App. 115, 118 (2) (589 SE2d 676) (2003); Morris v. State, 263 Ga. App. 115, 118 (3) (587 SE2d 272) (2003). Furthermore, a similar transaction victim’s prior inconsistent statement to the police is admissible as substantive evidence and can provide the basis for the admission of the prior offense even if the victim subsequently denies that the offense occurred. See Bester v. State, 294 Ga. 195, 197 (2) (c) (751 SE2d 360) (2013). Based on the combined testimony of the victim and the police investigators, the trial court committed no error in finding that the State sufficiently established that the victim of the first similar transaction had been raped by Miller.

(ii) With respect to the second similar transaction, the victim of that incident testified that a man had offered her a ride home from a restaurant but then drove her to a secluded location where he assaulted and raped her, and she positively identified Miller as the man in a photographic lineup and at trial. The victim’s testimony, standing alone, established by a preponderance of the evidence that Miller raped her. See Jennings v. State, 111 Ga. App. 159, 163 (3) (626 SE2d 155) (2006). The trial court therefore committed no error in finding that the State sufficiently established that the victim of the second similar transaction had been raped by Miller.

(b) The trial court also was authorized to find that the probative value of the similar transaction evidence outweighed its prejudicial effect. Miller’s prior rapes were relevant and admissible to prove his bent of mind, course of conduct, and lustful disposition, and to corroborate the victim’s testimony of no consent. See Robbins v. State, 277 Ga. App. 843, 844-845 (1) (627 SE2d 810) (2006); Robinson v. State, 269 Ga. App. 828, 830 (605 SE2d 422) (2004).

Moreover, the trial court provided jury instructions that limited consideration of the similar transaction evidence to the appropriate purposes and provided guidance so as to diminish its prejudicial impact. Given its relevance and the court’s appropriate limiting instruction contemporaneous with its admission and in its jury charge, the probative value of the evidence outweighed its prejudice to [Miller].

(Citations and punctuation omitted.) Newton v. State, 313 Ga. App. 889, 892 (1) (b) (723 SE2d 95) (2012).

3. Miller also contends that the trial court erred in limiting his examination of a witness called by the defense to impeach the victim of the second similar transaction. We are unpersuaded.

At trial, the victim of the second similar transaction testified that earlier on the day she was raped by Miller, she was involved in a physical altercation with another woman. She testified that the fight lasted only “a few seconds” and that the injuries she sustained that day (including bite wounds, scratches, and bruises) were the result of the rape, not of her fight with the other woman. The trial court permitted Miller to call the other woman involved in the fight as a witness and have her describe the fight and any injuries sustained by the parties during the fight. According to the trial court, Miller was entitled to have the woman describe the fight itself and any resulting injuries to impeach the second similar transaction victim’s testimony that the fight was short and that her injuries resulted from the rape. However, the trial court ruled that Miller could not question the woman about the reason for the fight or what was specifically said during the fight because it would go beyond impeachment and constitute impermissible character evidence.

The trial court did not err in limiting the scope of Miller’s examination of the woman involved in the fight with the second similar transaction victim. A trial court’s decision to exclude certain testimony that a defendant seeks to introduce for purposes of impeachment is reviewed only for an abuse of discretion. See Jones v. State, 283 Ga. App. 631, 635 (3) (642 SE2d 331) (2007). Moreover, “[a] victim’s character is rarely relevant for any purpose in a criminal trial,” and “[g] enerally, a victim may not be impeached with instances of specific misconduct or prior bad acts.” (Citations and punctuation omitted.) Dean, 321 Ga. App. at 735 (2). And while “a witness may be impeached by disproving the facts testified to by [her],” Bentley v. State, 277 Ga. App. 483, 485 (627 SE2d 61) (2006), testimony regarding the reason for the fight or what was specifically said during the fight would have gone beyond disproving any of the facts to which the second similar transaction victim testified. Consequently, the trial court acted within its discretion in limiting Miller’s examination of the woman involved in the fight to prevent a general attack on the character of the second similar transaction victim. See Jones, 283 Ga. App. at 635 (3); Bentley, 277 Ga. App. at 485.

4. In his final enumeration of error, Miller contends that his trial counsel rendered ineffective assistance. “To establish ineffective assistance, [Miller] must show both that his counsel performed in a professionally deficient manner and that there is a reasonable probability that, but for such deficiency, the result of his trial would have been different.” Smith v. State, 292 Ga. 620, 621 (2) (740 SE2d 158) (2013). See Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). If Miller fails to prove either prong of the test, we need not examine the other prong. Russell v. State, 322 Ga. App. 553, 556 (3) (b) (745 SE2d 774) (2013).

(a) Miller first contends that his trial counsel was ineffective for describing the present case as a consensual “sex-for-money transaction” in his opening statement to the jury, but then abandoning that particular theory of the case as the trial proceeded forward and never presenting any evidence to support it. Given the record before us, we conclude that Miller failed to establish that his trial counsel was deficient.

Notably, Miller did not call his trial counsel to testify at the hearing on his motion for new trial. In the absence of such testimony, trial counsel’s decision to pursue a different theory of the case from the one initially raised in his opening statement is presumed to be strategic and will be upheld unless “so patently unreasonable that no competent attorney” would have made that decision. Flemister v. State, 317 Ga. App. 749, 757 (4) (b) (732 SE2d 810) (2012).

We cannot say that trial counsel’s decision to abandon the sex-for-hire defense was patently unreasonable. The record reflects that Miller apparently told a police investigator that he had paid the victim for sex, and so at the outset of the case, his trial counsel may have believed that evidence of sex-for-hire would be heard by the jury, but then made the reasonable strategic decision to alter course when the State chose not to introduce the statement and Miller elected not to testify. Consequently, Miller cannot establish that his trial counsel was deficient, and the trial court committed no error in denying Miller’s ineffective assistance claim on the asserted ground. See Allen v. State, 293 Ga. 626, 628-629 (2) (c) (748 SE2d 881) (2013) (trial counsel’s decision to abandon a particular theory of the case initially raised in opening statement “in light of the evidence offered at trial” constituted reasonable trial strategy).

(b) Miller also contends that his trial counsel was ineffective for failing to introduce evidence that a rape charge brought against him in connection with the second similar transaction had been dead docketed. According to Miller, his counsel should have presented evidence clarifying that the rape charge had been dead docketed and the reason why that had occurred, given that the jury heard testimony during the State’s case-in-chief that Miller had been arrested for the rape of the second similar transaction victim.

Miller has again failed to carry his burden of proving ineffective assistance. As an initial matter, his counsel’s decision regarding what evidence to introduce is presumed strategic given that there is no evidence in the record to the contrary, and we cannot say that the decision was patently unreasonable. See Flemister, 317 Ga. App. at 757 (4) (b). See also King v. State, 320 Ga. App. 90, 96 (4) (b) (739 SE2d 654) (2013) (decisions over what evidence to introduce are matters of trial strategy and “provide no grounds for reversal unless they are so patently unreasonable that no competent attorney would have chosen them”) (punctuation and footnote omitted).

In any event, to show prejudice resulting from his counsel’s failure to introduce evidence of the dead docketing of the rape charge, Miller “was required to offer more than mere speculation that, absent the counsel’s alleged error [ ], a different result probably would have occurred at trial.” (Citation and punctuation omitted.) Baker v. State, 293 Ga. 811, 815 (3) (750 SE2d 137) (2013). See Valentine v. State, 293 Ga. 533, 537 (3) (748 SE2d 437) (2013). And as we have explained,

[d]ead docketing is a procedural device by which the prosecution is postponed indefinitely but may be reinstated any time at the pleasure of the court. Placing a case upon the dead docket certainly constitutes neither a dismissal nor a termination of the prosecution in the accused’s favor. A case is still pending which can be called for trial at the judge’s pleasure.

(Citation and punctuation omitted.) Barrett v. Sanders, 262 Ga. App. 63, 67 (2) (584 SE2d 676) (2003). Moreover, at the hearing on his motion for new trial, Miller did not present any testimony or documentary evidence explaining why the rape charge relating to the second similar transaction had been dead docketed. Consequently, Miller can only speculate regarding the effect that evidence of the dead docketing of the rape charge would have had on the outcome at trial, and he thus cannot establish the prejudice prong of his ineffective assistance claim.

(c) Miller further contends that his trial counsel was ineffective for failing to object on hearsay grounds when the homeowner’s daughter who first saw the victim after the attack, the EMT who treated the victim at the scene, a sheriff’s deputy, and a police investigator repeated out-of-court statements made by the victim about the rape. But the victim’s statements to the homeowner’s daughter and EMT were made shortly after the rape occurred and were admissible as part of the res gestae. See former OCGA § 24-3-3; Milford v. State, 291 Ga. 347, 348-349 (2) (729 SE2d 352) (2012); Rowe v. State, 263 Ga. App. 367, 370 (4) (587 SE2d 781) (2003); Woods v. State, 255 Ga. App. 265, 268 (3) (564 SE2d 853) (2002). It follows that any objection to the testimony of the homeowner’s daughter and the EMT regarding what the victim said to them would have been futile and cannot provide the basis for an ineffective assistance claim. See Henry v. State, 279 Ga. 615, 617 (3) (619 SE2d 609) (2005) (“Failure to make a meritless objection cannot be evidence of ineffective assistance.”) (citations and punctuation omitted).

Pretermitting whether the testimony of the sheriff’s deputy and police investigator fell within the res gestae exception to hearsay, we conclude that Miller cannot show any prejudice resulting from the admission of the testimony in light of the properly admitted testimony of the homeowner’s daughter and the EMT. “[T]he erroneous admission of hearsay is harmless where, as here, legally admissible evidence of the same fact is introduced. In such a case, the hearsay is cumulative and without material effect on the verdict.” (Citation and punctuation omitted.) Williams v. State, 319 Ga. App. 888, 890 (1) (739 SE2d 4) (2013). Because “the failure to object to evidence which is merely cumulative of other admissible evidence does not amount to ineffective assistance of counsel,” Miller cannot succeed on his claim. (Punctuation and footnote omitted.) Ashmid v. State, 316 Ga. App. 550, 558 (3) (b) (730 SE2d 37) (2012).

(d) Lastly, Miller contends that his trial counsel was ineffective for failing to object on hearsay grounds to a nurse’s testimony that the emergency room physician who examined the victim found bruising on her ribs. According to Miller, the nurse’s testimony constituted inadmissible hearsay because she did not personally observe the bruising but instead relied on what a physician had reported to her.

Decided February 18, 2014.

J. Philip Cannon, for appellant.

K. David Cooke, Jr., District Attorney, Myra H. Tisdale, Dorothy V. Hull, Assistant District Attorneys, for appellee.

Again, because Miller’s counsel did not testify at the hearing on the motion for new trial, his decision to refrain from objecting to the nurse’s testimony is presumed to be strategic and will be upheld “unless so patently unreasonable that no competent attorney” would have made that decision. Flemister, 317 Ga. App. at 757 (4) (b). See Henry v. State, 316 Ga. App. 132, 134 (2) (729 SE2d 429) (2012) (“The decision of whether to interpose certain objections is a matter of trial strategy and tactics [,]... [which] are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.”) (citation and punctuation omitted). Here, Miller’s counsel could have made the reasonable strategic decision to forego objecting to the nurse’s hearsay testimony so as not to draw undue attention to it before the jury. See Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998). Thus, counsel’s decision was not patently unreasonable and did not constitute deficient performance.

Nor can Miller establish any prejudice resulting from counsel’s decision to forego objecting to the'nurse’s testimony. The homeowner’s daughter who first saw the victim after the attack testified that she saw “red marks like scrapes” on the victim’s stomach or side where it looked like she had been kicked. Hence, there was other, properly admitted testimony that the victim had visible injuries consistent with her account of being beaten and raped by Miller. It follows that Miller cannot show that there is a reasonable probability that the nurse’s hearsay testimony about the bruising had any effect on the outcome of the trial. See Marlow v. State, 192 Ga. App. 670, 671 (4) (385 SE2d 759) (1989) (defendant cannot show prejudice resulting from introduction of hearsay testimony when “[s]ubstantially the same evidence was introduced another way”).

Judgment affirmed.

Miller and Ray, JJ., concur.

       Because the present case was tried in April 2010, the new Georgia Evidence Code does not apply to any of the evidentiary issues addressed in this case. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).

       Miller asserts in his brief that a fifth witness repeated an out-of-court statement by the victim but fails to identify the witness or cite to his or her testimony at trial. Accordingly, any claim of error regarding the testimony of a fifth witness has been abandoned. See Court of Appeals Rule 25 (c) (2).

       We also pretermit whether the testimony of the sheriff’s deputy and police investigator could be admitted as prior consistent statements of the victim.


author: Ray, Judge.

text:
    A13A2154.
    ALDRIDGE v. THE STATE.
    (755 SE2d 19)
   Ray, Judge.

Following a jury trial, Marvin Glynn Aldridge was convicted of one count each of robbery (OCGA § 16-8-40 (a) (1), (2)), aggravated assault (OCGA§ 16-5-21 (a) (1)), battery (OCGA § 16-5-23.1), and criminal trespass (OCGA § 16-7-21 (a)). He appeals from his convictions and the denial of his motion for new trial, contending that his character was improperly placed into evidence at trial. Aldridge also contends that the evidence was insufficient to support his convictions for robbery and aggravated assault. For the reasons that follow, we affirm.

Viewed in the light most favorable to support the verdicts, the evidence adduced at trial established that in July 2010, Roy Sewell, a 75-year-old retiree, was engaged in a business relationship with The Original Mattress Factory in Cobb County. Pursuant to an agreement, The Original Mattress Factory would give Sewell all of the used mattresses that it received from its customers and, in return, Sewell would dispose of the mattresses. Sewell was allowed to place two tractor-trailers behind The Original Mattress Factory to store the used mattresses until they could be removed from the premises. When the mattresses were placed in or around the trailers, the mattresses were considered to be Sewell’s personal property, and no one else had permission or authority to remove the mattresses. Sewell would eventually make money by selling the used mattresses.

On July 14, 2010, Sewell was attending to his mattresses behind The Original Mattress Factory when Aldridge drove up in a maroon-colored pickup truck and inquired about the mattresses. Sewell told Aldridge not to bother the mattresses because they were private property, and he advised Aldridge to leave the premises. In response, Aldridge threatened Sewell by saying “you don’t want to mess with me,” adding words to the effect that he had served time in prison. Aldridge then left the premises.

The following day, Sewell and his 12-year-old grandson went to The Original Mattress Factory to rearrange and pick up the used mattresses. When they arrived, they saw Aldridge loading some of the mattresses into the back of his pickup truck. Sewell exited his vehicle and confronted Aldridge, informing him that “those are my mattresses” and telling him again to leave the mattresses alone. When Sewell attempted to remove his mattresses from Aldridge’s truck, Aldridge attacked Sewell, punching him in the face, pushing him to the ground, and punching him in the chest. Sewell then retreated to his own vehicle and called the police. Aldridge started to approach Sewell’s vehicle at that time, but he turned around and loaded another mattress onto his pickup truck. As Aldridge was driving away, he stopped beside Sewell’s vehicle, got out of his truck, and punched the driver’s side window of Sewell’s vehicle. The punch caved in the window and shattered glass all over Sewell and his grandson, and Sewell sustained cuts to his head. A surveillance camera on the outside of The Original Mattress Factory recorded footage from the incident, and a copy of the video recording was played for the jury.

1. Aldridge contends that the evidence was insufficient to support his convictions for robbery and aggravated assault. Specifically, he argues that (i) there was no evidence that he knew that the mattresses belonged to Sewell; and (ii) that there was no evidence that he used force or intimidation in taking the mattresses, because they were already on his truck when Sewell arrived on the scene. We find these arguments to be unavailing.

Aldridge was indicted for robbery under OCGA § 16-8-40 (a) (1) and (2), which provide that “[a] person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another... [b]y use of force” or “[b]y intimidation . . . [which places] such person in fear of immediate serious bodily injury to himself[.]” Aldridge was charged with aggravated assault under OCGA § 16-5-21 (a) (1), which provides that “[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith intent to . : . rob[.]”

In determining whether the evidence was sufficient to support Aldridge’s convictions for robbery and aggravated assault,

we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of [each] crime beyond a reasonable doubt.

Decided February 19, 2014.

(Citations and punctuation omitted.) Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010).

Applying these principles, we conclude that the evidence presented at trial and summarized above — including the facts that Aldridge was advised that the mattresses belonged to Sewell and that Aldridge used force and intimidation to obtain one (if not all) of the mattresses that he took from Sewell’s immediate presence — was sufficient to authorize a rational jury to find Aldridge guilty beyond a reasonable doubt of robbery and aggravated assault. See Jackson, supra.

2. Aldridge also contends that Sewell’s testimony concerning Aldridge’s statement to the effect that “you don’t want to mess with me, I have served time” was irrelevant, lacked probative value, and impermissibly placed his character in issue. We discern no error.

Aldridge made a pretrial motion in limine seeking to exclude, inter alia, any testimony concerning this statement. The motion was addressed just prior to the start of the trial and, after considering the arguments of counsel, the trial court found that the statement was relevant to show “the intimidation factor” of the robbery offense, and that its probative value outweighed its prejudicial effect.

On appeal, Aldridge argues that his statement, which was made to Sewell on the day before the incident, was irrelevant and had no probative value regarding intimidation because there was no evidence that he used force or intimidation at the time he took the mattresses. For the reasons stated in Division 1, this argument lacks merit.

Furthermore, it is apparent from Aldridge’s statement that he sought to intimidate Sewell by suggesting that he would resort to violence if Sewell later tried to prevent him from taking any of the mattresses. “Evidence that is relevant and material to an issue in a case is not rendered inadmissible merely because it incidentally places the defendant’s character in issue.” (Citation and punctuation omitted.) Evans v. State, 288 Ga. App. 103, 108 (3) (a) (653 SE2d 520) (2007). As the statement was relevant to show Aldridge’s intent, state of mind, and course of conduct for the subsequent robbery, it was admissible even though it may have incidentally placed his character in issue. See generally Millis v. State, 196 Ga. App. 799, 799 (1) (397 SE2d 71) (1990). Accordingly, the trial court did not abuse its discretion in admitting the statement.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

Frederick M. Scherma, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

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

       Aldridge does not challenge the sufficiency of the evidence supporting his battery and criminal trespass convictions.


author: Branch, Judge.

text:
    A13A1983.
    KING v. THE STATE.
    (755 SE2d 22)
   Branch, Judge.

Eddie James King was tried by a Morgan County jury and found guilty of one count of possession of cocaine with intent to distribute and one count of possession of cocaine with intent to distribute within 1,000 feet of a public park. He now appeals from the denial of his motion for a new trial arguing that the evidence is insufficient to sustain his conviction. King further contends that the trial court erred in failing to grant his motion to disclose the identity of a confidential informant (“Cl”) used to make a drug buy at King’s residence and that he received ineffective assistance of counsel. We find no error and affirm.

“On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict.” (Citation omitted.) Marriott v. State, 320 Ga. App. 58 (739 SE2d 68) (2013). So viewed, the record shows that in approximately March 2008, the Morgan County sheriff’s office received information that King was selling drugs out of his home in Madison. After learning that King was living alone, was unemployed, and was without any known means of support, agents with the sheriff’s office and the Ocmulgee Drug Task Force began surveillance of King’s residence, and on April 1, 2008, law enforcement sent a Cl to make a controlled buy of cocaine at King’s house. The person who sold the cocaine to the Cl, however, was not King, but a man the Cl identified only as “Black.” According to police, “Black” was later identified as Kang’s nephew, Lamar Jonigans.

Based on information obtained during their investigation and surveillance of King’s home, several law enforcement agents accompanied King’s probation officer to King’s house on April 10, 2008. When the probation and law enforcement officers arrived at King’s home, King was sitting in the carport area with another male, later identified as Jonigans, and Carla White, King’s then-girlfriend, was inside the house. Captain Kenny Stewart, a narcotics investigator with the sheriff’s office, testified that he knew King from past narcotics investigations and that when Stewart appeared at the residence King recognized him and “became extremely nervous.” Stewart explained to King that police had received reports that King was selling drugs out of his house and asked King for permission to search the residence. King gave his consent to search and also consented to a search of his person. During the search of King’s person, officers found $239 cash, in small denominations. Stewart testified, based on his training and experience in narcotics investigations, that it was typical for a person who was selling drugs to individuals to carry a large amount of cash in small bills, because such a person frequently had to “make change.”

After King consented to the search of his house, he became even more nervous. According to Stewart, King appeared dizzy, his stomach became upset, and he defecated in his pants. Additionally, when it became apparent that officers were going to search the home, King’s nephew fled from the carport on foot.

During the search, officers found both powder and crack cocaine located inside a tin canister sitting on top of the kitchen cabinets. The powder cocaine, which weighed approximately 3.35 grams, was packaged in sixteen small bags, while another bag contained four or five rocks of crack cocaine, weighing a total of 0.87 grams. Stewart stated that based on his training and experience as a narcotics investigator, the total amount of cocaine found in King’s house was greater than the typical amount that would be held by an addict or regular user of the drug, as those people did not generally have the financial means to obtain that quantity of cocaine at one time. Rather, the total amount of cocaine and the way in which it was packaged indicated that the drugs belonged to a dealer — i.e., someone who was selling the drug to third parties. Stewart also explained that powder cocaine was a “unique item” in the Madison area and the only person he knew of in the area who sold cocaine in powder form was King.

Brian Moore, an officer with the Ocmulgee Drug Task Force, also participated in the search of Kang’s residence and testified at trial. He confirmed that after King consented to the search, he appeared to be extremely nervous; Moore explained that King could not carry on a normal conversation, was stuttering, could not make eye contact, and soiled himself. Like Stewart, Moore opined that the amount of cocaine found in King’s house and the way in which it was packaged indicated that the drugs were the property of a dealer who was planning to sell them to third parties.

When the cocaine was discovered, King insisted that the drugs did not belong to him but instead belonged to White. According to the investigating officers, however, White, who is approximately 5'5" tall, would have been unable to access the drugs easily, as they were located on top of cabinets ending approximately seven to seven-and-one-half feet above the floor. Conversely, King, who is approximately 6'2" tall, could have reached the drugs by stretching and extending his arms. Moreover, Stewart and King’s probation officer were both familiar with White, and both men knew White to be a “hard core” drug addict, but did not know her as someone who sold drugs. Nevertheless, officers arrested both King and White and charged each of them with possession with intent to distribute.

White testified at King’s trial and admitted that she was a drug addict who was attempting to overcome her addiction and that her drug of choice was powder cocaine. According to White, she met King when she began buying drugs from him in 2001, and she soon began a sexual relationship with him. She stated that she had received cocaine from King on a number of occasions; sometimes she purchased the drugs from King and other times he gave her the drugs. White had also seen King sell cocaine to other people on numerous occasions. With respect to the incident in question, White confirmed that at the time, King was the only person living in his house. She explained that prior to April 10, 2008, she had been living in Monroe, “away from” King, for approximately three weeks, in an attempt to become drug-free. On April 9, however, King sent his niece to pick up White in Monroe and bring her back to Madison; King told White that he “had something for [her],” and she knew that the “something” referred to cocaine. She spent the night with King, who provided her with two or three small bags of cocaine. The next morning, before police arrived, she also purchased a small quantity of cocaine from King. That same morning, White saw King make two separate sales of crack cocaine to an unidentified man.

White further testified that because of her serious cocaine addiction, King generally hid his supply of cocaine from her and would never trust her with large quantities of the drug. Rather, when King gave her cocaine, he always had it on his person. White also stated that although she had a small amount of cash with her on the morning of April 10, she was at the time unemployed and without the financial resources to obtain the amount of cocaine found in King’s house.

The State also introduced similar transaction evidence showing that in December 2002 law enforcement began an investigation into reports that King was selling powder cocaine out of his house. After performing two controlled buys of small quantities of cocaine from King, officers obtained a search warrant for King’s residence. When they executed that warrant, the police found five small, individually wrapped bags of powder cocaine. King was subsequently charged with possession with intent to distribute, and he pled guilty to that charge in April 2003. Additionally, the State introduced evidence showing that following his arrest on the charges at issue, King offered to identify for police his supplier, who he claimed was known as “Red.” He had law enforcement officers drive him to Athens, where he pointed out a tire and rim shop and stated that he purchased his cocaine from Red at that location.

At his trial on the current charges, King testified in his own defense and acknowledged that he owned the house where the drugs were found and that he was the only person who had a key to the residence. He nevertheless denied ownership of the drugs or knowledge that they were in his house. King also testified that White was living with him in his house in April 2008, and that she was using drugs at the time. According to King, he had never sold cocaine to White, although he had purchased the drug from other people and given it to White. Additionally, King claimed that the money police found in his pocket came from a construction job he was working. He could not explain why his probation officer testified that King was unemployed, as the probation officer had visited King at the job site. King explained his conversations with police where he identified his supplier as “Red,” by saying they were “payback.” Specifically, King stated that he felt like police had “played with” him by claiming the drugs in question belonged to King, and King therefore “felt like [he would] return the favor” and “play with” the officers by taking them “on a wild goose chase.”

Following his conviction, King filed a motion for a new trial. The trial court denied that motion, and King now appeals from that order.

1. King asserts that the evidence is insufficient to sustain his convictions because the State failed to prove that he possessed the drugs found in his kitchen. With respect to this claim of error,

the relevant question 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. In determining that question, we consider the inferences that can be logically derived from the evidence presented at trial. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Punctuation and footnote omitted.) Wade v. State, 305 Ga. App. 819, 821 (701 SE2d 214) (2010).

King contends that the State relied solely on circumstantial evidence to prove its case and its proof was therefore required to “exclude every other reasonable hypothesis save that of” King’s guilt. OCGA § 24-14-6. The State failed to meet this burden, King argues, because the evidence supported his equal access defense —• i.e., the hypothesis that the drugs belonged to either White or Jonigans. We disagree.

King’s argument ignores the fact that White’s testimony that she obtained cocaine from King on the evening of April 9 and morning of April 10, and that she saw King make two separate sales of cocaine to a third party on the morning of April 10, constitutes direct evidence. See Allen v. State, 286 Ga. App. 469, 470 (1) (649 SE2d 583) (2007) (girlfriend’s testimony that drugs found during police search of the house she shared with defendant belonged to defendant and that she had seen defendant sell drugs from the house was direct evidence). More importantly, King’s argument fails to acknowledge that

[t]he issue in circumstantial evidence cases is not whether someone else might have committed the crimes in question. The issue is whether the circumstantial evidence presented was sufficient to authorize the jury to conclude that the only reasonable hypothesis was that [the defendant] was guilty.

(Citations omitted.) Graham v. State, 320 Ga. App. 714, 720 (2) (740 SE2d 649) (2013). See also Daugherty v. State, 283 Ga. App. 664, 667 (1) (a) (642 SE2d 345) (2007) (“[t]o warrant a conviction on circumstantial evidence, the proved facts need exclude only reasonable hypotheses — not bare possibilities that the crime could have been committed by someone else”) (citation and punctuation omitted; emphasis in original). Moreover,

[q]uestions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law. [And] it is for the jury to resolve conflicts in the evidence and questions of witness credibility, not this Court.

(Citations and punctuation omitted.) Hayes v. State, 292 Ga. 506, 509 (739 SE2d 313) (2013). See also Bussey v. State, 263 Ga. App. 56, 58 (1) (a) (587 SE2d 134) (2003) (“whether the defendant’s evidence of equal access sufficiently rebuts the inference” that the defendant possessed contraband found in a residence he owned and/or controlled “is a question for the jury”) (punctuation and footnote omitted).

Here, after hearing the evidence and having the opportunity to judge the credibility of the witnesses, the jury concluded that the only reasonable hypothesis was that King possessed the drugs found hidden in his kitchen. Because the evidence supports this conclusion, we will not disturb the jury’s judgment. See Reid v. State, 298 Ga. App. 889, 890-891 (1) (681 SE2d 671) (2009) (evidence supported defendant’s conviction for possession with intent to distribute where the drugs were found in defendant’s apartment and the State offered similar transaction evidence showing defendant’s “course of conduct in selling cocaine”) (citations omitted); Allen, 286 Ga. App. at 470 (1) (evidence sufficient to convict defendant of possession with intent to distribute where drugs were found in residence he shared with girlfriend and girlfriend testified drugs belonged to defendant). See also Wade, 305 Ga. App. at 822 (“the mere fact that [defendant] testified he had no knowledge of the drugs did not require the jury to acquit him”).

2. Prior to trial, King filed a motion to require the State to disclose the identity of the Cl who made the controlled buy of cocaine at King’s residence. Following a hearing, the trial court denied that motion, and King contends that ruling was error.

The decision as to whether “a confidential informant’s identity is discoverable rests within the sound discretion of the trial court.” (Punctuation and footnote omitted.) Strozier v. State, 314 Ga. App. 432, 435 (1) (724 SE2d 446) (2012). And-in making this decision the court must engage in a two-step process. First, the court must hold a hearing and receive evidence as to whether the Cl is an alleged witness to or participant in the crime “whose testimony appears to be material to the defense on the issue of guilt or punishment”; whether “the testimony for the prosecution and the defense is or will be in conflict”; and whether “the confidential informant [is] the only available witness who [can] amplify or contradict the testimony of these witnesses.” (Footnote omitted.) Turner v. State, 247 Ga. App. 775, 777 (2) (544 SE2d 765) (2001). It is the movant who bears the burden of establishing “the relevance, materiality, and necessity of the identity of the informant as a predicate for disclosure,” Browner v. State, 265 Ga. App. 788, 792 (2) (595 SE2d 610) (2004), and if the movant carries this burden the trial court must then “conduct an in camera hearing of the informant’s testimony and balance the public interest in protecting the flow of information against the defendant’s right to prepare his defense.” (Footnote omitted.) Turner, 247 Ga. App. at 777 (2).

As King acknowledges in his brief, the controlled buy made by the Cl was not the subject of the prosecution, and the Cl was neither a witness to nor a participant in the crimes for which King was on trial. He nevertheless argues that he was entitled to discover the Cl’s identity because the Cl’s testimony was relevant to his equal access defense. Specifically, King contends that testimony that someone other than King was selling drugs out of King’s residence would have supported his claim that the drugs found in his kitchen did not belong to him. We have previously rejected a similar argument, finding that under circumstances such as these the defendant failed to show the relevance and materiality of the Cl’s testimony. See Turner, 247 Ga. App. at 777 (2). In Turner, police had received information from a confidential informant that the Cl could ‘buy cocaine from Turner at Turner’s home.” Id. at 775. The Cl thereafter made two controlled purchases of cocaine from Turner’s residence, although there was no evidence that Turner was the person making these sales. Police then obtained a search warrant for the home and, while executing the warrant, police discovered 22 small bags of crack cocaine. Id. at 776. Turner mounted an equal access defense, based on the fact that three other adults either lived or had been in the house on the day police executed the warrant. He therefore sought the identity of the Cl on the grounds that his testimony regarding the controlled buys would be relevant and material to this defense. The trial court denied that motion, and this Court affirmed, explaining:

Turner was indicted for possessing with intent to distribute the cocaine found in his living room. He was not charged with selling cocaine to the confidential informant. The informant was not present during the search and arrest and was neither a participant in nor a witness to the specific offense with which Turner was charged. His testimony would not have been material to the issue of Turner’s guilt or punishment. Thus, the threshold requirements of the first step of the inquiry were not met, and the trial court did not err in refusing to require the [Sjtate to reveal the informant’s identity.

Id. at 777 (2). The same rationale applies here, and the trial court did not abuse its discretion in finding that the testimony of the Cl regarding the controlled buy made in this case was neither relevant nor material to the issue of whether King possessed the drugs found hidden in his kitchen.

Moreover, assuming that evidence of the controlled buy was relevant to King’s defense of equal access, the Cl was not the only witness qualified to testify regarding that buy. Moore worked with the Cl on the controlled buy and monitored the transaction, and he testified regarding that buy at the motion hearing. Moore’s testimony shows that he was competent to testify as to the fact that someone other than King sold cocaine to the Cl. Accordingly, King also failed to demonstrate the necessity of the Cl’s testimony

3. King contends that he received ineffective assistance of counsel. To prevail on such a claim, King bears the burden of proving both that the performance of his lawyer was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If King cannot meet his burden of proving either prong of the Strickland test, then we need not examine the other prong. Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011). Here, we find that King failed to establish that his lawyer’s performance was deficient.

The sole ground for King’s ineffective assistance claim is that trial counsel failed to question Stewart and Moore regarding the controlled buy of cocaine at King’s residence, including the fact that it was Jonigans, rather than King, who sold the drugs. As trial counsel explained at the motion for new trial hearing, however, this decision was a strategic one. Specifically, the lawyer explained that the State had not introduced any evidence regarding the controlled buy and he feared introducing such evidence would open the door to testimony about other drug transactions (suspected or actual) that police had witnessed during their surveillance of King’s house. And evidence that law enforcement had observed a number of actual or suspected drug transactions at King’s residence would have undermined King’s sole defense — i.e., that he was unaware the drugs were in his house.

Decided February 21, 2014.

Teresa L. Smith, for appellant.

Fredric D. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.

Given the strategic nature of trial counsel’s decision, it “can provide no grounds for [an ineffective assistance claim] unless it was so patently unreasonable that no competent attorney would have chosen it.” (Citation and punctuation omitted.) Mantooth v. State, 303 Ga. App. 330, 336 (1) (b) (693 SE2d 587) (2010). And it is King who bears the burden of rebutting the strong presumption that this strategy was a reasonable one, made in the exercise of reasonable professional judgment. Thornton v. State, 301 Ga. App. 784, 793 (4) (689 SE2d 361) (2009). In light of trial counsel’s testimony regarding the reasons underlying his decision, King cannot carry this burden. See Blocker v. State, 265 Ga. App. 846, 850 (4) (c) (595 SE2d 654) (2004) (attorney’s decision to refrain from impeaching witness on cross-examination because he feared it would open the door to additional evidence, unfavorable to his client, constituted a reasonable strategic decision); Dorsey v. State, 265 Ga. App. 597, 600-601 (2) (a) (595 SE2d 106) (2004) (trial counsel made a reasonable strategic decision not to call two potentially exculpatory defense witnesses because he was afraid that “their testimony ‘could open the doors to a lot of other questions [that would be harmful to the defendant] if somebody slipped up and said something they shouldn’t have said’ ”).

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

       OCGA § 16-13-30 (b).

       OCGA § 16-13-32.5 (a). The jury acquitted King of the charge of possession with intent to distribute within 1,000 feet of a public housing project.

       As a special condition of his probation, King had signed a waiver of his Fourth Amendment rights, pursuant to which he agreed to submit to a search of his person or his residence “without a search warrant, whenever requested to do so by a Probation Officer or other law enforcement officer upon reasonable cause to believe that [King was] in violation of probation or otherwise acting in violation of the law.”

       Officers immediately apprehended the nephew and charged him with obstruction.

       White testified that at the time of trial in October 2010, she had been drug-free since May 2009.

       This house was the same residence out of which King was accused of selling drugs in this case.

       King’s sister, who testified as a defense witness, also stated that White was living with King at the time the drugs were discovered.

       To convict King of possession with intent to distribute, the State was required to prove that he possessed the cocaine at issue with the intent to distribute it to other people. See OCGA § 16-13-30. To convict him of possession with intent to distribute within 1,000 feet of a public park, the State was also required to prove that King’s house was within 1,000 feet of such a park. See OCGA § 16-13-32.5 (a). On appeal, King does not dispute that his home is located less than 1,000 feet from a public park.


text:
    A13A2022.
    IN THE INTEREST OF T. D. J., a child.
    (755 SE2d 29)
   Branch, Judge.

On September 14, 2012, one or more individuals fired gunshots at a crowd of people dispersing from a local football game in Macon; the crowd included at least six police officers. T. D. J., age 14 at the time, was arrested and eventually charged with being delinquent or unruly based on six counts of aggravated assault on a peace officer and one count of possession of a handgun by an underage person; he was also charged with a violation of probation. F olio wing a bench trial held in juvenile court on November 29, 2012, T. D. J. was found guilty on six counts of the lesser included offense of aggravated assault and guilty as charged on the remaining counts. As a consequence, T. D. J. was adjudicated to be a designated felon under OCGA § 15-11-63, committed to the Department of Juvenile Justice for 60 months, and required to serve 48 of those months in restrictive custody, with credit for 7 5 days of time served. In reaching the decision on sentencing, the juvenile court considered the child’s needs and best interests, his record and background, the nature and circumstances of the offense, the need for protection of the community, and the age and physical condition of the victim. Following the denial of his motion for new trial, T. D. J. appeals. We affirm.

1. T. D. J. contends the evidence was insufficient to support the adjudication of delinquency. On appeal of a juvenile court’s adjudication of delinquency, this Court determines 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. In the Interest of R. J. S., 277 Ga. App. 74 (625 SE2d 485) (2005); Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

At trial, Sergeant Brad Surfus testified that he saw a small-in-stature, lone black male, wearing black clothes, fire approximately six rounds toward a crowd of approximately 100 or more people from a position on the left rear corner of a certain building located near the stadium where the game had been held. Surfus radioed Officer Cason Grant with the information and saw the perpetrator run around the back side of the building and back into view on the right side of the same building. Surfus and other officers continued to pursue the individual, and Surfus saw the individual throw a pistol to the ground near a parked SUV. Surfus retrieved the weapon, and it was introduced into evidence. Surfus testified that there were street lights illuminating the area where the events occurred, and at trial, he identified T. D. J. as the person he saw shooting the gun and later discarding it. He also testified that he only lost sight of T. D. J. during the brief time that T. D. J. ran behind the building, but that he recognized T. D. J. when he came from behind the building based on the youth’s small stature and clothing. Surfus testified that he had a reasonable apprehension that he might have been shot. He also testified that several other officers were endangered by the shooting, including Aaron Miller, Timothy Moore, Jesse Thompson, and Timothy River.

Officer Grant testified that as he and other members of the Macon Police Department Strike Unit were responding to calls for assistance from off-duty officers as the football game let out, he heard gunfire coming from behind some apartments located about 150 yards from his position. As the shooting continued, he saw muzzle flashes and the silhouettes of people near the same building identified by Surfus. Some of the shots were fired in Grant’s direction, which placed Grant in reasonable apprehension of being shot. As Grant moved toward the building, he saw that five or six individuals were present, and that one or more of the individuals were shooting. Grant saw the individuals run around the building, and, at the right side of the same building, he encountered the same individuals as they ran out from behind the building. Grant specifically saw T. D. J. running and saw him throw down a handgun near an SUV parked nearby. Grant estimated that T. D. J. was between five feet and five feet two inches tall. Grant pursued briefly, but other officers apprehended T. D. J. nearby. One other individual was apprehended that evening, as well. At trial, Grant identified T. D. J. as the person whom he saw run and discard the gun. T. D. J. testified, and the court was able to observe his height.

Construed in favor of the prosecution, the above evidence was sufficient to support a finding of guilt on six counts of aggravated assault and one count of possession of a handgun by an underage person. See OCGA §§ 16-5-21 (a) (2) (aggravated assault with a deadly weapon); 16-11-132 (b) (possession of a handgun by a minor). See also In the Interest of T. Y. B., 288 Ga. App. 610, 612 (654 SE2d 688) (2007). Moreover, because the evidence included direct evidence in the form of eyewitness testimony identifying T. D. J. as shooting and discarding the gun, the appellant’s argument that the State’s evidence was circumstantial and failed to exclude all other reasonable hypotheses save T. D. J.’s guilt is without merit. Daniel v. State, 285 Ga. 406, 407 (2) (677 SE2d 120) (2009). See also Simmons v. State, 262 Ga. App. 164, 166 (1) (a) (585 SE2d 93) (2003) (positive identifications of defendant by witnesses is direct rather than circumstantial evidence of guilt).

Finally, the State presented sufficient evidence of identification to sustain the conviction. Surfus testified that he could see the shooter initially because of nearby streetlights and that he saw the same person run from behind the other side of the building and discard the gun. And Surfus was able to identify that person as the appellant. See In the Interest of T. O. J., 295 Ga. App. 343, 345 (1) (672 SE2d 14) (2008) (eyewitness testimony of three victims identifying appellant as shooter “was more than sufficient to sustain the convictions”).

2. T. D. J. contends that his sentence of four years in custody was improper for two reasons. He first argues that when considering his sentence, the juvenile court failed to take into account certain factors required by the United States Supreme Court in Miller v. Alabama, _U. S._(132 SCt 2455, 183 LE2d 407) (2012). He also contends that the sentence constitutes cruel and unusual punishment in violation of the Georgia Constitution and of the Eighth and Fourteenth Amendments of the United States Constitution because the sentence was grossly disproportionate to his crime and does not bear a reasonable relationship to the legitimate legislative concerns of deterring crime or rehabilitation.

(a) Miller, however, is distinguishable and not applicable to the case before us. In Miller, the United States Supreme Court determined that the Eighth Amendment’s prohibition of cruel and unusual punishment “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” 132 SCt at 2469 (II). As a part of its reasoning, the Supreme Court noted

that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform ... they are less deserving of the most severe punishments.

(Citations and punctuation omitted.) Id. at 2464. The “most severe punishments” addressed by the Supreme Court were mandatory life sentences without parole for juveniles being charged as adults. Id. at 2465. Thus, the court reasoned:

By removing youth from the balance — by subjecting a juvenile to the same life-without-parole sentence applicable to an adult — these [sentencing] laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender.

Id. at 2466. In addition, the court likened a mandatory life sentence without parole to the death penalty, and it therefore applied precedent demanding individualized sentencing when imposing such a sentence. Id. at 2467.

The present case is obviously quite different. Here, the appellant was not subject to one of the “most severe punishments” allowed by law. Rather, he was tried as a child in the juvenile justice system where the goal is rehabilitation and treatment and where an adjudication of delinquency is not considered a conviction of a crime. See In re L. C., 273 Ga. 886, 887 (1) (548 SE2d 335) (2001). Moreover, he was sentenced under OCGA § 15-11-63, the central purpose of which is “the rehabilitation and treatment of the child and not punishment.” Id. at 888 (1). And the statute specifically requires the juvenile court to take into account the “needs and best interests of the child,” which the juvenile court did. OCGA § 15-11-63 (c) (1). In short, Miller is not applicable to the case before us. See People v. Pacheco, 991 NE2d 896, 906 (Ill. App. 2013) (Miller “was only concerned with the death penalty and life without the possibility of parole, which are the two most severe punishments allowed under the United States Constitution.”).

(b) T. D. J.’s argument that his sentence amounts to cruel and unusual punishment under the Georgia and United States Constitutions has been waived because it was not raised and ruled on below at the sentencing hearing. Brinkley v. State, 291 Ga. 195, 196 (1) (728 SE2d 598) (2012) (failure at sentencing hearing to raise a “complaint that a sentence imposes upon a defendant a cruel and inhuman punishment, in violation of the (state and federal) constitutional

Decided February 21, 2014.

Robert M. Bearden, Jr., for appellant.

K. David Cooke, Jr., District Attorney, Jason M. Wilbanks, Assistant District Attorney, for appellee.

provisions” waives issue on appeal even when, as noted by the dissent to that opinion, the “[a]ppellant is not challenging the general constitutionality of the statute under which he was prosecuted, but the sentence as applied to him based on his status as a juvenile offender”). See, e.g., Brinkley v. State, 320 Ga. App. 275, 282 (6) (739 SE2d 703) (2013) (juvenile’s argument that life sentence violated the constitutional prohibition against cruel and unusual punishment because defendant was only 14 years old at the time of the offenses “was waived for appellate review because it was not timely raised in the trial court”).

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

       As of the time of trial, the term “designated felony act” was defined to mean, among other things, an act which if done by an adult, would be one or more of certain specified crimes including aggravated assault if done by a child 13 or more years of age. OCGA § 15-11-63 (a) (2) (B) (ii) (2012). This section has been repealed effective January 1, 2014 and replaced, in part, by new OCGA § 15-11-2 (12) and (13), which contain newly worded definitions. See Ga. L. 2013, p. 294, § 1-1.

       T. D. J. does not separately contest the finding that by committing aggravated assault, he violated his probation arising from a prior incident.

       The case of Towns v. State, 136 Ga. App. 467 (221 SE2d 631) (1975), upon which the appellant relies, is distinguishable; it addresses the validity of pre-indictment witness-defendant confrontations rather than eyewitness identification at trial, such as here.

       Ga. Const, of 1983. Art. I. Sec. I. Par. XVII.


author: Miller, Judge.

text:
    A13A2210.
    NICHOLS v. THE STATE.
    (755 SE2d 33)
   Miller, Judge.

Following a jury trial, William Shane Nichols was convicted of aggravated sexual battery (OCGA § 16-6-22.2 (b)), aggravated sodomy (OCGA § 16-6-2 (a) (2)), false imprisonment (OCGA § 16-5-41 (a)), and public indecency (OCGA § 16-6-8 (a) (3)). Nichols filed a motion for new trial, which the trial court denied. Nichols appeals, contending that the trial court erred in denying his motion for a directed verdict of acquittal on the false imprisonment count, and that the trial court erred in denying his motion for a mistrial on the ground that the prosecutor improperly placed his character at issue by referring to his prior incarceration. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury’s verdict, the trial evidence shows that, after Nichols rekindled a romantic relationship with the victim, he moved in with the victim and the couple’s daughter in 2009. Approximately one month later, on the night of July 31, 2009, Nichols and the victim went to dinner and then to several bars. The victim and Nichols ultimately met up with several of the victim’s co-workers, including Tracy McClure, at a bar named Bailey’s at about 10:45 p.m. Nichols had several alcoholic drinks prior to arriving at Bailey’s, and he continued drinking while there. Around 12:45 a.m., the victim noticed that Nichols was no longer at the bar. When Nichols returned to the bar about 20 minutes later, he appeared to be more intoxicated and was “grabby-feely” with the victim. The victim told him to stop because they were in public. Nichols and the victim remained at Bailey’s for about another hour, and Nichols continued drinking during this time.

Nichols, the victim, and one of the victim’s co-workers then left the bar, and the victim drove to the co-worker’s apartment. Upon dropping off the co-worker, Nichols became belligerent, insisted that he be allowed to drive, and took the car keys from the victim. Some friends of the victim who were at the apartment complex helped the victim move Nichols into the passenger seat.

The victim then began driving home with Nichols. As the victim was driving, Nichols tried to remove her shirt, and the victim told him to stop. Nichols then told the victim that he wanted to “fuck [her] hard right there,” and yelled at her to stop the vehicle. When the victim stopped, Nichols got out of the vehicle and went around to the driver’s side, jerking open the door. The victim got scared, screamed, and reached for her cell phone. Nichols took the phone from the victim, smashed it against the side of the vehicle, and hit her in the face with it. Nichols then got into the driver’s seat, began driving, and told the victim that she was going to die with him.

Nichols drove for a while until he stopped on Tara Court — a residential area. He then exited the vehicle, and went around and opened the passenger’s side door. Nichols removed the victim from the vehicle, pushed her against the vehicle, and forcefully pulled down her pants and underwear. Nichols then performed oral sex on the victim without her consent. The victim was afraid that if she resisted, Nichols would kill her. Nichols stopped momentarily before moving the victim into the back seat of the vehicle, at which point he performed oral sex on her again. Nichols, who by this time had removed his clothing, sat on the victim’s chest and tried to shove his penis into her mouth. Nichols also bit the victim several times and shoved his fingers inside her vagina so hard that it hurt. When the victim asked Nichols to stop, he told her, “I hope it hurts. I want to break your pussy.”

Nichols eventually stopped when he became distracted by a nearby stop sign. Nichols then walked over to the stop sign and proceeded to pull it down and ride “like a pony.” During this time, the victim gathered Nichols’s clothes, threw them into the vehicle, and drove off. The victim went to a Waffle House, locked herself in the bathroom, and called Tracy McClure for help. McClure and another friend met the victim at the restaurant and took her to the police station. A detective interviewed the victim and observed physical marks consistent with a physical assault. The victim was then taken to a hospital for a physical examination, and the examining physician observed trauma consistent with her reports of sexual assault.

Meanwhile, a homeowner who resided near Tara Court was awakened by loud knocking at her door. The homeowner looked through her blinds and saw a naked man holding a street sign. The homeowner called the police when Nichols entered a car parked in the homeowner’s driveway. The responding police officer found Nichols in the car and took him into custody.

1. Nichols contends that the trial court erred in denying his motion for a directed verdict on the false imprisonment count. We disagree.

A directed verdict is appropriate when there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or not guilty as to the entire offense or to some particular count or offense. When reviewing a denial of a motion for a directed verdict, we apply the same test as when reviewing a challenge to the sufficiency of the evidence, i.e., whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. The jury’s verdict will be upheld as long as there is some competent evidence to support each fact necessary to make out the State’s case.

(Punctuation and footnotes omitted.) Calhoun v. State, 318 Ga. App. 835, 837 (2) (734 SE2d 809) (2012). “All that is required to prove false imprisonment is there be an arrest, confinement or detention of the person, without legal authority, which violates the person’s personal liberty (i.e., against his or her will).” (Citations and punctuation omitted.) Murrell v. State, 317 Ga. App. 310, 316-317 (1) (730 SE2d 675) (2012); see also OCGA § 16-5-41 (a). There is no requirement that the imprisonment be for a specific length of time. Murrell, supra, 317 Ga. App. at 317 (1).

In this case, the evidence showed that, after moving the victim into the back seat of his vehicle, Nichols sat on the victim’s chest and forced his fingers into her vagina. The victim pleaded with Nichols to stop and get off her, but he refused. Nichols did not stop until he became distracted by the stop sign and exited the vehicle, which gave the victim an opportunity to gather Nichols’s clothes and leave. This evidence was sufficient to sustain Nichols’s conviction for false imprisonment. See Murrell, supra, 317 Ga. App. at 316-317 (1) (evidence sufficient to sustain conviction for false imprisonment where the defendant entered the victim’s room uninvited, put his hand across her mouth, and lay on top of her, which confined her movement and rendered her unable to resist as he raped her). Accordingly, Nichols was not entitled to a directed verdict as to the false imprisonment charge.

2. Nichols also contends that the trial court erred in denying his motion for a mistrial on the ground that the prosecutor violated the trial court’s motion in limine to exclude references to Nichols’s being in custody. Nichols asserts that the prosecutor’s reference improperly inserted his character into evidence. We disagree.

“The decision to grant a mistrial is within the discretion of the trial court and will not be disturbed on appeal unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial.” (Citation omitted.) Jackson v. State, 292 Ga. 685, 689 (4) (740 SE2d 609) (2013).

Prior to trial, the trial court granted Nichols’s motion in limine to preclude testimony about any prior bad acts, criminal conduct, or criminal investigations of Nichols. At trial, the prosecutor asked McClure whether she had communicated with Nichols or sent him cards in jail following his arrest. Contrary to Nichols’s claim, the entirety of the prosecutor’s question shows that he was referring to Nichols’s time in jail based upon his arrest in this case, not any prior incarcerations. Even if, as Nichols contends, the trial court’s ruling on his motion in limine precluded all references to his ever being in custody, the prosecutor’s statement was not so prejudicial as to require a mistrial. Notably, Nichols did not previously object to the admission of other evidence of his arrest in this case. As the trial court noted, the jury was obviously alerted to the fact that Nichols had been in jail at some point. The fact that the prosecutor briefly mentioned Nichols’s time in jail did not put his character at issue and did not require a mistrial. See Taylor v. State, 272 Ga. 559, 561 (2) (c) (532 SE2d 395) (2000) (The “mere mention that a defendant has been in jail falls short of placing his character at issue.”) (citation omitted); Isaac v. State, 269 Ga. 875, 877-878 (5) (505 SE2d 480) (1998) (a passing reference to a defendant’s record or time in jail did not require reversal of conviction). Accordingly, the trial court did not abuse its discretion in denying Nichols’s motion for mistrial.

Decided February 21, 2014.

Ashleigh B. Merchant, for appellant.

D. Victor Reynolds, District Attorney, Daniel J. Quinn, Charles P. Boring, Assistant District Attorneys, for appellee. •

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       The jury acquitted Nichols of battery, and the trial court entered a directed verdict of acquittal for criminal trespass.

       Nichols also challenges the denial of his motion for directed verdict on the battery count, but this challenge is rendered moot because he was found not guilty of that offense. See Matthews v. State, 268 Ga. 798, 803 (5) (493 SE2d 136) (1997).

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