text:
    A14A0497.
    TAYLOR v. THE STATE.
    (761 SE2d 426)
   DOYLE, Presiding Judge.

Following a jury trial during which he represented himself, Daniel W. Taylor was convicted of aggravated assault, five counts of terroristic threats, burglary, aggravated assault on a peace officer, obstruction of a law enforcement officer, removal of a weapon from a public official, and stalking. Taylor appeals pro se the subsequent denial of his motion for new trial, arguing that the trial court erred by (1) denying his motion to suppress; (2) denying his motion for plea in bar following his speedy trial demand; (3) sentencing him as a recidivist; (4) failing to merge certain charges; (5) engaging injudicial misconduct; (6) admitting false testimony; and (7) failing to give his requested jury charges. Taylor also challenges the sufficiency of the evidence. For the reasons that follow, we vacate Taylor’s conviction for obstruction, affirm on the remaining counts, and remand for resentencing.

Viewed in favor of the verdict, the record shows that in early May 2008, Taylor was estranged from his wife, Kassandra Norman, and she took from him the key to her apartment. Thereafter, on May 7, 2008, Taylor left multiple threatening voice mails for Norman in which he threatened to kill her. Later that day, Taylor waited outside Norman’s gated apartment complex until he saw her and their two children, crawled under the fence, charged toward her, and began striking her. Taylor grabbed Norman, slammed her to the ground, causing her to strike her head on the pavement, and cut her on her back and neck with a sharp object. Cedric Scott, an apartment maintenance worker, observed the attack, yelled out, and chased Taylor, who fled the scene.

On May 9, 2008, Norman applied for and obtained a family violence ex parte protective order against Taylor, and she took her two children to a domestic violence shelter to spend the night. The same day, Scott saw Taylor enter Norman’s apartment building, and he called Deputy Wesley Carmack, the courtesy officer for the apartment complex, and directed the employees in the office to call the police.

Carmack and Scott went to Norman’s apartment, where they observed that the door had been kicked in and was ajar. Carmack, who was in plain clothes, but wearing his badge, looked in and saw Taylor in the kitchen. Carmack entered the apartment, announced himself as a police officer, showed Taylor his weapon, told him that he was not allowed to be on the property, and directed him to turn around so he could cuff him. After Carmack secured one of Taylor’s hands in the handcuffs, Taylor began swinging at the officer, grabbed him, punched him, struck him in the head with the handcuffs, and repeatedly tried to grab his gun. Carmack eventually shot Taylor in the foot after struggling with him for five or six minutes, during which time Taylor continued to reach for his gun and refused the officer’s repeated commands to release him. Taylor continued to struggle, but Scott and two other maintenance workers were eventually able to subdue and cuff him. Police later found a letter from Taylor to Norman stating that he came to the apartment to kill her, but changed his mind and decided to kill himself instead, and they found a copy of Taylor’s handwritten will.

Taylor was arrested and charged. Taylor fired at least four appointed attorneys before eventually proceeding to trial pro se. Following his convictions, Taylor appeals the denial of his subsequent motion for new trial.

1. As an initial matter, we note that a majority of Taylor’s arguments are not supported by citations to the record as required by Court of Appeals Rule 25 (a) (1), (c) (2) (i). As we have previously stated,

[o]ur requirements for appellate briefs were created not to provide an obstacle, but to aid parties in presenting arguments in a manner most likely to be fully and efficiently comprehended by this Court; a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.

We further note that Taylor has attached numerous exhibits to his appellate brief and caution him that “ ‘[e]xhibits attached to an appellate brief but not appearing in the record transmitted by the trial court cannot be considered by this court and afford no basis for reversal.’ ”

2. Taylor argues that the trial court erred by denying his motion to suppress the evidence recovered from Norman’s apartment because the officer’s entry therein violated his Fourth Amendment rights. This enumeration is without merit.

Pretermitting whether Taylor has standing to challenge the search, based upon the evidence that Taylor viciously attacked Norman two days before, her testimony that he was not authorized to be on the property, and the officer’s observation that Taylor had kicked in the door to her apartment, exigent circumstances justified Carmack’s entry into the apartment.

3. Taylor contends that the trial court erred by denying his plea in bar and motion to dismiss on constitutional speedy trial grounds. We disagree.

“Barker v. Wingo[ ] and Doggett v. United States[ ] . .. guide a court in its consideration of whether a delay in bringing an accused to trial amounts to a denial of his right to a speedy trial.” Our Supreme Court has recently reiterated:

In Georgia, the application of these principles to the circumstances of a particular case is a task committed principally to the discretion of the trial courts, and it is settled law that our role as a court of review is a limited one. Under our precedents, we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion.

There is a two-part test applicable to considering a motion to dismiss on speedy trial grounds.

The first stage requires a determination of whether the interval from the defendant’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered “presumptively prejudicial.” Where the delay is only ordinary, rather than presumptively prejudicial, the defendant’s speedy trial claim fails at the threshold. A delay that is deemed to be presumptively prejudicial, however, triggers the second stage of the analysis. At this second stage, a court must determine whether the defendant has been deprived of his right to a speedy trial by analyzing a four-part balancing test that considers the conduct of both the State and the defendant (i.e., the Barker-Doggett factors): (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Standing alone, none of these factors [is] a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test.

(a) Presumptive prejudice. “Speedy trial rights attach at the time of arrest or formal indictment, whichever is earlier.” Here, Taylor was arrested on May 9, 2008, and the trial court entered an order denying his speedy trial motion on July 14,2010. The 27-month delay in this case was presumptively prejudicial.

(b) Barker-Doggett analysis.

(i) Length of the delay. “The [27] -month pretrial delay in this case was uncommonly long, and is a factor weighed against the State.”

(ii) Reasons for the delay. The trial court concludes in its order that the delay in bringing Taylor to trial “is wholly attributable” to Taylor’s dismissal of at least four court-appointed attorneys before he filed his motion, and Taylor caused even more delay by filing a motion to recuse the trial judge. This finding is supported by the record, and we therefore defer to the trial court’s conclusion that this factor is therefore weighed against Taylor.

(iii) Assertion of the right. Taylor first asserted his right to a speedy trial on November 10, 2009 by filing a pro se out-of-time demand for speedy trial, and he filed two other demands thereafter, one of which was deemed untimely, and the other he withdrew.

Although the State bears the burden to ensure that an accused is brought to trial promptly, the accused bears some responsibility to invoke the speedy trial right and put the government on notice that he would prefer to be tried as soon as possible. Once the right to a speedy trial attaches, the accused must assert it with reasonable promptness, and delay in doing so normally will be weighed against him. That said, the accused is not required to demand a speedy trial at the first available opportunity, only to demand it “in due course.”

The trial court did not indicate whether it weighed this factor against Taylor and, if so, to what extent, but it did note that Taylor waited a year and a half after his arrest to assert his right. Despite the trial court’s failure to specify its conclusion, this factor weighs against Taylor.

(iv) Prejudice. Taylor did not assert lengthy pretrial incarceration or excessive anxiety or concern below. As the trial court concluded, Taylor contended in his written motion below that the State’s failure to bring him to trial in a timely manner allowed the State to “ ‘gain a tactical advantage’ over him.” At the hearing, Taylor testified only that he was having trouble getting in touch with his witnesses due to his incarceration. He did not identify the witnesses, show that they could not be located, or explain how they would have testified and helped his defense. Under these circumstances, Taylor “has failed to present any actual evidence to show that his defense would be impaired, the most important component of the prejudice factor.”

(v) Balancing the factors. Although the length of the delay is weighed against the State, the reasons for the delay, Taylor’s delay in asserting his right to a speedy trial, and his failure to establish prejudice are weighed against him. Under these circumstances, the trial court did not abuse its discretion by denying his speedy trial motions.

4. Taylor argues that the trial court erred by sentencing him as a recidivist because the State failed to provide him with notice of its intent to seek recidivist sentencing under OCGA § 17-10-7 (c) within ten days of trial.

OCGA § 17-16-4 (a) (5) requires the State to, “no later than ten days prior to trial, or at such time as the court orders but in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the state intends to introduce in sentencing.” “ ‘The important requirement is that the defendant be given an unmistakable advance warning that the prior convictions will be used against him at sentencing so that he will have enough time to rebut or explain any conviction record.’ ” Here, the State provided Taylor with notice of its intent to seek recidivist sentencing on the second day of trial, before the jury was sworn. “This [C]ourt has previously held that notice received prior to the jury’s being sworn is sufficient to satisfy the requirement of the statute. Because [Taylor] received timely notice of the [S]tate’s intention to seek recidivist punishment, no error has been shown.”

5. Taylor contends that the trial court erred by failing to merge his convictions for aggravated assault on a peace officer, removal of a weapon from a public official, and obstruction of a law enforcement officer because they constitute the same conduct.

(a) Obstruction and aggravated assault on officer. As we have previously held,

OCGA § 16-1-7 (a) affords a defendant with substantive double jeopardy protection by prohibiting multiple convictions and punishments for the same offense, and OCGA § 16-1-7 (a) (1) prohibits a defendant from being convicted of more than one crime if one crime is included in another. Obstruction of a police officer is “included in” the crime of aggravated assault on a police officer when the former is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the latter.

Here, Taylor was charged with aggravated assault on a peace officer “by fighting and hitting [Carmack] with hands, objects when used offensively against a person are likely to result in serious bodily injury.” He was charged with obstruction “by offering violence to the person of [Carmack], by fighting [him].” Thus,

each count of the crime of obstruction was established by proof of the same or less than all the facts required to establish each count of the crime of aggravated assault. . .. Accordingly, [Taylor’s] conviction[ ] for obstruction and the sentence [ ] imposed thereon must be vacated, and the case must be remanded to the trial court for resentencing.

(b) Removal of weapon from a public official. The State charged Taylor with removal of a weapon from a public official by “attempt[ing] to remove a handgun from the possession of... Carmack, a peace officer as defined in OCGA § 35-8-2.” “[M]erger is not required where the two crimes are based on more than one separate act or transaction. If one crime is complete before the other takes place, the two crimes do not merge.” And the aggravated assault count was not established by the same or less than all of the facts required to establish the count of removal of a weapon from an official. Therefore, these counts do not merge.

6. Taylor argues that the trial court engaged in judicial misconduct and exhibited bias and prejudice. We find no basis for reversal.

As best as we can discern from Taylor’s brief on appeal, it appears that this argument is limited to the trial court’s ruling sustaining the State’s objection to him reading from or admitting into evidence an affidavit of the property manager during his cross-examinations of the victim and Carmack without laying a proper foundation therefor. Neither the property manager nor Taylor testified at trial. Thus, Taylor’s attempts to impeach the victim and Carmack using the statement of an absent witness were improper. Accordingly, the trial court properly sustained the State’s objection to admission of the affidavit and to Taylor’s attempt to read from it during his cross-examination of the witnesses.

7. Taylor contends that his convictions should be reversed because the victim and several witnesses gave false testimony and committed perjury. “[Taylor] has not[, however,] shown that the prosecution knowingly used perjured testimony on a material point [,] . . . [and] there is no constitutional requirement that the witnesses upon whom the State relies to prove its case must give consistent evidence.” As we have previously held,

the applicable constitutional guarantee is the Sixth Amendment right to a trial before an impartial jury for a determination of the credibility of the State’s case and defendant’s defense. Here, the convictions are not based upon the State’s knowing use of perjured testimony, but upon that version of the events most unfavorable to [Taylor], which version the jury accepted after hearing all the evidence and resolving the credibility of all of the witnesses. [Taylor] has thus failed to show that the trial court erred by allowing [the witnesses] to testify.

8. Taylor contends that the trial court erred by failing to give certain jury charges that he requested, including charges on “cohabitation,” self-defense and justification, and aggravated assault to the jury.

Based upon our review of the record and Taylor’s failure to provide a record citation therefor, it appears that although Taylor provided the court with written requests to charge, he did not file those requests. At the close of the charges, Taylor objected generally to the trial court’s failure to give his requested charges, but did not specify those charges or the basis for his objection. OCGA § 17-8-58 provides:

(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury’s hearing and presence.
(b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.

A finding of

[p]lain error requires a clear or obvious legal error or defect not affirmatively waived by the appellant that must have affected the appellant’s substantial rights, i.e., it affected the outcome of the trial-court proceedings. Stated more succinctly, the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.

Further,

[a] criminal defendant is ordinarily required to present written requests for any desired jury instructions. He is relieved of this duty only where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.

We review Taylor’s arguments regarding the trial court’s failure to give certain jury charges under these standards.

To authorize a jury charge on self-defense or justification, both of which are affirmative defenses, the defendant must admit “the elements of the crime, but seeks to justify, excuse, or mitigate by showing no criminal intent.” Here, Taylor did not testify, and the evidence at trial showed that: he attacked the victim; he kicked in the door to her apartment two days later; he was not on the lease nor did he have her permission to be there; and once Carmack, who was wearing his police badge, entered the apartment and attempted to handcuff him, Taylor grabbed him, punched him, struck him in the head with handcuffs, and attempted to grab his gun. Under these circumstances, the evidence did not warrant jury charges on justification or self-defense.

Taylor does not specify the specific charges that he requested and the trial court refused to give regarding cohabitation and aggravated assault. Nevertheless, the trial court gave the pattern charges on burglary and aggravated assault, which adequately covered the crimes, and it read the indictment to the jury. Under these circumstances, Taylor has failed to demonstrate clear harm or plain error in the trial court’s failure to give his unspecified charges on these counts.

9. Finally, Taylor challenges the sufficiency of the evidence, arguing only that the witnesses committed perjury and no reasonable jury could have found him guilty.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.[] Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.

Taylor fails to make any specific arguments regarding how the evidence is insufficient to support the convictions, and we find that based on the facts presented above, the jury was authorized to find him guilty of each count.

10. Taylor’s various motions filed in this case on appeal are denied as moot.

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Miller and Dillard, JJ., concur.

Decided July 7, 2014.

Daniel W. Taylor, pro se.

Paul L. Howard, Jr., District Attorney, David K. GetachewSmith, Assistant District Attorney, for appellee.

       OCGA § 16-5-21 (b) (2).

       OCGA§ 16-11-37 (a).

       OCGA § 16-7-1 (b).

       OCGA § 16-5-21 (b) (2), (d).

       OCGA § 16-10-24 (b).

       OCGA § 16-10-33 (b) (2) (A).

       OCGA § 16-5-90 (a) (1). Taylor was also charged with two counts of cruelty to children, but those counts were later nolle prossed by the State.

       See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       Taylor was not on the apartment lease, which was in Norman’s name.

       The record does not indicate when the order was served on Taylor.

       (Punctuation omitted.) Pruitt v. State, 323 Ga. App. 689, 689-690 (1) (747 SE2d 694) (2013).

        Hughes v. State, 323 Ga. App. 4, 11 (4) (a) (ii) (746 SE2d 648) (2013).

       We note that although the trial court initially failed to transmit the transcript of the July 14, 2010 hearing at which the parties presented argument and evidence regarding the motion to suppress and motion to dismiss on speedy trial grounds, the trial court has since supplemented the record with the transcript.

       See Berry v. State, 313 Ga. App. 516, 518, n. 9 (722 SE2d 127) (2012) (“ ‘A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.’ ”) (citation omitted).

       See, e.g., Lindsey v. State, 247 Ga. App. 166, 168 (1) (543 SE2d 117) (2000) (“An exigent circumstance which does justify the warrantless entry of a private home is the officer’s reasonable belief that such action is a necessary response on his part to an emergency situation. It has been repeatedly held that reasonable concern for a victim’s welfare justifies a warrantless entry.”) (citation and punctuation omitted).

       407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972).

       505 U. S. 647 (112 SCt 2686, 120 LE2d 520) (1992).

        State v. Alexander, 295 Ga. 154, 155 (758 SE2d 289) (2014).

       (Punctuation omitted.) Id., quoting State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65) (2013).

       (Citations and punctuation omitted.) Stewart v. State, 310 Ga. App. 551, 552-553 (713 SE2d 708) (2011).

       (Punctuation omitted.) Fleming v. State, 324 Ga. App. 481, 488 (3) (c) (i) (749 SE2d 54) (2013).

       See id.

       Id. at 488 (3) (c) (ii).

       The demand was filed under a separate indictment number.

       (Citations and punctuation omitted.) Alexander, 295 Ga. at 158 (2) (c).

       See Nealy v. State, 246 Ga. App. 752, 754 (3) (3) (542 SE2d 521) (2000) (11-month delay in asserting right to a speedy trial is weighed against the defendant).

       (Punctuation omitted.) Lambert v State, 302 Ga. App. 573, 577-578 (4) (692 SE2d 15) (2010). See also Fleming, 324 Ga. App. at 490 (3) (c) (v) (defendant failed to establish prejudice because he did not provide details as to what a missing witness’s testimony would have shown).

       See Jenkins v. State, 294 Ga. 506, 513 (2) (c) (755 SE2d 138) (2014).

       (Emphasis supplied.)

        Ross v. State, 313 Ga. App. 695, 698 (1) (d) (722 SE2d 411) (2012).

       (Punctuation omitted.) Daniels v. State, 296 Ga. App. 795, 798 (3) (676 SE2d 13) (2009), quoting Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) (510 SE2d 87) (1998). See also Ross, 313 Ga. App. at 698 (1) (d).

       (Punctuation omitted.) Dobbs v. State, 302 Ga. App. 628, 630 (2) (691 SE2d 387) (2010).

       Id. See also Garrett v. State, 306 Ga. App. 420, 421 (a) (703 SE2d 666) (2010).

        Garrett, 306 Ga. App. at 422 (b).

       See id.

       See former OCGA § 24-9-83 (“A witness may be impeached by contradictory statements previously made by [her] as to matters relevant to his testimony and to the case.”); Mobley v. State, 265 Ga. 292, 296 (9) (a) (455 SE2d 61) (1995); Adams v. State, 217 Ga. App. 706, 707 (2) (459 SE2d 182) (1995).

       The trial court, which warned Taylor of the risks inherent in self-representation, explained the basis for his rulings on this issue to Taylor, who ultimately did not understand the proper method for admitting evidence and impeaching witnesses. We note that “pro se litigants are not exempt from the rules of evidence and applicable burdens of proof.” Wilson v. McNeely, 307 Ga. App. 876, 880 (3) (705 SE2d 874) (2011). See also Salazar v. State, 256 Ga. App. 50, 53 (4) (567 SE2d 706) (2002) (“The trial court . . . engaged in appropriate attempts to require [Taylor] to comply with rules of evidence and procedure, which task [Taylor] willingly undertook when he decided to represent himself.”) (punctuation omitted).

       Taylor also alleges that the trial court and the prosecutor testified falsely under oath and lied. Pretermitting his failure to provide citations to the record to support this allegation, neither the prosecutor nor the trial judge testified in this case.

        White v. State, 315 Ga. App. 54, 56 (1) (726 SE2d 548) (2012).

       (Punctuation and footnote omitted.) Id. at 57 (1).

       Taylor also argues that the trial court erred by giving his requested charge on obstruction. Based upon our holding vacating his conviction for obstruction, we need not address this particular argument.

       (Punctuation omitted.) Alvelo v. State, 290 Ga. 609, 615 (5) (724 SE2d 377) (2012).

       (Citations and punctuation omitted.) Woods v. State, 291 Ga. 804, 809-810 (3) (733 SE2d 730) (2012), quoting Shepherd v. State, 280 Ga. 245, 252 (4) (626 SE2d 96) (2006). See also OCGA § 5-5-24 (a).

       (Punctuation and emphasis omitted.) Ransom v. State, 318 Ga. App. 764, 766 (2) (734 SE2d 761) (2012).

       See OCGA § 16-3-21 (a) (justification); Hudson v. State, 325 Ga. App. 657, 660 (4) (b) (754 SE2d 626) (2014); Ransom, 318 Ga. App. at 767 (2).

       Taylor argues that he could not be convicted of burglary because he lived in the apartment with the victim, an argument which was unsupported by the evidence. To the extent that Taylor meant to argue that the trial court should have charged the jury on the use of force in defense of habitation, the evidence did not support such a charge. See OCGA § 16-3-23 (“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if: (1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence; (2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or (3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.”).

       See Jarrett v. State, 299 Ga. App. 525, 531 (7) (a) (683 SE2d 116) (2009); Moore v. State, 283 Ga. 151, 155 (4) (656 SE2d 796) (2008) (“The failure to give a jury charge in the precise language requested is not a cause for reversal where the given instruction substantially covers the applicable principles of law.”).

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

       (Punctuation and footnotes omitted.) Waller v. State, 267 Ga. App. 608 (600 SE2d 706) (2004).

       See OCGA §§ 16-5-21 (b) (2) (aggravated assault); 16-11-37 (a) (terroristic threats); 16-7-1 (b) (burglary); 16-5-21 (b) (2), (d) (aggravated assault on a peace officer); 16-10-24 (b) (obstruction); 16-10-33 (b) (2) (A) (removal of a weapon from a public official); 16-5-90 (a) (1) (stalking).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A14A0536.
    THOMPSON v. THE STATE.
    (761 SE2d 413)
   DOYLE, Presiding Judge.

Donald Thompson was convicted of two counts of voluntary manslaughter as a lesser included charge of malice murder and felony murder, one count of pointing a firearm at another as a lesser included charge of aggravated assault, four counts of reckless conduct, and one count of cruelty to children in the third degree. The trial court denied Thompson’s motion for new trial, and he appeals, arguing that (1) the trial court erred by failing to grant his motion for pretrial immunity based on self-defense; and (2) he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed in favor of the verdict, the facts show that then 17-year-old Thompson met his then 15-year-old girlfriend, Jessica Lecroy, on the Internet, and he traveled from his home in Savannah, Georgia, to the home of her mother, Opal, in Marietta, Georgia, in order to visit Jessica. Thompson first visited Jessica in September 2009. Thompson visited Jessica again in April 2010, but the two fought, and in May 2010, Jessica’s uncle took Thompson to the bus station so he could return home to Savannah. Thompson was allowed to return to the Lecroy home later that summer, and he secured a job in the area.

On October 23, 2010, Opal was visiting her sister-in-law’s home in Newnan, Georgia, and she attempted to speak with Jessica on the phone, but Thompson tried to prevent it. Opal, accompanied by her niece, Amanda Hawkins, went back to Marietta to confront Thompson and tell him to leave her home. Amanda’s boyfriend, Daniel Langley (who was 19 at the time), Daniel’s brother, Tyler (who was 16 at the time), and their friend, Josh Marando, traveled separately to meet Opal and her companions at the home. Upon learning of their intention to come to the home, Thompson told Jessica that he would hurt them if they laid a finger on him. Thompson also told Officer David L. Smith that he was “going to be prepared for them.”

When Opal and the others arrived at the home, Thompson unlocked the doors for them, and he and Amanda began to argue at which point Thompson pushed Amanda against the wall, tearing her shirt. Opal called Daniel, Tyler, and Josh (who had been waiting outside) into the house after Thompson pushed Amanda, and Opal searched for her home phones, which had been hidden under her mattress.

Daniel entered the living room to check on Jessica, whom Thompson had told to stay on the couch, but Thompson was standing in the middle of the room holding a silver .38 caliber handgun, which he pointed at Daniel and told him to “stop before I kill you.” While Josh tried to pull Daniel away from the area, Tyler circled around the hallway to try and disarm Thompson by grabbing him across the chest and pushing his weapon hand away from Daniel. Thompson was able to get his arm away from Tyler’s reach and shot him in the abdomen, causing Tyler to fall backward. Josh pulled Amanda out of the room after the gunshot, and Daniel attempted to retreat down the hall, but Thompson shot him in the back. As the wounded Tyler crawled onto the couch, Thompson shot him in the forehead just above his eyebrow from only a few inches away. Tyler died from this injury.

1. Thompson contends that the trial court erred by denying his motion for pretrial immunity pursuant to OCGA § 16-3-24.2 based on self-defense. We disagree.

OCGA § 16-3-21 (a) states:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

“In reviewing the denial of a motion for pretrial immunity, we must view the evidence in the light most favorable to the trial court’s ruling and accept the trial court’s findings of fact and credibility determinations if there is any evidence to support them.” The trial court assesses such motions under the preponderance of evidence standard, which

means 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. Nothing in this standard requires the elimination of all fact disputes as a matter of law. Rather, the standard requires only that the finder of fact be inclined by the evidence toward one side or the other.

Thompson has not shown that the trial court erred by denying his motion for pretrial immunity. At the motion in limine hearing, the superior weight of evidence showed that Thompson (who was at most a house guest of Opal, who came to her own home in order to make Thompson leave) intended to use deadly force against the Langleys before they arrived at the scene, that Thompson brandished the weapon against them after physically attacking Hawkins and before any physical threat was made toward him, and that Thompson continued to use an unnecessary level of force by shooting an already injured Tyler in the head at close range and shooting a fleeing Daniel in the back. As such, there was no error on the part of the trial court in the denial of the motion for pretrial immunity.

2. Thompson raises multiple claims of ineffective assistance of counsel.

Under Strickland v. Washington,

[i]n order to establish ineffectiveness of trial counsel, appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo.*

(a) First, Thompson argues that trial counsel was ineffective for failing to hire an expert to rebut the testimony of the medical examiner regarding whether Tyler could have been holding the weapon when it discharged.

On cross-examination of the medical examiner, the following exchange occurred:

[TRIAL COUNSEL]: You don’t know who was holding the weapon when [the shot to Tyler’s abdomen] hit[?]
[MEDICAL EXAMINER]: Who’s holding the weapon?
[TRIAL COUNSEL]: Yeah, what you know is the aftereffects of the shot; right?
[MEDICAL EXAMINER]: I know the deceased wasn’t holding the weapon.
[TRIAL COUNSEL]: How do you know that?
[MEDICAL EXAMINER]: Because he had no gunshot powder on his hands.
[TRIAL COUNSEL]: Did you do a gunshot residue test on his hands?
[MEDICAL EXAMINER]: You don’t do that. You look for it.
[TRIAL COUNSEL]: You look for it, you didn’t see anything?
[MEDICAL EXAMINER]: That’s right. .. .
[TRIAL COUNSEL]: And you didn’t have this fellow’s clothes [?]
[MEDICAL EXAMINER]: No, I did not.
[TRIAL COUNSEL]: So you were not able to examine it for powder or residue or stippling or anything else that you’ve been able to talk about on the second shot.
[MEDICAL EXAMINER]: That’s correct.
[TRIAL COUNSEL]: Okay. So you don’t know as we stand here today how far away that first shot was when it was delivered.
[MEDICAL EXAMINER]: No, I do not.
[TRIAL COUNSEL]: I’m sorry, that’s an inappropriate question. You don’t know as we stand here today how far away the weapon was which delivered that shot.
[MEDICAL EXAMINER]: To the abdomen, that’s correct.

Thompson argues that the medical examiner incorrectly stated that the proper way to assess the existence of gunshot residue is through a visual inspection of the individual’s skin. Thompson contends that his trial counsel was ineffective because he failed to properly prepare for the medical examiner’s testimony, failed to present expert testimony in rebuttal to the testimony, and failed to request a continuance to present rebuttal evidence regarding this testimony. Thompson contends that because of counsel’s failures, the jury was allowed to hear without rebuttal the medical examiner’s erroneous statement regarding the test for gunshot residue and his equally erroneous conclusion based thereon that Tyler was not holding the gun in his hand when the first shot impacted his abdomen.

Thompson contends that this was prejudicial to him because it removed as a possible conclusion the hypothesis that he and Tyler wrestled over the weapon, which accidentally discharged or was fired by Tyler himself, which prejudice trial counsel admitted at the motion for new trial hearing. Thompson also presented at the motion for new trial hearing an expert affidavit stating that the medical examiner testified incorrectly regarding the type of test used to detect gunshot residue; however, the affidavit does not contain any information regarding the affiant’s qualifications.

As counsel explained in an ex parte hearing on the matter and at the motion for new trial hearing, “[t]here was never a question about who fired the gun. The question was what are the circumstances. And really, the circumstances of the first two shots, I think there was no question at all about those. It was the circumstances of the third shot that the whole case turned on.” At trial, counsel presented Thompson’s claim of self-defense via the theory that Thompson held the gun when Tyler and Daniel were shot, but that in both cases, it was a result of Thompson defending himself. Counsel explained to the jury:

I’m telling you right now there is no doubt [Thompson] shot those two boys, he’s the only one [that] had a gun in his hand and he shot them both. The defense in the case is that he was justified under the law in shooting those boys to protect himself in a three-on-one situation where they had already told [him], “Tell your punk-ass boyfriend we’re coming over today.”

As for Thompson’s argument that counsel failed to prepare for the medical examiner’s testimony, the record shows that counsel was familiar with him from previous trials and did not believe that interviewing him would prove fruitful; instead counsel prepared by obtaining reviews of the report. Trial counsel’s cross-examination of the medical examiner was thorough and sifting, and he was able to extract helpful testimony from the witness on numerous occasions. Moreover, given the overwhelming evidence that Thompson shot Daniel in the back and Tyler in the head while he was already wounded and on the sofa, it is unlikely that the medical examiner’s statement affected the outcome of the trial.

(b) Next, Thompson argues that trial counsel was ineffective for failing to move for a mistrial based on audience conduct during the trial.

“Demonstrations and outbursts which occur during the course of a trial are matters within the trial court’s discretion unless a new trial is necessary to [e]nsure a fair trial.” At the motion for new trial hearing, counsel testified that the family of the victims was behaving poorly during the duration of trial, but he did not believe it was necessary to ask for a mistrial or curative instruction regarding their behavior because the trial court “unloaded” on them when it occurred, and he could not recall that any of the behavior occurred in front of the jury. At least one instance occurred during Thompson’s testimony, and the trial court scathingly chastised the audience outside the jury’s presence.

Decided July 7, 2014.

Raina J. Nadler, for appellant.

D. Victor Reynolds, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

Thompson has not presented any evidence of the content of the outbursts or what was heard by the jury. Indeed, when the trial court issued its last warning on the matter, it indicated that the prosecutor may not have heard the statement because of his attention to the testimony. “Many, if not most, trials by jury involve some degree of emotion by at least one party or the other. It would be unreasonable to expect that all emotions be completely frozen during a trial by jury when such effective bridle on emotions cannot be sustained elsewhere.” Based on the record before us and the discretion with which the trial court has to act on such motions, we conclude that Thompson has not met his burden to establish ineffective assistance of counsel on this point.

(c) Finally, Thompson argues that trial counsel was ineffective for failing to present witnesses at sentencing.

At the hearing on the motion for new trial, counsel explained that he thought the trial court already had heard a sufficient amount about Thompson’s background during the trial and pretrial phases, and the trial court recalled that counsel had argued for a lighter sentence based on Thompson’s background. Accordingly, Thompson has failed to show that the evidence he would have offered in mitigation would have had a reasonable probability of changing the outcome of sentencing.

Based on the foregoing, Thompson has failed to show that the trial court’s denial of his motion for new trial on these bases was clearly erroneous.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       OCGA § 16-5-2 (a).

       OCGA § 16-11-102.

       OCGA § 16-5-60 (b).

       OCGA § 16-5-70 (d) (2).

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

       Thompson does not challenge the sufficiency of the evidence on appeal, but we note that the facts as presented at trial support the jury’s verdict. See OCGA §§ 16-5-2 (a); 16-5-60 (b); 16-5-70 (d) (2); 16-11-102; Jones v. State, 289 Ga. 145, 146-147 (1) (710 SE2d 127) (2011) (cruelty to children in the third degree); Davis v. State, 309 Ga. App. 831, 832-833 (1) (711 SE2d 324) (2011) (voluntary manslaughter); Baker v. State, 273 Ga. App. 297, 300 (2) (614 SE2d 904) (2005) (reckless conduct); Richardson v. State, 233 Ga. App. 890, 891 (505 SE2d 57) (1998) (pointing a pistol at another).

        Sifuentes v. State, 293 Ga. 441, 444 (2) (746 SE2d 127) (2013), citing State v. Bunn, 288 Ga. 20 (701 SE2d 138) (2010).

       (Citation and punctuation omitted.) Bunn, 288 Ga. at 22.

       See, e.g., Sifuentes, 293 Ga. at 444-445 (2).

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

       (Citations and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       See Pippins v. State, 263 Ga. App. 453, 459 (4) (b) (588 SE2d 278) (2003).

       See, e.g., Gibbs v. State, 316 Ga. App. 431, 432 (729 SE2d 563) (2012) (“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.”) (punctuation omitted); Pippins, 263 Ga. App. at 484-485 (4) (a) (“The decisions on which witnesses to call, whether and how to conduct cross-examination, which jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of counsel after consultation with the client. Trial counsel’s strategic decisions made after thorough investigation are virtually unchallengeable. They provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.”) (punctuation omitted).

        Sheppard v. State, 235 Ga. 89, 91 (2) (218 SE2d 830) (1975).

       (Punctuation omitted.) Forney v. State, 255 Ga. 316, 318 (3) (338 SE2d 252) (1986).

       See, e.g., Sheppard, 235 Ga. at 91 (2).

       See DeYoung v. State, 268 Ga. 780, 786 (5) (493 SE2d 157) (1997).


text:
    A14A0672.
    In re ESTATE OF KAUFMANN.
    (761 SE2d 418)
   DOYLE, Presiding Judge.

This appeal arises from a Petition for Restoration filed by ward James Irwin Kaufmann, in which he petitioned for a restoration of his rights or, alternatively, for the appointment of a new guardian and new conservator. Kaufmann argues that the probate court impermissibly disregarded the terms of a settlement agreement requiring appointment of a new guardian and new conservator by re-appointing the prior guardian. For the reasons that follow, we affirm.

The record reveals that Kaufmann suffered from physical and mental disabilities due to stroke, multiple seizures, or transient ischemic attacks, as well as dementia. In August 2011, due to Kaufmann’s condition, the probate court made an emergency appointment of a guardian and conservator for Kaufmann — his adult son, Rocco Kaufmann (“Rocco”); shortly thereafter, Rocco, acting as conservator, removed Kaufmann and installed himself as president of Kaufmann’s real estate business. Thereafter, in October 2011, the probate court appointed Rocco as Kaufmann’s guardian, but instead of maintaining Rocco as the conservator, appointed Jerry L. Landers, Jr.

In November 2012, Kaufmann filed a Petition for Restoration of [a]n Individual Formerly Found in Need of a Guardian and/or Conservator in which he requested restoration of his rights or, alternatively, appointment of a new guardian and new conservator. The probate court held a probable cause hearing, after which the Court determined that probable cause existed to support a finding that Kaufmann was no longer in need of a guardian or conservator.

Thereafter, a hearing on the petition was begun but not completed on July 17, 2013, and after mediation, Kaufmann, Rocco, and Landers entered into a settlement agreement, which was submitted and entered as an order by the probate court. The consent order memorializing the settlement agreement stated that the petition would be dismissed and governed by OCGA § 29-5-71 (e), which states that “ [n] o petition for modification shall be allowed by the court within two years after the denial or dismissal on the merits of a petition for substantially the same modification unless the petitioner shows a significant change in the condition or circumstances of the ward.” Additionally, the parties agreed that Rocco would resign as guardian, and Landers, who was serving as conservator, also would resign, and the parties would submit to the guardian ad litem (“GAL”) up to three names each as candidates for the substitute guardian and conservator. The GAL could add more names and distribute the completed list to the parties for comment, and then the GAL would make a selection and recommendation for the new guardian and conservator by a date certain. The parties agreed that they would not object to the court’s selection of the new guardian and new conservator.

At the continued petition hearing on July 23, 2013, the parties presented the probate court with a copy of the consent order. At the hearing, the probate court stated:

So, I don’t want to abdicate what I have sworn to do, so I just want to make sure, as I understand this, before I sign this order that we’re all on the same page and that at the end of the day if I see all of the selections as an issue I would intend to say I’m going off this list but I need to know if there are reservations about this other person — and I have no idea what potential cast of characters we’re looking at. But, that being said, I may solicit any feedback which may feel like objections, and we may end up getting to that point. But, before I sign this I want to make sure we all have an understanding that that is a potential, given what you’ve got here and if I’m allowed to go off this list [,] and I need to know if there are any concerns and if there are concerns, I need to hear those concerns. I know that the objective is to avoid that[,] and I believe in that — I buy into that. But, being asked to do it without knowing who the list is and all of that, I’m kind of wanting to manage expectations on the back of this. ... I just had visions of everybody showing up, you giving me a list of people that for whatever reason didn’t seem like the best choice and me saying no to all of those and everybody saying — no, you said in your order — that’s why I asked you all to be here today so that we could have this conversation and that I could understand how this impacted and streamlined everything!)] and so everybody could understand things that I felt duty-bound to do and statutorily required [to do].

Thereafter, Kaufmann submitted the names of two potential guardians to the GAL, and Rocco submitted one individual (his younger brother, Jamie Kaufmann) and adult protective services. The GAL prepared a report, recommending that the probate court select adult protective services as Kaufmann’s new guardian because (1) the individuals selected by Kaufmann “expressed... that he does not really need a guardian,” which the GAL believed would lead them to abandon their role as guardian if so appointed in favor of pleasing Kaufmann; and (2) appointing Jamie as guardian would deteriorate the family relationships further, which would not be beneficial for Kaufmann’s mental well-being.

After reviewing the GAL’s report and recommendation for a new guardian and conservator, the probate court entered an order appointing a new conservator, but based on the GAL’s report, the record, and the applicable law, the probate court ordered Rocco to remain guardian of Kaufmann “as it is in the best interest of the ward.”

In a single enumeration of error, Kaufmann contends that the probate court erred by modifying the terms of the settlement agreement and consent order by reappointing Rocco as his guardian and failing to appoint a different guardian. In support, he cites to cases regarding civil settlement agreements. Nevertheless, pursuant to OCGA § 29-4-3 (a),

[t]he court shall appoint as guardian that individual who will best serve the interest of the adult, considering the order of preferences set forth in this Code section. The court may disregard an individual who has preference and appoint an individual who has a lower preference or no preference; provided, however, that the court may disregard the preferences listed in paragraph (1) of subsection (b) of this Code section only upon good cause shown.

Decided July 7, 2014

Caldwell & Watson, Wade H. Watson III, Laura K. Bonander, for appellant.

ODell & O’Neal, Justin B. O’Dell, Leslie D. O’Neal, for appellee.

As the probate court explained to the parties prior to entering the consent order, which the parties acknowledged at the hearing, the trial court had certain statutory requirements that would trump the selections of the parties and recommendation of the GAL. This is further supported by the Guardianship Code with regard to accepting the resignation of current guardians. OCGA § 29-4-50 (a) requires the probate court to satisfy itself of certain criteria prior to accepting the guardian’s petition for resignation.

In this case, the reasoning found in the GAL’s report supports the probate court’s refusal to place any of the three named replacements to act as Kaufmann’s new guardian. Furthermore, the trial court found that it was in the best interest of Kaufmann to have Rocco continue as his guardian rather than replace Rocco with adult protective services, a finding that is supported by the statutory preferences in OCGA § 29-4-3 (b). Accordingly, we discern no basis for reversal.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       Prior to that time, Rocco had been vice president of the company.

       The parties also submitted the names of replacement conservators, hut the probate court’s appointment of the new conservator is not at issue.

       Kaufmann filed a motion for reconsideration of the order, hut the motion was not ruled on prior to entry of the notice of appeal. See McLeod v. Clements, 306 Ga. App. 355, 357 (2) (702 SE2d 638) (2010) (“A notice of appeal divests the trial court of jurisdiction to supplement, amend, alter, or modify the judgment while the appeal of that judgment remains pending.”).

       Kaufmann does not argue that the probate court should have reopened his petition for restoration as a result of its determination that it was in his best interest to have Rocco remain his guardian. Therefore, we do not reach this issue.

       The preferences listed in OCGA § 29-4-3 (b) are
      (1) The individual last nominated by the adult in accordance with the provisions of subsection (c) of this Code section; (2) The spouse of the adult or an individual nominated by the adult’s spouse in accordance with the provisions of subsection (d) of this Code section; (3) An adult child of the adult or an individual nominated by an adult child of the adult in accordance with the provisions of subsection (d) of this Code section; (4) Aparent of the adult or an individual nominated by a parent of the adult in accordance with the provisions of subsection (d) of this Code section; (5) A guardian appointed during the minority of the adult; (6) A guardian previously appointed in Georgia or another state; (7) Afriend, relative, or any other individual; (8) Any other person, including a volunteer to the court, found suitable and appropriate who is willing to accept the appointment; and (9) The county guardian.

       See also Bryce v. Wynn, 50 Ga. 332, 334 (2) (1873).


text:
    A14A0268.
    SPENCER v. THE STATE.
    (761 SE2d 464)
   DOYLE, Presiding Judge.

After a jury trial, Anthony Spencer was convicted of two counts of armed robbery and aggravated assault. Following the denial of his motion for new trial, Spencer appeals, arguing that the trial court erred by (1) finding that his statements to police were voluntary; (2) refusing to grant his request to instruct the jury as to the lesser included offense of robbery by intimidation; and (3) allowing the State to treat his co-conspirator as a hostile witness. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia.[] This same standard applies to our review of the trial court’s denial of [the defendant’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the evidence shows that late in the evening on April 5,2010, Spencer and two co-conspirators, Maggie Denham and Devin James, decided to rob a local Asian restaurant, and Denham called requesting delivery of over $50 of food, including egg rolls. The delivery was to be made to an apartment, and two employees of the restaurant drove to the complex to deliver the food. The apartment was located on the terrace level of the building, requiring the employees to walk down a flight of stairs to reach the unit. Denham opened the door, and she asked the employees to wait for her boyfriend, who was coming to the apartment with money.

After waiting for some time, the employees became suspicious and returned back up the stairs, where they were met by Spencer, Denham, and James, who brandished a handgun, which he pointed at the employees, and demanded the food, their wallets, and their cell phones. While Denham removed a wallet from one employee’s pants, James hit him on the head with the handgun, causing the employee to fall, at which point the three beat and kicked him. Spencer called out that someone was coming, and the three fled to a nearby apartment where a friend lived, who awoke her stepfather. They convinced the friend’s stepfather to give them a ride out of the complex because they had been attacked by someone.

In the meantime, the employees called 911, and an officer who happened to be in the vicinity of the complex interviewed the employees about the incident and arranged to secure the only exit from the complex. The vehicle carrying Spencer, Denham, and James was stopped at the exit when the officer stationed there recognized Denham from the description provided by the employees and noticed the order of Asian food in the vehicle.

The officers allowed the driver to leave and placed the three suspects in separate patrol cars. The employees identified Spencer and the two others as participants in the crime, and officers discovered a handgun and one of the employee’s cell phones in the vehicle. The officers arrested James and Spencer after reading Miranda warnings to the men, and James admitted that the three planned and participated in the robbery. Officers discovered in Spencer’s pants pocket an egg roll. Spencer also admitted that he knew the robbery was going to occur, and he saw Denham give James the weapon prior to the incident. Spencer stated that he was behind James during the robbery, and he grabbed the food when James dropped it as they fled from the scene.

Prior to Spencer’s trial, James and Denham pleaded guilty. In his plea colloquy, James stated that Spencer did not attack anyone and was just “around.” As part of her plea, Denham agreed to testify against Spencer if he proceeded to trial. None of the three co-conspirators had ever been arrested prior to the incident.

After trial, the jury returned guilty verdicts as to the two armed robbery counts, but the jury acquitted Spencer of aggravated assault of the employee James hit on the head. The court sentenced Spencer to twenty years with ten to serve.

1. Spencer argues that the trial court erred by finding that his custodial statement was voluntary. Specifically, Spencer contends that he was only 18 years old, had a tenth grade education, had no prior experience with law enforcement, was not allowed to speak with his parents prior to the interview, was interviewed in the middle of the night, and had smoked marijuana prior to the incident, which factors rendered clearly erroneous the trial court’s determination that his custodial statement was admissible. We disagree.

In deciding the admissibility of a statement during a Jackson-Dennol ] hearing, the trial court must consider the totality of the circumstances and must determine the admissibility of the statement under the preponderance of the evidence standard. Unless the factual and credibility findings of the trial court are clearly erroneous, the trial court’s decision on admissibility will be upheld on appeal.

The record shows that officers interviewed Spencer after arresting him at the crime scene; the interview occurred at the police station at approximately 2:20 a.m. on the morning of April 6 after the incident earlier on the evening of April 5. Prior to conducting the interview, the officer read Spencer his Miranda rights and provided him a written waiver of rights form; the officer asked Spencer whether he had ingested any drugs or alcohol, and he responded that he had smoked marijuana at approximately 7:00 p.m. earlier that evening (about seven hours prior to the interview). Spencer stated that he was no longer under the influence at the time of the interview: “I’m fine; we can continue.” The interview lasted about 20 minutes, and the officer, who was experienced with individuals under the influence, testified that Spencer did not appear impaired.

Spencer contends that his impairment from ingesting marijuana establishes that he was not capable of knowingly and voluntarily waiving his right to silence. He contends that, for instance, the law’s treatment of marijuana intoxication as evidence of per se impairment of ability to drive shows that it was clear error on the part of the trial court to determine that Spencer was capable of consenting to the interview while his faculties were similarly affected. “The mere fact that [Spencer] may have been somewhat intoxicated at the time of the interview does not automatically render evidence thereof inadmissible.” Although another trial court weighing the circumstances surrounding Spencer’s custodial statements may have found that he did not knowingly and voluntarily consent, here, “[t]he trial court was faced with conflicting evidence[ ] and determined that [Spencer] made his statement knowingly and voluntarily; there was evidence to support this determination; and there is no reversible error in the court’s denial of the motion to suppress.”

2. Spencer also argues that the trial court erred by refusing his request to charge the jury on the lesser included charge of robbery by intimidation. We disagree.

Pretermitting whether Spencer was required to file a written request to charge, Spencer argued throughout the trial that he was merely present for the robbery and did not participate. Thus, the trial court correctly denied the request because “when, as in this case, there is no evidence that the robbery was committed without the use of a gun, the defendant is not entitled to a jury charge on the lesser included offense of robbery by intimidation.”* Spencer contends, however, that because the jury acquitted him of the aggravated assault charge that was based on use of a weapon, his request was supported by the evidence. But this presupposes that the jury acquitted him because it believed a weapon was not involved, rather than because it believed that the aggravated assault as charged did not occur or did not constitute an aggravated assault.

3. Finally, Spencer argues that the trial court erred by allowing the State to treat Denham as a hostile witness. We disagree.

Decided July 8, 2014 —

James W. Gibert, for appellant.

D. Victor Reynolds, District Attorney, Susan K. Treadaway, John R. Edwards, Assistant District Attorneys, for appellee.

During her plea, Denham agreed to testify on behalf of the State at Spencer’s trial. Prior to her testimony, the State called Denham before the trial court to determine whether she would testify pursuant to the plea agreement, to which she responded affirmatively. Nevertheless, upon being questioned before the jury, Denham attempted to invoke the Fifth Amendment right to remain silent, and the State reminded Denham that she had waived her right, but instead of responding, she stated she did not remember where she was on the night in question. At that point, the State requested that it be allowed to treat Denham as a hostile witness. Spencer did not object to the request.

“Atrial court has discretion to permit leading questions on direct examination when a witness is reluctant, hostile, or overly nervous.” “It would be a rare case in which the trial court’s exercise of discretion on this issue would warrant reversal.” Although Spencer cites Hill v. State, in support of his contention that the State should have been required to refresh Denham’s recollection prior to treating her as a hostile witness, that case was addressing impeachment of a witness with prior statements, and it is not directly on point. Moreover, Denham did not simply state that she could not remember; she first sought protection from testifying from the Fifth Amendment, which she was prevented from invoking under her plea agreement. Accordingly, we discern no abuse of discretion on the part of the trial court.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-21 (b) (2).

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

       (Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

        Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       Denham did not provide police with an interview at the scene.

        Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       (Punctuation omitted.) Norton v. State, 293 Ga. 332, 334 (2) (745 SE2d 630) (2013), quoting Jones v. State, 285 Ga. 328, 329 (2) (676 SE2d 225) (2009).

        Norton, 293 Ga. at 335 (2).

       Id. See also Ellis v. State, 274 Ga. 852, 853 (2) (561 SE2d 117) (2002) (“Even considering that [the defendant] had achieved only a sixth-grade education, and his ability to read [was] limited, the trial court’s ruling [that he voluntarily and knowingly waived his right to silence] was not clearly erroneous.”).

       (Punctuation omitted.) Hester v. State, 304 Ga. App. 441, 444 (4) (696 SE2d 427) (2010), quoting Hillman v. State, 296 Ga. App. 310, 316 (6) (674 SE2d 370) (2009).

       The indictment charged Spencer with assaulting the victim with a deadly weapon, the gun, to injure the victim by hitting him on the head.

        Culler v. State, 277 Ga. 717, 721 (5) (594 SE2d 631) (2004), citing Hayes v. State, 268 Ga. 809, 812-813 (6) (493 SE2d 169) (1997). See also former OCGA § 24-9-63 (2012), which is now codified in OCGA § 24-6-611 (c), enacted by Ga. L. 2011, p. 99, § 2/HB 24.

        Fugate v. State, 263 Ga. 260, 265 (10) (431 SE2d 104) (1993).

       250 Ga. App. 897 (553 SE2d 289) (2001).

       See id. at 902 (1).


author: Miller, Judge.

text:
    A14A0276.
    SIMON v. THE STATE.
    (761 SE2d 468)
   Miller, Judge.

Convicted by a jury of robbery by intimidation (OCGA § 16-8-40 (a) (2)) as a lesser included offense of armed robbery (OCGA § 16-8-41 (a)), Isaac Simon appeals from the denial of his motion for new trial, contending that the evidence was insufficient to sustain his conviction. For the reasons that follow, we reverse.

On appeal of a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the verdict to determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt.

(Citation omitted.) Smith v. State, 247 Ga. App. 173 (543 SE2d 434) (2000).

So viewed, the evidence shows that Geraldine Jones owned the Poulan Grocery Store in Poulan, Georgia, and she and her husband, Gene, were working there on December 2, 1998. Gene was outside smoking, and Geraldine was in the back of the store putting a delivery away when she heard a racket coming from the cash register. Geraldine turned and saw Simon standing at the cash register. Geraldine approached Simon and asked him what he was doing. Simon came around the counter and announced a holdup. Geraldine thought Simon had a gun. Geraldine threw some bags at Simon, and Simon lunged at her. Geraldine and Simon began wrestling, and Geraldine called for Gene to help.

When Gene came inside the store, Simon turned Geraldine loose. Simon then backed up, clasped his hands like he had a weapon, and threatened to kill Gene. Gene reached for Simon with his left hand; however, Simon hit Gene’s arm and ran out through the back of the store. Gene ran after Simon and saw Simon get into a black vehicle with another male. Gene came back into the store and told Geraldine to call the police. Geraldine described the incident to dispatch, provided a description of Simon and the getaway vehicle, and gave the direction that Simon was heading. Meanwhile, Gene got into his vehicle and followed Simon for a few blocks but was unable to catch him.

While responding officers from the Worth County Sheriff’s Office were at the grocery store, another deputy sheriff relayed over dispatch that he spotted a black vehicle stopped along the road about a mile from Poulan Grocery Store and that one male was standing outside the vehicle. That deputy, along with Deputy Jerry Walters, stopped to talk to the male standing outside the vehicle. During this time, Deputy Walters spotted Simon coming out of the wooded area carrying a bag in his hand. Deputy Walters called out to Simon, who turned and ran into the woods. Deputy Walters gave chase and saw Simon set the bag down by a pine tree. Deputy Walters briefly looked inside the bag before he resumed chasing Simon, eventually losing sight of him. Around the same time, other officers had responded to the scene where Simon was spotted and set up a perimeter. One sheriff’s deputy saw Simon running through the woods, chased him, and caught and arrested him.

Deputy Walters, who had retrieved the bag left behind by Simon, noticed that several items inside the bag belonged to E. Barfield, who lived nearby. Barfield identified all of the items in the bag, except a tin box of matches, as having been stolen from his house. Deputy Walters then took the matches to Poulan Grocery Store, where the Joneses identified the matches as ones that they sold in their store.

In his sole enumeration of error, Simon contends that the evidence was insufficient to support his conviction for robbery by intimidation. We agree.

The indictment charged Simon with armed robbery for taking the matches from the Joneses by the use of a device having the appearance of an offensive weapon. OCGA § 16-8-41 (a) provides:

A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. The offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.

The elements of robbery by intimidation include the intent to commit theft and the taking of property from the person or the immediate presence of another “[b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another.” OCGA § 16-8-40 (a) (2).

A conviction for robbery by intimidation requires proof that the theft was attended with such circumstances of terror — such threatening by word or gesture, as in common experience, are likely to create an apprehension of danger, and induce a person to part with his property for the safety of his person.

Decided July 8, 2014.

Chauntilia K. Adaway, for appellant.

C. Paul Bowden, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Smith, supra, 247 Ga. App. at 174.

In this case, there is no evidence that Simon used threats or coercion to cause the Joneses to part with the matches. Although Simon told Geraldine that he was holding up the grocery store and appeared to have a weapon, there is no evidence that Geraldine was induced to give up any property as a result of Simon’s threats. Notably, before the matches recovered from Simon’s bag were shown to the Joneses, they were unaware that Simon had taken anything from the store. Geraldine stated that she knew Simon had not taken any money from the register because he could not access it. Gene testified that he did not know whether Simon had taken any of the couple’s property before he ran out of the store. Therefore, we must reverse Simon’s conviction for robbery by intimidation because, while the Joneses may have been afraid of Simon based on his threats or actions, the evidence does not show that they parted with the matches on account of such fear. See Taylor v. State, 135 Ga. App. 916, 917-918 (219 SE2d 629) (1975) (reversing conviction for robbery by intimidation where the evidence showed that the defendant took the victim’s wallet by force, not by intimidation); Story v. State, 12 Ga. App. 644, 645-646 (77 SE 914) (1913) (evidence insufficient to sustain conviction for robbery by intimidation where no evidence showed that victim’s money was taken by reason of being afraid of injury and the money had been taken before the victim had the opportunity to realize that the occasion was one for alarm). Accordingly, Simon’s conviction for robbery by intimidation is reversed, and this case is remanded for resentencing on the remaining counts.

Judgment reversed and case remanded for resentencing.

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

       Simon was also convicted of burglary (OCGA § 16-7-1 (a) (1998)) and simple battery (OCGA § 16-5-23 (a) (2)), but he does not challenge those convictions.


author: Dillard, Judge.

text:
    A14A0469.
    ATLANTA EMERGENCY SERVICES, LLC v. CLARK.
    (761 SE2d 437)
   Dillard, Judge.

Linda Clark, M.D., sued Atlanta Emergency Services, LLC (“AES”), alleging that AES breached a contract between the parties when it terminated her employment as an emergency-room physician at Piedmont Hospital. Following a jury verdict and judgment in Dr. Clark’s favor, AES appeals, arguing that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict (j.n.o.v.). Specifically, AES contends that no genuine issues of material fact support Dr. Clark’s claims for breach of contract or attorney fees and that the jury’s damages award was unlawful. For the reasons set forth infra, we affirm the jury’s verdict and the trial court’s judgment.

Construed in favor of the jury’s verdict, the evidence shows that AES is an operating entity of a private company known as the Schumacher Group, which is engaged in the business of providing emergency-medicine-practice management to both small and large hospitals throughout the southeast. Toward that end, the Schumacher Group, via its operating entities such as AES, contracts with hospitals to provide physician staffing for the hospitals’ emergency departments and does so by recruiting independent-contractor physicians. From July 2010 until April 2012, AES provided Piedmont Hospital with emergency-department physicians pursuant to such a contract.

In July 2010, Dr. Clark, a board-certified emergency-room physician, entered into an employment contract with AES, titled “Physician Agreement,” to work in the emergency department at Piedmont Hospital. The agreement included a provision, designated as Section 7, that outlined the means by which the agreement—and the physician’s employment—could be terminated. Subsection (a), in part, provided: “[T]his Agreement shall be subject to termination without cause by either party giving not less than sixty (60) days prior written notice to the other party specifying the date of termination.” In contrast, subsection (b), in part, provided: “Corporation may also terminate this Agreement immediately in the event that... (v) Hospital requests the removal of Physician or reports that Physician is being disruptive, unprofessional, or unreasonably uncooperative with the medical or administrative staff of Hospital. . . .”

Over the course of the next year, the medical director of AES, Dr. Michael Flueckiger, who was also an emergency-department physician at Piedmont Hospital, received over a dozen complaints from nurses in the emergency department, stating that Dr. Clark treated them rudely and/or disrespectfully. During that same period of time, despite the fact that it was undisputed that she was a competent emergency-department physician, Dr. Flueckiger also received similar complaints about Dr. Clark from other physicians on staff at Piedmont, as well as from several emergency-room patients. Consequently, in late July 2011, Dr. Flueckiger and Cynthia Troutman, AES’s nurse liaison to Piedmont Hospital, met with Dr. Clark to discuss means by which to resolve these issues and prevent their recurrence.

Nevertheless, on September 25, 2011, Troutman and Dr. John Limehouse, AES’s assistant medical director at Piedmont Hospital, met with Dr. Clark and informed her that her employment was being terminated without cause effective in 60 days and, thus, her last day of employment would be November 24,2011. During this meeting, Dr. Clark requested written notice regarding this termination decision, but none was ever provided to her. Then, on October 26,2011, the new medical director for AES requested that Dr. Clark participate in a conference call, at which time he informed her that her employment was being terminated immediately for cause based on a request by the administration of Piedmont Hospital. Later, however, Dr. Clark learned that the decision to terminate her employment for cause was made by AES and that Piedmont Hospital had made no such request.

On January 18, 2012, Dr. Clark filed a lawsuit against AES, alleging that AES breached the Physician Agreement when it terminated her employment for cause despite the fact that the conditions required for such a termination were not satisfied. Dr. Clark’s complaint also alleged that AES’s actions constituted bad faith, and thus, she sought to recover attorney fees as well as lost income. AES filed an answer, and after discovery closed, it moved for summary judgment, arguing that its termination of Dr. Clark’s employment for cause was authorized by the unambiguous terms of the Physician Agreement. In response, Dr. Clark argued that summary judgment was precluded because the agreement was ambiguous regarding whether complaints from individual nurses and physicians constituted “reports” from the “Hospital” that Dr. Clark was “disruptive, unprofessional, or unreasonably uncooperative with the medical or administrative staff of Hospital.” Following a hearing, the trial court denied AES’s motion and, later, denied AES’s motion for reconsideration of the issue.

The case then proceeded to trial. And after Dr. Clark rested, AES moved for a directed verdict as to all of her claims, but the trial court reserved ruling. AES then presented its evidence, and at the conclusion of the trial, the jury found in favor of Dr. Clark and, pursuant to a general-verdict form, awarded her $61,721.02 in damages. Thereafter, the trial court made the jury’s verdict its final judgment. Subsequently, AES filed a motion for j.n.o.v., which the trial court denied after a hearing. This appeal follows.

1. AES contends that the trial court erred in denying its motions for directed verdict and j.n.o.v., arguing that the termination provision in the Physician Agreement is unambiguous and, thus, no genuine issues of material fact support Dr. Clark’s claim for breach of contract. We disagree.

It is, of course, axiomatic that on appeal from the denial of a motion for a directed verdict or a motion for j.n.o.v., we construe the evidence “in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict.” In fact, because the jurors are the “sole and exclusive judges of the weight and credit given the evidence,” we must construe the evidence with “every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.” 5However, we review questions of law de novo. With these guiding principles in mind, we turn now to AES’s specific claims of error.

As previously mentioned, AES argues that its termination of Dr. Clark’s employment for cause was authorized by the unambiguous terms contained in Section 7 of the Physician Agreement. And in considering this argument, we begin by noting that an issue of contract construction is usually a question of law for the court to resolve and, as such, it is subject to de novo review. That being said, “the construction of a contract involves three steps.” The first step is for the court “to decide whether the language of the contract is clear and unambiguous.” If there is no ambiguity, “the contract is enforced according to its plain terms, and the contract alone is looked to for meaning.” Importantly, contract language is unambiguous if “it is capable of only one reasonable interpretation.” Secondly, if the language of the contract is ambiguous in some respect, “the rules of contract construction must be applied by the court to resolve the ambiguity.”* And lastly, if ambiguity remains after applying the rules of construction, “the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.”

Here, as noted supra, Section 7 (b) (v) of the Physician Agreement provides that the agreement can be terminated immediately in the event that the Hospital requests the removal of the Physician or reports that she is being disruptive, unprofessional, or unreasonably uncooperative with the medical or administrative staff of the Hospital. However, the term “Hospital” is not defined in the agreement. Thus, it is unclear who must report that a physician is being disruptive, unprofessional, or unreasonably uncooperative in order to justify immediate termination. And while AES argues that individual nurses and physicians constitute the “Hospital,” Dr. Flueckiger— AES’s former medical director—testified that individual nurses did not speak for the Hospital and that the Hospital instead spoke through its “executive team.” Similarly, the term “reports” is also not defined. Consequently, it is likewise unclear whether individual verbal complaints from nurses and physicians amount to the reporting contemplated by the agreement or whether a more formal written report from the Hospital’s executive team is required. Given that its language is capable of more than one reasonable interpretation, the trial court did not err in finding that Section 7 (b) (v) is ambiguous, and this same evidence supported the jury’s verdict that AES’s immediate termination of Dr. Clark’s employment breached the agreement.

2. AES also contends that the trial court erred in denying its motions for directed verdict and j.n.o.v. as to Dr. Clark’s claim for attorney fees under OCGA § 13-6-11. Once again, we disagree.

Under Georgia law, expenses of litigation and attorney fees may be awarded, pursuant to OCGA § 13-6-11, if “the factfinder determines the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” Of course, questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense under OCGA § 13-6-11 are “generally questions for the jury to decide.” And an award of attorney fees under OCGA § 13-6-11 is to be affirmed if “there is any evidence to support it.”

AES argues that attorney fees were unwarranted because there was no evidence of bad faith, and a bona fide controversy existed as to whether its immediate termination of Dr. Clark’s employment breached the Physician Agreement. But as we have previously explained, “[a] bona fide controversy within the contemplation of [OCGA § 13-6-11] pertains solely to the issue of stubborn litigiousness or causing the plaintiff unnecessary trouble and expense.” Moreover, regardless of “the existence of a bona fide controversy as to liability, a jury may find that defendant acted in the most atrocious bad faith in his dealing with the plaintiff.” In this regard, bad faith warranting an award of attorney fees must have “arisen out of the transaction on which the cause of action is predicated,” and it “may be found in defendant’s carrying out the provisions of the contract, that is, in how defendant acted in his dealing with the plaintiff.” Thus, defendants can be held liable for attorney fees if they “committed the breach [of contract] in bad faith.”

Here, there was evidence from which the jury could conclude that AES decided to terminate Dr. Clark’s employment immediately even though it lacked cause to do so. As mentioned supra, on September 25, 2011, AES initially informed Dr. Clark that she was being terminated without cause and, therefore, under the terms of the Physician Agreement her final day of employment would have been November 24,2011. However, contrary to the terms of the agreement, this decision was never provided to Dr. Clark in writing. And then, one month later, AES informed Dr. Clark that she was now being terminated for cause effective immediately and that this decision had come from the Hospital when, in fact, it had not. During trial, Cynthia Troutman, AES’s nurse liaison, could not explain why Dr. Clark was not provided with written notice of the initial termination-without-cause decision other than to agree that AES’s responsibility to provide such notice “fell through the cracks.” Shortly thereafter, Troutman testified that after AES realized that it failed to provide the required notice, it decided to terminate Dr. Clark’s employment immediately. Troutman further conceded that given the choice between restarting the 60-day notice period at the time AES realized notice had not been provided or immediately terminating Dr. Clark’s employment for cause, the less expensive option was the latter. Accordingly, the trial court did not err in denying AES’s motions for directed verdict and j.n.o.v. as to Dr. Clark’s claim for attorney fees under OCGA § 13-6-11 and allowing the issue to go to the jury.

3. AES further contends that the trial court erred in denying its motion for j.n.o.v. because the jury’s damages award was unlawful on its face in that it did not correspond with Dr. Clark’s lost-income claim but, rather, corresponded-—to the penny—with her claim for attorney fees. This contention lacks merit.

Importantly, the question of damages is ordinarily one for the jury, “and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.” In addition,

Decided July 8, 2014.

Commander Pound Butler, Theodore E. G. Pound, Kathleen W. Simcoe, for appellant.

Parks, Chesin & Walbert, Allan L. Parks, Jr., J. Matthew Maguire, Jr., for appellee.

[a] trial court’s approval of a jury verdict as to damages . . . creates a presumption of correctness that cannot be disturbed on appeal absent compelling evidence, and a reviewing court is powerless to interfere unless it is clear from the record that the verdict of the jury was prejudiced or biased or was procured by corrupt means.

Here, Dr. Clark claimed lost earnings of just over $50,000, plus pre-judgment interest, and submitted additional evidence that she had incurred $61,702.02 in attorney fees. Thus, we do not find that the jury’s total damages award of $61,721.02 was so excessive as to be inconsistent with the preponderance of evidence demonstrated at trial. Moreover, AES’s argument fails because of the form of the verdict, which “did not require the jury to specify how it reached its damages figure.” Under Georgia law, in the absence of a verdict form requiring greater specificity, “the method by which a jury reaches a particular verdict is not a matter of which this court can take judicial cognizance.” Indeed, if AES desired an explanation of the basis for the damage award, it “should have objected to the verdict form, which allowed the jury free rein to set damages.” Accordingly, the trial court did not err in finding that the jury’s verdict was lawful.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

        See, e.g., Horton v. Hendrix, 291 Ga. App. 416, 416 (662 SE2d 227) (2008).

       AES also contends that the trial court erred in denying its motion for summary judgment and motion for reconsideration regarding these issues, but “after a verdict and judgment, review of an order denying summary judgment is moot.” Rowe v. Law Offices of Ben C. Brodhead, P.C., 319 Ga. App. 10, 16 (3) n.7 (735 SE2d 39) (2012).

        Park v. Nichols, 307 Ga. App. 841, 845 (2) (706 SE2d 698) (2011) (punctuation omitted).

        Wood v. B & S Enterprises, Inc., 314 Ga. App. 128, 135 (5) (723 SE2d 443) (2012) (punctuation and footnote omitted).

        Eason v. Dozier, 298 Ga. App. 65, 65 (679 SE2d 89) (2009).

        Mon Ami Int'l, Inc. v. Gale, 264 Ga. App. 739, 740-41 (1) (592 SE2d 83) (2003).

        Bd. of Comm’rs of Crisp County v. City Comm'rs of the City of Cordele, 315 Ga. App. 696, 699 (727 SE2d 524) (2012).

        Id.

        Id.

        Stefano Arts v. Sui, 301 Ga. App. 857, 860 (1) (690 SE2d 197) (2010) (punctuation omitted).

        Bd. of Comm’rs of Crisp County, 315 Ga. App. at 699.

        Id. (punctuation omitted).

        See Certain Underwriters at Lloyd’s of London v. Rucker Constr., Inc., 285 Ga. App. 844, 848-50 (2) (648 SE2d 170) (2007) (holding that trial court did not err in finding that language in insurance contract was sufficiently ambiguous to create a jury question, and that evidence supported jury’s verdict that insurer breached the contract). Cf. Barrett v. Britt, 319 Ga. App. 118, 122-24 (736 SE2d 148) (2012) (reversing trial court’s grant of summary judgment in defendants’ favor because genuine issues of fact remained and created a jury issue as to the meaning of ambiguous terms in real estate contract); Higginbotham v. Knight, 312 Ga. App. 525, 528-31 (719 SE2d 1) (2011) (reversing grant of summary judgment because ambiguous terms in parties’ deeds created genuine issues of fact to be resolved by a jury); Peaches Land Trust v. Lumpkin County School Bd., 286 Ga. App. 103, 105 (1) (648 SE2d 464) (2007) (reversing grant of summary judgment because real estate contract contained ambiguities that created genuine issues of fact to be resolved by a jury).

        Forsyth County v. Martin, 279 Ga. 215, 219 (2) (b) (610 SE2d 512) (2005); see OCGA § 13-6-11 (“The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made [a] prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”).

        Martin, 279 Ga. at 219 (2) (b) (punctuation omitted).

        City of Gainesville v. Waters, 258 Ga. App. 555, 559 (4) (574 SE2d 638) (2002) (punctuation omitted).

        Southern Co. v. Hamburg, 220 Ga. App. 834, 841 (4) (470 SE2d 467) (1996).

        Id. (punctuation omitted).

        Harris v. Tutt, 306 Ga. App. 377, 380 (3) (702 SE2d 707) (2010) (punctuation omitted).

        Id. (punctuation omitted).

        See id. (holding that whether homeowners misrepresented to contractor certain construction costs that otherwise should have been included in the calculation of his compensation and, therefore, warrant an award of attorney fees based on homeowners’ bad faith, was an issue for the jury); Capital Health Mgmt. Group, Inc. v. Hartley, 301 Ga. App. 812, 823-24 (4) (689 SE2d 107) (2009) (holding that evidence that employer terminated employee and denied her deferred compensation payments based on an improper motive was sufficient to support award of attorney fees for bad faith in employee’s breach of contract action); ISS Int’l Serv. Sys. v. Widmer, 264 Ga. App. 55, 62-63 (4) (589 SE2d 820) (2003) (finding of bad faith under OCGA § 13-6-11 supported by evidence that defendant terminated senior executive and ignored clear terms of employment agreement simply to avoid having to pay the executive).

        Hilb, Rogal & Hamilton Co. of Atlanta, Inc. v. Holley, 295 Ga. App. 54, 59-60 (3) (670 SE2d 874) (2008) (punctuation omitted).

        Id. (punctuation omitted).

        See id.

        Brock v. Douglas Kohoutek, L.P., 225 Ga. App. 104, 108 (3) (483 SE2d 342) (1997).

        Id. at 108-09 (3) (punctuation omitted).

        Id. at 109 (3).