author: Barnes, Presiding Judge.

text:
    A10A2269.
    MILLER v. THE STATE.
    (706 SE2d 94)
   Barnes, Presiding Judge.

A Cherokee County jury found Kenneth A. Miller guilty of driving under the influence of alcohol, failure to maintain lane, speeding, and improper left turn. On appeal, Miller challenges the sufficiency of the evidence and contends that the trial court erred in permitting the arresting deputy to testify regarding how diabetes might affect the results of a State-administered breath test and in failing to give his requested jury charge regarding opinion testimony. For the reasons set forth below, we affirm.

1. Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent. Vadde v. State, 296 Ga. App. 405 (674 SE2d 323) (2009). We neither weigh the evidence nor assess the credibility of the witnesses, but only determine whether the evidence was sufficient to support the conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Stone v. State, 248 Ga. App. 190 (546 SE2d 787) (2000). “The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.

Viewed in the light most favorable to the verdict, the evidence showed that at approximately 10:00 p.m. on August 17, 2007, a deputy with the Cherokee County Sheriffs Department was traveling northbound on Bells Ferry Road approaching Kellogg Creek Road. Bells Ferry Road was comprised of four lanes of travel, with two northbound lanes and two southbound lanes. At the intersection of Bells Ferry Road and Kellogg Creek Road, there was a traffic light and an additional center lane for turning left onto Kellogg Creek Road. As the deputy merged into the center turn lane, a vehicle traveling on Bells Ferry Road in the adjacent northbound lane suddenly swerved in front of him, swerved back into its previous position, and stopped at the intersection even though the traffic light was green. Without first merging into the center lane, the vehicle then turned left onto Kellogg Creek Road from the northbound lane, cutting in front of the deputy’s patrol car and almost striking a curb.

The deputy turned on the video recording equipment inside his patrol car and followed the vehicle down Kellogg Creek Road, a two-lane roadway. He observed the vehicle cross over the double yellow line in the middle of the road on several occasions, at one point almost striking the curb on the opposite side of the road. The deputy visually estimated the speed of the vehicle at 52-55 mph in a 35 mph zone. Based upon these observations, the deputy stopped the vehicle.

When the deputy approached the vehicle, the driver identified himself as Kenneth Miller and claimed that he had been engaged in a conversation with the passenger in the front seat that had caused him to become inattentive to the road. The deputy could smell alcohol emanating from the vehicle, but Miller denied having consumed any alcoholic beverages. Miller also told the deputy that he was diabetic and sometimes had trouble with his vision. Based upon his training and experience with diabetic drivers, however, the deputy did not believe that Miller’s appearance and behavior were consistent with someone suffering from an impairment caused by diabetes.

The deputy attempted to have Miller blow into his portable alco-sensor, but Miller refused to blow directly into the machine or to blow with sufficient volume, and thus prevented a reading of his breath for the presence of alcohol. Nevertheless, during the attempts with the alco-sensor, the deputy could smell alcohol coming from Miller’s breath. At that point, the deputy had Miller exit from his vehicle and performed a series of field sobriety tests. The deputy administered the horizontal gaze nystagmus test, noting six out of six clues of impairment; the walk and turn test, noting five out of eight clues of impairment; and the one-leg stand test, noting two out of four clues of impairment. The deputy also administered the Romberg test, noting that Miller was unsteady on his feet and failed to follow all of the instructions.

Ultimately, Miller admitted to the deputy that he had been drinking that night. Based upon his observations of Miller and the field sobriety tests, the deputy arrested Miller for driving under the influence of alcohol. After securing Miller’s consent to a State-administered breath test, the deputy transported Miller to a mobile command center at a nearby traffic roadblock that housed an Intoxilyzer 5000. Both of Miller’s breath samples indicated a blood alcohol concentration of greater than 0.08 grams. The breath test was administered approximately 30 minutes after the initial traffic stop.

Miller was charged by accusation with driving under the influence of alcohol to the extent it was less safe for him to drive (“DUI — Less Safe”); driving with an alcohol concentration of 0.08 grams or more within three hours of driving (“DUI — Per Se”); failure to maintain lane; speeding; and improper left turn. At trial, the deputy testified to the events as set out above, and the State introduced into evidence the results from the breath test and the video recording of the traffic stop. Miller did not testify or present any witnesses on his own behalf. After hearing all of the evidence, the jury found Miller guilty of the charged offenses. The trial court merged the DUI — Less Safe conviction into the DUI — Per Se conviction and sentenced Miller accordingly. This appeal followed.

Miller contends that the State failed to prove his guilt beyond a reasonable doubt. His primary contention is that there was insufficient evidence that he was driving under the influence of alcohol. We disagree. A person is guilty of DUI — Per Se if he drives a car while his blood alcohol concentration is 0.08 grams or more at any time within three hours after such driving. OCGA § 40-6-391 (a) (5). See Viau v. State, 260 Ga. App. 96, 97 (1) (b) (579 SE2d 52) (2003). The Intoxilyzer 5000 test results, combined with the deputy’s testimony, provided ample evidence to support Miller’s conviction of DUI — Per Se. See Jacobson v. State, 306 Ga. App. 815, 816 (1) (703 SE2d 376) (2010); Totino v. State, 266 Ga. App. 265, 266 (1) (a) (596 SE2d 749) (2004); Viau, 260 Ga. App. at 97 (1) (b); Bagwell v. State, 248 Ga. App. 806, 809 (3) (547 SE2d 377) (2001).

Miller suggests that the test results from the Intoxilyzer 5000 may have been affected by potential interference from other electronic devices, given that the machine was housed in a mobile command center. Miller provides no evidence to support his speculative assertion, and the deputy testified without contradiction that the Intoxilyzer 5000 displays an error message if the test is affected by radio interference and that no such message was displayed in this case. In any event, “evidence of the possibility of error or circumstances that might have caused the machine to malfunction . . . would relate to the weight rather than the admissibility of breathalyzer results.” Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516) (1991). See Stewart v. State, 280 Ga. App. 366, 367 (1) (634 SE2d 141) (2006).

As to Miller’s remaining convictions for failure to maintain lane, speeding, and improper left turn, the deputy’s testimony concerning his observations of Miller’s driving was sufficient to support the jury’s verdict on these counts. See OCGA §§ 40-6-48 (1); 40-6-120 (2) (B); 40-6-181 (b). See also OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). While Miller notes that the deputy did not use a radar or laser device to determine the speed he was traveling, “[a]n officer’s estimate of speed is sufficient to support a conviction on a speeding violation.” Stone v. State, 257 Ga. App. 492, 493 (1) (571 SE2d 488) (2002). And issues regarding the credibility of the deputy were for the jury, rather than this Court, which considers only the sufficiency, not the weight, of the evidence. See Cross v. State, 213 Ga. App. 275 (444 SE2d 589) (1994). The evidence thus was sufficient to authorize Miller’s convictions under the standard enunciated in Jackson, 443 U. S. 307.

2. Miller also maintains that the trial court should not have allowed the deputy to testify concerning diabetes and its possible effects on State-administered breath tests, since the deputy was not a physician or other medical professional. We conclude that Miller failed to properly preserve his objection to the deputy’s qualifications.

Miller initially did not object to the deputy’s testimony concerning diabetes and its possible effects on field sobriety tests, but did object when the deputy discussed its possible effects on State-administered breath tests, contending that the deputy was not qualified in that area. The State then conducted voir dire of the deputy, after which Miller objected to the deputy’s qualifications. The trial court reserved ruling on whether the deputy could testify to afford Miller an opportunity to conduct his own voir dire. After this additional questioning by Miller in which the deputy further discussed his educational background and his specialized training, Miller did not renew his objection to the deputy’s qualifications, but instead simply remarked, “Thank you, Officer. That’s all.” The trial court then asked an additional foundation question, again with no renewed objection from Miller. The deputy went on to testify concerning diabetes on direct and cross-examination without any further objection.

By failing to renew his objection after both defense counsel and the trial court conducted additional voir dire regarding the deputy’s qualifications, Miller failed to preserve his enumeration of error. See Morris v. State, 212 Ga. App. 42, 43-44 (2) (441 SE2d 273) (1994). See also In the Interest of M. D., 244 Ga. App. 156, 157 (1) (534 SE2d 889) (2000); Moss v. State, 216 Ga. App. 711, 712-713 (3) (455 SE2d 411) (1995). Accordingly, this enumeration presents nothing for us to review.

3. Lastly, Miller argues that the trial court erred in failing to give the following jury charge that he requested:

While a witness may give an opinion as to whether a person was under the influence of alcohol to the extent that it was less safe for him to drive, that opinion, if supported by sufficient evidentiary foundation, does not establish any fact as a matter of law and you the jury are not bound by that opinion.

Miller contends that his sole defense at trial to the DUI charges was to challenge the opinion testimony of the deputy, and that, as a result, the trial court was required to give the requested charge. We are unpersuaded.

“A trial court is not required to instruct the jury in the exact language of a requested charge, and when the principle of law is covered in another charge[,] that is sufficient.” Morrison v. State, 220 Ga. App. 151, 155 (3) (b) (469 SE2d 686) (1996). Here, the principles contained in the requested charge were substantially covered by the trial court’s standard jury charge on the credibility and believability of witnesses, which included the instruction that “[i]t is for you to determine what witness you will believe and which you will not believe,” and by the court’s charge that “the jury makes decisions as to all matters of fact.” Therefore, the trial court committed no error in declining to give the specific charge requested by Miller. See McGarity v. State, 212 Ga. App. 17, 21 (5) (440 SE2d 695) (1994).

Decided February 2, 2011.

James K. Luttrell, for appellant.

David L. Cannon, Jr., Solicitor-General, Carrie A. McCurdy, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

       Much of Miller’s discussion of the evidence pertains to his DUI — Less Safe conviction. But we need not consider the sufficiency of the evidence with respect to that count, since it was merged into his DUI — Per Se conviction. See Nelson v. State, 277 Ga. App. 92, 96 (1) (b) (625 SE2d 465) (2005).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A07A2440.
    PRESLEY v. THE STATE.
    (706 SE2d 103)
   PHIPPS, Presiding Judge.

In Presley v. State, this court affirmed Eric Presley’s conviction for cocaine trafficking. We held, among other things, that the trial court did not err in excluding spectators from the courtroom during voir dire. The Supreme Court of Georgia reviewed that ruling and affirmed our decision. The Supreme Court of the United States granted a writ of certiorari on the issue and reversed the Supreme Court of Georgia’s judgment and remanded the case, declaring that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors and that the trial court erred in failing to consider alternatives to closing the courtroom even when they were not offered by the parties. The Supreme Court of Georgia then vacated its former judgment, reversed our decision, and remanded the case to this court for proceedings consistent with the opinion of the Supreme Court of the United States.

When the Supreme Court of Georgia reverses one of our opinions, we are required to: (1) read the Supreme Court of Georgia’s opinion within the context of the opinion being reversed; (2) determine whether any portions of the opinion being reversed were neither addressed nor considered by the Supreme Court of Georgia; and (3) enter an appropriate disposition with regard to those portions that is consistent with the issues addressed and considered by the Supreme Court of Georgia.

Decided February 3, 2011.

Gerard B. Kleinrock, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

Only Division 2 of our previous opinion was addressed by the Supreme Court of Georgia. Our opinion as to that division is vacated. Division 1 (regarding the sufficiency of the evidence), Division 3 (regarding the trial court’s instruction to the jury not to open an exhibit), and Division 4 (concerning the effectiveness of trial counsel) of our opinion were not addressed by the Supreme Court of Georgia. Our rulings in those divisions are not inconsistent with the Supreme Court of Georgia’s decision, so the rulings stand.

Because the trial court erred in excluding spectators from voir dire without considering alternatives to closure, Presley is entitled to a new trial. The judgment of conviction is reversed and the case is remanded to the trial court.

Judgment reversed and case remanded.

Mikell and McFadden, JJ, concur.

       290 Ga. App. 99 (658 SE2d 773) (2008).

       Id. at 100-101 (2).

        Presley v. State, 285 Ga. 270, 273-274 (674 SE2d 909) (2009).

        Presley v. Georgia,_U. S_(130 SC 721, 175 LE2d 675) (2010).

        Presley v. State, 287 Ga. 234 (695 SE2d 268) (2010).

        Shadix v. Carroll County, 274 Ga. 560, 563-564 (1) (554 SE2d 465) (2001).

       See id. at 563 (1).

       See, e.g., Waller v. Georgia, 467 U. S. 39, 49-50 (II) (C) (104 SC 2210, 81 LE2d 31) (1984) (reversing conviction and holding that defendant may be retried where right to public trial was violated); United States v. Agosto-Vega, 617 F3d 541, 545-548 (II) (A) (1st Cir. 2010) (citing Presley v. Georgia, — U. S. —, supra, and holding that defendant was entitled to a new trial where public was excluded from voir dire). See also Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992) (“[b]ecause the evidence meets the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the case may be retried”).


author: Doyle, Judge.

text:
    A10A1649.
    In the Interest of T. C. S., a child.
    (706 SE2d 101)
   Doyle, Judge.

On February 17, 2009, the Oglethorpe County Juvenile Court adjudicated 17-year-old T. C. S. delinquent for acts that if committed by an adult would have constituted the offense of aggravated assault. T. C. S. appeals, challenging the sufficiency of the evidence and arguing that the trial court erred by failing to make written findings of fact as required by OCGA § 15-11-63 (b) before placing him in restrictive custody. Although sufficient evidence supports T. C. S.’s delinquency adjudication, we vacate the judgment and remand this case for the juvenile court to make the specific written findings of fact required by OCGA § 15-11-63 (b).

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we view the evidence in favor of the juvenile court’s finding, determining only if a reasonable trier of fact could have found beyond a reasonable doubt that the juvenile committed the acts charged.

Viewed in this light, the evidence shows that in September 2007, T. C. S. and several others, including Kimberly Morgan, went to the home of Amanda Simpson and James Mulkey. While there, T. C. S. noticed that Mulkey, who ran a pawn shop, had a bag containing money and jewelry. Afterward, T. C. S. told Simpson that he would rob Mulkey, and Morgan overheard the comment. During the visit, Mulkey and Simpson both noticed that T. C. S. repeatedly referred to others as “dog” when speaking to them.

Four or five days later, Simpson and Mulkey were awakened at 2:30 a.m. by the sound of someone knocking on their door. Mulkey retrieved his gun, and they both went to the door. When Mulkey opened the door, a man told them that he had car trouble and asked to borrow jumper cables. Mulkey declined and told the man to go somewhere else for assistance. A second man, who was dressed in black, wore a ski mask, and had a noticeable limp, jumped out from behind-the deck and told the first man, “Get the door, dog.” The second man then fired a gun toward the door, and Mulkey slammed the door and fired through the glass; no one was injured.

Simpson and Mulkey gave statements to the police immediately after the incident, and neither indicated that they could identify the assailants. The police recovered shotgun wadding and pellets in the exterior of the house, which evidence indicated that the assailant had fired a .410 shotgun toward the victims. The following day, the victims identified the shooter as T. C. S. based on his voice, his use of the term “dog,” and his limp.

Several days after the incident, T. C. S. spoke to Kimberly Morgan and denied that he committed the crime. He stated, however, that he knew who “was at [Simpson’s] door” and admitted that he had a .410 gun under his bed, which “would look bad to the cops.” According to Morgan, she had seen a sawed-off shotgun in a green duffel bag under T. C. S.’s bed on a prior occasion. Several days later, T. C. S. told Morgan that he “wanted to clear his conscience and then [told her] that he was the one that shot at [Simpson]. . . . He . . . wanted to talk to [Simpson] and apologize to her.”

At tried, both Simpson and Mulkey identified T. C. S. as the shooter. T. C. S. testified, stating that he was at his mother’s home with his girlfriend on the night of the assault. T. C. S.’s mother confirmed that T. C. S. was at her home the night of the incident.

1. T. C. S. argues that the evidence was insufficient to support his delinquency adjudication, arguing that the State’s evidence was “primarily” circumstantial and that it failed to exclude the possibility that T. C. S. was at home at the time of the crime.

To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. However, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Under this rule, the [S]tate is not required to remove every possibility of innocence of the crime charged. Moreover, whether a hypothesis is reasonable is a question for the factfinder, here the juvenile court.

Notwithstanding T. C. S.’s argument to the contrary, the State presented both direct and circumstantial evidence, including the testimony of Morgan, Simpson, and Mulkey, and we conclude that the evidence was sufficient to support T. C. S.’s delinquency adjudication based on aggravated assault.

2. T. C. S. further alleges that the juvenile court erred by failing to make appropriate written factual findings necessary to confine him to restrictive custody pursuant to OCGA § 15-11-63 (b).

OCGA § 15-11-63 (b) requires that when a child is found to have committed a designated felony act, the disposition order must include a finding based upon a preponderance of the evidence as to whether the child requires restrictive custody. The five elements the juvenile court must consider are:

Decided February 3, 2011.

Kathryn A. Parker, for appellant.

Robert W. Lavender, District Attorney, Martin L. Melton III, Assistant District Attorney, for appellee.

(1) [t]he needs and best interests of the child; (2) [t]he record and background of the child; (3) [t]he nature and circumstances of the offense, including whether any injury involved was inflicted by the child or another participant; (4) [t]he need for protection of the community; and (5) [t]he age and physical condition of the victim.

“Under this statute, the court must make specific written findings of fact regarding each factor. These findings not only provide a meaningful legal road map for the lower court in exercising discretion in effecting a fundamentally fair case disposition, but also assist the appellate court in its review of the merits of an appeal.”

Here, the juvenile court’s disposition order contained no findings regarding the five elements. Thus, we remand this case to the trial court for specific findings of fact as to each of the five elements set forth in OCGA § 15-11-63 (c) as they relate to T. C. S.

Judgment affirmed in part and case remanded.

Ellington, C. J., and Andrews, J., concur.

       OCGA § 16-5-21 (a) (2).

       (Punctuation omitted.) In the Interest of C. B., 288 Ga. App. 752 (655 SE2d 342) (2007), citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       According to Simpson, she thought at the time that T. C. S.’s threat was “just trash

       (Punctuation and footnotes omitted.) In the Interest of J. D., 305 Ga. App. 519, 520-521 (1) (699 SE2d 827) (2010).

       See OCGA § 16-5-21 (a) (2); In the Interest of D. B., 305 Ga. App. 338, 339 (699 SE2d 772) (2010).

       OCGA § 15-11-63 (c).

       (Citations and punctuation omitted.) In the Interest of M. D. L., 271 Ga. App. 738, 742 (3) (610 SE2d 687) (2005).

       See id.


text:
    A10A1809.
    BAILEY et al. v. KUNZ et al.
    (706 SE2d 98)
   Doyle, Judge.

Appellants Douglas and Carrie Jean Bailey appeal from the denial of their motion to dismiss a petition, filed by Robert and Royce Kunz, for grandparent visitation with the Baileys’ child. Because the trial court incorrectly concluded that OCGA § 19-7-3 (b) authorizes such a petition, we reverse.

The relevant facts are undisputed. Carrie Jean was married to and conceived a child with Jason Kunz, son of Robert and Royce. In June 2002, while Carrie Jean was still pregnant, the couple divorced; the child was born four months later. Carrie Jean thereafter married Douglas Bailey, and in 2006, Jason surrendered his parental rights, and Douglas adopted the child.

After a dispute arose over ongoing grandparent visitation, Jason’s parents, the Kunzes, filed this petition for visitation with the minor child in October 2009. The Baileys moved to dismiss the petition because of the adoption and Jason’s surrender of his parental rights, arguing that such a petition was not authorized because the Baileys were the legal parents and lived together with the child. The trial court denied the motion, giving rise to this appeal.

This action is governed by OCGA § 19-7-3 (b), which provides as follows, in relevant part:

Except as otherwise provided in this subsection, any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, ... or whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent, notwithstanding the provisions of Code Section 19-8-19. This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both of the parents.

According to the Baileys, the trial court erred by not treating Douglas as a “parent” for purposes of the language emphasized above, which forbids original actions by grandparents if the child resides with both parents. Prior to the petition in this case, the child was adopted by Douglas, who is now a legal parent under OCGA § 19-8-19 and who is married to and lives with Carrie Jean. Thus, the core question, under these facts, is whether Douglas is a “parent” within the meaning of the limiting language of the subsection’s last sentence or whether the term is limited to “natural” or “biological” parents.

The “golden rule” of statutory construction

requires us to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else. When literal reading of the statute produces such an absurdity, the appellate court must then seek to make sense out of the statute, while being faithful to the legislative intent. To define the legislative intent, the court considers the purpose of the statute and its impact on the body of law as a whole. The court also considers the law as it existed before the statute was passed and identifies the mischief sought to be corrected.

Further,

[t]he General Assembly is presumed to enact all statutes with full knowledge of the existing condition of the law and with reference to it. The meaning and effect of a statute are to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts.

As it appears in OCGA § 19-7-3 (b), the word “parent” is undefined. However, as pointed out by the Baileys, the word “parent” is defined for purposes of the adoption statute to include the “legal father” of a child, which includes a male who has legally adopted a child. Thus, after an adoption, the adoptive parents are treated “as if the adopted individual were a child of biological issue of that” parent, and the adopted child is treated as “a biological child” of the adoptive parent. The definition attributed to the term “parent” under the adoption statute “has obvious import in the construction of the same term within the” Code section on grandparent visitation rights, particularly as it addresses adoptive stepparents. Indeed, as expressly stated in OCGA § 19-8-19 (a) (1), an adopted child is “a stranger to his former relatives for all purposes, including . . . interpretation or construction of. . . statutes.” Thus, in construing OCGA § 19-7-3 (b), we decline to ignore the adoption statute’s definition of parent, which gives full legal status to adoptive parents.

Furthermore, looking to the law as it existed before this language was added, we note that the subsection lacked any limitation. However, in Brooks v. Parkerson, the Supreme Court of Georgia struck down the grandparent visitation statute as unconstitutional because it failed to adequately recognize the “constitutionally protected interest of parents to raise their children without undue state interference.” In its next legislative session, the General Assembly amended the subsection to include the limiting language at issue here, recognizing the right of parents to raise their children without undue state interference. In the absence of language limiting the term “parent” to only “natural parents” or “biological parents,” we discern no legislative intent to withhold from adoptive parents the same constitutionally protected status enjoyed by biological parents to raise their children without state interference. Were we to decide otherwise, the impact on the law as a whole would be to create a second-tier parental status for adoptive stepparents even while those nuclear families are still intact. This result is at odds with the clear intent of the adoption statute to give adoptive parents full legal rights.

Based on this construction, we conclude that the limiting language of OCGA § 19-7-3 (b) — forbidding original actions for grandparent visitation if the parents are together and living with the child — includes adoptive parents. Accordingly, the trial court erred by interpreting the word “parent” to include only biological parents. Therefore, the Kunzes’ original petition was not authorized, and we reverse the trial court’s denial of the motion to dismiss.

Judgment reversed.

Ellington, C. J., and Andrews, J., concur.

Decided February 3, 2011

Levine & Smith, Jonathan R. Levine, Paul J. Coburn, for appellants.

Edwards, McLeod & Money, Jennifer McLeod, for appellees.

       A party seeking to appeal an order in a child custody case, including visitation, is entitled to a direct appeal. See Cohen v. Cohen, 300 Ga. App. 7, 8 (1) (684 SE2d 94) (2009); Taylor v. Curl, 298 Ga. App. 45 (679 SE2d 80) (2009).

       OCGA § 19-8-19 establishes family relationships after adoption and severs ties with former family after adoption.

       (Emphasis supplied.)

       See OCGA § 19-8-19 (a) (2).

       (Punctuation omitted.) Ga. Power Co. v. Monroe County, 284 Ga. App. 707, 709 (644 SE2d 882) (2007).

       (Citation and punctuation omitted.) Summerlin v. Ga. Pines Community Svc. Bd., 286 Ga. 593, 594 (2) (690 SE2d 401) (2010).

       See OCGA § 19-8-1 (6), (8).

       OCGA § 19-8-19 (a) (2).

       (Emphasis supplied.) Summerlin, 286 Ga. at 596 (2).

       (Emphasis supplied.) OCGA§ 19-8-19 (a) (1).

       See Ga. L. 1993, pp. 456-457, § 1 and Ga. L. 1996, pp. 1090-1091, § 1.

       265 Ga. 189 (454 SE2d 769) (1995).

       Id. at 191 (2) (a).

       We note that, as pointed out in Brooks, “[a]t common law grandparents had no legal right of visitation with their grandchildren over the objections of the parents.” Id. at 190 (1), n. 2.

       We recognize that grandparents may have a sincere, beneficent interest in participating in their grandchildren’s lives, and this interest often coincides with the best interest of the child. Nevertheless, beyond constitutional considerations such as those decided in Brooks, policy decisions addressing disputes between grandparents and parents are the province of the legislature. See, e.g., Powers v. CDSaxton Properties, LLC, 285 Ga. 303, 305 (1) (676 SE2d 186) (2009) (policy concerns are matters for the legislature); Atmos Energy Corp. v. Ga. Public Svc. Comm., 285 Ga. 133, 136 (3) (674 SE2d 312) (2009) (same).


author: BARNES, Presiding Judge.

text:
    A10A1800.
    JONES v. THE STATE.
    (706 SE2d 105)
   BARNES, Presiding Judge.

D’Morrio Jones appeals from the dismissal of his motion to withdraw his guilty plea of voluntary manslaughter and possession of a firearm during the commission of a crime. Jones contends that he was entitled to withdraw his guilty plea as a matter of right because his sentence was void, as the trial court sentenced him to the lesser included offense of voluntary manslaughter, and his possession charge was predicated on a murder charge. We disagree.

On February 7, 2006, Jones was charged with malice murder and possession of a gun during the commission of a crime after he shot and killed his wife. Jones claimed that he and the victim were arguing over the gun when she was shot. He entered a negotiated plea of guilty to the lesser included offense of voluntary manslaughter and possession of a firearm during the commission of a crime. The possession count charged that Jones “did unlawfully have a firearm within arm[’s] reach of his person, during the commission of a felony, to wit: Murder.” He was sentenced to twenty years on the voluntary manslaughter charge and five years on the possession charge, to be served consecutively.

On February 19, 2010, Jones filed a motion to withdraw his guilty plea, contending that his possession conviction was illegal and void because he was “acquitted” of the murder charge, the basis of his possession conviction. The trial court denied the motion, finding that it was without jurisdiction because the motion was filed “after the term of court in which the judgment of conviction was rendered.” As a rule, “[a] defendant . . . has an absolute right to withdraw his plea before sentence is pronounced.” Kaiser v. State, 285 Ga. App. 63, 65 (1) (646 SE2d 84) (2007). See OCGA § 17-7-93 (b). Since a void sentence is the same as no sentence at all, the defendant stands in the position of having pled guilty and not having been sentenced, and so may withdraw his guilty plea as of right before re-sentencing, even following the expiration of the term of court in which the void sentence was pronounced. Kaiser, 285 Ga. App. at 65-66 (1). If Jones’s sentence was void, therefore, his motion was timely and he had a right to withdraw his guilty plea.

A sentence is void if the court imposes punishment that the law does not allow. A judgment of conviction and a sentence imposed on that conviction are void if the offense is included as a matter of law or fact in another crime for which the defendant was convicted and sentenced. That is not the situation presented by the case at bar since possession of a firearm during the commission of a felony does not merge into a conviction for [voluntary manslaughter]. . . . Since the sentences imposed by the trial court are punishment the law allows, the sentences are not void.

Chester v. State, 284 Ga. 162 (1) (664 SE2d 220) (2008).

Although Jones argues that our decision in Prather v. State, 259 Ga. App. 441 (1) (576 SE2d 904) (2003), mandates a different result, in Prather we found mutually exclusive the guilty verdict for possession of a firearm during the commission of murder and the guilty verdict for the lesser included offense of voluntary manslaughter because the trial court’s jury instructions authorized the jury to convict on the possession charge only if the gun was possessed during the commission of murder as specified in the indictment.

We noted, however, that given the facts in Prather, we were not required to specifically address “the issue of whether a defendant charged with possession of a firearm during the commission of a specific felony could be found guilty of possession of a firearm when he was convicted of a lesser included felony.” Id. at 443 (1). We concluded that, because the jury instruction did not identify voluntary manslaughter as a felony, the conviction of possession of a firearm during the commission of a felony must be reversed. Id.

So too here, we need not reach the broader issue of whether a defendant charged with possession of a firearm during the commission of a specific felony could be found guilty of possession of a firearm when he is convicted of a lesser included felony, because Jones’s sentence for possession was based on a negotiated plea of guilty to the lesser included offense of voluntary manslaughter. He also pled guilty to the possession charge. He was fully apprised that the voluntary manslaughter charge he was pleading to was a felony, and that his possession of a firearm conviction was based on the voluntary manslaughter plea.

Thus, as Jones’s sentence was not void, and he did not move to withdraw his plea until February 19, 2010, which was well beyond the term of court in which he was sentenced — November 27, 2006 — the trial court did not err in dismissing his motion for lack of jurisdiction. See OCGA § 15-6-3 (14) (E) (Troup County Superior Court terms commence in February, May, August, and November). “[I]t is well settled that a trial court does not have jurisdiction to entertain a motion to withdraw a guilty plea filed after the term of court in which the defendant was sentenced under the plea.” Smith v. State, 283 Ga. 376 (659 SE2d 380) (2008). At this point, the proper recourse is through habeas corpus proceedings. Id. at 376, n. 1.

Decided February 4, 2011

D’Morrio Jones, pro se.

Peter J. Skandalakis, District Attorney, William D. Hocutt, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.


author: Dillard, Judge.

text:
    A10A1957.
    ATREUS COMMUNITIES OF AMERICA, LLC et al. v. KEYBANK NATIONAL ASSOCIATION.
    (706 SE2d 107)
   Dillard, Judge.

This appeal follows a nonjudicial foreclosure sale of property consisting of four houses and one developed lot. Appellee, KeyBank National Association, conducted the sale in August 2009 after appellants, Atreus Communities of America, LLC et al. (collectively referred to as “Atreus”), defaulted on payment of a nearly $66,000,000 loan. KeyBank was the highest bidder at $480,000, and thereafter sought confirmation of the sale, which the trial court granted following a hearing.

At the confirmation hearing, Atreus did not challenge the validity of the statutory notices given, advertisements published, and/or reports filed by KeyBank regarding the foreclosure sale or that the sale was “regular,” but instead argued only that the property was not purchased at its true market value (as required by OCGA § 44-14-161 (b)). The trial court disagreed, holding that KeyBank carried its burden of demonstrating by a preponderance of the evidence that the true market value of the subject property at the time of the foreclosure sale was indeed $480,000. On appeal, Atreus argues that the appraisal (as amended) proffered by KeyBank to the trial court for purposes of confirming the foreclosure sale was insufficient to support the true market value of the subject property. We disagree and affirm.

At the outset, we note that a party seeking to confirm a nonjudicial foreclosure sale must present the trial court with competent evidence of the subject property’s true market value, and the court may not confirm the sale “unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” Moreover, the trial judge in a confirmation hearing sits as a trier of fact, and the findings and conclusions reached by the court have the effect of a jury verdict. As such, witness credibility and the weight of the evidence proffered by the parties at a confirmation hearing are to be judged by the trial court, and not this Court on appeal. For this reason, we will not disturb a trial court’s finding that property sold for its true market value if there is any evidence to support that decision, and we view the evidence presented below in the light most favorable to the trial court’s judgment.

And here, the evidence proffered at the confirmation hearing showed that KeyBank’s first appraisal, conducted in May 2009 (a few months before the foreclosure sale), contained admitted errors because the appraisers were only able to conduct exterior inspections of the four homes. As a result of these errors, a second appraisal was conducted in January 2010 to serve as an addendum to the May 2009 appraisal and for purposes of determining the true market value of the subject property on the date of foreclosure sale (i.e., August 4, 2009).

Both appraisals of the subject property were accomplished using the income-approach method of property valuation, which relies upon market data to develop a series of numerical inputs that calculate the average retail value of the subject property. This valuation is then discounted to account for factors such as any additional cost to complete the home, resulting in a calculation of the property’s true market value. And in the case sub judice, the appraiser explained his use of this method while testifying at the confirmation hearing as to the various and sundry details of the May 2009 appraisal (later amended by the January 2010 appraisal).

Atreus’s challenge to the appraisals focuses on the reductions the appraiser allotted for the cost to complete the homes because, despite the errors contained in the May 2009 appraisal, both appraisals ultimately concluded that the subject property’s true market value was $480,000. Specifically, the cost-to-complete calculation in the May 2009 appraisal resulted in a discount of $40,000—or $10,000 per home—based on the following: (1) $4,000 for air conditioners; (2) $3,000 for appliance packages; and (3) $3,000 to account for the cost and trouble of installing the air conditioners and appliance packages. And because the expert appraiser based these estimated costs on personal and professional experience, including that of a colleague who assisted in the preparation of the appraisal and who renovates homes, this opinion was not based on sheer speculation. Nevertheless, because each house already contained an air conditioner (a fact unknown to the appraiser at the time the May 2009 appraisal was prepared), this initial cost-to-complete calculation was erroneous.

KeyBank’s appraiser, however, corrected the errors contained in the May 2009 appraisal in the January 2010 appraised, which incorporated the May 2009 appraisal and specifically noted that it was an addendum that “should only be used in conjunction with [the May 2009] report.” The scope of the January 2010 appraisal addendum included “a re-inspection of the property and [a] review of changes in market conditions” since the May 2009 appraisal and through the date of the foreclosure sale. And in this addendum, the appraiser accounted for the air-conditioning units already in the homes, decreasing the cost to complete the homes from $40,000 to $20,000 (or $5,000 per home), based in part on the continued need for appliance packages. The appraiser then testified at the confirmation hearing as to the details of his appraisal of the subject property (as amended), and the May 2009 and January 2010 appraised reports were entered into evidence as exhibits. Specifically, the trial court was presented with evidence that the additional $2,000 for the cost to complete the homes—in addition to the $3,000 cost attributed to purchasing the necessary appliance packages— resulted from (1) a portion of the original calculation of $3,000 to account for the cost and trouble of installing the appliances (sans the consideration of air conditioners), and (2) the cost of newly discovered additional repairs deemed to be necessary in each house. This evidence was sufficient to support the trial court’s conclusion that the appraisal (as amended) represented the true market value.

Moreover, even if we shared Atreus’s belief that the appraiser’s recurring valuation for the subject property and cost-to-complete calculations strain credulity, the trial court was presented with additional, uncontested evidence to support its finding that the subject property sold for at least its true market value. Specifically, the appraiser testified that he received no direction whatsoever from KeyBank about the total to return when he reached $480,000 for the second time, and there was evidence that the true market value of the subject property in August 2009 may have actually been less than what KeyBank paid for it. Indeed, due to deterioration in market conditions between the May 2009 appraisal and the August 2009 foreclosure sale, the January 2010 appraisal addendum decreased the retail sales price of the subject homes by 3.5 percent—which was considered to be a conservative reduction—based on an approximately 13 percent decline in listing prices for other homes in the neighborhood and a 4 percent decline in market conditions for the zip code generally. Thus, had the appraiser made more aggressive assumptions and an adjustment for market conditions on the developed lot, the true market value of the subject property at the time of the foreclosure sale in August 2009 could have been well below $480,000.

Given the foregoing, the record contained sufficient evidence to permit the trial court to determine that the sale brought at least the true market value of the subject property, and we therefore affirm the trial court’s confirmation of same.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

Decided February 4, 2011.

James M. Johnson, Stephanie A. Everett, for appellants.

Thompson Hine, Russell J. Rogers, David L. Pool, Greenberg Traurig, Sean A. Gordon, for appellee.

       The other appellants are Atreus Communities of Newnan, Inc.; Atreus Homes and Communities of America, LLC; Jonathan W Been; Atreus Communities of New Mexico, Inc.; and AC Land & Development, LLC.

        See OCGA § 44-14-161 (a)-(c).

       Specifically, OCGA § 44-14-161 (b) provides that “[t]he court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.”

        See, e.g., Blue Marlin Dev., LLC v. Branch Banking & Trust Co., 302 Ga. App. 120, 120 (690 SE2d 252) (2010) (noting that a party seeking confirmation of nonjudicial foreclosure sale must prove that the subject property sold for its true market value on the date of the foreclosure sale by a preponderance of the evidence).

       True market value “is the price which the property will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, but is not under a necessity to do so.” Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 259 (1) (424 SE2d 889) (1992) (punctuation omitted).

       OCGA § 44-14-161 (b).

         See, e.g., Greenwood Homes, Inc. v. Regions Bank, 302 Ga. App. 591, 592 (692 SE2d 42) (2010) (“Value on the date of sale is a factual question to be resolved by the trier of fact.” (punctuation omitted)); Fed. Deposit Ins. Corp. v. Ivey-Matherly Constr. Co., 144 Ga. App. 313, 316 (1) (241 SE2d 264) (1977) (“What value is, or may have been, is a question of fact to be resolved as others are.” (punctuation omitted)).

        See, e.g., Foster v. Tycor, Inc., 267 Ga. App. 767, 769 (601 SE2d 172) (2004); Fed. Deposit Ins. Corp., 144 Ga. App. at 316 (1).

        See, e.g., Trefren v. Freedom Bank of Ga., 300 Ga. App. 112, 114 (684 SE2d 144) (2009); Marett Props., L.P. v. Centerbank Mortgage Co., 204 Ga. App. 265, 265 (419 SE2d 113) (1992).

        See, e.g., Fayette Promenade v. Branch Banking & Trust Co., 258 Ga. App. 323, 324 (574 SE2d 319) (2002) (“[W]e view the evidence in the light most favorable to support the trial court’s judgment.”).

       The resulting errors included a miscalculation of the total square footage of the homes by approximately 65 square feet and a failure to identify air-conditioning units that had already been placed in the homes.

       Atreus repeatedly stresses that the May 2009 appraisal contained errors and that the January 2010 appraisal was conducted five months after the foreclosure sale. However, even if KeyBank relied on the May 2009 appraisal when making its bid, this is of no consequence because it is the date of the foreclosure sale that is relevant in determining the true market value of property, not the date of appraisal. See, e.g., Wilson v. Prudential Indus. Props., LLC, 276 Ga. App. 180, 182 (2) (622 SE2d 890) (2005) (“[T]rue market value is determined as of the date of the foreclosure sale.”).

       After evaluating the pertinent markets and the subject property, the appraiser chose the income-approach method of property valuation because the two other accepted methods— i.e., the cost approach and sales-comparison approach—would not render a reliable determination of the subject property’s value.

        See generally Hudson Trio, LLC v. Buckhead Cmty. Bank, 304 Ga. App. 324, 326-27 (2) (696 SE2d 372) (2010) (detailing the use of the income-approach method to calculate the true market value of the subject property).

        See id.

        See, e.g., Nash v. Compass Bank, 296 Ga. App. 874, 877 (676 SE2d 28) (2009) (holding that the cost of completion is an appropriate factor in determining the true value of the subject property); BPI Constr. Co. v. Collective Fed. Savings & Loan Ass’n, 186 Ga. App. 324, 324 (367 SE2d 269) (1988) (same).

       This package included a dishwasher, oven, vent hood, and microwave.

       The appraiser has worked as a certified general appraiser since the early 1990s, attained the highest designation from the Appraisal Institute in 2003, appraised over one thousand residential subdivisions since 1987, and has testified as an expert approximately three dozen times. Atreus’s counsel offered no objection to these qualifications.

       Experts may base opinions on knowledge and experience from previous cases. See 131 Ralph McGill Blvd., LLC v. First Intercontinental Bank, 305 Ga. App. 493, 496 (2) (699 SE2d 823) (2010) (not error for appraiser to base appraisal of renovation costs on appraiser’s own experience); cf. Bd. of Regents of Univ. Sys. of Ga. v. Casey, 300 Ga. App. 850, 852 (1) (686 SE2d 807) (2009) (not error for expert to base opinion on previous experiences and cases).

       Experts may collaborate with and consult colleagues to form opinions. See Nash, 296 Ga. App. at 876 (a); see also 131 Ralph McGill Blvd., 305 Ga. App. at 496 (2) (not error for appraiser to consider the opinion of another when appraiser also based conclusions on his own experience).

        See, e.g., Wilson, 276 Ga. App. at 181-82 (1) (affirming trial court’s confirmation of the foreclosure sale based in part upon lengthy written appraisal report); see also Marett Props., 204 Ga. App. at 267 (holding that when establishing true market value of a single investment opportunity, “an expert must apply his own knowledge and ideas in order to reach an opinion as to the market value of a project”); Fayette Promenade, 258 Ga. App. at 326-27 (same). Cf. Boring v. State Bank & Trust Co., 307 Ga. App. 93 (704 SE2d 207) (2010) (Blackwell, J., concurring fully and specially) (explaining that because no objection was made to the expert’s testimony on valuation “only the sufficiency of the evidence adduced at the confirmation hearing—not the admissibility of that evidence—was preserved for our review on appeal”).

       While Atreus argues that these cost estimates were incorrect and offered evidence of such at the hearing, the test is not whether we would have accepted appellant’s conflicting appraisals “as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale.” Blue Marlin Dev., 302 Ga. App. at 122 (1) (punctuation omitted); see also Hudson Trio, 304 Ga. App. at 328 (2) (same).

       These additional repairs included adding doorknobs, repairing a broken light fixture, replacing a broken mirror, fixing sheet rock damage, and fixing water damage.

        See BPI Constr. Co., 186 Ga. App. at 324 (involving disputed cost to complete); see also Am. Century Mortgage Inv. v. Strickland, 138 Ga. App. 657, 659 (1) (227 SE2d 460) (1976) (“[OCGA § 44-14-161 (b)] requires the trial court to call for sufficient evidence to satisfy [itlself as to what is the true market value of the property.”).

        BPI Constr. Co., 186 Ga. App. at 324. Compare Titshaw v. Ne. Ga. Bank, 304 Ga. App. 712, 718 (2) (697 SE2d 837) (2010) (reversing confirmation when there was absolutely no evidence in the record to establish that the purported sale price below market value was a typographical error, as alleged by counsel); Belans v. Bank of Am., 303 Ga. App. 654, 656 (2) (694 SE2d 725) (2010) (reversing confirmation when appraiser did not testify and court relied solely on statements by counsel).


text:
    A10A2067.
    REGGLER v. THE STATE.
    (706 SE2d 111)
   BARNES, Presiding Judge.

A jury convicted Darren Reggler of burglary, and he appeals. He contends that the trial court erred in denying his motion to suppress and that the evidence is insufficient to sustain his conviction. For the reasons that follow, we affirm.

1. When reviewing a ruling on a motion to suppress, we accept a trial court’s findings as to disputed facts unless the findings are clearly erroneous, but if the evidence is uncontroverted and no issue of witness credibility exists, we review de novo the trial court’s application of the law to undisputed facts. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

Reggler moved to suppress any evidence illegally seized during the investigation of this crime, including his own statements. He argued that the officer who found him on the scene arrested him without probable cause or a warrant, in violation of his Fourth Amendment rights. At a hearing on the motion, the officer testified that when she responded to a burglary alarm at a townhouse, she found Reggler walking around the building from the back. When she asked what he was doing there, he replied that he lived in the building and had put his dog inside through his back door. The officer asked why he let his dog in the back door but was walking around to the front, and he responded that he lived there and that was his right. The officer checked Reggler’s identification, confirmed that he lived in the townhouse next door to the one with the alarm, and asked him to wait in front while she looked at the back of the building. She saw that Reggler’s back yard was fenced in but the back yard of the townhouse with the alarm was not, and the screen in a window adjacent to the back door was bent and broken. Seeing that the window was open, the officer returned to Reggler and said she was going to detain him because his actions were suspicious.

The officer was alone, and she placed Reggler in handcuffs, patted him down for weapons, and placed him in the back of her police car until backup arrived. When other officers arrived, they entered the townhouse and found a television on the floor in the foyer by the front door, the area where the initial audible alarm had indicated movement, and a remote control in Reggler’s pocket operated the television. A shoe print near the broken back window matched Reggler’s shoes. The investigating officer formally placed Reggler under arrest for burglary.

In denying Reggler’s motion to suppress, the trial court concluded that the investigating officer had a reasonable, articulable suspicion sufficient to justify detaining him until backup arrived and the officer could investigate further. The court further concluded that, after discovering that the remote control in Reggler’s pocket operated the television on the floor by the front door inside the townhouse and that his shoes matched a print found near the open window in the back, the officer had probable cause to place Reggler under arrest.

For Fourth Amendment purposes, we divide police-citizen encounters into three levels of interaction. Williams v. State, 269 Ga. App. 616, 617-618 (604 SE2d 640) (2004). At the first level, a police officer may approach someone with no particularized suspicion of wrongdoing and ask questions, as long as the officer does not detain the person. Id. At the second level, an officer may briefly seize a person for investigation if the officer has a particularized and objective basis for suspecting he is involved in criminal activity. Id. At the third level, a full-scale arrest must be supported by probable cause. Id.

Reggler contends that when the officer took his driver’s license and checked for outstanding warrants, he was briefly detained for investigation, but that when he was handcuffed and placed in the police car, he was under a “full scale arrest” made without probable cause. Therefore, he asserts, any evidence seized as a result should have been suppressed. The State responds that the trial court properly found that Reggler was not under arrest at this point, but was being detained for further investigation.

In Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), the Supreme Court noted that “the limitations placed upon a brief investigatory stop dependí ] on the facts and circumstances [and] would have to be developed on a case-by-case basis, with the touchstone being always the reasonableness of the officer’s conduct.” White v. State, 208 Ga. App. 885, 888 (2) (432 SE2d 562) (1993). In White, an officer waiting for backup handcuffed a suspect and placed him in the back of a police car while he further investigated a check forgery case. Id. at 887-888 (2). This court held that, given that the officer was alone in the dark with the suspect whose actions were suspicious at best, and the location being investigated was close by, the officer’s actions were reasonable under the circumstances. Id. at 888 (2). This court reasoned that an “officer remains particularly vulnerable during such a stop precisely because a full custodial arrest has not been effected, [and] the officer must make quick decisions as to how to protect himself and others from possible danger.” (Citation and punctuation omitted.) Id.

The circumstances in this case are quite similar. The officer responding to an audible alarm call was alone, Reggler acted suspiciously, and the townhouse being investigated was close by. Reggler argues that he was arrested when he was placed in the police car, citing Scretchen v. State, 192 Ga. App. 436 (385 SE2d 115) (1989), in which this court said, “There can be no serious question that appellant was arrested at the time he was put into the police car.” Id. at 437 (1). The circumstances in Scretchen differ from those before us in this case, however; there, an officer saw the defendant walking one way, then returning 35 minutes later with “a hedge trimmer in one hand and a black box in the other; an electric drill was protruding from a jacket pocket; and a camera in a case was hanging around his neck.” Id. Upon investigation, the officer discovered that the camera had someone else’s name on it, and the officer put the defendant into the police car and drove him to a location where the defendant said he had been keeping the items. Id. Here, Reggler was not taken anywhere, but was seated in the patrol car parked at the townhouse where he lived while the officer awaited backup and then investigated the residence with the alarm. Under the circumstances in this case, the officer acted reasonably by detaining Reggler while she investigated the alarm. See Campbell v. State, 255 Ga. App. 502, 505-506 (1) (b) (565 SE2d 834) (2002) (briefly placing a detainee in the back of a patrol car to further a legitimate investigation does not constitute an arrest). This enumeration is without merit.

2. Reggler also includes a one-sentence argument related to the trial court not allowing him to continue cross-examining the investigating officer during the motion to suppress hearing. He did not enumerate this issue as error, but included it at the end of his argument that the trial court erred in finding probable cause for arrest. Assuming without deciding that Reggler properly presented this issue for review, we find no error. The trial court sustained the State’s objection to Reggler’s cross-examination of the officer as being outside the scope of the motion, and then directed Reggler to move on. Reggler asked no more questions, and on appeal does not discuss any specifics about questions he was unable to ask. Regardless of whether the trial court’s ruling was error, Reggler has not shown or even argued how this error caused harm.

3. Reggler contends the circumstantial evidence was insufficient to sustain his burglary conviction. We view the evidence on appeal in the light most favorable to the verdict, and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997). We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict. Sims v. State, 226 Ga. App. 116 (1) (486 SE2d 365) (1997).

Decided February 4, 2011.

Cerille B. Nassau, for appellant.

Tracy Graham-Law son, District Attorney, Ikechi A. Brumfield, Assistant District Attorney, for appellee.

A conviction based upon circumstantial evidence is authorized when the “proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis but that of the guilt of the accused,” OCGA § 24-4-6, although it need not exclude every possible inference or hypothesis. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987). When it meets this test, circumstantial evidence is as probative as direct evidence, Christmas v. State, 171 Ga. App. 4, 7 (2) (318 SE2d 682) (1984), and “[wjhether this burden has been met is a question for the jury.” Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546) (1989).

Viewed in that light, the evidence at trial was that the investigating officer found Reggler coming from the back of the townhouse, and he said he had just put his dog away through his back door. Reggler’s shoe print was found outside the broken window of the townhouse with the alarm, and he had a remote control in his pocket that operated the television set that had been unplugged and put on the floor by the front door of the townhouse. Further, Reggler’s fingerprints were found on the television. This evidence was sufficient for a rational trier of fact to find Reggler guilty beyond a reasonable doubt of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackwell and Dillard, JJ., concur.


author: Blackwell, Judge.

text:
    A10A2309.
    LOUISYR v. THE STATE.
    (706 SE2d 114)
   Blackwell, Judge.

Karl Max Louisyr was tried by jury and convicted of two counts of aggravated stalking in violation of OCGA § 16-5-91. He now appeals from the denial of his motion for a new trial, asserting that the evidence adduced at trial is insufficient to prove beyond a reasonable doubt that he engaged in a pattern of harassing and intimidating behavior directed at his victim. Louisyr also contends on appeal that, even if the evidence is sufficient to sustain his convictions, the trial court erred when it failed to merge his convictions for sentencing purposes. We find no merit in either of these claims of error and affirm.

Viewed in the light most favorable to the verdict, the record shows that Louisyr and Guylene Mompremier were married for at least nineteen years and had four children together. Following an incident of domestic violence at their Florida home in June 2007, Mompremier and the couple’s three minor daughters left the home and moved to a domestic violence shelter. On June 27, 2007, Mompremier obtained a protective order against Louisyr in Florida, which prohibited him from, among other things, having any type of contact with her or coming within 500 feet of any place she was residing. That order also granted full custody of the couple’s minor children to Mompremier and reserved jurisdiction to the Florida court to determine whether Louisyr would be awarded any visitation rights.

Shortly after she obtained the protective order, Mompremier was contacted by Paul Lucot, a family friend who previously had been married to Louisyr’s cousin. Lucot explained that he had learned of Mompremier’s situation from other family members, who had provided him with Mompremier’s cell phone number, and that he wanted to help her and her children. He said that he had a four-bedroom house in Georgia, and he invited Mompremier and her children to stay with him. When Mompremier asked if Lucot was acting in concert with her husband, Lucot insisted that he had not had any contact with Louisyr.

Based on Lucot’s assurances that her husband was not involved, Mompremier agreed to relocate with her children to Georgia. Thus, in late July 2007, Lucot went to Florida, picked up Mompremier and the children from the domestic violence shelter, and drove them to Georgia. When they arrived in Gwinnett County, however, Lucot took the mother and children to a local hotel, rather than to his home. He explained that Mompremier and her daughters would stay at the hotel for a night, before they moved into his residence. Lucot then went into the hotel to check into the room, leaving Mompremier and the children in the car. He returned with two keys to the hotel room, one of which he gave to Mompremier and the other of which he insisted on keeping.

Lucot left the hotel at approximately 10:00 that evening, and Mompremier and the children remained in their hotel room. About two hours later, the desk clerk called the hotel room and spoke with Louisyr’s oldest daughter, who answered the phone. The clerk told the daughter that a “friend” was on his way to the room to see “you,” which the daughter understood to mean the people in the room. Because she believed that no one other than Lucot knew they were at the hotel, the daughter asked for the friend’s name, and the clerk responded “Karl Max Louisyr.” Realizing that her father was in the hotel, the daughter woke Mompremier and immediately telephoned the police.

Louisyr came to the room, knocked on the door, and called his oldest daughter’s name. When no one inside the room responded, Louisyr used a key and tried to enter the room. His attempt to open the door was thwarted by the safety chain, so Louisyr reached his hand inside and attempted to remove it. Mompremier and the oldest daughter, however, pushed against the door and prevented Louisyr from gaining entry. Louisyr then returned to the hotel lobby, where police eventually arrested him for violating the protective order. Louisyr was indicted on two counts of aggravated stalking, one based on his conduct in following Mompremier to the hotel, and the other based on him making contact with her when he attempted to enter her hotel room.

At trial, Mompremier testified that, during the domestic violence incident that led to the protective order, Louisyr had assaulted her, pulled a machete on her, and threatened to cut off her head. Thus, when he arrived at the hotel on the night in question and tried to force his way into her room, she believed Louisyr was there to harm her. She further explained that she had never initiated contact with Louisyr, had never consented to contact with him, and had not agreed to allow the children to see him. As far as she knew, Lucot was the only person who knew that she and the children were staying in that hotel.

Louisyr testified in his own defense and explained that he had come to Georgia from a family reunion in Indiana, riding with two cousins who lived in Gwinnett County. One of those cousins previously had been married to Lucot. Both cousins testified that they had attended the family reunion in Indiana with Louisyr, at which time he had expressed an interest in coming back to Georgia and visiting with them. He then rode with the cousins to Georgia, rather than returning to his home in Florida. During the car trip, the cousins observed Louisyr having one or more conversations on his cell phone, but they did not pay attention to what was being said. Once they arrived in Georgia, Louisyr asked the cousins if they could take him to the hotel in question, and explained that he planned to meet his children there.

According to Louisyr, he had spoken to Lucot approximately one week before attending the family reunion, and the men had agreed that Lucot would bring Mompremier and the children to the hotel in Gwinnett County on the day in question, where Louisyr would join them. After making this plan, Louisyr called the hotel and reserved a room in his name. The hotel owner testified that the room in question had been reserved in Louisyr’s name and guaranteed with Louisyr’s credit card.

Louisyr gave conflicting testimony as to the purpose of his planned meeting at the hotel with Mompremier. Early in his testimony, Louisyr stated that his wife had communicated with Lucot and another cousin (who was also the couple’s pastor) and explained that, while she would not meet with Louisyr in Florida, she was willing to meet with him in Georgia. Thus, he stated that he had reserved the hotel room and traveled to Georgia for the express purpose of meeting with Mompremier. He subsequently testified that he had gone to the hotel for the sole purpose of seeing his children and to pay for the room and that he did not expect to see his wife there. Louisyr acknowledged, however, that at the time he planned the meeting at the hotel and went to the hotel, he was aware of the protective order and its contents, that he knew the protective order prohibited him from having any contact with his wife or from coming within 500 feet of her residence, and that any contact with his children at the hotel necessarily would involve contact with his wife. Despite his knowledge of these facts, Louisyr obtained a key to his wife’s hotel room and, when his wife and children failed to respond to his knocks, he used the key in an attempt to enter the room. And, Louisyr admitted that at the time he attempted to enter the room, he did so with the belief that his wife was in the room.

The jury convicted Louisyr of both counts charged in the indictment, and the trial court sentenced him to ten years’ imprisonment on Count 1 and ten years’ probation on Count 2, the sentences to run consecutively. Louisyr then filed a motion for a new trial, which was denied. This appeal followed.

1. We first address Louisyr’s challenge to the sufficiency of the evidence. When we consider whether the evidence is sufficient to sustain a conviction, we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Punctuation omitted.) Cooper v. State, 299 Ga. App. 199, 200 (682 SE2d 154) (2009).

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

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

Under Georgia law, a person commits aggravated stalking when, in violation of a protective order, he “follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16-5-91 (a). Thus, to prove that Louisyr committed aggravated stalking, the State was required to prove: (1) that a protective order prohibited Louisyr from engaging in certain conduct with respect to Mompremier; (2) that Louisyr followed Mompremier, placed her under surveillance, or contacted her without her consent; (3) that such an act violated the protective order; and (4) that such an act was done for the purpose of harassing and intimidating Mompremier. See Burke v. State, 297 Ga. App. 38, 41 (676 SE2d 766) (2009). On appeal, Louisyr contends that the State failed to prove beyond a reasonable doubt that he did anything for the purpose of harassing and intimidating Mompremier. We find no merit in this contention.

Louisyr relies on State v. Burke, 287 Ga. 377 (695 SE2d 649) (2010), in which the Supreme Court of Georgia said that, to prove an act was done for the purpose of harassing and intimidating, the State must show it was part of a “pattern of harassing and intimidating behavior.” 287 Ga. at 379. In light of this requirement, and as the Supreme Court explained in Burke, “a single violation of a protective order, by itself, does not amount to aggravated stalking.” Id. at 378. Louisyr contends, however, that Burke not only requires a pattern of harassing and intimidating conduct, but a pattern of violating a protective order. In other words, Louisyr says that proof of a pattern of harassing and intimidating behavior that includes some act in violation of a protective order is not enough. He says instead that the State must prove multiple violations of a protective order. We do not agree.

By its plain terms, OCGA § 16-5-91 prohibits even a single violation of a protective order, if that violation is, as Burke explains, part of a pattern of harassing and intimidating behavior. Although Burke requires a pattern of behavior, nothing in that opinion suggests that multiple violations of a protective order are required. In determining whether a defendant has exhibited such a pattern of behavior, the jury can consider a number of factors, including the prior history between the parties, the defendant’s surreptitious conduct, as well as his overtly confrontational acts, and any attempts by the defendant to contact, communicate with, or control the victim indirectly, as through third parties.

Here, the jury was entitled to find from the evidence adduced at trial that Louisyr arranged for Lucot to contact Mompremier (because Louisyr knew he was prohibited from doing so), that together the men planned for Lucot to lure Mompremier to Georgia with a false offer of assistance, and that the men agreed Lucot would travel to Florida and retrieve Mompremier and her children from the domestic violence shelter for the purpose of driving them to the hotel in Georgia. The jury was also entitled to find that, unbeknownst to Mompremier, Louisyr reserved the hotel room in his name, thereby guaranteeing him access to that room, that Louisyr went to the hotel with the knowledge that Mompremier was there, and that he obtained a key to the room where Mompremier was staying. Finally, the jury was entitled to find that when the people in the room refused to answer the door, Louisyr used his key and attempted to enter the room, and when he was thwarted by the safety chain, he attempted to force his way into the hotel room. The evidence, therefore, was sufficient to prove beyond a reasonable doubt that Louisyr engaged in a pattern of harassing and intimidating behavior, which culminated in a violation of a protective order. See Daker v. Williams, 279 Ga. 782, 785 (621 SE2d 449) (2005). (“A ‘course of conduct’ refers to a series of successive actions, and, as such, is equivalent to a ‘pattern of behavior.’ ”) (interpreting and applying OCGA § 16-5-91).

Louisyr also appears to argue that his testimony — in which he explained that he went to the hotel for the sole purpose of seeing his children and paying for the hotel room — required the jury to find that he did not act for the purpose of harassing and intimidating his wife. This argument, however, ignores the fact that Louisyr gave conflicting testimony about his reasons for going to the hotel, at one point stating that he had gone to the hotel for the express purpose of having contact with Mompremier. In light of this conflicting evidence, it was for the jury to determine whether Louisyr acted for the purpose of harassing and intimidating his wife. Jackson v. State, 301 Ga. App. 863, 865 (690 SE2d 195) (2010); Ford v. State, 283 Ga. App. 460, 461 (1) (641 SE2d 671) (2007). Moreover, given that Louisyr testified at trial as to the reasons underlying his conduct, it was solely for the jury, viewing that testimony in light of the other evidence, to assess Louisyr’s credibility and determine whether his testimony was truthful. Ferguson, 307 Ga. App. at 233 (1). See also Medlin v. State, 285 Ga. App. 709, 716 (3) (647 SE2d 392) (2007) (“[b]ecause the jury alone is charged with judging the credibility of witnesses, it was entitled to disbelieve [the defendant’s] version of the facts”). “And if the jury concluded that his testimony was not truthful, as we must assume it did, the jury was entitled to take his untruthfulness as substantive and affirmative evidence of his guilt.” Ferguson, supra. The evidence is sufficient to sustain the convictions.

2. We turn next to Louisyr’s contention that the trial court should have merged his convictions for purposes of sentencing. As noted above, the aggravated stalking statute prohibits a person from following the victim, placing the victim under surveillance, or contacting the victim in violation of a protective order. See OCGA § 16-5-91 (a). The State alleged, and the jury found, that Louisyr violated the statute in two ways, both by following Mompremier to the hotel and, once there, by making contact with her. Louisyr argues, however, that the trial court was required to merge his convictions for sentencing purposes because the two convictions are based on precisely the same conduct, his going to Mompremier’s hotel room. We do not agree.

“The doctrine of merger precludes the imposition of multiple punishments when the same conduct establishes the commission of more than one crime.” McKenzie v. State, 302 Ga. App. 538, 539 (1) (a) (691 SE2d 352) (2010). See also OCGA § 16-1-7 (a). Whether offenses merge is a legal question, which we review de novo. Jones v. State, 285 Ga. App. 114, 115 (645 SE2d 602) (2007). In considering a merger question, the critical issue is “whether, looking at the evidence required to prove each crime, one of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged.” (Citation and punctuation omitted.) Middlebrooks v. State, 289 Ga. App. 91, 93 (1) (656 SE2d 224) (2008). “But, the rule prohibiting multiple convictions does not apply unless the same conduct of the accused establishes the commission of multiple crimes.” (Punctuation omitted.) Chalifoux v. State, 302 Ga. App. 119, 119 (690 SE2d 262) (2010); see also Collins v. State, 277 Ga. App. 381, 382 (626 SE2d 513) (2006) (“The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts.”). “Thus, if the underlying facts show that one crime was completed prior to the second crime, there is no merger. [Cit.]” (Punctuation omitted.) McKenzie, 302 Ga. App. at 539 (1) (a).

OCGA § 16-5-91 does not define the term “follow,” and the jury was not instructed on the definition of the term. Given that the word “follow” is not a term of art, but instead is a word of common understanding and meaning, we think the term includes a person going to a place to which he knows or believes another has gone and at which the other person may be found. See, e.g., Hollis v. State, 295 Ga. App. 529, 532-533 (2) (672 SE2d 487) (2009) (jurors can interpret and apply statutory “words of common understanding and meaning which require no definition themselves for understanding by the jury”) (punctuation omitted). See also New Oxford English Dictionary (2d Ed. 2005) (defining “follow” as “to go or come after (a person or thing proceeding ahead); move or travel behind; go after someone in order to observe or monitor them”). Accordingly, there was sufficient evidence from which the jury could find that Louisyr, in violation of the protective order, both followed Mompremier to the hotel and then contacted her. That is, the evidence allowed the jury to find that Louisyr followed Mompremier to the hotel when he asked his cousins to drive him to that location, believing he would find Mompremier there. And the jury was authorized to find that, after following Mompremier to the hotel, he contacted her by knocking on the door of her room and trying to enter it.

Moreover, the act of following was complete at the time Louisyr arrived at the premises of the hotel, went to the front desk, and asked for the key to Mompremier’s hotel room. At that time, Louisyr had violated the protective order by coming within 500 feet of a place where his wife was residing. Thus, the act of following was completed before Louisyr attempted to make contact with Mompremier. The convictions for aggravated stalking based on Louisyr’s following and his contacting Mompremier, therefore, did not merge for sentencing purposes. McKenzie, supra, 302 Ga. App. at 539 (1) (a).

Decided February 4, 2011

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Kimberly A. Gallant, Latysha M. Saunders, Wesley C. Ross, Assistant District Attorneys, for appel-lee.

For the foregoing reasons, we affirm the trial court’s order denying Louisyr’s motion for a new trial.

Judgment affirmed.

Barnes, P J., and Dillard, J., concur.

       See Cutrer v. State, 287 Ga. 272, 274 (695 SE2d 597) (2010).

       At the time of the trial in February 2008, the couple had been married 19 years, but Mompremier had initiated divorce proceedings.

       At the time Lucot contacted her, Mompremier believed that Lucot still was married to Louisyr’s cousin. She subsequently learned that the couple had divorced several years before.

       When Mompremier and her daughters checked out of the hotel, the name on the room was changed to Paul Lucot, because Lucot in fact paid the bill.

       Louisyr testified that he obtained a room key from the front desk clerk, explaining that the hotel gave him a key because the room was reserved in his name.

       This requirement is taken from OCGA § 16-5-90 (a) (1), which provides in relevant part: For the purposes of this article, the term “harassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

         Thomas v. State, 276 Ga. App. 79, 80 (1) (622 SE2d 421) (2005); Johnson v. State, 260 Ga. App. 413, 414-417 (1) (579 SE2d 809) (2003).

        Owen v. Watts, 307 Ga. App. 493, 498 (2) (705 SE2d 852) (2010).

        Harvill v. State, 296 Ga. App. 453, 456 (1) (a) (674 SE2d 659) (2009).

       Nor is there any evidence that a jury instruction was requested on the definition of the term “follow.”


text:
    A10A2298.
    IVERY v. BROWN.
    (706 SE2d 120)
   Barnes, Presiding Judge.

We granted discretionary appeal in this case involving the trial court’s attempt to change an order in a legitimation proceeding from one dismissing the petition with prejudice to one dismissing the petition without prejudice. As the trial court was without authority to make this change, we reverse.

Amber Ivery and Jermaine Brown are the parents of L. L, who was born in March 2008. Brown, acting pro se, has filed multiple petitions seeking to legitimate L. I. and to challenge the amount of child support awarded to Ivery. He filed his first petition in July 2008, seeking legitimation, custody, visitation, and child support, and Ivery counterclaimed for custody and support. In September 2008, Ivery and Brown mediated a temporary agreement regarding child support, but in December 2008, Brown filed a new petition seeking to reduce the amount of child support he had agreed to pay Ivery. As the first petition was still pending and the child support award was temporary, the trial court dismissed Brown’s second petition in February 2009.

On April 24, 2009, the trial court held a final hearing on the first petition and counterclaim, at which Brown appeared pro se. That same day Brown filed his third civil action, which was an exact duplicate of his first petition for legitimation, custody, visitation, and child support. On May 12, 2009, the trial court issued a final order on Brown’s first petition, apparently unaware Brown had filed another one. The court noted that in December 2008, it had sanctioned Brown for failing to respond to Ivery’s discovery and ordered him to respond, but Brown had not done so, leading Ivery to move in January 2009 to strike Brown’s petition for legitimation, custody, and visitation. The court heard Ivery’s motion to strike at the final hearing in April 2009, and granted the motion in its final order, finding that Brown “willfully failed to provide responses, both written and documentary, to [Ivery’s] Notice to Produce.” Brown’s claims having been dismissed, Ivery remained the sole legal custodial parent of L. I. Based on the Child Support Worksheet and the requirements of OCGA § 19-6-15, the court ordered Brown to pay Ivery $581 per month for support of the child. Finally, the court found Brown in wilful contempt of court for failing to pay Ivery child support under the terms of the temporary agreement for three-and-a-half months before the hearing, although he purged himself of the contempt at trial by issuing a check to Ivery for $1,540. The court also ordered Brown to pay Ivery’s attorney $500 for having to pursue the contempt claim.

Three days later, on May 15, 2009, Brown filed his fourth civil action, a petition for modification of child support, contending that his monthly income had gone from $330 per month to nothing. In June 2009, the trial court consolidated Brown’s April 2009 legitimation petition with his May 2009 modification petition. In its consolidation order, the court noted that both parties had been given the Fulton County Superior Court Family Division’s “Litigant Checklist” and directed them to appear before the court on July 8, 2009 with all required documents.

At some point, Ivery moved to strike the consolidated petitions, and on September 14, 2009, the trial court granted the motion. In its “Final Order on Respondent’s Motion to Strike,” the trial court found as follows:

Throughout the pendency of the consolidated action, [Ivery’s counsel] has requested discovery from [Brown], including the Fulton County Mandatory Discovery as well as additional discovery served well within the discovery period. Despite sanctions levied against Mr. Brown during the action for failure to respond, Mr. Brown continued to willfully refuse to provide reasonable responses to the requests. Therefore, [Ivery’s] Motion to Strike the consolidated Petition for Legitimation and Petition for Modification of Child Support [is] hereby GRANTED and Mr. Brown’s Petition for Legitimation and Petition for Modification of Child Support are hereby DISMISSED.

The order does not specify whether the dismissal was with or without prejudice.

Finally, on April 27, 2010, the trial court issued an “Amended Final Order,” purporting to correct a “scrivener’s error” by striking the last sentence of the September 14, 2009 order. The amended final order replaces the stricken sentence with the following: “Mr. Brown’s Petition for Legitimation is hereby DISMISSED without prejudice. Mr. Brown’s Petition for Modification of Child Support is hereby DISMISSED with prejudice.” (Emphasis supplied.)

Ivery argues that the trial court erred in amending the order outside the term in which it was issued, in amending the order to affect the parties’ substantive rights, and in acting without giving the parties an opportunity to respond. Brown did not file a responsive brief.

A trial court possesses the discretion to modify its judgment within the term in which it is rendered. Bank of Cumming v. Moseley, 243 Ga. 858 (257 SE2d 278) (1979). The terms of court for the Superior Court of Fulton County commence on the “[flirst Monday in January, March, May, July, September, and November,” OCGA § 15-6-3 (3), however, and thus the trial court’s April 27, 2010 amended order was not issued during the same term of court in which it issued the September 14, 2009 order.

The trial court also has the power to correct clerical mistakes in orders “arising from oversight or omission” at any time, upon its own initiative or on a party’s motion. OCGA § 9-11-60 (g); Clark v. Ingram, 150 Ga. App. 127, 128 (3) (257 SE2d 33) (1979). “For this purpose, a clerical mistake may be corrected if it is obvious from the face of the record or if, following a hearing, the evidence compels the conclusion that the error or omission was clerical in nature.” Cherry v. Moreton Rolleston, Jr. Living Trust, 273 Ga. App. 876, 879 (616 SE2d 157) (2005).

The trial court in its initial order dismissed Brown’s petitions for legitimation and modification of child support because Brown wil-fully failed to respond to discovery despite a court order directing him to do so, a sanction authorized by OCGA § 9-11-37 (b) (2). Amaechi v. Somsino, 259 Ga. App. 346, 347 (577 SE2d 48) (2003). An involuntary dismissal which is not based on a failure to prosecute, lack of jurisdiction, improper venue, or lack of an indispensable party “operates as an adjudication upon the merits unless the court in its dismissal order specifies otherwise.” Roth v. Gulf Atlantic Media of Ga., 244 Ga. App. 677, 680 (2) (536 SE2d 577) (2000). See OCGA § 9-11-41 (b). Here, the trial court did not specify in its September 14, 2009 order that the dismissal was without prejudice; therefore, the dismissal was with prejudice. Changing the order in a subsequent term of court from dismissal with prejudice to dismissal without prejudice is not a clerical error appearing on the face of the record, but a substantive change that was not authorized under our law.

Judgment reversed.

Blackwell and Dillard, JJ., concur.

Decided February 7, 2011.

Kupferman & Golden, Gregory D. Golden, for appellant.

Jermaine Brown, pro se.


author: MlKELL, Judge.

text:
    A09A1936.
    JUDICIAL COUNCIL OF GEORGIA et al. v. BROWN & GALLO, LLC.
    (706 SE2d 128)
    Decided February 8, 2011.

      Thurbert E. Baker, Attorney General, Stefan E. Ritter, Senior Assistant Attorney General, for appellants.

      Bryan, Cave, Powell & Goldstein, L. Lin Wood, Jr., Stacey G. Evans, Ann W. Ferebee, for appellee.
   MlKELL, Judge.

The Supreme Court granted certiorari in this case and, in Judicial Council of Ga. v. Brown & Gallo, LLC, reversed the judgment of this Court. Therefore, we vacate our earlier opinion and adopt the judgment of the Supreme Court as our own.

Judgment reversed.

Ellington, C. J., and McFadden, J., concur.

       288 Ga. 294 (702 SE2d 894) (2010).

        Judicial Council of Ga. v. Brown & Gallo, LLC, 299 Ga. App. XXII (Case No. A09A1936, affirmed without opinion, August 26, 2009).