text:
    A11A0239.
    MCMAHON v. THE STATE.
    (707 SE2d 528)
   McFadden, Judge.

Nancy McMahon appeals her conviction for making a false statement. Finding that the state did not impermissibly refer to plea negotiations and that there was sufficient evidence to establish that she made her statement to employees of an agency of state, county, city, or other government, we affirm the judgment of conviction. We remand the case to the trial court for a hearing on McMahon’s claim of ineffective assistance of trial counsel.

Viewed in the light most favorable to the jury’s verdict, Berry v. State, 274 Ga. App. 366, 367 (1) (618 SE2d 72) (2005), the evidence shows that on February 28, 2008, police were called to McMahon’s residence because of a domestic dispute. McMahon’s husband was arrested because of the incident. Within a week or two of the incident, McMahon contacted the district attorney’s office to ask that her husband be allowed to participate in a pretrial diversion program. Her call led to a meeting on April 7, 2008, with Beth Wallace, a victim advocate, Stuart Stephens, an investigator with the district attorney’s office, and Assistant District Attorney J. D. Hart.

Stephens asked McMahon if the police had made any prior calls to her house for similar incidents, and McMahon responded no. In fact, the police had been dispatched to the house for a domestic violence incident in 2005, and McMahon had spoken with Investigator Jennifer Wright about the incident. McMahon was charged with making a false statement about a matter within the jurisdiction of a government agency, telling Stephens that law enforcement had not responded to her house for a domestic complaint before February 28, 2008.

At trial, McMahon testified that she had had no recollection of the 2005 call or speaking with Wright about the incident. Therefore, she testified, she did not knowingly make a false statement at the April 7, 2008 meeting.

1. McMahon argues that the trial court should have granted a mistrial because the state improperly introduced evidence of plea negotiations. While Hart was questioning Stephens, she asked about a telephone conversation with McMahon. Stephens explained that the conversation occurred after the April 7, 2008 meeting, while Hart had McMahon on speaker phone. Stephens testified that he heard McMahon say that she did not recall the prior domestic violence incident. Hart then asked Stephens, “Did the defendant ask you not to or ask me not to prosecute her for these charges?” Stephens responded, “She did.”

(a) McMahon argues that this testimony violates OCGA § 24-3-50, which, she contends, makes inadmissible any statements made during the course of plea negotiations. But the statute provides, “[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” We have interpreted the statute to mean that “confessions made during plea negotiations with the prosecutor are not admissible, because they are made in the hope that the defendant will get a better deal than he would otherwise. [Cit.]” Gray v. State, 240 Ga. App. 716, 718 (1) (523 SE2d 626) (1999).

Here, however, the record does not show that McMahon made her request in the context of plea negotiations. And McMahon’s request not to be prosecuted is not a confession.

A confession is a voluntary statement made by a person charged with the commission of a crime wherein he acknowledges himself to be guilty of the offense charged . . . [and] implies an admission of every essential element necessary to establish the crime wherewith the defendant is charged

(Citation and punctuation omitted.) Carter v. State, 90 Ga. App. 61 (2) (a) (81 SE2d 868) (1954). McMahon’s request did not admit every element of the crime and did not acknowledge guilt. Id.

McMahon cites Wilson v. State, 233 Ga. App. 327, 329-330 (3) (503 SE2d 924) (1998) (physical precedent only), for the proposition that reference to plea negotiations entitles a defendant to a mistrial. First, Wilson is not binding because it is physical precedent only. See Court of Appeals Rule 33 (a); Brundidge v. State, 302 Ga. App. 510, 511, n. 4 (691 SE2d 339) (2010). Even if Wilson were binding, it is factually distinguishable. In Wilson, the prosecutor asked the defendant whether he previously had attempted to negotiate a nolo contendere plea to the charges. A plea of nolo contendere “constitutes a plea of guilty except that it cannot work any civil disqualification upon the defendant.” (Citation and punctuation omitted.) Fortson v. Hopper, 242 Ga. 81, 82 (247 SE2d 875) (1978). Therefore, the Wilson prosecutor’s question amounted to an impermissible reference to Wilson’s offer to admit the elements of the crime. McMahon’s request that she not be prosecuted in no way admitted the elements of the crime, and Wilson is therefore distinguishable.

(b) McMahon also contends that OCGA § 17-8-75 required the trial court to rebuke Hart for asking the question and failing that, to grant a mistrial. That statute provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

As discussed above, Hart’s question was not an impermissible reference to a confession made during plea negotiations. And the trial court complied with the statute by instructing the jury that Hart’s question was not evidence. See Gutierrez v. State, 235 Ga. App. 878, 880 (1) (510 SE2d 570) (1998).

2. McMahon argues that her conviction must be reversed because the state failed to prove an essential element of the offense, namely that the office of the district attorney is a government agency. OCGA § 16-10-20 provides:

A person who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.

(Emphasis supplied.) McMahon concedes that she made the false statement to employees of the district attorney’s office while discussing her husband’s pending criminal charge. She contends, however, that no evidence showed that the district attorney’s office is an agency of state, county, city, or other government.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her 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. It is the function of the jury ... to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence.

(Citations and punctuation omitted; emphasis in original.) Wilson v. State, 304 Ga. App. 743, 745 (1) (698 SE2d 6) (2010). Stephens testified that he is an investigator for the district attorney’s office for the Northeastern Judicial Circuit, which includes Hall and Dawson counties. The jury could reasonably infer from this testimony that the district attorney’s office is an agency of county government.

3. Finally, McMahon argues that she received ineffective assistance of counsel at trial because trial counsel failed to move to disqualify the assistant district attorney, who was a witness to the false statement, and because trial counsel failed to move for a mistrial when Stephens testified about plea negotiations.

Appellate counsel entered an appearance on McMahon’s behalf after the trial court denied McMahon’s motion for new trial and after trial counsel filed a notice of appeal from the judgment of conviction. This appeal, therefore, is McMahon’s first opportunity to raise an ineffective assistance of trial counsel claim. “Generally, when the appeal presents the first opportunity to raise an ineffective assistance claim, we remand the case to the trial court for an evidentiary hearing on the issue.” (Citation and punctuation omitted.) Pinkston v. State, 277 Ga. App. 432, 433 (2) (626 SE2d 626) (2006). Accordingly, we remand this case to the trial court for a hearing on this aspect of McMahon’s ineffective assistance claim. If the trial court rules that trial counsel was ineffective, McMahon is entitled to a new trial. If, on the other hand, the trial court finds that trial counsel’s assistance was effective, McMahon “shall have 30 days in which to initiate an appeal of the trial court’s ruling on the issue.” (Citation and punctuation omitted.) Id.

Decided March 8, 2011.

Collins & Csider, Arianne E. Mathé, for appellant.

Lee Darragh, District Attorney, J. D. Hart, Assistant District Attorney, for appellee.

We hold, however, that McMahon’s claim that trial counsel was ineffective for failing to move for a mistrial because of the reference to plea negotiations is due to be decided as a matter of law on the existing record. Our holding in Division 1 — that the reference to McMahon’s request that she not be prosecuted did not entitle McMahon to a mistrial — means that trial counsel was not ineffective for failing to move for a mistrial on this ground. Consequently, McMahon is not entitled to raise this ground on remand. See Gomillion v. State, 236 Ga. App. 14, 15 (1) (512 SE2d 640) (1999).

Judgment affirmed and case remanded with direction.

Phipps, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: MlKELL, Judge.

license: Public Domain

text:
    A11A0341.
    WILLIAMS v. THE STATE.
    (707 SE2d 532)
   MlKELL, Judge.

After a bench trial in the Superior Court of Dougherty County, Anthony Williams, Jr., was convicted of theft by taking a motor vehicle and sentenced as a first offender to seven years probation. On appeal, Williams challenges the sufficiency of the evidence. We affirm.

On appeal from a bench trial resulting in a criminal conviction, we view all evidence in the light most favorable to the trial court’s judgment of conviction, and the defendant no longer enjoys the presumption of innocence. We do not re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence; our role is to determine whether the evidence presented is sufficient for a rational trier of fact to find guilt beyond a reasonable doubt.

So viewed, the evidence shows that Phyllis Mason, Williams’s sister, testified that on September 20, 2007, she drove her uncle Ruben Thomas’s car to her mother’s home, where Williams lived, and asked him to wash the car. Mason further testified that she moved the car from the side of the road to the yard and left the keys in the ignition so that Williams could close the windows. After washing the car, Williams drove it into a tree, causing extensive damage.

Mason testified that Williams did not have a driver’s license and that she had not given him permission to drive the car. Sergeant Maurice Jones, who investigated the accident, testified that Mason told him that Williams did not have permission to drive the car. Thomas testified that Mason told him that Williams had crashed the car; that Williams did not have permission to drive the car; that the car was totaled; and that Thomas’s insurance company paid off the loan on the car.

Williams testified that Mason gave him the keys to the car so that he could move it from the side of the road into the yard to wash it; that he drove the car around the block to let the air dry the car; that Mason was standing on the porch of the house when he was driving away; and that he drove the car into a tree. Williams acknowledged that he did not have a driver’s license and that he knew he should not be driving the car without one. After the close of evidence, the trial court found Mason’s testimony to be credible and concluded that Williams was guilty of theft by taking.

A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.

Here, Mason unequivocally testified that Williams took the car without her permission. Williams admitted that he drove the car around the block and crashed it into a tree but testified that Mason knew that he would drive the car because he had to move it into the yard and that she saw him drive away. “To the extent [Mason]’s testimony conflicted with [Williams]’s, it was the function of the trial court as the trier of fact — not this Court — to resolve the conflict.” The trial court was authorized to believe Mason’s testimony, and that testimony, alone, was sufficient to authorize the trial court’s finding of guilt.

Williams argues that the evidence did not establish his criminal intent to use the car for his own purposes. But “his intent to take it for his own temporary use without the owner’s authorization evinces an intent to commit a theft.” Moreover, whether the requisite criminal intent existed is a question for the trier of fact, which the trial court did not resolve in Williams’s favor.

[T]he issue of whether an act is done with criminal intent is peculiarly a question of fact for determination by the trier of fact and even when a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak and unsatisfactory the verdict will not be set aside on that ground. Intent, which is a mental attitude, is commonly defectible only inferentially, and the law accommodates this.

Here, there was evidence to support the trial court’s conclusion that Williams possessed the requisite intent.

Williams also argues that the state’s case was based on circumstantial evidence, which required the state to exclude every other reasonable hypothesis except Williams’s guilt. However, the state’s case was not based solely on circumstantial evidence. Mason’s testimony constituted direct evidence, upon which a finder of fact could base its determination that Williams was guilty of theft by taking. Therefore, we affirm the judgment of the trial court.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

Decided March 8, 2011.

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, Matthew Breedon, Assistant District Attorney, for appellee.

       (Citation and punctuation omitted.) Mays v. State, 306 Ga. App. 507 (703 SE2d 21) (2010).

       OCGA § 16-8-2.

       (Footnote omitted.) Marshall v. State, 286 Ga. App. 86, 87 (1) (648 SE2d 674) (2007).

       See King v. State, 214 Ga. App. 406, 407 (3) (447 SE2d 712) (1994) (victim’s testimony that defendant took items without her permission was sufficient to authorize conviction of theft by taking).

        Smith u. State, 172 Ga. App. 356, 357 (2) (323 SE2d 257) (1984) (defendant’s intention to take a car battery to charge another car, although he claimed he did not intend to keep the battery, sufficiently evinced his intent to commit theft). Accord Thornton v. State, 301 Ga. App. 784, 791-792 (3) (b) (689 SE2d 361) (2009).

        Howell v. State, 188 Ga. App. 425, 426 (1) (373 SE2d 216) (1988).

       (Citation and punctuation omitted.) House v. State, 306 Ga. App. 154, 155 (701 SE2d 606) (2010).

       See OCGA § 24-4-6.


author: Mikell, Judge.

text:
    A11A0407.
    HINES v. THE STATE.
    (707 SE2d 534)
   Mikell, Judge.

Following a jury trial, Lance Hines was convicted of driving under the influence per se and driving under the influence to the extent that he was a less safe driver. The trial court denied Hines’s motion for new trial, and he appeals, asserting error in the denial of his motion to suppress and also contending that the verdict was contrary to the evidence of his justification defense. For the reasons set forth below, we affirm.

Viewing the evidence in a light most favorable to the verdict, the record shows that around 11:00 p.m. on November 16, 2007, Lieutenant Rusty Brooks of the City of Dublin Police Department, a POST-certified law enforcement officer with 20 years’ experience, was sent to Buffalo’s restaurant in Dublin in response to a call about a fight in progress in the restaurant parking lot. Brooks testified that as he arrived at the parking lot, he noticed a black pickup truck, driven by Hines, exiting the lot in a reckless manner. When asked on cross-examination what he meant by “a reckless manner,” Brooks stated that Hines “wasn’t driving out of the parking lot in a normal manner”; that “[w]hen [Hines] backed up he was backing out in a hurry and he was leaving the parking lot in a big hurry”; and that he was going “[m]uch faster” than normal for a parking lot. Brooks estimated the truck’s speed to be at least 25 mph as it exited the lot. In light of the report Brooks had received about a fight in progress, Brooks concluded from his knowledge, training, and experience that the driver of the pickup truck was involved in the fight and was trying to flee the scene. Brooks pulled his police car in front of the pickup truck and stopped it in order to question the driver about whether he was involved in the fight.

Brooks testified that as he approached the truck, he could smell the odor of alcoholic beverage on Hines’s person. When Brooks asked Hines for his driver’s license, Hines admitted that his license had been suspended and that he had been drinking. Hines testified at trial that he was driving his truck to the gas station next door in order to avoid the fight in the parking lot of Buffalo’s.

Brooks then turned the investigation over to Stephen Grieser, another Dublin Police Department officer at the scene, who had specialized training in DUI detection. Grieser also testified to the odor of alcoholic beverage on Hines, and he asked Hines to perform standardized field sobriety tests, including the horizontal gaze nystagmus (HGN), the walk and turn, and the one-leg stand, as well as a portable breath test. Grieser testified that Hines exhibited six of eight clues on the HGN test, which indicated in Grieser’s experience that Hines was over the 0.08 blood alcohol concentration limit. On both the other tests, Hines started before being instructed to, which Grieser testified was an indication of impairment. Grieser further testified that Hines tested positive for alcohol on the portable breath test device, with a reading of over 0.08. Grieser then placed Hines under arrest and read him the implied consent form. Hines submitted to an Intoxilyzer test, which indicated a blood alcohol concentration of 0.122.

1. Hines first contends that the trial court’s denial of his motion to suppress was error because Brooks lacked reasonable articulable suspicion to stop Hines’s vehicle. We disagree.

On review of a trial court’s order on a motion to suppress, we are guided by three principles with respect to the trial court’s judgment of the facts:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

“Because there was testimonial evidence in this case, we do not apply a de novo standard of review.”

Hines contends that Brooks did not have reasonable suspicion to make the stop of his vehicle. Assuming without deciding that Brooks’s stop of Hines’s truck was a “second-tier encounter” requiring the officer to have “reasonable suspicion,” it is well settled that “an officer may conduct a brief investigatory stop of a vehicle if such stop is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” In this case, Brooks testified that Hines was driving in a reckless manner, much faster than to be expected in a parking lot; this testimony, in conjunction with the report of a fight in progress in the parking lot, led the officer to suspect that Hines had been involved in the fight and was attempting to flee the scene. This evidence supports the trial court’s conclusion that Brooks had “articulable suspicion” to stop Hines and investigate further his connection to the reported fight.

Hines essentially asks us to re-weigh the evidence to find that the officer lacked “reasonable suspicion” for stopping his vehicle. However, “[a]s a reviewing court, we must accept the factual and credibility determinations and inferences drawn by the trier of fact, ... as long as there is evidence in the record to support the court’s findings.” Accordingly, we find no error in the trial court’s denial of the motion to suppress.

2. In his second enumeration of error, Hines contends that the trial court “erred in finding that Appellant lacked justification for driving under the influence of alcohol because it was against the weight of the evidence.” This enumeration is without merit.

(a) The record does not support Hines’s contention that the trial court made a “finding” that Hines lacked justification. On the contrary, the trial court instructed the jury on the defense of justification by reason of coercion. Hines did not object to the pattern charge given by the judge, either when it was discussed at the charge conference or after the judge completed the charge to the jury. Because Hines “failed to lodge a specific objection to the [jury] charge and assert the grounds for his objection[,] this claim was waived for purposes of appellate review.”

(b) Hines further argues that the evidence was insufficient to sustain his convictions because he presented evidence of coercion. Under OCGA § 16-3-26, a person cannot be guilty of any crime, except murder, “if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” But “[t]he danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act.” Coercion is an affirmative defense, but it is a defense “only if the person coerced has no reasonable way, other than committing the crime, to escape the threat of harm.” The state has the burden to disprove coercion beyond a reasonable doubt.

On cross-examination, Hines admitted that he was not coerced into driving the car away from the restaurant. Hines testified that an employee of the restaurant asked him to leave; that he drove away to avoid a fight; that he had three or four beers before driving the truck; that he had a cell phone in his possession but he did not attempt to call 911, nor did he ask the Buffalo’s employees to call a cab for him; and that the person who was trying to fight him was in the parking lot but was not armed.

“[W]hether the [sjtate has met its burden of disproving coercion is a question for the jury.” Here, the jury resolved this issue against Hines, and as its verdict meets the standard of Jackson u. Virginia, it will not be disturbed on appeal.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

Decided March 8, 2011.

Edward V. C. Silverbach, for appellant.

Craig Fraser, District Attorney, Chad A. Pritchett, Assistant District Attorney, for appellee.

       OCGA § 40-6-391 (a) (5).

       OCGA § 40-6-391 (a) (1).

       At the hearing scheduled on Hines’s motion for new trial, the parties agreed to submit the issues raised for decision on the briefs.

        Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004).

       (Punctuation and footnote omitted.) Bramlett v. State, 302 Ga. App. 527, 528 (691 SE2d 333) (2010). Accord Taylor v. State, 249 Ga. App. 733 (549 SE2d 536) (2001).

       (Footnote omitted.) Butler v. State, 303 Ga. App. 564, 565 (694 SE2d 168) (2010). Accord State v. Guyton, 295 Ga. App. 786, 787 (673 SE2d 290) (2009).

       “There are at least three types of police-citizen encounters: verbal communications which involve no coercion or detention; brief ‘stops’ or ‘seizures’ which must be accompanied by a reasonable suspicion; and ‘arrests’ which can only be supported by probable cause.” (Punctuation and footnote omitted.) Stadnisky v. State, 285 Ga. App. 33, 36 (2) (645 SE2d 545) (2007).

       Id. (“a second-tier encounter may violate the Fourth Amendment if the officer briefly ‘stops’ or ‘seizes’ a citizen without reasonable suspicion”) (footnote omitted).

       (Punctuation and footnote omitted.) Camacho v. State, 292 Ga. App. 120, 122 (1) (663 SE2d 364) (2008).

        State v. Ellison, 271 Ga. App. 898, 901 (3) (a) (611 SE2d 129) (2005). Accord Page v. State, 296 Ga. App. 431, 433-434 (1) (a) (674 SE2d 654) (2009).

       OCGA § 16-3-20 provides that “[t]he fact that a person’s conduct is justified is a defense to prosecution for any crime based on that conduct.” The defense of justification can be claimed when a person’s conduct is justified under (among other Code sections) OCGA § 16-3-26, which sets forth the defense of coercion.

        Hicks v. State, 287 Ga. 260, 264 (4) (695 SE2d 195) (2010).

       (Footnote omitted.) Thomas v. State, 285 Ga. App. 290, 292 (1) (645 SE2d 713) (2007). Accord Slater v. State, 185 Ga. App. 889, 890 (2) (366 SE2d 240) (1988).

       See OCGA § 16-3-28.

       (Citation omitted.) Stitt v. State, 190 Ga. App. 58, 59 (378 SE2d 168) (1989). Accord Rodriguez v. State, 306 Ga. App. 169, 170 (1) (702 SE2d 10) (2010).

        Aleman v. State, 227 Ga. App. 607, 608 (1) (489 SE2d 867) (1997). Accord Bentley u. State, 261 Ga. 229, 230 (2) (404 SE2d 101) (1991).

       (Citation omitted.) Davis v. State, 232 Ga. App. 882, 883 (1) (502 SE2d 779) (1998). Accord Engrisch v. State, 293 Ga. App. 810, 812 (668 SE2d 319) (2008) (“Whether a defendant is coerced into acting ... is a question for the trier of fact.”) (footnote omitted); Stitt, supra. See also Bentley, supra.

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

       See Brinson v. State, 244 Ga. App. 40, 42 (537 SE2d 370) (2000).


author: McFadden, Judge.

text:
    A11A0422.
    SANDERS v. THE STATE.
    (707 SE2d 538)
   McFadden, Judge.

A jury found Harvey Sanders guilty of (1) aggravated child molestation for placing his mouth on the vagina of minor D. M., (2) child molestation for touching D. M.’s vagina with his hand, (3) child molestation for kissing D. M. on the mouth, (4) aggravated child molestation for placing his penis on the anus of minor L. B., (5) aggravated child molestation for placing his penis in L. B.’s mouth, (6) aggravated child molestation for placing his mouth on L. B.’s vagina, and (7) child molestation for kissing L. B. on the mouth. The trial court entered judgments of conviction and denied Sanders’ motion for a new trial. Sanders appeals, challenging the sufficiency of the evidence. Because there is sufficient evidence to support the jury’s verdicts, we affirm.

1. “ ‘On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.’ [Cit.]” Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

“We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain [whether] the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.” [Cits.]

Vaughn v. State, 301 Ga. App. 391 (687 SE2d 651) (2009).

Viewed in favor of the verdicts, the evidence shows that in 2005, Sanders moved into an apartment with Arashanda Bridges and her daughter, L. B. In 2006, Bridges began dating a co-worker, Juan Musgrove, whose daughter is D. M. Sanders babysat L. B. and D. M. at the apartment when their parents were at work. One evening in December 2006, Sanders called seven-year-old D. M. into a bedroom, where he pulled D. M. on top of him and squeezed her buttocks. He then pushed her onto the bed, removed her pants and underwear, kissed her mouth and chest, touched her vagina with his fingers, placed his mouth and tongue on her vagina, and asked her if she liked it. When he was done, he told D. M. not to tell her parents and said, “I’m a good man.” After the incident, D. M. told L. B. what had happened, and four-year-old L. B. later said that Sanders had done similar things to her. On several occasions since he had moved into the apartment, Sanders kissed L. B. on her mouth and chest, removed her pants and performed oral sex on her, and put his penis in her mouth and on her anus.

The girls told their parents about the incidents and were then interviewed separately by a police detective specializing in molestation cases. The girls reiterated to the detective what they had told their parents, with D. M. saying, among other things, that when Sanders put his mouth on her vagina it felt like “a fish tail moving back and forth,” and L. B. saying that when Sanders touched her bottom with his penis “[i]t hurted.” Both children also underwent forensic medical examinations at a sexual assault center. D. M. had no residual injury, which, according to the nurse who performed the examinations, was consistent with her outcry. L. B. had a “skin tag,” or loose skin, on her anus, which was consistent with trauma from attempted penetration.

(a) Sanders claims that this evidence does not support his conviction for aggravated child molestation of D. M. because during D. M.’s trial testimony, she did not use the word “vagina” when describing the alleged act of oral sodomy, and he further claims that his child molestation conviction for touching D. M.’s vagina with his hand must be reversed because D. M. did not testify about such a touching. However, D. M.’s trial testimony was not the only evidence introduced by the state. Her videotaped interview with the detective was also played for the jury. During that interview, D. M. labeled body parts on a diagram of an adolescent female, clearly indicated that the word she used for vagina was “business,” and stated that Sanders had put his mouth on her business and used his fingers and hands to open her business. “[T]he jury was entitled to consider the victim’s out-of-court statements as substantive evidence under the Child Hearsay Statute, OCGA § 24-3-16. [Cits.]” Lopez u. State, 291 Ga. App. 210, 212 (1) (661 SE2d 618) (2008). Contrary to Sanders’ claims, there is sufficient evidence from which the jury could have found beyond a reasonable doubt that he placed his mouth on D. M.’s vagina and touched her vagina with his hands. See Maddox u. State, 275 Ga. App. 869, 870 (1) (622 SE2d 80) (2005).

(b) As for his child molestation conviction for kissing D. M. on the mouth, Sanders contends that there is no evidence of his sexual arousal. But his sexual arousal is immaterial. Rather, the relevant inquiry is whether he committed the immoral or indecent act “with the intent to arouse or satisfy the sexual desires of either the child or [himself].” (Emphasis supplied.) OCGA § 16-6-4 (a) (1). See Branam v. State, 204 Ga. App. 205 (1) (419 SE2d 86) (1992) (sexual arousal is different question from “intending to receive arousal of . . . sexual desires”). “Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this.” (Citations and punctuation omitted.) Holloway v. State, 268 Ga. App. 300, 301 (2) (601 SE2d 753) (2004). “The intent with which an act is done is peculiarly a question for determination by the jury[.]” (Citations and punctuation omitted.) Branam, supra at 205-206 (1). In making such a determination, “the jury may consider the defendant’s words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. [Cit.]” Phillips v. State, 269 Ga. App. 619, 629 (8) (604 SE2d 520) (2004). Here, the acts of beckoning the child into a private bedroom, putting her on the bed, kissing her mouth and chest and stomach, removing her pants and underwear, touching her vagina with his hands, performing oral sex on her, asking her if she liked it and then pleading with her not to tell her parents, was enough evidence to support the jury’s finding that Sanders had the requisite intent. See Phillips, supra at 629-630; Holloway, supra at 301-302; Branam, supra.

(c) With regard to his four convictions for molesting L. B., Sanders claims that the only evidence was the victim’s testimony. But “ ‘(i)t is well established that in child molestation cases, the victim’s testimony alone is sufficient to support a conviction.’ [Cit.]” Hughes v. State, 297 Ga. App. 581, 582 (1) (677 SE2d 674) (2009). And, contrary to Sanders’ claim, there is evidence other than L. B.’s testimony showing that he molested her, including her out-of-court statements and the medical evidence. See Garduno v. State, 299 Ga. App. 32 (1) (682 SE2d 145) (2009). “Having reviewed all of the evidence in the light most favorable to the verdict, we conclude that the evidence was sufficient to enable a rational trier of fact to find [Sanders] guilty beyond a reasonable doubt of the [crimes] for which he was convicted.” (Citations and punctuation omitted.) Thornton v. State, 306 Ga. App. 47, 48 (701 SE2d 533) (2010).

2. Although Sanders’ enumeration of errors challenges only the sufficiency of the evidence, he further argues that the trial court erred in failing to merge some of the convictions.

Of course, an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors. And we are precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors.

Decided March 8, 2011.

John R. Burdges, for appellant.

Daniel J. Porter, District Attorney, Trade H. Cason, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Scott v. State, 302 Ga. App. 111, 112-113 (1) (b) (690 SE2d 242) (2010). Accordingly, this argument presents nothing for us to review. See Lewis v. State, 263 Ga. App. 98, 99 (1) (587 SE2d 245) (2003).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


author: Blackwell, Judge.

text:
    A11A0583.
    CITY OF ASHBURN v. IVIE MINI WAREHOUSES, INC.
    (707 SE2d 541)
   Blackwell, Judge.

Ivie Mini Warehouses, Inc. owns a building in the City of Ashburn, and this building was damaged when a brick wall, which stood on an adjacent parcel of land, collapsed. Ivie sued the owners of the land on which the brick wall had stood, and in the course of discovery, Ivie learned that the City may have prevented the removal of the wall several months before its collapse. Ivie then added the City as a defendant, claiming that the City was negligent when it prevented the removal of the wall. The City moved for summary judgment because, the City said, Ivie failed to give timely ante litem notice of its claim against the City. The trial court denied this motion, and we allowed immediate review. We conclude that the City was entitled to summary judgment because Ivie did, in fact, fail to give timely ante litem notice of its claim, and for this reason, we reverse the judgment below.

Viewed in the light most favorable to Ivie, Richard and Dottie Weaver owned a parcel of land on which a 33-foot-high brick wall had been erected, and Ivie owned an adjacent parcel of land, on which it maintained a building. On December 15, 2007, the wall collapsed and damaged the neighboring building. Ivie sued the Weavers, and while conducting discovery, Ivie learned in July 2008 that the City may have taken steps in May or June 2007 to prevent the Weavers from removing the wall. On July 25, 2008, Ivie sent a letter to the City, in which it gave notice that it had a claim against the City for damages.

Ivie later amended its complaint and added the City as a defendant. The City moved for summary judgment, contending that Ivie had failed to give the required ante litem notice of its claim within the time permitted by law. The trial court, however, concluded that the time in which ante litem notice must be given did not commence in this case until Ivie learned of the role that the City played in preventing the removal of the wall, and for this reason, the trial court said, the ante litem notice was timely. Accordingly, the trial court denied the motion for summary judgment. The City sought immediate review in this Court, which we allowed, and this appeal followed.

The giving of ante litem notice is a prerequisite to filing a lawsuit against a municipality. Davis v. City of Forsyth, 275 Ga. App. 747 (1) (621 SE2d 495) (2005). Notice of a claim for damages arising from an injury to person or property must be given “[w]ithin six months of the happening of the event upon which [the] claim against a municipal corporation is predicated.” OCGA § 36-33-5 (b). It is undisputed that, to the extent the City did anything to prevent the removal of the wall, it did so in May or June 2007, and it is undisputed that the wall collapsed and damaged the building in December 2007. The City says that the six-month period in which Ivie could have given timely notice of its claim began to run, at the latest, in December 2007. Because it is undisputed that Ivie did not give notice until July 2008, the City contends that the notice was untimely. We agree.

The “event” upon which the claim against the City is predicated was the collapse of the wall, and the “happening of the event” occurred on December 15, 2007. No one disputes that the building was damaged on this date and that Ivie knew almost immediately of the damage to its building. In light of these facts, we think that Ivie was required to give ante litem notice of its claim against the City within six months of December 15, 2007. It did not, and for this reason, its claim against the City is barred by OCGA § 36-33-5.

When it denied the motion for summary judgment, the trial court relied on our decision in City of Forsyth v. Bell, 258 Ga. App. 331 (574 SE2d 331) (2002), and Ivie urges on appeal that its notice was timely under Bell. We do not agree. In Bell, several inmates were assigned to a work detail and tasked with removing debris from a building to a landfill. More than two years after doing this work, the inmates learned that it had exposed them to asbestos, and they promptly gave notice of a claim to the municipality for which they had done the work. The inmates later sued the municipality, contending that it should have warned them of the hazard, and on appeal, we held that the inmates’ ante litem notice was timely. We explained that a failure to warn of a hazard that may cause injury through continuing exposure is a continuing tort, and we said that, in a case involving a continuing tort, the time in which notice must be given “does not begin to run until the victim is warned of the danger, discovers it, or should in the exercise of ordinary care have otherwise learned of it.” Id. at 332.

Decided March 8, 2011.

Robert B. Langstaff, Jr., for appellant.

Ivie says that this case, like Bell, involves a continuing tort because the City not only stopped the Weavers from removing the wall in May or June 2007, but the City prevented the Weavers thereafter from removing the wall until it finally collapsed on December 15. That may be so, but it does not help Ivie here. Even under Bell, it is the plaintiffs discovery of the hazard — not his discovery of the role that the municipality may have played in causing the continued maintenance of the hazard — that triggers the six-month period in which notice must be given. And here, it is undisputed that Ivie had knowledge of the hazard — the danger that the wall might collapse and damage its building — on or about December 15, when the wall did collapse and damage its building. So, even if we treated the alleged role of the City in preventing the removal of the wall as a continuing tort, it would not extend the time by which Ivie was required to give notice, and it does not change the fact that Ivie did not give notice until more than seven months after the wall collapsed.

The City was not given timely ante litem notice of the claim against it, and for this reason, the trial court erred in denying its motion for summary judgment.

Judgment reversed.

Barnes, B J., and Adams, J., concur.

Stephen L. Ivie, for appellee.

       The City denies that it prevented the removal of the wall, but we will accept for the purposes of this appeal that it did.

       On appeal from the denial of a motion for summary judgment, we review the evidence in the record in the light most favorable to the nonmoving party. GC Quality Lubricants v. Doherty, Duggan & Rouse Insurors, 304 Ga. App. 767, 767 (697 SE2d 871) (2010).

       Ivie also relies on several cases involving continuing nuisances, but for the same reasons, its reliance on these cases is misplaced too. To the extent that the continued existence of the wall was a continuing nuisance, the last injury suffered by Ivie as a result of the nuisance occurred on December 15, when the wall collapsed and the nuisance abated.


author: Miller, Presiding Judge.

text:
    A09A1508.
    THE STATE v. PORTER.
    (707 SE2d 546)
    Decided March 9, 2011.

      Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Assistant District Attorney, for appellant.

      Janet W. Hankins, Jimmonique R. S. Rodgers, for appellee.
   Miller, Presiding Judge.

In State v. Porter, 288 Ga. 524 (705 SE2d 636) (2011), the Supreme Court of Georgia reversed the judgment of this Court in State v. Porter, 300 Ga. App. 128 (684 SE2d 299) (2009). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment reversed.

Barnes, P J., and Andrews, J., concur.


author: SMITH, Presiding Judge.

text:
    A10A2046.
    THOMAS et al. v. THE STATE.
    (707 SE2d 870)
   SMITH, Presiding Judge.

Shevon Thomas II and Adrian Thomas (“the appellants”) were jointly indicted on charges of possession of marijuana, possession of marijuana with intent to distribute, possession of a firearm during the commission of a crime, and criminal use of an article with an altered identification mark. They pled not guilty, and their trial began on October 26, 2009. A mistrial was declared during the testimony of the State’s first witness. The appellants then filed a plea in bar alleging that because the prosecutor goaded the witness into commenting on Adrian Thomas’s right to remain silent, they could not be retried. Following a hearing, the trial court denied the plea in bar, prompting this appeal. For the following reasons, we affirm.

1. The appellants first complain that the trial court erred in finding that their notice of appeal was filed prematurely. The appellants filed their notice of appeal on April 22, 2010, but the trial court’s order was not filed until May 14, 2010. “A prematurely filed notice of appeal is treated as effective upon the filing of the order or judgment appealed.” In the Interest of J. D. A., 267 Ga. App. 103 (598 SE2d 842) (2004). Therefore, the appellants have shown no harm in the trial court’s finding as their notice of appeal has since become timely. See id.

2. In several enumerations, the appellants complain of the trial court’s findings and rulings with regard to the denial of their plea in bar. But in the absence of the trial transcripts, we must affirm.

The record reveals that, although the appellants’ notice of appeal states that “a transcript of evidence is to be included with the record on appeal,” no transcripts of the trial were filed with the trial court. On July 19, 2010, this court granted the appellants’ motion to supplement the record with “the transcript of Officer Kris Sutton, the transcript labeled Partial Transcript from trial, and the transcript labeled Jury Trial from October 26, 2009 through October 28, 2009.” But on July 23, 2010, we vacated the grant of that motion after review of the State’s motion for reconsideration arguing that it is the appellants’ responsibility to ensure that the transcript is filed in the trial court. On August 10, 2010, the court reporter filed a letter addressed to the deputy court clerk supervisor stating that he advised trial counsel on June 1, 2010, that the trial transcripts were available upon payment, and that as of August 4 he was still awaiting further action from trial counsel.

OCGA § 17-8-5 (b) provides that

[i]n the event that a mistrial results from any cause in the trial of a defendant charged with the commission of a felony, the presiding judge may, in his discretion, either with or without any application of the defendant or state’s counsel, order that a brief or transcript of the testimony in the case be duly filed by the court reporter in the office of the clerk of the superior court in which the mistrial occurred.

It is clear from the record here that the trial court chose not to order that the trial transcripts be filed. It was therefore appellants’ responsibility to pay for and obtain the transcripts for filing with the clerk of the trial court. See id. Because the appellants have failed to have the trial transcripts filed with the trial court, and they are essential to this court’s review of the issues related to the appellants’ plea in bar, we must assume the trial court’s judgment was correct and affirm. See Quarterman v. Lee, 291 Ga. App. 603, 603 (662 SE2d 234) (2008); Wright v. State, 215 Ga. App. 569, 570 (2) (452 SE2d 118) (1994).

3. The appellants argue that the trial court erred in its finding that the trial transcripts referenced during the plea in bar hearing were not before the trial court as evidence. But as we have held in Division 2, it was the appellants’ duty to cause the transcript to be prepared and filed for review following the mistrial. Because the appellants failed to do so, we cannot say that the trial court erred in its finding.

Decided March 9, 2011

Marsha W. Mignott, Tony Hedge, for appellants.

Tracy Graham-Lawson, District Attorney, Anece Baxter White, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       The appellants claim that payment was mailed to the court reporter.

       We note that the appellants do not claim that they are indigent and did not move for a free transcript. See Miller v. State, 231 Ga. App. 869, 869 (1) (501 SE2d 42) (1998).


author: Adams, Judge.

text:
    A10A2220.
    DYE v. MECHANICAL ENTERPRISES, INC.
    (708 SE2d 24)
   Adams, Judge.

Plaintiff/appellant William G. Dye brought suit against his former employer, Mechanical Enterprises, Inc. (“MEI”) seeking to recover $127,185.91 in commissions he alleged he was owed pursuant to his contract with MEI and OCGA § 10-1-700 et seq. He also sought attorney fees and expenses of litigation. MEI answered, admitting that Dye had the opportunity while employed there to earn “additional compensation” but denying that any commissions were due and owing to him. Mechanical filed a motion for summary judgment, and the trial court granted the motion following a hearing. Dye appeals.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. Applying a de novo standard of review, we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation and footnote omitted.) Mathews v. Marietta Toyota, 270 Ga. App. 337 (606 SE2d 862) (2004).

Construed in the light most favorable to Dye as the non-movant, the record shows the following pertinent facts: Dye negotiated the terms of his employment with Philip Allgood, the president and CEO of MEI. Pursuant to their negotiations, Allgood sent Dye a letter confirming his compensation as follows: “Due to our current cash flow situation, your starting salary will be $55,000 per year, . . . and a monthly commission on shipped transportation sales in accordance with the MEI Sales Policy.” Dye admitted in his deposition that the MEI Sales Policy referenced in the letter “was a policy yet to be written,” and that, pursuant to his discussions with Allgood, the intent was to write a policy that provided more consistency concerning how commissions were computed for sales representatives.

Dye further testified that pursuant to the letter and the parties’ oral negotiations prior to his employment, the term “shipped transportation sales” referred to “any product shipped by MEI for use in transportation” and that his commissions were due at the time the product was delivered to the customer, not the time payment was received from the customer, as was the practice for other sales representatives. He said this was an incentive Allgood offered to ensure that Dye was paid more than the $55,000 salary. He also testified that he was entitled to commissions for all transportation sales that were shipped, whether he generated the sale or not. Additionally, he testified that he and Allgood orally agreed his commission rate would be five percent, and that there was a history at MEI of paying sales representatives five percent commissions, although he also admitted that not all salespersons were paid at that rate. And as further evidence of his five percent commission rate, he also introduced a handwritten note made during a telephone conversation he had with Allgood prior to his employment which contains the notation “5% first year,” as well as documents he contends showed a five percent commission was automatically entered when estimating pricing. Dye testified that while he was entitled to be paid the commissions he had earned on a monthly basis, he never submitted a request for payment while he was employed at MEI because the company was barely making payroll and he was paying expenses out of his own pocket. He also testified that he and Allgood discussed the fact that he would defer his commissions prior to his coming to work at MEI, and that after he came to work at the company Allgood “continuously” reminded him that he had commissions coming because Allgood was concerned that he would leave the company.

Allgood testified that Dye was hired as Vice President of Sales of MEI, and that he was hired to bring in new accounts and new products as well as overseeing the other sales representatives. Allgood testified that the letter reflected the terms under which Dye was hired, including their agreement concerning sales commissions, which was to be in accordance with MEI Sales Policy. As to that policy, Allgood testified that in early June, several months before Dye was hired, the company had decided to standardize the commission agreements for all sales representatives hired after that date because the varying commissions agreements with different sales representatives had become a management problem. He testified that at the time Dye was hired, this sales “policy” was in writing but only in outline form and that he told Dye that one of his first duties would be to put the outline into a formal written policy. He said that under that sales policy, a salesperson would be paid a ten percent commission on any new products for the first year, five percent on existing sales for the second year, and three percent “retainage” on mature sales. He said the policy was meant to be a “driver” for new sales. However, Allgood acknowledged that even after the uniform sales policy was instituted, certain employees negotiated separate agreements and were not paid in accordance with that policy. The evidence further shows that following his termination, Allgood sent Dye a letter clarifying his position; in that letter he stated, inter alia, that when Dye was hired, it was under a salary “cap” of $55,000 in effect at that time, “plus a commission on new sales.” The letter further stated that Dye was entitled to commissions on two new accounts, but at the rate of 1.5 percent instead of 5 percent because those sales were to distributors at significantly reduced prices, and that it had never been MEI’s policy to pay a five percent commission on sales to distributors.

Based on the foregoing and other evidence of record, it appears undisputed in this case that the parties intended for Dye to be paid a commission. The question then is whether, as MEI contends, that agreement was unenforceable because the letter setting forth the terms of employment did not contain a formula to compute the commission.

In support of its argument that the agreement here was unenforceable, MEI relies on Arby’s, Inc. v. Cooper, 265 Ga. 240, 241 (454 SE2d 488) (1995), and like cases, which state the general rule that “[t]o be enforceable, a promise of future compensation must be made at the beginning of the employment. . . . However, the promise of future compensation must also be for an exact amount or based upon a formula or method for determining the exact amount of the bonus.” (Citation and punctuation omitted; emphasis in original.) Thus, in Arby’s, we held that promise to pay an annual bonus that was based partly on a formula and partly in the discretion of the employer was unenforceable. Id. However, in this case, it appears to us that there was no element of discretion concerning whether Dye would be paid a commission. Further, it appears to us that the only dispute here concerns how those commissions would be computed, and that the evidence was in conflict concerning how the parties agreed the commission would be calculated under the terms of the agreement.

The test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon. Moreover, it is unnecessary that a contract state definitively and specifically all facts in detail to which the parties may be agreeing, but as to such matters, it will be sufficiently definite and certain if it contains matters which will enable the courts, under proper rules of construction, to ascertain the terms and conditions on which the parties intended to bind themselves. (Citations and punctuation omitted.) Pacrim Assoc, v. Turner Home Entertainment, 235 Ga. App. 761, 764 (1) (510 SE2d 52) (1998). “The cardinal rule of contract construction is to ascertain the intention of the parties.” . . . Sharpie v. AirTouch Cellular of Georgia, 250 Ga. App. 216, 218 (551 SE2d 87) (2001). Thus, where a contract is ambiguous, “parol evidence may be offered to show the intent of the parties” (Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438, 439 (1) (292 SE2d 84) (1982)), and the question of what the parties intended becomes a factual issue for the jury. Jones u. Hill, 246 Ga. App. 194, 196 (539 SE2d 893) (2000). This rule reflects the “well settled . . . policy of the law . . . against the destruction of contracts on the ground of uncertainty if it is possible in the light of the circumstances under which the contract was made to determine the reasonable intention of the parties.” (Citations and punctuation omitted.) McLean v. Continental Wingate Co., 212 Ga. App. 356, 358 (1) (442 SE2d 276) (1994).

Kerwood v. Dinero Solutions, LLC, 292 Ga. App. 742, 745 (666 SE2d 40) (2008).

In this case, the evidence and all reasonable inferences showed that the parties agreed Dye would be paid a commission and that an agreement was reached as to how that commission would be computed. The fact that the evidence concerning the method they agreed upon is conflicting did not render the agreement unenforceable, but instead required that this issue be submitted to a jury for resolution. The trial court’s order granting summary judgment to MEI is accordingly reversed. Id. at 745-746 (summary judgment not proper although variable compensation clause in a contract did not contain a set formula, employee testified that an attachment to the contract contained the calculation method and parties’ past dealings tended to prove they understood how to compute the percentage of profits the employee was entitled to for his services); Danfair Properties, Inc. v. Bowen, 222 Ga. App. 425, 426 (474 SE2d 295) (1996) (motion for directed verdict properly denied because fact that the employer contested whether there was a meeting of the minds on the terms of the bonus under an oral contract required that the issue be presented to the jury); McLean v. Continental Wingate Co., 212 Ga. App. 356, 358 (1) (442 SE2d 276) (1994) (noting that it is not necessary for a contract to state all details of the agreement and that agreement to pay particular percentage of net profits is enforceable even though contract did not state method of calculating those profits when parties’ past dealing established the method to be used); see also Moreland v. Traffic Masters, 225 Ga. App. 244, 246 (483 SE2d 368) (1997) (conflicting evidence as to whether employee under oral employment agreement had earned a certain commission precluded summary judgment). Cf. Mathews v. Marietta Toyota, 270 Ga. App. at 340 (promise to pay “fair” bonus unenforceable); Edwards v. Central Georgia HHS, 253 Ga. App. 304, 306 (558 SE2d 815) (2002) (undisputed evidence shows definite method for calculating bonus was never established); Moore v. BellSouth Mobility, 243 Ga. App. 674, 676 (1) (534 SE2d 133) (2000) (oral promise to promote not enforceable by an at-will employee).

Decided March 9, 2011

Strickland, Brockington & Lewis, Mary M. Brockington, Jonathan R. Poole, for appellant.

Moorman & Pieschel, Christopher G. Moorman, for appellee.

Judgment reversed.

Smith, P. J., and Mikell, J., concur.

       MEI also counterclaimed seeking damages for computer theft, computer trespass and conversion as well as attorney fees and expenses of litigation. MEI dismissed this counterclaim without prejudice after it was granted summary judgment.

       He clarified that a “new” product included a product sold to an existing customer that had never purchased that product before.


text:
    A10A2272.
    DUKE GALISH, LLC et al. v. MANTON.
    (707 SE2d 555)
   Mikell, Judge.

This is the second appearance of this case before this Court. In Duke Galish, LLC v. Manton (“Manton I”), we affirmed the grant of summary judgment to appellee John E “Jack” Mantón and others on the claims for tortious interference with contract and fraud brought by Duke Galish, LLC and Lanier Lodge, Inc. (“Lanier”). Lanier also brought a breach of contract claim against Mantón, which remained pending in the trial court. Following Mantón I, the trial court granted summary judgment to Mantón on the breach of contract claim. Lanier appeals. We reverse, but we hold that Lanier is limited to recovering nominal damages.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” “On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.”

Certain relevant facts are set out in Mantón I. Lanier, which was co-owned by the Anglin family and Mantón, operated a motel in Forsyth County. In 1996, Lanier refinanced the motel property by obtaining a $2,000,000 loan from Bank of North Georgia (“BNG”). In 2001, Mantón sold his interest in Lanier to Anglin for $75,000 in cash and a $415,000 promissory note, which was secured by a second priority security interest in the motel property. Lanier ceased operating the motel in January 2003 and defaulted on its financial obligations. Mantón sued Lanier and the Anglins for breach of the promissory note in the Superior Court of Forsyth County (the “Forsyth Litigation”). BNG then accelerated Lanier’s debt, and Lanier filed a Chapter 11 bankruptcy petition to avoid foreclosure.

On November 20, 2003, Mantón filed a proof of claim in the bankruptcy court showing that he was owed $479,620.16 on the promissory note and that his claim was the subject of the pending Forsyth Litigation. Thereafter, as we noted in Mantón I, “[o]n March 9, 2004, the superior court in the Forsyth Litigation entered a consent judgment under which Mantón agreed to a full settlement of his claims on the promissory note if the Anglins paid him $400,000 within 120 days (the ‘Consent Judgment’)-”

After the Consent Judgment was entered, Lanier filed a motion in the bankruptcy court seeking permission to sell the motel property to Duke Galish, a company also owned by the Anglins, for $1,700,000. The purchase agreement that was attached to the motion “contained several conditions, including that the purchase was ‘specifically subject to Duke Galish being able to obtain a building permit for modifying the existing premises into office premises.’ ” While the motion was pending, Lanier asked BNG and Mantón to provide written confirmation of the payoff amounts on their secured claims. “Mantón replied that he was standing firm on his original proof of claim for the full amount owed under the promissory note, minus the $50,000 already paid to him by the Anglins under the Consent Judgment.” BNG submitted a payoff amount of $1,121,151.15, but later filed a proof of claim which raised that amount by $145,000. Lanier did not file an objection to BNG’s or Manton’s proof of claim.

The trustee opposed the sale for numerous reasons, including Lanier’s failure to satisfy the contingency in the agreement requiring it to obtain a building permit to redevelop the motel property. In addition, the trustee determined that the price was not enough to pay off the secured creditors’ claims and produce any return for the bankruptcy estate. Ultimately, Lanier’s case was converted to Chapter 7, and the automatic stay was lifted. BNG foreclosed on the motel property.

The next month, Mantón facilitated a deal whereby Forsyth County bought the motel property from BNG and later redeveloped it into a juvenile courthouse and government office complex. The sale closed on August 27, 2004, and Mantón was paid a consultation fee.

Duke Galish and Lanier then filed the underlying action against Mantón and BNG, alleging fraud, tortious interference with the purchase agreement, and breach of contract against Mantón. In Mantón I, we affirmed the grant of summary judgment to Mantón and BNG on the fraud and tortious interference claims, holding that “appellants failed as a matter of law to show that the alleged misconduct proximately resulted in their failure to consummate the contract of sale.”

Presently before us is the grant of summary judgment to Mantón on Lanier’s breach of contract claim. In that count, Lanier alleges that the Consent Judgment constituted a contract for settlement of all claims pending between all the parties to the Forsyth Litigation; that Manton’s act of maintaining a proof of claim in the bankruptcy court for an amount that exceeded the settlement constituted a breach of contract; and that as a “direct and proximate result” of Mantón “falsely” maintaining the proof of claim, Lanier was damaged by no less than $1,600,000. The trial court concluded that Lanier was not a party to the Consent Judgment and therefore could not maintain an action against Mantón for breach of its terms.

1. Lanier argues that the trial court erred in determining that it was not a party to the Consent Judgment. We agree.

The Consent Judgment states that it “shall supersede all pleadings previously filed in this civil action”; that Mantón “is granted judgment on his Complaint for Breach of Contract against [the Anglin defendants] in the amount of $475,609.04”; that “[t]here is no entry of judgment at this time against Defendant Lanier Lodge, Inc., since this defendant is in the midst of a bankruptcy proceeding”; and that “[i]n lieu of collecting upon the full judgment amount. . . , Mantón shall accept payment from defendants pursuant to” certain terms and conditions. The terms required the Anglins to pay Mantón $50,000 prior to entry of the judgment and $350,000 within 120 days, as well as to dismiss with prejudice all counterclaims and a pending appeal. All defendants, including Lanier, dismissed their counterclaims with prejudice.

“A consent judgment is a contract and, therefore, must be interpreted like any other contract. As in all contracts, the cardinal rule of construction of a consent agreement is to determine the intent of the parties.”

Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Such a contract is the only evidence of what the parties intended and understood by it. Parol evidence is not admissible to contradict or construe an unambiguous contract. Parol evidence is only admissible when any ambiguity cannot be resolved through the application of the rules of contract construction and when such unresolved ambiguity must be resolved by a jury as a matter of disputed fact. The existence or nonexistence of ambiguity in a contract is a question of law for the court.

“Ambiguity in a contract is defined as duplicity, indistinctness or an uncertainty of meaning or expression.” The Consent Judgment is ambiguous; it states in Paragraph 3 that there is no entry of judgment “at this time” against Lanier, and it refers only to the Anglins collectively as “defendants.” We apply the rules of contract construction to resolve these ambiguities. Although “[pjarol evidence is inadmissible to add to, take from, or vary a written contract!, a]ll the attendant and surrounding circumstances may be proved and, if there is an ambiguity, latent or patent, it may be explained.” In addition, “[a]ll contemporaneous writings shall be admissible to explain each other.” And, a court should construe a contract to “give a reasonable, lawful and effective meaning to all manifestations of intention by the parties.” No contractual provision should be rendered meaningless, nor any of its terms mere surplusage.

Applying these guidelines, we conclude that Lanier is a party to the Consent Judgment. We construe the phrase that judgment is not entered against Lanier “at this time” because it is in bankruptcy to imply that the entry of judgment is contemplated at a later time; otherwise the term would be rendered meaningless. The surrounding circumstances show that Lanier filed a dismissal of its counterclaim with prejudice contemporaneously with the filing of the Consent Judgment, thereby manifesting an understanding that it was included in, and obligated by, the Consent Judgment. Although Mantón argues that Lanier’s unilateral intention is irrelevant, we disagree. “The intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.” Lanier’s intention, demonstrated by its performance of a contractual term, is controlling. For this reason, the trial court erred in concluding that Lanier was not a party because only the Anglins were included in the collective term “defendants.” Lanier is listed as a defendant in the style of the case on the face of the Consent Judgment. The preamble expressly refers to “the parties having reached an agreement for the entry of a judgment as reflected by their consent below.” It is true that, “[u]nder general rules of contract construction, a limited or specific provision will prevail over one that is more broadly inclusive.” But even if the word “parties” is more broadly inclusive than the word “defendants,” as defined by the Consent Judgment, the attendant circumstances and contemporaneous dismissal compel the conclusion that Lanier is a party to the Consent Judgment. Accordingly, Lanier was a party thereto, and the trial court erred in ruling otherwise.

2. “The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” Having determined that Lanier was a party to the Consent Judgment, we must determine whether there is any evidence that Mantón breached it. There is evidence, reflected in Mantón 7 and in affidavits of counsel, that after the Consent Judgment was entered, Mantón maintained the position in the bankruptcy court that he was owed the total amount of his original claim, less $50,000 already paid. However, the trial court’s order entered on April 30, 2007, recites that there was no evidence at that time that Mantón was paid more than $50,000. The Consent Judgment required the remaining $350,000 payment to be made within 120 days of March 9, 2004, and stated that, “[i]n the event defendants fail to fully carry out the terms and conditions . . . , Plaintiff Mantón shall be entitled to enforce and collect upon this Consent Judgment for the full Judgment Amount as set forth [herein].” Although Lanier asserts in its brief that the full amount of the Consent Judgment has been paid, Lanier has not supported this assertion by citation to the record, and we will not consider it.

Mantón has not addressed this issue in its brief. If, in fact, final payment was not timely made, then Mantón did not breach the Consent Judgment by maintaining a proof of claim in the bankruptcy court for the full amount owed thereunder. Nevertheless, on summary judgment, we must construe the evidence most favorably to Lanier as the nonmovant, and we are not empowered to engage in factfinding. As such, it appears that questions of fact remain on this issue, and summary judgment was improperly granted to Mantón.

3. Nevertheless, even if Lanier is able to prove a breach by Mantón, Lanier cannot show actual damages and is limited to recovering nominal damages.

Lanier asserts in its complaint that as a “direct and proximate result of the breaches of Defendant Mantón in falsely maintaining the proof of claim after settling the claims in the Forsyth County Litigation, Lanier has been damaged in an amount to be determined by the trier of fact but in no event less than $1.6 million dollars.” This claim is foreclosed by Mantón I, where we held as follows:

[A]ppellants cannot establish that the appellees’ allegedly fraudulent secured creditor claims proximately resulted in the failure to consummate the Purchase Agreement. As noted, the Purchase Agreement provided that the purchase of the Motel Property was “specifically subject to [Duke Galish] being able to obtain a building permit for modifying the existing premises into office premises from all appropriate governmental authorities.” But, the appellants have failed to come forward with any evidence to show that this contingency was or could have been met. Indeed, at the Chapter 7 creditors’ meeting, the Anglins noted that building permits for the redevelopment of the Motel Property into office condominiums had not been obtained. And, the trustee was unwilling to accept any offers to purchase the Motel Property that had any remaining contingencies. Given this uncontroverted record, it is clear that even if the appellees had not purportedly inflated their secured claims, the sale of the Motel Property to Duke Galish would not have occurred due to the unfulfilled building permit contingency.

Decided March 9, 2011.

Perrell & Wright, Charlotte K. Perrell, for appellants.

Cook, Noell, Tolley & Bates, Edward D. Tolley, Ronald E. Houser, for appellee.

Mantón I, which is binding precedent, establishes that regardless of Manton’s proof of claim, the sale to Duke Galish would not have occurred, precluding Lanier’s recovery of actual damages on its breach of contract claim. However, in the event that a jury decides that Mantón breached the Consent Judgment, Lanier may recover nominal damages. “In every case of breach of contract the injured party has a right to damages, but if there has been no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action.” Although Lanier’s complaint sought only actual damages, “it is not necessary to pray specifically for general or nominal damages in order to present a question for the jury as to nominal damages.”

Judgment reversed.

Adams, J., concurs. Smith, P. J., concurs and concurs in the judgment only in Divisions 2 and 3.

       291 Ga. App. 827 (662 SE2d 880) (2008).

       Id.

       Id. at 831, n. 1.

       (Citation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Citation, punctuation and footnote omitted.) Radha Krishna, Inc. u. Desai, 301 Ga. App. 638 (689 SE2d 78) (2009).

        Mantón I, supra at 828.

       Id. at 829.

       (Punctuation omitted.) Id. at 829.

       Id.

       Id. at 830.

       Id.

       Id. at 830-831.

       Id. at 827.

       (Punctuation and footnote omitted.) Dept, of Transp. v. Gilbert’s Auto Sue., 301 Ga. App. 419, 422 (687 SE2d 659) (2009), citing Brown & Williamson Tobacco Corp. v. Gault, 280 Ga. 420, 424 (3) (627 SE2d 549) (2006).

       (Citations, punctuation and footnotes omitted.) Safe Shield Workwear v. Shubee, Inc., 296 Ga. App. 498, 501-502 (3) (675 SE2d 249) (2009).

       (Citation omiited.) Horwitz v. Weil, 275 Ga. 467, 468 (569 SE2d 515) (2002).

       OCGA § 13-2-2 (1); accord Thomas v. B & I Lending, 261 Ga. App. 39, 42 (1) (581 SE2d 631) (2003).

       OCGA § 24-6-3 (a); Baker v. Jellibeans, Inc., 252 Ga. 458, 459 (1) (314 SE2d 874) (1984); Duke v. KHD Deutz of America Corp., 221 Ga. App. 452 (471 SE2d 537) (1996).

       (Citations and punctuation omitted.) Rice v. Huff, 221 Ga. App. 592, 593 (1) (472 SE2d 140) (1996).

        Pomerance v. Berkshire Life Ins. Co. &c., 288 Ga. App. 491, 494 (1) (654 SE2d 638) (2007) (physical precedent only). Accord Northwest Plaza v. Northeast Enterprises, 305 Ga. App. 182, 189 (1) (699 SE2d 410) (2010).

       OCGA § 13-2-4; Harris v. Distinctive Builders, 249 Ga. App. 686, 688 (1) (549 SE2d 496) (2001).

       (Punctuation and footnote omitted.) Lay Bros., Inc. v. Golden Pantry Food Stores, 273 Ga. App. 870, 872-873 (1) (616 SE2d 160) (2005).

       Our ruling comports with prior rulings by the trial court. In an order entered on August 11, 2005, denying Manton’s motion for summary judgment, the court found that the Consent Judgment was “clear and unambiguous” and that “no claims remained as to Defendant [Lanier] upon which Plaintiff could move for summary judgment.” In an order entered in 2007, which was affirmed in Mantón I, the trial court found that “[u]nder the terms of the Consent Judgment, [Mantón] agreed to receive $400,000 within 120 days as full settlement of the claims - if Anglin performed fully under the terms of the Consent Judgment then such performance would operate ... as an accord and satisfaction.” The court also ruled that, at the time, there was no evidence that Mantón was paid more than $50,000, so he was still a judgment creditor of Lanier in the amount of $350,000 and was entitled to file a proof of claim in the bankruptcy court.

       (Citation omitted.) Kuritzky v. Emory Univ., 294 Ga. App. 370, 371 (1) (669 SE2d 179) (2008).

       Supra at 829.

       See Dodson v. Dean, 256 Ga. App. 4, 5, n. 1 (567 SE2d 348) (2002).

       See Radha Krishna, supra at 641 (2).

       See, e.g., Hallisey v. Fort Howard Paper Co., 268 Ga. 57, 59 (1) (484 SE2d 653) (1997) (appellate court does not find the facts).

       See, e.g., Golden Peanut Co. v. Bass, 249 Ga. App. 224, 230 (1) (547 SE2d 637) (2001), aff d, 275 Ga. 145 (563 SE2d 116) (2002) (what constituted jury questions with regard to accord and satisfaction).

       (Citations and footnote omitted.) Mantón I, supra at 832-833 (1).

       Pursuant to OCGA § 9-11-60 (h), “any ruling by . . . the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in . . . the Court of Appeals.” See IH Riverdale v. McChesney Capital Partners, 292 Ga. App. 841, 843 (666 SE2d 8) (2008).

       OCGA § 13-6-6. See Brock v. King, 279 Ga. App. 335, 341 (3) (629 SE2d 829) (2006), affd, 282 Ga. 56 (646 SE2d 206) (2007).

       (Citations and punctuation omitted.) Brock, supra at 342 (3), n. 22.


author: BARNES, Presiding Judge.

text:
    A10A2315.
    BARBEE v. THE STATE.
    (707 SE2d 550)
   BARNES, Presiding Judge.

A jury convicted Robert Barbee of three counts of burglary. Barbee appeals from the denial of his motion for a new trial, contending that the trial court erred (a) in overruling his objection to a detective’s testimony regarding the frequency with which fingerprint evidence is obtained in burglary investigations; (b) in denying his motion to strike the detective’s testimony concerning a pry bar found in his vehicle; (c) in recharging the jury regarding recent possession of stolen property; and (d) in treating his three prior felonies from Tennessee as separate offenses for purposes of sentencing him as a recidivist. For the reasons set forth below, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. Gordon v. State, 294 Ga. App. 908 (1) (670 SE2d 533) (2008). So viewed, the evidence showed that the victim owned a residence on several acres of property in Catoosa County. In addition to the residence, the property had two outbuildings — a small storage shed and garage. The residence and two outbuildings contained numerous tools and equipment owned by the victim, who was a general contractor and was in the process of remodeling his residence.

On the evening of September 30, 2006, the victim left his residence and spent the night away from home. The following morning, October 1, 2006, the victim returned to his residence, but noticed that the garage door, which he had locked before leaving the previous evening, was open. The victim immediately ran into his residence, where he realized that his tools and equipment were missing and that the back door was “ripped completely out of the frame.” Upon further investigation, the victim saw that the two outbuildings also had the doors torn from the frames and that property was missing from both of those buildings as well. The victim called the police and reported that his residence and two outbuildings had been burglarized.

Earlier that morning, an undercover officer with the East Ridge, Tennessee Police Department who had been conducting surveillance of a hotel became suspicious of a vehicle that kept entering and exiting from that location. The officer followed the vehicle and initiated a traffic stop upon noticing that Barbee, the driver, was not wearing his seatbelt. After stopping Barbee for the seatbelt violation, the officer discovered “a large number of tools and power equipment, along with plumbing fittings, electrical wire and copper tubing” in the vehicle. The officer also found a large black pry bar. The officer inventoried the contents of Barbee’s vehicle and contacted surrounding law enforcement agencies regarding recent thefts of similar items.

That same day, a detective with the Catoosa County Sheriffs Department was assigned to investigate the burglary of the victim’s residence. As part of his investigation, the detective identified pry marks at the point of entry to the victim’s residence and noticed that the hinges on the doors to the two outbuildings had been pried off. The detective also had the victim compile a list of tools and equipment that had been stolen. The final list was seven pages long and included tools and equipment worth a total of $28,000.

During his investigation, the detective received information from the East Ridge Police Department regarding the traffic stop and items seized from Barbee’s vehicle. The detective and victim traveled together to the East Ridge Police Department’s impound lot where Barbee’s vehicle and the items found in it were being held. The victim identified the items in Barbee’s vehicle as some of the property stolen from him. The victim also provided serial numbers for some of his stolen property that matched the serial numbers of items found in Barbee’s vehicle.

Barbee was indicted and tried on three counts of burglary. The victim, undercover officer, and detective testified to the events as set out above. Barbee did not testify or present any witnesses on his own behalf. After hearing all of the evidence, the jury convicted Barbee of the charged offenses.

1. Although not enumerated as error, we conclude that the evidence discussed above was sufficient to authorize a rational jury to find Barbee guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA § 16-7-1 (a). “Once it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods[.]” (Citations omitted.) High v. State, 282 Ga. 244 (1) (647 SE2d 270) (2007). Furthermore, “[questions concerning the weight of the evidence and credibility of the witnesses were for the jury to decide.” Johnson v. State, 289 Ga. App. 206, 208 (656 SE2d 861) (2008).

2. On direct examination by the State, the detective testified that he was unsuccessful in lifting any useable fingerprints from the victim’s residence or the two outbuildings. The detective then was asked how many fingerprints he had been able to lift successfully in the approximately 600 burglaries he had investigated over the course of his career. Barbee objected on relevancy grounds, and the trial court overruled the objection. The detective testified that he had submitted only one set of fingerprints to the crime lab over that time and had obtained only one successful match.

Barbee argues that the trial court erred in permitting the detective to testify regarding the frequency with which he had successfully obtained fingerprint evidence in burglary investigations. We discern no reversible error. In Key v. State, 146 Ga. App. 536 (3) (246 SE2d 723) (1978), we held that a detective’s testimony regarding the percentage of cases he had worked where fingerprints were not obtained, even if erroneously admitted, constituted harmless error. Because the detective’s testimony “did not establish the commission of an independent crime nor connect the defendant with committing it,” we reasoned that it was highly improbable that the alleged error contributed to the verdict. Id. Since the detective’s testimony in the instant case was not materially different from that of the detective’s in Key, we likewise conclude that any error in the admission of the testimony was harmless.

3. The detective also testified that after the victim identified the items in Barbee’s vehicle as some of his stolen property, the East Ridge Police Department turned over the items to the detective. According to the detective, one of the items turned over to him was a large black pry bar. The State did not introduce the pry bar into evidence. Later in his testimony, the detective admitted that he made a mistake in how he handled the pry bar after it was turned over to him and that the notations in his file were incomplete as to chain of custody. Barbee then moved to strike the detective’s testimony regarding the pry bar found in the vehicle due to the State’s failure to establish chain of custody. The trial court denied Barbee’s motion.

Barbee maintains that the trial court erred in denying his motion to strike the detective’s testimony concerning the pry bar found in his vehicle. Again, we discern no reversible error. Later during the trial, the East Ridge undercover officer testified, without objection, that a large black pry bar was found in Barbee’s vehicle and turned over to the Catoosa County detective. Thus, pretermit-ting whether the detective’s testimony was improper, we conclude that “any error in its admission was harmless because the testimony was cumulative of other testimony later admitted without objection.” Bridges v. State, 293 Ga. App. 783, 785 (2) (668 SE2d 293) (2008).

4. As part of its jury charge, the trial court instructed the jury on the inference that a jury is permitted, but not required, to draw from a defendant’s recent, unexplained possession of stolen property. During deliberations, the jury twice requested clarification regarding this instruction. In response to each request, the trial court recharged the jury as to the recent, unexplained possession of stolen property, and further instructed the jury not to place any additional weight in the recharge and to consider the court’s legal instructions in their totality.

Barbee contends that the trial court erred in twice recharging the jury regarding recent, unexplained possession of stolen property. He does not assert that the recharges were incorrect statements of the law, but that the repetition of the charge itself was error. We disagree.

“[T]his Court has traditionally deferred to the sound discretion of trial court judges in matters concerning the scope of a requested recharge[.]” (Footnote omitted.) Duffie v. State, 273 Ga. 314, 316-317 (3) (540 SE2d 194) (2001). And

[a] mere repetition of a principle of law . . . will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the defendant’s rights. Mere repetition of a correct and applicable principle of law is not such error as requires reversal unless it takes color of an argumentative or opinionative utterance so as to tend to prejudice the minds of the jury.

(Citations and punctuation omitted.) Bradford v. State, 202 Ga. App. 724, 725 (2) (415 SE2d 697) (1992).

Here, the trial court’s repetition of the recent possession charge was in direct response to specific inquiries from the jury and was accompanied by admonitions to not place additional weight on the recharges in isolation. Our review of the recharges leads us to conclude that the trial court did not make an “argumentative or opinionative utterance,” but rather addressed the jury in a neutral manner aimed at resolving any confusion that had arisen during deliberations. Accordingly, the trial court acted within its discretion in twice recharging the jury on the recent, unexplained possession of stolen property. See Martis v. State, 305 Ga. App. 17, 21-22 (3) (699 SE2d 349) (2010) (trial court did not abuse its discretion in recharging jury, where court charged the jury three separate times on the concept of parties to a crime based upon repeated questions from the jury); Bradford, 202 Ga. App. at 725 (1) (no abuse of discretion by the trial court in recharging the jury twice regarding conspiracy).

5. At the sentencing hearing, the State introduced certified copies of Barbee’s three prior felony convictions from the Criminal Court of Hamilton County, Tennessee in aggravation of sentence. Based upon these convictions, the trial court sentenced Barbee as a recidivist under OCGA § 17-10-7 (c).

Although there was no Tennessee court order expressly consolidating the three prior felony offenses for a single trial, Barbee claims that the trial court erred in sentencing him as a recidivist because the prior offenses were “consolidated for trial” for purposes of OCGA § 17-10-7 (d) and should have been treated as one prior felony for purposes of sentencing. We are unpersuaded.

Decided March 9, 2011.

Samuel F. Robinson III, for appellant.

Under OCGA § 17-10-7 (c), any person with three prior felony convictions who commits a subsequent felony must “serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.” However, OCGA § 17-10-7 (d) provides in pertinent part: “For the purpose of this Code section, conviction of two or more crimes charged ... in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.” In determining whether crimes have been consolidated for trial for purposes of OCGA § 17-10-7 (d), courts must look to the totality of the circumstances. Head v. State, 253 Ga. App. 757, 759 (3) (560 SE2d 536) (2002).

The trial court correctly concluded that Barbee’s three prior offenses were not consolidated for trial under OCGA § 17-10-7 (d). The three prior crimes involved different victims, and each conviction had a separate case number, indictment, and sentencing order. Under these circumstances, the record reflects that there was no consolidation. See Self v. State, 288 Ga. App. 77, 79 (2) (653 SE2d 787) (2007); Harper v. State, 270 Ga. App. 376, 380 (3) (606 SE2d 599) (2004); Head, 253 Ga. App. at 759 (3). Compare Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487) (1985) (prior offenses were consolidated for trial where they “were pleaded to and sentenced in one order with one sentence”).

Barbee emphasizes that he completed and submitted to the same Tennessee trial judge one “Petition to Enter Plea of Guilty” for the three prior offenses, and that the trial judge imposed concurrent sentences. But the fact that the prior offenses “were pled out at the same time, before the same judge, and resulted in the same sentence to run concurrently” does not establish that they were consolidated under OCGA § 17-10-7 (d). Harper, 270 Ga. App. at 379 (3). See Head, 253 Ga. App. at 759 (3). As such, Barbee has failed to come forward with a valid basis for overturning his recidivist sentence.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant District Attorney, for appellee.

       Following his initial stop of the vehicle, the officer had learned that Barbee was wanted on an outstanding arrest warrant on unrelated charges. The officer then arrested Barbee and inventoried the items in the vehicle, whereupon he discovered the tools, equipment, and pry bar. These additional facts were not presented to the jury because of the trial court’s grant of Barbee’s motion in limine on the issue.

       Citing to an exhibit attached to his motion for a new trial, Barbee mistakenly argues that only one sentencing order was entered for his three prior offenses. The exhibit in question does not include a sentencing order, but rather two subsequent administrative orders entered by the Tennessee trial judge that transferred supervision of Barbee from one department to another. In contrast, the exhibit introduced by the State in aggravation of sentence contains separate and distinct sentencing orders for each of the three prior felony offenses.