text:
    A12A0839.
    CHAPMAN v. THE STATE.
    (733 SE2d 848)
   DOYLE, Presiding Judge.

Following a jury trial, William Kenny Chapman II appeals from his conviction of attempted burglary and attempted rape. Chapman contends that (1) he received ineffective assistance of counsel because trial counsel (a) failed to file a demurrer to the defective indictment, (b) failed to move for a directed verdict, (c) failed to request jury instructions on lesser included offenses, and (d) opened the door to damaging character evidence. Chapman also argues that (2) the evidence was insufficient to support the guilty verdict, (3) the trial court inappropriately commented on the evidence, and (4) the trial court erroneously admitted similar transaction evidence. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that at around 1:00 or 2:00 a.m., 15-year-old A. R. was going to sleep in her room in a mobile home. She was disturbed by scratching noises at the air conditioning unit mounted in her bedroom window. She screamed for her mother, who came and reassured her that the sounds were probably nothing to worry about. A. R. again heard the noise and called her mother, and they looked out the window to see an unknown male at the window. A. R. and her mother fled to the living room, where the mother called the police as she confronted the stranger who was now looking in the living room window.

As the stranger fled, the mother described his appearance to the police, who responded to the scene and discovered Chapman, who matched the description given by the mother. Chapman was arrested, and, police discovered an alcoholic drink, a pornographic magazine, and a pair of women’s underwear in his truck.

Based on these events, Chapman was indicted with attempted burglary and attempted rape. Prior to trial, the State gave notice of its intent to introduce a prior rape conviction as similar transaction evidence, and after a hearing, the trial court ruled that the evidence was admissible. Following a jury trial, Chapman was convicted on both counts, and the trial court denied his motion for new trial, giving rise to this appeal.

1. Chapman argues that the trial court convicted him under a defective indictment as to each count. Because he did not file a timely demurrer to the indictment or a motion in arrest of the judgment, such an argument would normally be waived. Nevertheless, our analysis does not end there because Chapman filed a motion for new trial asserting a claim of ineffective assistance predicated on his trial counsel’s failure to file a timely demurrer to the indictment:

Amotion in arrest of judgment or habeas corpus are the only remedies available when no demurrer to the indictment is interposed before judgment is entered on the verdict. Therefore, a motion for new trial is ordinarily not the proper method to attack the sufficiency of the indictment. But, this Court has made an exception [in cases such as this one] when the motion for new trial raises the ground of ineffective assistance of counsel.

Under Strickland u. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Attempted burglary. Chapman contends that his trial counsel performed deficiently by failing to file a demurrer to the indictment because the indictment failed to adequately allege the crime of attempted burglary. We disagree.

Chapman’s indictment charged as follows:

[The grand jurors] do hereby charge and accuse: WILLIAM KENNY CHAPMAN II with the offense of: CRIMINAL ATTEMPT TO COMMIT BURGLARY for that the said accused . . . did then and there, unlawfully: with intent to commit a specific crime, to wit: burglary, perform an act which constitutes a substantial step toward the commission of that crime, to wit: said accused attempted to remove an air conditioning window unit from the window of a residence occupied by to [sic] [K. S.], in violation of OCGA § 16-4-1 and OCGA § 16-7-1, contrary to the laws of this State, the good order, peace, dignity thereof.

“A demurrer to an indictment may be general or special. A general demurrer challenges the very validity of the indictment and may be raised anytime [prior to judgment]; the special objects merely to its form or seeks more information and must be raised before pleading to the indictment.” It is well established that the test for determining whether an indictment is sufficient to withstand a general demurrer is

whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Thus, if the accused can admit all the indictment... charges and still be innocent of having committed any offense, the indictment... is defective.

The crime charged in this case was criminal attempt to commit a burglary. Under OCGA § 16-4-1, “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” The indictment alleged that Chapman had the intent to commit the specific crime of burglary and that he intentionally tried to remove an air conditioning window unit, which act constituted a substantial step toward commission of the burglary. Therefore, the indictment was not subject to a general demurrer because Chapman could not admit these acts and still be innocent of the crime alleged.

To the extent that Chapman’s trial counsel should have sought greater specificity in the indictment, such an argument would be made in a special demurrer. But this defense fails in the context of Chapman’s ineffective assistance of counsel claim, because Chapman cannot demonstrate prejudice. If a timely special demurrer is granted,

the trial court quashes the indictment. However, the quashing of an indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant. Thus, even if [Chapman’s] attorney had filed a demurrer, it would not have prevented the State from reindicting and trying [Chapman]. And [Chapman] does not argue that the imperfect indictment prejudiced his defense in any way[, instead, he argues that the count was void]. Under these circumstances, [Chapman] has failed to show that he was prejudicedbyhis attorney’s failure to file [aspecial] demurrer.

(b) Attempted rape. In the same context, Chapman contends that his trial counsel was ineffective for failing to demur to the attempted rape count. Chapman argues that the count was deficient because it (i) contained an incorrect Code section, (ii) failed to allege each essential element of rape, and (iii) failed to specify the way in which the rape would be committed. We find no reversible error.

The attempted rape count reads as follows, in relevant part:

for that the said accused on February 18, 2007 . .. did then and there, unlawfully: with intent to commit a specific crime, to wit: Rape, perform an act which constitutes a substantial step toward the commission of that crime, to wit: said accused attempted to enter the bedroom window of a home occupied by [A. R.] and [K. S.], in violation of OCGA Sec. 16-4-1 [criminal attempt] and OCGA 16-6-4 [child molestation], contrary to the laws of this State, the good order, peace, and dignity thereof.

(i) Chapman is correct that the indictment cites OCGA § 16-6-4, which is the Code section for child molestation instead of rape.

It is not the name, but the description of the crime, which characterizes the offense charged. An indictment in which the allegations track the language of the applicable Code section is good as against a general demurrer. An alleged variance between the offense as named or the Code section cited and the allegations specified in the indictment goes only to the form of the indictment.

The form of the indictment may be challenged by a special demurrer, but even if the trial court grants a special demurrer and quashes the indictment, it does not bar the State from re-indicting the defendant. Chapman does not demonstrate a statute of limitation defense or other manner in which requiring the State to re-indict him was reasonably likely to result in a different outcome in this case. Therefore, Chapman has “failed to demonstrate a reasonable likelihood that, but for defense counsel’s failure to demur to the [attempted rape charge], the outcome of trial would have differed.”

(ii) Chapman’s argument that the indictment should have included each element of the rape charge also fails for the reasons explained in Division 1 (a). “Because [Chapman] was charged with criminal attempt, the [S]tate was required to allege that, with an intent to commit the underlying crime, he performed some overt act toward its commission.” The indictment alleged that Chapman tried to enter the bedroom window of a residence occupied by the female victim with the intent of committing a rape. Therefore, the indictment did not fail to charge him with a crime, and Chapman cannot show harm by his trial counsel’s conduct.

(iii) Chapman also argues that the indictment was fatally flawed because it failed to allege the manner in which the rape would be committed, i.e., against “[a] female forcibly and against her will,” or against “[a] female who is less than ten years of age.” But as we explained in Division 1 (a), the crime Chapman was charged with was attempted rape under OCGA § 16-4-1. The potential victims, both over the age of ten, were named in the indictment, so he was sufficiently notified of the alleged offense. For these reasons, under the facts of this case, Chapman cannot support his ineffective assistance claim on this basis.

(c) Chapman also based his claim of ineffective assistance of counsel on his trial counsel’s failure to move for a directed verdict. Nevertheless, “even absent a motion for a directed verdict, a criminal defendant may challenge the sufficiency of the evidence” on appeal, as Chapman does in this appeal. Therefore, he cannot show prejudice by counsel’s failure to make such a motion.

(d) Chapman also argues that his trial counsel performed deficiently by failing to request jury instructions on lesser included offenses. But as explained by his trial counsel at the hearing on his motion for new trial, this decision was a matter of trial strategy. Chapman’s strategy was to deny all wrongdoing, and trial counsel wanted to avoid the appearance of admitting to any lesser crimes. Informed strategic decisions “provide no grounds for reversal unless such [strategic] decisions are so patently unreasonable that no competent attorney would have chosen them.” “Because [Chapman’s] counsel’s decision not to request the lesser-included charge was a reasonable one in light of [his] ‘all or nothing’ defense strategy, counsel’s performance cannot be deemed deficient.”

(e) Finally, Chapman claims his trial counsel was deficient by calling a character witness who opened the door to the State’s introduction of evidence of his bad character. But again, as explained by trial counsel, the decision to call the witness was made with the knowledge that a similar rape conviction would be admitted regardless and other less serious convictions potentially would be admissible because Chapman insisted that he wished to testify on his own behalf. Therefore, trial counsel made a strategic decision to provide some positive evidence on behalf of Chapman, and any negative consequence would be minimal in light of the damaging evidence he already faced. Such a strategic decision is not a ground for reversal, and the fact that Chapman, in hindsight, now questions the efficacy of the chosen defense strategy cannot establish ineffective assistance.

2. Chapman next challenges the sufficiency of the evidence. When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

As explained in Division 1 (a) and (b), Chapman was accused of attempted rape and attempted burglary. He argues that the evidence was circumstantial and did not exclude every reasonable hypothesis of his innocence. Nevertheless, there was direct evidence that Chapman was at the scene and that he matched the description given by the two women who saw him as he interfered with the window air conditioning unit at 2:00 a.m. Chapman’s intent was evinced by a prior conviction for rape in which he entered a stranger’s house through her window and raped her. The conviction was admitted for the purpose of showing Chapman’s intent and bent of mind, and the trial court instructed the jury as to this purpose.

[T]he question of intent to commit burglary is for the determination of the jury under the facts and circumstances proved, and it is axiomatic that the credibility of the witnesses is solely a jury question. Questions of reasonableness are likewise issues for jury determination. The evidence was sufficient to authorize the jury to conclude that [Chapman] took a substantial step toward entering [the] home to commit a [burglary and a rape].

In light of the record before us, we discern no legal error requiring a reversal.

3. Chapman also claims that the trial court committed clear error by admitting similar transaction evidence. We disagree.

For evidence of a similar transaction to be admissible, the [S]tate must demonstrate the following: (1) the evidence is admitted for a proper purpose; (2) sufficient evidence exists to establish the accused committed the independent act; and (3) a sufficient connection or similarity exists between the independent offense and the crime charged so that proof of the former tends to prove the latter.... We will uphold a trial court’s decision to admit evidence of a similar transaction unless it was clearly erroneous.

Here, prior to trial the State gave notice of its intent to introduce a prior rape conviction as a similar transaction. In the prior case, Chapman had admitted to cutting a screen on a window, entering a house through the window, and raping the adult female occupant. Also, there was a pair of women’s underwear found at the scene that did not belong to the victim. In the present case, Chapman was accused of attempting to enter a residence through a window to rape an occupant of the residence, and a pair of women’s underwear not belonging to the victim was found in Chapman’s truck. The trial court admitted the evidence for the purpose of showing intent, lustful disposition, and bent of mind.

It is well settled, particularly in cases involving sexual offenses, that similar transactions may be admitted for the purpose of establishing bent of mind. Evidence of an earlier assault on a woman is material to the issue of consent or lack thereof and has a direct bearing on a defendant’s bent of mind. Such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent.

Based on the record before us, we discern no clear error in the trial court’s decision to admit the challenged evidence.

4. Chapman finally enumerates as error that the trial court commented on the evidence in violation of OCGA § 17-8-57, which provides that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” During Chapman’s defense, he called a witness with expertise in air conditioning installation to testify that a window air conditioning unit cannot be removed from the outside. The following colloquy ensued:

Q: . . . [C]an you describe . . . how exactly a window unit is installed?
A: They’re put in from the inside and they’re usually screwed into the window, sealed into the window itself.
Q: Screwed into the window —
Court: Ms. Brown, has he examined this air conditioner in this case?
Counsel: No, sir.
Court: The make and model, has he been given that?
Counsel: No, sir.
Court: Doesn’t he kind of need to know that information if he’s going to start testifying about what it takes to put in this air conditioner unit instead of perhaps a big commercial unit somewhere or •—
Counsel: I was not going to ask him to testify about how this particular unit would have been put in.
Court: Huh?
Counsel: I am not going to ask him to testify about how that particular AC unit was put in.
Court: Then he’s not going to testify. We’re only concerned about the unit that was in this trailer.
Counsel: Yes, sir. I was simply trying to establish a basis for my further questioning.
Court: Either you’re not understanding me or I’m not understanding you. You’re asking in general about an air conditioning unit as if in all the world there was one unit and you have to put that one unit in a certain way. I don’t believe from my own personal experience that is not true. There’s a gamut and a range of units from the smallest that a woman can pick up in one hand all the way to heavy industrial units.
I’m just simply asking you isn’t it kind of — don’t you even know that before you start asking? I’m really going back to your opening statement and what you considered. It has to be relevant testimony to the issues in the case.
Counsel: Yes, sir.
Court: How would he know what it would take to put in this unit?
Counsel: I wasn’t going to ask him what it would take to put in this unit, Your Honor.
Court: That’s the only relevance to this jury.
Counsel: Your Honor, the relevance is how the — how a unit could be removed; not how it would be installed.
Court: And without knowing the unit, you contend that he could tell how any unit could be removed. The smallest unit in a flimsy trailer.
Counsel: Your honor ... if I’d be allowed to ask him the question, he would be able to testify that no AC unit can be removed from outside the window.
State: Objection.
Court: I’m going to ask you jurors to utilize your common sense. An expert witness in order to be an expert has to testify about something that is outside of your knowledge. Is everybody clear on that? Okay. You may proceed.
Q: Now ... if an AC unit that’s installed in a window — if— regardless of what kind of unit it is, could it be removed from the inside? I’m sorry. From the outside of the unit?
A: No, ma’am. They’re all installed from the inside so it could not be removed from the outside.
State: Judge, you’re still getting back to that he doesn’t know this particular unit. He doesn’t—he hasn’t been tendered as an expert. He hasn’t — he’s just up there saying that — there’s been no foundation laid for this opinion.

Decided November 2, 2012

Reconsideration denied November 15, 2012

Bernadette C. Crucilla, for appellant.

Layla H. Zon, District Attorney, Melanie M. Bell, Assistant District Attorney, for appellee.

Court: You have to lay a foundation first before he ever gets to testify about anything about his opinion— Let me excuse the jury for just a second.

Chapman contends that the trial court’s statements, including those about his personal experience, indicated his opinion about the credibility of the witness. The transcript reveals, however, that the trial court’s focus was the relevance of the witness’s testimony and his qualification as an expert.

Atrial judge may propound questions to a witness to develop the truth of the case, to clarify testimony, to comment on pertinent evidentiary rules and to exercise its discretion when controlling the conduct of counsel or witnesses in order to enforce its duty to ensure a fair trial to both sides.

Under the facts before us, we do not conclude that the trial court expressed its opinion as to what had been proven.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       OCGA §§ 16-4-1; 16-7-1 (b).

       OCGA §§ 16-4-1; 16-6-1 (a) (1).

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

       Chapman was initially indicted with attempted child molestation, but he was re-indicted with a substituted charge of attempted rape.

        See Kirt v. State, 309 Ga. App. 227, 232-233 (3) (709 SE2d 840) (2011). See also OCGA §§ 17-7-110; 17-9-61 (b).

       (Citations omitted.) Harris v. State, 258 Ga. App. 669, 671 (1) (574 SE2d 871) (2002).

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

       See id. at 687-688, 694 (III) (A), (B).

       See id. at 697 (IV); Fuller v. State, 277 Ga. 505, 506 (3) (591 SE2d 782) (2004).

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

        State v. Eubanks, 239 Ga. 483, 485-486 (238 SE2d 38) (1977).

       (Citation and. punctuation omitted; emphasis in original.) Spence v. State, 263 Ga. App. 25, 27 (2) (587 SE2d 183) (2003).

       See Livery v. State, 233 Ga. App. 332, 336 (2) (503 SE2d 914) (1998) (indictment was sufficient because it “clearly stated facts which, if true, constituted a crime in Georgia”). Compare Dennard v. State, 243 Ga. App. 868, 873 (1) (b) (534 SE2d 182) (2000) (indictment for attempt to commit statutory rape was not subject to a general demurrer because it alleged that the defendant arranged a meeting place with the purported victim “for the purpose of engaging in sexual intercourse”).

       See, e.g., Stinson v. State, 279 Ga. 177, 180 (2) (611 SE2d 52) (2005) (seeking greater specificity as to predicate offense of felony murder charge would be done in a special demurrer). “Ademurrer to an indictment maybe general or special. Ageneral demurrer challenges the very validity of the indictment and may be raised anytime; the special objects merely to its form or seeks more information and must be raised before pleading to the indictment.” State v. Eubanks, 239 Ga. 483, 485-486 (238 SE2d 38) (1977).

       (Citation and punctuation omitted). Cuzzort v. State, 307 Ga.App. 52, 56-57 (2) (b) (703 SE2d 713) (2010). Accord Jackson v. State, 316 Ga. App. 588 (6) (a) (730 SE2d 69) (2012); White v. State, 312 Ga. App. 421, 429 (3) (a) (718 SE2d 335) (2011).

       (Citation omitted.)

        Cuzzort v. State, 307 Ga. App. 52, 57 (2) (b) (703 SE2d 713) (2010).

       See, e.g., Clarke v. State, 317 Ga. App. 471, 475 (2) (731 SE2d 100) (2012).

       (Punctuation omitted.) Id.

        State v. Marshall, 304 Ga. App. 865, 866 (698 SE2d 337) (2010).

       OCGA § 16-6-1 (a) (1), (2).

       See Driggers v. State, 295 Ga. App. 711, 717 (4) (a) (673 SE2d 95) (2009).

        Griffith v. State, 286 Ga. App. 859, 868 (10) (e) (650 SE2d 413) (2007). See also Mack v. State, 251 Ga. App. 407, 410 (4) (554 SE2d 542) (2001).

       (Punctuation omitted.) Ellis v. State, 280 Ga. App. 660, 661 (634 SE2d 833) (2006).

       (Punctuation omitted.) Gonzales v. State, 298 Ga. App. 821, 825-826 (2) (681 SE2d 248) (2009).

       See generally OCGA § 24-9-84.1 (a) (2) (“Evidence that the [testifying] defendant has been convicted of a crime shall be admitted [for purposes of impeachment] if the crime was punishable by death or imprisonment of one year or more ... if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant”).

       See Fuller v. State, 278 Ga. 812, 814-815 (2) (c) (607 SE2d 581) (2005) (matters of reasonable trial strategy do not amount to ineffective assistance).

       See Johnson v. State, 282 Ga. 235, 236 (2) (647 SE2d 48) (2007).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       See OCGA § 24-4-6 (“To warrant a conviction on [entirely] 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.”).

       (Punctuation and footnote omitted.) Pendley v. State, 308 Ga. App. 821, 824(2) (709 SE2d 18) (2011).

       (Footnotes omitted.) Thompson v. State, 241 Ga.App. 295, 297 (526 SE2d 434) (1999). We note that the new Evidence Code adopted by the Georgia General Assembly, effective January 1, 2013, eliminates the bent-of-mind and course-of-conduct exceptions to similar transaction character evidence, but in criminal proceedings in which the defendant is accused of a sexual assault, the new Code includes a provision for admission of certain prior sexual assaults or child molestation offenses for bearing on any matters to which they are relevant. See Ga. L. 2011, p. 99, § 2; OCGA §§ 24-4-413; 24-4-414 (effective Jan. 1, 2013).

       See Wright v. State, 314 Ga.App. 353, 357 (2) (723 SE2d 737) (2012).

       When the jury was brought hack, counsel moved on to a different line of questioning.

        Dickens v. State, 280 Ga. 320, 324 (3) (627 SE2d 587) (2006).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A1132.
    DAVIS v. STATE OF GEORGIA.
    (734 SE2d 271)
   DOYLE, Presiding Judge.

Following a bench trial in a civil in rem forfeiture proceeding, Kedrick Davis appeals from an order forfeiting $3,415 in currency found on his person by police during a drug investigation. Davis contends that the evidence was insufficient to support a finding that the property was subject to forfeiture under OCGA § 16-13-49. Based on a review of the record, we conclude that the evidence failed to support the order of forfeiture, so we reverse.

The record shows that in February 2010, police were investigating drug activity at a house known to be the location of drug transactions. They followed a vehicle that had been parked in front of the residence to another residence that had been the site of numerous drug arrests. Once the car stopped, officers engaged the driver, Davis, who was cooperative with their questions. Davis agreed to the officers’ request to search the vehicle, and the officers found “approximately 1.0 grams of cocaine on the passenger floorboard of the vehicle.” Davis was arrested, and a subsequent search of his person revealed $3,415 in currency in his pants pockets.

The sheriff’s office filed a complaint for forfeiture in rem, seeking title to the currency found on Davis at his arrest. Davis filed a notice of claim and an answer to the complaint, objecting to the forfeiture. The trial court held an evidentiary hearing and awarded the currency to the sheriff’s office, giving rise to this appeal by Davis.

Davis argues that the currency was not subject to forfeiture because of the following provision of the forfeiture statute:

A property interest shall not be subject to forfeiture under this Code section for a violation involving only one gram or less of a mixture containing cocaine ... unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana.

The State does not contend that the currency was used to facilitate a drug transaction, and there is no evidence to that effect, so the State was required to prove that the money was associated with a drug violation involving more than one gram of cocaine.

This case is controlled by Bell v. State of Ga., which states as follows:

OCGA § 16-13-49 (e) permits the forfeiture of property in drug cases involving more than “one gram of cocaine.” In State of Ga. v. Foote,[ ] the State argued that OCGA § 16-13-49 (e) does not require more than one gram of “pure” cocaine to support forfeiture. We disagreed and ruled that the State must demonstrate that a seized sample of cocaine must consist of more than “one gram of cocaine” in order to sustain forfeiture under OCGA § 16-13-49, not simply that the sample, more than a gram, is “positive” for some undetermined amount of cocaine.

Decided November 15, 2012.

Peter D. Johnson, for appellant.

R. Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Here, the only evidence as to the amount of the cocaine found was the testimony from an officer that it was “approximately 1.0 grams” and that the cocaine field tested positive for the presence of cocaine. There was no evidence as to the purity of the “approximately 1.0 grams” of cocaine found. Absent other evidence, this is inadequate in a forfeiture proceeding such as this one: “The State must demonstrate that the sample consists of more than ‘one gram of cocaine’ in order to sustain forfeiture under OCGA § 16-13-49, not simply that the sample, [here approximately] a gram, is ‘positive’ for some undetermined amount of cocaine.” In light of the holdings in Bell and Foote, we conclude that the evidence presented by the State was insufficient to support the forfeiture. Accordingly, the trial court erred by entering the forfeiture order giving title to the sheriff’s office.

Judgment reversed.

Andrews and Boggs, JJ., concur.

       OCGA § 16-13-49 (e) (2).

       249 Ga. App. 296 (548 SE2d 35) (2001).

       225 Ga. App. 222-223 (1) (483 SE2d 628) (1997).

       (Punctuation and emphasis omitted.) Bell, 249 Ga. App. at 296.

       (Emphasis in original.) Foote, 225 Ga. App. at 223 (1).


text:
    A12A1279.
    PATE v. THE STATE.
    (734 SE2d 255)
   DOYLE, Presiding Judge.

Donyell Pate appeals from the denial of his amended motion for new trial following his conviction by a jury for selling cocaine. Pate contends that (1) there was insufficient evidence to establish that the substance he sold was cocaine; (2) he received ineffective assistance of counsel; and (3) the trial court erred by imposing certain conditions of parole. For the reasons that follow, we affirm the conviction but vacate the sentence and remand for resentencing.

Construed in favor of the verdict, the evidence shows that in April 2008, an officer with a police department narcotics task force conducted a controlled narcotics purchase using a paid informant. Prior to the operation, the informant was searched and fitted with a hidden audio and video recorder. The informant arranged a meeting with Pate and, using the funds provided by police, purchased crack cocaine from Pate while police watched from a nearby location, monitoring the conversation between Pate and the informant. After the purchase, the informant met officers at a pre-arranged location, and police recovered the cocaine and bagged it for submission to the crime lab. After it was transported to an evidence locker, an officer field tested the substance, which was positive for cocaine. A forensic chemist also testified at trial, confirming the identity of the cocaine.

A jury found Pate guilty of one count of selling cocaine, and the trial court denied his amended motion for new trial. Pate now appeals.

1. Pate contends that the State failed to prove that the substance was cocaine because it relied on alleged hearsay testimony by a Georgia Bureau of Investigation forensic chemist who testified as to the chemical identity of the cocaine based on her review of a lab report prepared by a colleague at the GBI lab. Pretermitting the merit of Pate’s argument, we note that the State also introduced, without objection, evidence of an independent field test identifying the purchased substance as cocaine. “[A] chemical field test alone is sufficient to support a conviction for selling or possessing cocaine,” so this enumeration presents no basis for reversal.

2. Pate also contends that he received ineffective assistance of trial counsel on several grounds. Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “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.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Pate argues his trial counsel should have objected to the admission of the forensic chemist’s testimony on Sixth Amendment Confrontation Clause grounds. But as we concluded in Division 1, this testimony was cumulative of other admissible evidence showing the identity of the cocaine. Therefore, even if the forensic chemist’s testimony was inadmissible, Pate cannot meet his burden of showing that there is a reasonable probability that the trial result would have been different if his trial counsel had objected.

(b) Pate next argues that his trial counsel should have objected to the admission of the chemical field test of the cocaine because the State failed to demonstrate the field test’s reliability under Harper v. State. That case provides “that it is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty, [i.e.], whether the procedure ‘rests upon the laws of nature.’ ”

[0]nce a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature. Hence, if a scientific procedure or technique is not novel, and has been widely accepted in Georgia courts, the trial court is entitled to take judicial notice that the procedure or technique meets the Harper standard for admissibility.

This Court has applied these principles to field testing of cocaine and noted

that chemical field tests of suspected cocaine are not novel, and have been widely accepted in Georgia courts. Indeed, in prior cases involving such chemical field testing, we have expressly stated that we have found no case where the results of a chemical field test have been held inadmissible, and instead have indicated that the proper trial procedure is to admit the chemical field test results and then allow for a thorough and sifting cross-examination by defense counsel as to the reliability of the testing technique, as occurred in the present case.

Despite this precedent, Pate argues that the particular field test used in this case, the “NarcoPouch,” was not admissible under Harper. But at the motion for new trial hearing, Pate failed to demonstrate whether or how it differs from the chemical field testing generally accepted in Georgia. For example, Pate did not show that the NarcoPouch is not based on scientific principles or the laws of nature, or that its methods lacked verifiable certainty. Under Strickland, it was Pate’s burden to demonstrate the harm caused by his counsel’s representation, and absent such a showing, this ground presents no basis for reversal.

(c) Pate next argues that his trial counsel performed deficiently by failing to object to testimony from the narcotics officer that Pate was the target of the drug investigation because he had received “a number of complaints on” Pate. Pate contends that this testimony impermissibly placed his character at issue. But the testimony was offered in response to the State’s question as to the origin and target of the undercover operation.

Evidence [that] incidentally puts character in issue may be admitted if otherwise relevant. The evidence at issue here was relevant to explain why the officer decided to investigate [Pate]. That the evidence showed that [Pate] had [allegedly] committed similar crimes which piqued the officer’s suspicions does not change the result here. Testimony explaining the reason for [the investigation] need not be excluded simply because it incidentally shows the commission of another crime.

Accordingly, because the testimony at issue was admissible, trial counsel’s failure to object to its admission does not support his claim on appeal.

(d) Pate also argues that his trial counsel was ineffective when he elicited testimony from the narcotics officer that Paté had a prior arrest record in response to the question of how police discovered Pate’s nickname, “Duke.” Nevertheless, as explained by trial counsel at the motion for new trial hearing, the question was a part of his strategy to test the basis of the officer’s belief that “Duke” was Pate’s alias. Two witnesses had identified Pate as “Duke,” and trial counsel was attempting to challenge the connection between Pate and Duke. When the officer mentioned the prior arrest record, trial counsel elected not to object and instead “felt it was a [better] trial strategy... to handle it in closing.” The inquiry in an ineffective assistance claim “focuses on the reasonableness of counsel’s conduct from counsel’s perspective at the time of trial. Thus, the courts will not second-guess counsel’s decisions concerning matters of trial strategy and tactics.”

(e) For similar reasons, Pate argues that his trial counsel should have objected to the State’s one-time reference to his prior arrest record and the complaints police had received about Pate’s prior drug dealing. But as noted above, the evidence was admissible, and Pate points to nothing in the record showing that this was not part of his stated strategy to not object and instead emphasize the weaknesses of the State’s case in his closing argument. In light of this, the audio and video recording of the transaction, and the testimony of the officer who watched from across the street Pate participate in the transaction, we conclude that trial counsel’s failure to object to the State’s one-time reference to the incidental character evidence is not cause for reversal.

Decided November 15, 2012.

William A. Adams, Jr., for appellant.

Scott L. Ballard, District Attorney, Jeremy M. Hayes, Robert W. Smith, Jr., Assistant District Attorneys, for appellee.

3. Finally, Pate contends that the trial court erred in its sentencing by imposing special conditions of parole. As the State correctly concedes, this was error. Parole is a matter for the Executive Branch:

[A] ny attempt by a court to impose its will over the Executive [Branch] by attempting to impose as a part of a criminal sentence conditions operating as a prerequisite of or becoming automatically effective in the event of a subsequent parole of defendant by the State Board of Pardons [and] Paroles would be a nullity and constitute an exercise of power granted exclusively to the Executive [Branch].

Accordingly, we affirm the finding of guilt, but vacate the sentence and remand for resentencing.

Judgment of conviction affirmed, sentence vacated, and case remanded for resentencing.

Andrews and Boggs, JJ., concur.

       OCGA § 16-13-30 (b).

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

       (Citations and punctuation omitted.) Fortune v. State, 304 Ga. App. 294, 299 (2) (696 SE2d 120) (2010).

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

       See id. at 687-688, 694 (III) (A)-(B).

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

        See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       See, e.g., Melendez-Diaz v. Massachusetts, 557 U. S. 305, 309-310 (129 SC 2527, 174 LE2d 314) (2009). See also Williams v. Illinois, __ U. S._ (132 SC 2221, 183 LE2d 89) (2012); Bullcoming v. New Mexico, _U. S._ (131 SC 2705, 180 LE2d 610) (2011), both of which were decided after the November 2009 trial in this case. We need not decide the Confrontation Clause issue based on the facts presented, but we note that “in making litigation decisions, there is no general duty on the part of defense counsel to anticipate changes in the law, and that only in a rare case would it be ineffective assistance by a trial attorney not to make an objection that would be overruled under prevailing law.” (Punctuation and footnotes omitted.) Rickman v. State, 277 Ga. 277, 279-280 (2) (587 SE2d 596) (2003).

       See Breedlove v. State, 291 Ga. 249, 251 (3) (728 SE2d 643) (2012) (trial counsel’s failure to exclude cumulative evidence cannot support a claim of ineffective assistance of counsel).

       249 Ga. 519, 525-526 (1) (292 SE2d 389) (1982) (affirming the exclusion of expert testimony regarding the defendant’s statements made while under the influence of “truth serum”).

       Id. at 525 (1).

       (Citations and punctuation omitted.) Fortune, 304 Ga. App. at 298-299 (2).

       (Citations and punctuation omitted.) Id. at 299 (2).

       See Gonzalez v. State, 310 Ga. App. 348, 350 (1) (714 SE2d 13) (2011) (“In the ineffective assistance context, the burden is upon the defendant to prove actual prejudice affirmatively from the record,” even if prejudice normally would be presumed) (citation and punctuation omitted).

       See OCGA § 24-2-2 (“The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”).

       (Punctuation omitted.) Smith v. State, 274 Ga. App. 852, 853-854 (1) (619 SE2d 358) (2005). See Harrison v. State, 313 Ga. App. 861, 864 (2) (722 SE2d 774) (2012) (“Evidence which incidentally puts character in issue may be admitted if otherwise relevant. The evidence at issue here was relevant to explain why the officers went to defendant’s residence.”) (punctuation omitted).

       (Punctuation omitted.) Smith v. State, 261 Ga. App. 25, 27 (3) (581 SE2d 673) (2003).

       (Punctuation omitted.) Stephens v. State, 305 Ga. App. 339, 346 (5) (a) (699 SE2d 558) (2010).

       See id. at 346-347 (5) (a).


text:
    A12A1356.
    ALLEN v. THE STATE.
    (734 SE2d 260)
   DOYLE, Presiding Judge.

Ricky Marcus Allen appeals from the denial of his motion to withdraw a negotiated guilty plea, contending that his plea was involuntary because he received ineffective assistance of counsel during plea negotiations. Specifically, he argues that trial counsel performed deficiently by (1) failing to file a special demurrer that would have allowed him to develop an alibi defense, and (2) disclosing to the State his request for a sexually transmitted disease test and sharing the positive result with the State. For the reasons that follow, we affirm.

After [a] sentence is pronounced, the decision whether to allow the withdrawal of a guilty plea lies within the sound discretion of the trial court, and this Court will not reverse the trial court’s decision absent a manifest abuse of that discretion. When the validity of a guilty plea is challenged, the State bears the burden of showing that the plea was voluntarily, knowingly, and intelligently made. The State may do this by showing through the record of the guilty plea hearing that (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea. The trial court is the final arbiter of all factual issues raised by the evidence. While the State ultimately bears the burden of showing that a guilty plea was voluntarily, knowingly, and intelligently made, however, a defendant who pleads guilty and seeks to overturn his conviction because of counsel’s errors must show both that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

Here, the record shows that Allen was charged with aggravated child molestation (two counts), child molestation, aggravated sodomy (two counts), and rape. On the first day of trial, Allen decided to enter a negotiated guilty plea to two counts of child molestation (one count was reduced from an aggravated child molestation count), and the remaining counts were nolle prossed. He was sentenced to serve 17 years of a 20-year sentence in confinement for one count and, for the second count, an additional 10 years of probation consecutive to Count l.

The next month, Allen filed a petition to withdraw his guilty plea on ineffective assistance grounds, and the trial court held a hearing. The trial court denied his motion, giving rise to this appeal.

1. Allen contends that the trial court erred by ruling that his trial counsel was not ineffective by failing to file a special demurrer to require the State to be more specific with respect to the dates of the offenses. We disagree.

The effectiveness of trial counsel’s assistance is evaluated under the standard in Strickland v. Washington, which requires a criminal defendant to demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “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.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

Here, the indictment alleged that the offenses occurred between January 1, 2008, and December 31, 2008. Allen argues that his trial counsel should have filed a special demurrer seeking greater specificity as to the dates of the offenses in the indictment so that he could have developed an alibi defense. Nevertheless, at the hearing on his motion to withdraw the guilty plea, his trial counsel testified that he considered filing a demurrer, but decided not to because “if the demurrer puts the finger on a[n] issue, then sometimes the State can just, you know, come back and correct the defect.” And he anticipated that the State would not have chosen a time frame that would have helped an alibi defense, so he determined that demurring ultimately would not be helpful. This testimony demonstrates that trial counsel’s failure to seek greater specificity in the indictment was a strategic decision made after consideration of the pros and cons and likelihood of success. Counsel’s calculation was not based on a legal error, and such strategic decisions do not amount to deficient performance. Accordingly, this enumeration fails.

2. Allen’s next enumeration stems from the fact that the victim was diagnosed with chlamydia, a sexually transmitted disease. Prior to trial, Allen assured his counsel that he did not have chlamydia, and he pressured his trial counsel to have a test performed to demonstrate that he did not. His trial counsel moved to have a test performed by jail personnel and disclosed the result, which was positive, to the State under the mistaken belief that he was required to under applicable discovery rules. Thus, Allen argues that the trial court erred by denying his ineffective assistance claim on the ground that trial counsel should not have (i) informed the State that he planned to obtain a chlamydia test or (ii) disclosed the positive result to the State.

As noted above, based on Strickland and the posture of his claim, Allen must “show both that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Pretermitting whether counsel’s performance was deficient, we conclude that the record supports the trial court’s finding that Allen failed to demonstrate a reasonable probability that he would not have pleaded guilty had his trial counsel not disclosed the test result to the State.

At the hearing on Allen’s motion, his trial counsel testified that the result of the chlamydia test was “very important” and “very significant,” but he clarified that it was “a little iffy” to conclude that not sharing the test result would have changed his recommendation to plead guilty. Trial counsel explained that the test result was not “overriding,” because he found the victim’s videotaped interview credible and persuasive, and Allen faced a harsher sentence than the one negotiated, which was a “pretty big downside.” Further, Allen did not testify at the motion for new trial hearing showing how he would have opted not to plead guilty but for the chlamydia test results. Based on the record before us, “the trial court was authorized to find that [Allen] failed to meet his burden of showing any substantial likelihood of a different result but for counsel’s deficient performance.” Accordingly, we discern no reversible error.

Decided November 15, 2012.

Stanley W. Schoolcraft III, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       The eight-year-old victim apparently had contracted chlamydia.

       (Citation and punctuation omitted.) Mahone v. State, 317 Ga. App. 597, 598 (731 SE2d 797) (2012).

       A transcript of the plea hearing is not in the record.

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

       See id. at 687-688, 694 (III) (A), (B).

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

       See Strickland, supra, 466 U. S. at 697 (TV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       See Phillips v. State, 277 Ga. 161, 163-164 (b) (587 SE2d 45) (2003) (“Informed strategic decisions do not constitute ineffective legal assistance.”).

       See, e.g., OCGA § 17-16-4 (b) (2) (requiring criminal defendant to disclose to the State a report of any physical or scientific tests “if the defendant intends to introduce in evidence in the defense’s case-in-chief or rebuttal") (emphasis supplied).

       (Punctuation omitted.) Jackson v. State, 285 Ga. 840, 841 (2) (684 SE2d 594) (2009).

        Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012). See also Bielen v. State, 265 Ga. App. 865, 869 (2) (595 SE2d 543) (2004) (trial court weighs the evidence, judges witness credibility, and makes determinations about conflicts in the evidence).


author: PHIPPS, Presiding Judge.

text:
    A12A1400.
    GORMAN et al. v. THE STATE.
    (734 SE2d 263)
   PHIPPS, Presiding Judge.

After being tried together, Bryan Garrard Gorman (“Garrard Gorman”) and his nephew Bryan Jude Gorman (“Jude Gorman”) were convicted of burglary. They filed a single notice of appeal from the order denying their motions for new trial. In their joint brief, they contend that the trial court erred by denying their motions for directed verdicts of acquittal, commenting on the evidence, limiting cross-examination by defense counsel, and denying their motion for mistrial after a witness gave testimony that the court had previously ruled inadmissible. Because no reversible error has been shown, we affirm.

1. OCGA § 16-7-1 (a) pertinently provides that a person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. The indictment alleged that Garrard Gorman and Jude Gorman, acting together and as parties to the crime, unlawfully, without authority and with the intent to commit a theft therein, entered the dwelling house of another. Garrard Gorman and Jude Gorman contend that the trial court erred in denying their motions for directed verdicts of acquittal because the state failed to prove identity and intent to commit theft.

A motion for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law; a challenge to the sufficiency of the evidence in connection with the denial of a directed verdict of acquittal is evaluated based on the standard set forth in Jackson v. Virginia.

Viewed in the light most favorable to the prosecution, the evidence showed the following. On January 9,2010, a homeowner heard a knock on the front door of her house. The homeowner, who was 83 years old, opened the door. A man at the door told the homeowner he was there to “run wires” in her house. The homeowner told him that she did not need any wiring done. But the man entered the house, as did a second, younger man. The homeowner had not given either man permission to enter her house. The younger man entered her bedroom and looked behind her furniture and inside her dresser. While the men were inside, she stepped outside and telephoned the police, reporting that someone was attempting to rob her. The men then left. Kitchen cabinets and a dresser drawer were open, but nothing had been taken. During the phone call, the homeowner told police that the men had just left in a black Jeep.

After hearing the dispatch, a police officer stopped a blue Jeep with, he believed, two men inside, coming from the direction of the homeowner’s house; a third man, Johnny Gorman, was also in the vehicle. The officer observed that the vehicle had two license plates (a Tennessee dealership tag covered an Ohio plate). The driver, Garrard Gorman, gave the officer a driver’s license bearing the name of another person. A second officer, a sergeant, also arrived at the scene of the traffic stop.

The officer and the sergeant placed the three men in their patrol vehicles and drove to the homeowner’s house, where the homeowner immediately identified Garrard Gorman and Jude Gorman as the men who hadbeen in her house. Garrard Gorman and Jude Gorman, who had been advised of their Miranda rights, told the officer they had gone to the house to install wiring. At trial, the homeowner identified Garrard Gorman as the older man with whom she had spoken at her house, and the man sitting next to him at trial as possibly the younger man. At trial, all three defendants admitted that they had been at the homeowner’s house on the date of the incident; they testified that they were there to solicit house painting work.

(a) Identity.

“(I)dentity is a question for the trier of fact; where a witness identifies a defendant, the credibility of the witness making that identification is not to be decided by this Court.” The evidence was sufficient for a jury to find that Garrard Gorman and Jude Gorman were the men who committed the burglary.

(b) Intent.

Whether a person who is accused of burglary entered another’s residence or other building with the intent to commit a theft is a matter for the jury to say, under the facts and circumstances proved. As a general rule the state must, of necessity, rely on circumstantial evidence in proving intent. And the fact that the defendant may have failed in accomplishing his apparent purpose does not render a finding of burglary improper. ... A jury may reject a defendant’s explanation for his unauthorized entry where that explanation is inconsistent with other direct and circumstantial evidence.

Moreover, “criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense.” In this case, the evidence authorized the jury to find that Garrard Gorman and Jude Gorman intended to commit a theft when they entered the house.

Accordingly, there was sufficient evidence from which a rational trier of fact could have found Garrard Gorman and Jude Gorman guilty of being parties to the crime of burglary.

2. Garrard Gorman and Jude Gorman contend that the court violated OCGA § 17-8-57 by commenting on the evidence “in the jury’s presence on the disputed identifications.” However, they fail to delineate in their brief the purported error by reference to the record, as required by Court of Appeals Rule 27. Indeed, they fail to identify the comment at issue with any particularity, stating in that regard only that: the “specific comment as to Johnny J. Gorman’s identification (or not) allowed the State to proceed as if the guilt of both Bryan Gorman’s [sic] were foregone conclusions.” Notably, in the “Statement of Material Facts” section of their brief the appellants include an excerpt from the trial transcript referencing an identification as to “Bryan Jude Gorman”; but neither that excerpt nor the corresponding section of the trial transcript includes a “specific comment as to Johnny J. Gorman’s identification” by the trial judge. Thus, it is not clear what comment forms the basis for the appellants’ complaint or that such comment constituted an expression or intimation of the trial judge’s opinion as to what had or had not been proved as to Garrard Gorman’s or Jude Gorman’s guilt. The burden is on the party asserting error to show it affirmatively by the record. It is not the function of this court to cull the record on behalf of a party in search of error. Garrard Gorman and Jude Gorman have not met their burden of showing error by the record.

3. Garrard Gorman and Jude Gorman contend that the trial court abused its discretion in denying their motion for mistrial after the officer testified regarding a statement Johnny Gorman had made to the sergeant, when the trial court had ruled earlier that the statement was not admissible. The contention presents no basis for reversal.

In a Jackson v. Denno hearing, the officer who initiated the traffic stop testified that Johnny Gorman had told the sergeant that he and the other men were at the house to paint. Defense counsel asked the officer whether he had reviewed the incident report the sergeant had authored; the officer replied that he had. Defense counsel then asked the officer whether the sergeant’s report indicated that the “uncle and nephew” (Garrard Gorman and Jude Gorman) had said that they were at the house to paint, and that the “son” (Johnny Gorman) had said he was there to “run wires”; the officer replied, “Right.” During the hearing, the sergeant also testified as to the contents of his report, confirming that he had stated in the report that Johnny Gorman said the men were there to do wiring. The court ruled that Johnny Gorman’s statement to police was not admissible because he had not been advised of his Miranda rights; conversely, the court ruled that statements Garrard Gorman and Jude Gorman had made to police were admissible.

Later, at trial, the following transpired. On cross-examination, defense counsel asked the officer a series of questions regarding his previous testimony as to what Garrard Gorman and Jude Gorman had told the homeowner, the officer, and the sergeant were their reason(s) for being at the residence. After the officer answered those questions, defense counsel asked him: “It’s in [the sergeant’s] report that [the uncle] ... states that he was there to do painting; isn’t that true?” The officer responded, “Just give me a second here. Yes, there was. However, Johnny said that he was there to run some wires.” Defense counsel moved for a mistrial, which the court denied, stating that the defense had opened the door to the testimony.

[W]hether to grant a mistrial is a matter within the discretion of the trial court, and that discretion will not be interfered with on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.

“Although one may legitimately complain about illegal testimony which is not responsive to the question, one cannot take chances in propounding questions which may elicit damaging answers, otherwise inadmissible, and then demand a mistrial when such answer is given.” Here, defense counsel took chances by asking the officer a series of questions regarding statements Garrard Gorman and Jude Gorman had made to various individuals to explain why they were at the residence. Defense counsel even asked the officer about the contents of the sergeant’s report on that issue (albeit about “the uncle[’]s” statement), notwithstanding the fact that the report about which counsel inquired included Johnny Gorman’s statement regarding their reason for being there.

Furthermore, “[t]he mistrial decision must be based on the surrounding circumstances in their totality. The trial court is in a peculiarly good position to observe the jurors, the witnesses, and the attorneys in order to evaluate the extent of the prejudice” resulting from the injection of inadmissible evidence. Having reviewed the record, including the testimony at issue (to wit, the reference to Johnny Gorman’s statement that the men were at the house to do wiring), we conclude that the trial court did not abuse its discretion in denying the appellants’ motion for mistrial.

4. Garrard Gorman and Jude Gorman contend that the trial court improperly limited their cross-examination regarding Johnny Gorman’s statement to police, in that the court “did not allow [them] to address the clear conflict in the officers’ testimony and prevented ‘thorough and sifting cross-examination.’ ”

However, defense counsel moved to have the statement excluded. “One cannot complain of a result he procured or aided in causing, and induced error is not an appropriate basis for claiming prejudice.” Moreover, when the trial court granted the defendants’ motion to suppress the statement, the court announced that the defendants would not be able to use the excluded statement to cross-examine the officers. The defendants did not object or take exception to the ruling. “A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” Thus, the issue has not been preserved for our review.

Decided November 15, 2012.

Cook & Connelly, Rex B. Abernathy, Steven A. Miller, for appellants.

Fredric D. Bright, District Attorney, Shelley S. Tice, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       Johnny Gorman, who is Garrard Gorman’s son, was tried for burglary along with Garrard Gorman and Jude Gorman; Johnny Gorman was found not guilty. Garrard Gorman was also convicted of giving a false name; that conviction is not at issue in this appeal.

       We apply the version of OCGA § 16-7-1 which was in effect in January 2010, the time of the offense. OCGA § 16-7-1 was amended effective “July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense.” Ga. L. 2012, pp. 899, 949, §§ 3-1, 9-1.

       At trial, one attorney represented both Garrard Gorman and Johnny Gorman; Jude Gorman was represented by separate counsel.

        Bodiford v. State, 305 Ga. App. 655 (700 SE2d 648) (2010) (citation and footnote omitted) citing Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979) (on review of the sufficiency of the evidence to support a criminal conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).

       Appellants have not, before the trial court or this court, challenged the identification method utilized by the police.

       The transcript does not reflect clearly who was seated next to Garrard Gorman when the homeowner gave this testimony.

        Jones v. State, 285 Ga. App. 121, 123 (1) (645 SE2d 608) (2007) (punctuation and footnote omitted). See Merritt v. State, 300 Ga. App. 515, 516-517 (1) (685 SE2d 766) (2009) (rejecting appellant’s challenge to the sufficiency of the evidence based on witness’s in-court identification being less certain than his out-of-court identification, because appellate court does not weigh evidence or judge the credibility of witnesses).

       See Jones, supra; Brown v. State, 277 Ga. App. 169, 170-171 (1) (626 SE2d 128) (2006).

        Long v. State, 307 Ga. App. 669, 671 (1) (705 SE2d 889) (2011) (citations and punctuation omitted).

        Wood v. State, 300 Ga. App. 674, 676 (686 SE2d 319) (2009) (citation and punctuation omitted).

       See Long, supra at 671-672 (1).

       See id.; Jones, supra; Wood, supra; Brown, supra.

       OCGA § 17-8-57 pertinently provides that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

       See id.

        Melton v. State, 222 Ga. App. 555, 559 (6) (474 SE2d 640) (1996).

       See Westmoreland v. State, 287 Ga. 688, 696-697 (10) (699 SE2d 13) (2010); State v. Stallworth, 293 Ga. App. 368 (1) (667 SE2d 147) (2008); Melton, supra.

       378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       Garrard Gorman was Jude Gorman’s uncle.

        Jones v. State, 277 Ga. 36, 40 (6) (586 SE2d 224) (2003) (citation and punctuation omitted); Moore v. State, 310 Ga. App. 106, 107 (1) (712 SE2d 126) (2011).

        Felker v. State, 252 Ga. 351, 377 (11) (314 SE2d 621) (1984) (citation omitted); Steed v. State, 309 Ga. App. 546, 550 (2) (710 SE2d 696) (2011).

        Bentley v. State, 262 Ga. App. 541, 545 (3) (586 SE2d 32) (2003) (punctuation and footnotes omitted).

       See generally Jones, supra at 40 (6).

        Borders v. State, 285 Ga. App. 337, 340 (2) (646 SE2d 319) (2007) (citation and punctuation omitted).

        White v. State, 231 Ga. 290, 294 (5) (201 SE2d 436) (1973) (citations and punctuation omitted).

         See generally Smith v. State, 280 Ga. 161, 162 (2) (625 SE2d 766) (2006) (appellant cannot complain on appeal of trial court’s ruling to not allow jurors to rehear certain evidence, where he offered no objection at trial); Moore v. State, 207 Ga. App. 673, 675 (3) (428 SE2d 678) (1993) (issue not preserved for appellate review where appellant asserted at trial her right to cross-examine a witness about a particular matter, and court stated it would defer ruling on the issue, but appellant did not later renew request or voice objection); see also Anthony v. State, 236 Ga. App. 257, 258 (1) (511 SE2d 612) (1999).


text:
    A12A1482.
    FOSTER v. SOUTHERN REGIONAL HEALTH SYSTEM, INC.
    (734 SE2d 268)
   DOYLE, Presiding Judge.

This appeal arises from the grant of summary judgment to Southern Regional Health System, Inc. (“Southern Regional”), in a medical malpractice suit filed by Deborah Foster. The trial court granted summary judgment to Southern Regional after it determined that the various emergency room physicians involved in Foster’s treatment were not agents of the hospital under OCGA § 51-2-5.1 (f). For the reasons that follow, we affirm.

Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Viewed in this light, the record shows that Foster was treated for a staph infection of her lungs in early November 2006 at Southern Regional. In late November, Foster repeatedly sought treatment at Southern Regional’s emergency room for low back pain, and after repeatedly seeking treatment with the emergency room over the next few weeks to no avail, she was finally admitted to the hospital for treatment on December 17, 2006, because she could not walk. Foster was diagnosed with a spinal infection for which she has undergone numerous surgeries and from which she continues to suffer neurological damage.

Foster filed a medical malpractice suit against Drs. William A. Watkins; John E. Spalding; andKevinD. Goodlow; Southern Regional; and various other defendants. Southern Regional filed a motion for summary judgment, arguing that it was not vicariously liable for the negligence of the named individual physicians because those individuals were independent contractors employed by EmergiNet, and because Foster had not identified any negligent act on the part of Southern Regional apart from any vicarious liability for the negligence of those individuals, the trial 'court should grant summary judgment in its favor. After a hearing, the trial court concluded that Southern Regional was not liable for any negligence of the individual physicians and granted the motion for summary judgment. Foster filed this interlocutory appeal, arguing that the trial court erred because Dr. Watkins was an actual agent of Southern Regional.

Foster argues that the trial court erred by finding that Watkins, Goodlow, and Spalding were not employees or agents of Southern Regional at the time of Foster’s injuries. We disagree.

In 2005, the Georgia Legislature enacted certain tort reform legislation, including a statutory test to determine whether healthcare professionals providing healthcare services to patients at hospitals are employees or independent contractors of those hospitals. Pursuant to OCGA § 51-2-5.1 (f), the issue of“[w]hether a health care professional is an actual agent, an employee, or an independent contractor shall be determined by the language of the contract between the health care professional and the hospital.” In this case, however, it is undisputed that no written contract exists between the three doctors and Southern Regional, and therefore, we proceed to the next subsection of the statute, which states that if

there is no contract or that the contract is unclear or ambiguous as to the relationship between the hospital and health care professional, the court shall apply the following: (1) Factors that may be considered as evidence the hospital exercises a right of control over the time, manner, or method of the health care professional’s services include: the parties believed they were creating an actual agency or employment relationship; the health care professional receives substantially all the employee benefits received by actual employees of the hospital; the hospital directs the details of the health care professional’s work step-by-step; the health care professional’s services are terminable at the will of the hospital without cause and without notice; the hospital withholds, or is required to withhold, federal and state taxes from the remuneration paid to the health care professional for services to the patients of the hospital; and factors not specifically excluded in paragraph (2) of this subsection[.]

Subsection (g) further explains that a court may not consider as evidence of an agency relationship the following factors:

a requirement by the hospital that such health care professional treat all patients or that any health care professional or group is obligated to staff a hospital department continuously or from time to time; the hospital’s payment to the health care professional on an hourly basis; the provision of facilities or equipment by the hospital; the fact a health care professional does not maintain a separate practice outside the hospital; the source of the payment for the professional liability insurance premium for that health care professional; the fact that the professional fees for services are billed by the hospital; or any requirement by the hospital that such health care professional engage in conduct required to satisfy any state or federal statute or regulation, any standard of care, any standard or guideline set by an association of hospitals or health care professionals, or any accreditation standard adopted by a national accreditation organization.

1. As an initial matter, Southern Regional points out that the trial court correctly determined that Foster waived in her summary judgment brief her argument that Dr. Spalding is an actual agent of Southern Regional. We agree and affirm the trial court’s grant of summary judgment as to the vicarious liability of Southern Regional as to any negligence of Dr. Spalding.

2. The trial court correctly determined that Foster waived at the summary judgment hearing her argument that Dr. Goodlow was an actual agent of Southern Regional. Thus, we affirm the trial court’s grant of summary judgment as to the vicarious liability of Southern Regional as to any negligence of Dr. Goodlow. Even if Foster had not waived this argument, she points only to the fact that Goodlow could admit patients as evidence that he was an actual agent of Southern Regional, which alone is insufficient to establish a question of fact as to whether Southern Regional controlled the time, method, or manner of his services to show the existence of an agency relationship under OCGA § 51-2-5.1 (f).

3. Finally, Foster contends that the trial court erred by finding that Dr. Watkins was not an actual agent of Southern Regional. We disagree.

Dr. Watkins specifically stated that he was not employed by Southern Regional and that he was employed by EmergiNet. Southern Regional did not provide malpractice insurance or employee benefits to Watkins, did not directly compensate him, and did not bill his patients or their insurance for his services. Southern Regional did not withhold any taxes for state, federal, or local payroll or income tax purposes on behalf of Watkins; Southern Regional could not terminate his employment without cause or notice.

Moreover, although there was no contract between Watkins and Southern Regional, the service agreement between EmergiNet and Southern Regional states that

[t]he Parties agree that EmergiNet and [Southern Regional] are independent contractors under this Agreement, and neither Party shall be deemed the agent, partner, employee, representative, or joint venture of the other Party for any reason. Any and all Professionals providing services under this Agreement shall be deemed to be the employees, agents, or subcontractors of EmergiNet.

Foster contends that because Dr. Watkins was placed in the position of Medical Director of the Department of Emergency Medicine by EmergiNet, which position was required of EmergiNet by Southern Regional under the service contract, that Watkins is therefore an actual agent of Southern Regional. The position is largely administrative, but Foster contends that his service as Medical Director is evidence that Watkins was an actual agent of Southern Regional because (1) Watkins was required to supervise the emergency department; (2) Watkins was required to formulate policies for the department; (3) Watkins could not work at other locations; (4) Watkins was required to allocate 50 percent of his time to administrative tasks; and (5) Watkins was paid a stipend for his role as director. Nevertheless, Watkins was never paid directly by Southern Regional, and OCGA § 51-2-5.1 (g) (2) expressly prohibits using the fact that a physician works exclusively for one hospital as evidence of an agency relationship with that hospital. Moreover, although the job description indicates broadly the expectations of the medical director, it does not “direct[ ] the details of the . . . work step-by-step.”

Decided November 15, 2012.

Terry D. Jackson, for appellant.

Greenberg Traurig, Lori G. Cohen, Thomas J. Mazziotti, Jessica C. Odom, Houck & Regas, M. Paul Reynolds, Paul E. Weathington, for appellee.

Accordingly, the trial court did not err by granting Southern Regional’s motion for summary judgment.

4. Based on our determination in the preceding Divisions, it is unnecessary for us to address Foster’s remaining enumerations of error.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Poster was not insured and therefore did not have a treating private physician.

       The intricacies of Foster’s injuries do not play a role in our determination of this appeal, and therefore, we provide only a brief synopsis of the incidents in question.

        See Blackmon v. Tenet Healthsystem Spalding, 288 Ga.App. 137, 139, n. 7 (653 SE2d 333) (2007), rev’d on other grounds, Blackmon v. Tenet Healthsystem Spalding, 284 Ga. 369 (667 SE2d 348) (2008).

       (Punctuation omitted.) OCGA § 51-2-5.1 (g) (1).

       OCGA § 51-2-5.1 (g) (2).

       See OCGA §51-2-5.1 (g)(1).