author: ANDREWS, Presiding Judge.

text:
    A14A0281.
    ROACH v. ROACH.
    (759 SE2d 587)
   ANDREWS, Presiding Judge.

Appellee Randall Wayne Roach commenced an action in the trial court against his son, Appellant Kenny Allen Roach, for reformation of a deed transferring property to Appellant. Following a jury verdict finding that the disputed property was subject to a resulting trust, the trial court entered a judgment in Appellee’s favor and ordered Appellant to convey the property to Appellee and his attorney, as tenants in common. Appellant now appeals, arguing that the trial court should have granted his motion for directed verdict on equitable grounds because the resulting trust found by the jury arose out of an attempt to defraud creditors. Appellant also argues that the trial court erred in awarding an interest in the property to Appellee’s attorney. We conclude that Appellant was entitled to a directed verdict and therefore reverse.

On appeal from the denial of a motion for a directed verdict, we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict. Monitronics Intl. v. Veasley, 323 Ga. App. 126, 130 (1) (746 SE2d 793) (2013).

Appellee’s petition alleged that in 1996, Appellee contracted to purchase a 4.83-acre tract of land in Long County from Billy and Leigh Brock but when the purchase price was fully paid in June 2009, Appellee “had some legal pending matters and potential liens and did not desire to have the property transferred of record to his name.” According to the petition, Appellant agreed to hold the property in trust for Appellee, and the Brocks conveyed the property to Appellant on August 3, 2009. The petition alleged that although Appellant has no equitable ownership in the property, he refused to convey it to Appellee.

Appellant testified at trial that Appellee told him “quite a few times” that he would give Appellant the property. Appellant stated that he worked for Appellee, who owned a carnival business, and that the property was supposed to be part of his payment. Appellee, however, denied that he promised to give the property to Appellant. Appellee testified that he put the property in Appellant’s name because “I was afraid I’d get it tied up in some legal problem I had with the liens ... on me.” Appellee stated that he thought Appellant was the only one he could trust to hold the property and transfer it to him after the legal issues were resolved. Appellee testified that Appellant agreed to the arrangement but that when he asked Appellant to quitclaim the property to him in May 2010 after he “got everything straightened out,” Appellant refused. On cross-examination, Appellant’s counsel asked Appellee: “And you don’t deny, in your pleadings and now, that your whole intention was to make sure that somebody that you owed money to didn’t come after the property when it was paid off?” Appellee responded that he did not deny this intention. Appellee later testified that the liens motivating the transfer to Appellant were in the amount of $60,000 each and that he subsequently resolved them for lesser amounts.

The trial court denied Appellant’s motion for directed verdict. The case was submitted to the jury, and it returned a verdict finding that a resulting trust was created and that the property should be conveyed to Appellee.

1. Appellant argues that the trial court erred in denying his motion for directed verdict because the doctrine of unclean hands forecloses any relief to Appellee on his petition. We agree.

“It is well established . . . that equity is not available to one who lacks clean hands as to the relief being sought.” Williams v. Williams, 255 Ga. 264, 265 (336 SE2d 244) (1985); OCGA § 23-1-10 (“He who would have equity must do equity and must give effect to all equitable rights of the other party respecting the subj ect matter of the action.”). Appellant testified at trial that Appellee intended to give him the property. Appellee, on the other hand, asserted that he reached an understanding with Appellant that the property would be placed in Appellant’s name to keep it from getting “tied up in some legal problem I had with the liens ... on me” and that Appellant would convey it to Appellee when those issues were resolved. Appellee admitted that his “whole intention” in having the property transferred to Appellant was to shield it from creditors. If the parties reached the agreement Appellee described, then “this is simply a case where two persons [plotted] to hinder, delay, and defeat a creditor of one of them, with the result that one of the wrong-doers himself falls a victim to the wiles of the other.” (Citation and punctuation omitted.) Senter v. Furman, 245 Ga. 483, 484 (265 SE2d 784) (1980). In such cases, “no relief can be afforded the victimized wrong-doer,” and “the parties are to be left as they stand.” Id.; see also Langan v. Langan, 224 Ga. 399, 402 (2) (162 SE2d 405) (1968) (“An executed contract... made for the purpose of delaying or defrauding a creditor, is binding upon the maker, and he is estopped from impeaching it.”) (citations and punctuation omitted).

Whether a deed is made with the intent to delay or defraud creditors is ordinarily an issue of fact for the jury, see Goodman v. Lewis, 247 Ga. 605, 606 (1) (277 SE2d 908) (1981), but in this case there was no material dispute in the evidence with respect to Appellee’s intent. If the transfer was not intended as a gift, it was, according to Appellee’s repeated admissions, made for the purpose of frustrating his creditors. As such, the trial court erred in denying Appellant’s motion for directed verdict. See Williams, supra, 255 Ga. at 265 (defendant was entitled to directed verdict in ex-husband’s action to compel conveyance of property when he freely admitted that property was placed in defendant’s name to avoid alimony claim against it by his second wife); Senter, 245 Ga. at 484 (trial court did not err in granting summary judgment in dentist’s action to impose a constructive trust when the evidence established that he transferred property with intent to avoid liability exposure on malpractice claim). Appellee’s testimony that he ultimately resolved the debts that were outstanding at the time the property was conveyed to Appellant does not alter our conclusion, “as the critical inquiry is [Appellee’s] intent at the time of transfer.” Carden v. Carden, 253 Ga. 546, 547 (2) (322 SE2d 226) (1984) (trial court erred in denying wife’s motion for judgment notwithstanding verdict on the issue of whether she held property in resulting trust for her husband); OCGA § 18-2-74 (a) (1) (transfer is fraudulent as to a creditor if made “[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor”).

Decided June 11, 2014.

Tracy A. Brown, for appellant.

Phillips & Kitchings, Joseph C. Kitchings, for appellee.

2. Given our conclusion in Division 1, we need not address Appellant’s argument that the trial court erred in entering a judgment requiring Appellant to convey the property to Appellee and his attorney as tenants in common.

Judgment reversed.

McFadden and Ray, JJ., concur.

       We note also that in his argument opposing Appellant’s motion for directed verdict, Appellee’s counsel indicated that the transfer to Appellant was intended to improve Appellee’s bargaining position, stating that if the property were in Appellee’s name “[i]t might weaken his resolving these problems.”


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A14A0286.
    SIMPSON v. THE STATE.
    (759 SE2d 590)
   BARNES, Presiding Judge.

Christopher Aaron Simpson appeals from the denial of his motion for new trial following his conviction for the offense of false statements or writings. Simpson contends that the evidence was insufficient to sustain his conviction and that trial counsel was ineffective for failing to object to the introduction of inadmissible character evidence. Upon review, and finding the evidence sufficient, we affirm.

When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

Lembcke v. State, 277 Ga. App. 110 (1) (625 SE2d 505) (2005).

So viewed, the evidence shows that Simpson was an inmate at the Floyd County Work Release Center. On March 20,2012, Simpson was in the large common area where inmates watch television, use the telephone and socialize with each other. There is also a secured area inside the common area called the “Control Room” that is staffed by an officer. The Control Room has a window with a writing ledge below for passing papers back and forth to the inmates.

On the day of the incident, Simpson approached the Control Room and requested some paper forms, which the officer passed through a slot in the window. The officer testified that she stuck the forms out of the slot “in an attempt to hand them to ... Simpson,” but he did not accept the forms and they fell off the ledge to the floor. The officer testified that the papers may have “brushed by [Simpson’s] face” because Simpson was “face level with the window.” Simpson filed a complaint against the officer, alleging that she had assaulted him. The officer who investigated the incident testified that he viewed a videotape of the incident and reported back to the deputy warden that he did not find any grounds for the assault allegation. The captain and administrator at the Center also testified that he viewed the videotape and did not see the officer commit an assault upon Simpson. However, in response to the incident, the officer was verbally counseled for unprofessional behavior, but not “in direct relation to an assault.”

On April 10, 2012, in response to several disciplinary reports involving Simpson, the captain held an administrative hearing at which he advised Simpson that he was in danger of being terminated from the program if he received any more disciplinary reports. On April 20, 2012, Simpson was terminated from the program after receiving three additional disciplinary reports for insubordination, obstructing the duties of a staff member, and disrespecting a staff member.

Thereafter, on June 4, 2012, while incarcerated at the Floyd County Jail, Simpson filed an application for an arrest warrant against the officer, in which he alleged, among other things, that he had been “physically assaulted” by the officer, denied access to 911, had his work schedule sabotaged by the officer, and had been terminated from the work release program in “direct retribution” for the incident. Following a hearing, at which both Simpson and the officer appeared, the trial court denied Simpson’s application, finding that there was “no evidence sufficient to cause the Court to issue a warrant.”

On October 26, 2012, Simpson was indicted for false statements and writings in which it was alleged that he “did unlawfully . . . knowingly and willfully make a false representation and writing ... in that [Simpson] did file a warrant application against [the officer] ... alleging that [Simpson] was physically assaulted, and that his work schedule was sabotaged” in violation of OCGA § 16-10-20. Following a jury trial, Simpson was found guilty, and it is from that conviction and the denial of his motion for new trial that he now appeals.

1. Simpson first contends that the evidence was insufficient to sustain his conviction for false statement and writings because there was no evidence that he knowingly made a false statement or writing because there was evidence that the forms hit him when they came out of the slot.

OCGA § 16-10-20 provides:

A person who knowingly and willfully... 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.

Here, the State presented sufficient evidence to prove that Simpson intentionally made a false statement in the warrant application. It is undisputed that the videotape of the incident was shown to the jury, that Simpson applied for the arrest warrant against the officer, and that the warrant application warned that making false statements could result in criminal charges. Further, it is undisputed that the trial court found that the evidence was insufficient to return an arrest warrant for assault against the officer. Morever, the evidence also demonstrated that Simpson did not immediately pursue a warrant for the assault until he was terminated from the work release program.

Thus, as “[ijntent is a question of fact for jury resolution [and] may be proven by circumstantial evidence, by conduct, demeanor, motive, and all other circumstances,” (citations and punctuation omitted) Shores v. State, 240 Ga. App. 189, 192 (1) (522 SE2d 515) (1999), we find the State presented sufficient evidence for the jury to find that Simpson was guilty of the crime charged. See Stack-Thorpe v. State, 270 Ga. App. 796, 805 (7) (608 SE2d 289) (2004) (defendant’s intent to “knowingly and/or willfully” falsify documents was for jury to determine).

2. Simpson also contends that his trial counsel was ineffective for failing to object to impermissible character evidence. He maintains that his trial counsel failed to object to evidence of his multiple disciplinary reports while he was an inmate at the work release center and that the evidence was not admissible under former OCGA § 24-2-2. We do not agree.

To prevail on a claim of ineffective assistance under the two-pronged test set forth in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), “[Simpson] must show that [his] counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” (Citation and punctuation omitted.) Anthony v. State, 317 Ga. App. 807, 813 (4) (732 SE2d 845) (2012). Simpson has failed to carry his burden with regard to his ineffective assistance claim.

Under former OCGA § 24-2-2, “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” Likewise, under Georgia’s new Evidence Code,

[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

OCGA § 24-4-404 (b). Thus, “if the evidence of other acts is relevant for some other purpose than to show a probability that the defendant committed the crime because he is a man of criminal character, the evidence is admissible despite incidentally placing the defendant’s character in issue.” (Citations and punctuation omitted.) Washington v. State, 294 Ga. 560, 563 (2) (755 SE2d 160) (2014).

Decided June 11, 2014.

Keri F. Thompson, Jimmonique R. S. Rodgers, for appellant.

Leigh E. Patterson, District Attorney, Charles S. Cox, Assistant District Attorney, for appellee.

Here, while Simpson’s character was arguably put into evidence by testimony about several disciplinary reports against him, the testimony regarding the disciplinary reports was relevant to explain why Simpson was terminated from the program since he had alleged in his warrant application that the officer had caused his termination. Evidence material to a case is not inadmissible because it incidentally puts a defendant’s character in issue. See Bozzuto v. State, 276 Ga. App. 614, 618 (2) (624 SE2d 166) (2005) (The “evidence of a previous conflict between the condominium association and Bozzuto was relevant to whether Bozzuto made these telephone calls with the intent of harassing the victim.”); see also Friar v. State, 253 Ga. 87, 89 (3) (316 SE2d 466) (1984) (evidence defendant forged traveler’s checks taken from murder victim was integral to the murder case against defendant and only incidentally placed his character in issue).

Since Simpson has not shown that this evidence was impermissible character evidence, trial counsel’s failure to object does not constitute ineffective assistance of counsel. See Warren v. State, 289 Ga. App. 481, 489 (7) (e) (657 SE2d 533) (2008).

Judgment affirmed.

Boggs and Branch, JJ., concur.

       The Work Release Center is an alternative incarceration that permits inmates to continue to retain employment during their confinement. The inmates are required to stay at the Center when they are not working.

       The disciplinary reports are not included with the record.

       OCGA § 24-2-2 “was superseded by OCGA § 24-4-404.” Johnson v. State, 293 Ga. 641, 644 (6), n. 3 (748 SE2d 896) (2013). Simpson was tried onMarch 22,2013; thus our new Evidence Code applied to his trial. See Ga. L. 2011, pp. 99, 214, § 101.

       At the motion for new trial hearing, Simpson’s trial counsel testified that he could not recall the testimony about the disciplinary infractions and remembered “very little about the case.”


text:
    A14A0404.
    COPELAND v. THE STATE.
    (759 SE2d 593)
   ANDREWS, Presiding Judge.

A Spalding County jury convicted Toby Tremayne Copeland of possession of marijuana more than an ounce (OCGA § 16-13-30 (j)), possession of marijuana with intent to distribute (OCGA § 16-13-30 (j)), possession of a firearm during the commission of a crime (OCGA § 16-11-106), andreckless conduct (OCGA § 16-5-60 (b)). Copeland appeals from the denial of his motion for new trial, as amended, challenging the admission of testimony purporting to explain police conduct and behavior common to drug activity, the effectiveness of trial counsel, and the sufficiency of the evidence. He also contends that the trial court erred when it ignored his post-trial request to weigh the credibility of the witnesses against him. Discerning no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on July 1, 2010, Lieutenant Curtis Keys of the Griffin Police Department began a seven-day surveillance of 236 Armstead Circle, Griffin, Georgia (the “property”). Lieutenant Keys had known of Copeland for ten years, was familiar with the car he drove, and believed he lived at the property because “that’s the house I always see him at and always see his car at and he is normally in and out of that house.” In addition, during the time the property was surveilled, Copeland would simply enter the property without knocking and would stay there for hours and through the night. The surveillance officers suspected drug activity at the property because they observed multiple vehicles coming and going from it, the vehicles typically staying not more than two minutes.

When Special Agent Tishe Dyer checked the utilities usage for the property, she learned that the power company had not authorized service at its address. Noting that lights were nonetheless being used, the police obtained a knock-and-announce search warrant.

Although Corporal Stan Phillips and Officer Jonathan McGhee knocked loudly upon executing the warrant, the use of a ram was required to gain access through the barricaded front door of the property. Once inside, the entry team found three individuals: co-defendant Markevius Henley, who had not been seen earlier in the week’s surveillance, Henley’s eight-year-old-son, and Copeland. Copeland emerged from the back of the property, cut away from the officers and ran into a bedroom where Phillips and McGhee “took him to the ground and secured him.” There the officers found a box of .40 caliber ammunition, three cell phones, a television displaying live feed from the front door of the house, a police scanner tuned to the Griffin Police Department’s frequency, a handgun hidden under the mattress of a bed a foot or two from where Copeland fell, a pair of scissors with a green leafy substance on it, a Hope Scholarship application on which Copeland’s name appeared as the applicant, men’s clothing, men’s shoes, and a pill bottle bearing Copeland’s mother’s name. Two of the cell phones contained Copeland’s digital picture; a cell phone which belonged to Henley had a text message on it that said “[j]ust got four purp for 14.50.” Special Agent Dyer explained that her experience and training indicated that such a message translated to the type and quantity of marijuana in a drug transaction. Several messages in another cell phone found in the bedroom advised the recipient of police activity nearby. Delivered on July 8, 2010, approximately 23 minutes before the warrant was executed, the messages read: “Police setting some sh** up across the street near you”; “They next door in the back yard”; and “Shorty say don’t go to your door. Shut it down today.”

Under a couch in another bedroom, Corporal Phillips found a small plastic bag containing suspected marijuana. Corporal Chad Moxon, a K-9 handler, found a black trash bag containing three additional plastic bags containing suspected marijuana. The trash bag was concealed under brush and leaves in the woodline directly behind and “[mjaybe 20 yards” from the property. The contents of the bags seized in and outside the residence, as well as the substance taken from the scissors, later tested positive for marijuana having a net weight of 59.80 grams.

1. Copeland contends that the circumstantial evidence presented by the State was insufficient to show that he was in constructive possession of the marijuana and weapon at issue, requiring that his convictions be reversed. As to the marijuana seized behind the property, he makes the further argument that another person had equal access thereto, this also requiring reversal. These claims are not persuasive.

This Court determines the issue of evidentiary sufficiency under the standard ofreview set out in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). “[T]he 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.” (Citation omitted; emphasis in original.) Id. at 319 (III) (B). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.” (Citation omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.

(Citations and punctuation omitted.) Vines v. State, 296 Ga. App. 543, 545 (1) (675 SE2d 260) (2009). We find that the State presented evidence sufficient for the jury to reject Copeland’s defenses and to find beyond a reasonable doubt that, because he knowingly had both the power and intention to exercise control over the contraband in and outside the property, he had constructive possession thereof.

“A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where, as here, the contraband is hidden.” (Citations omitted.) Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997). And “[e]vidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Citations and punctuation omitted.) Whipple v. State, 207 Ga. App. 131, 132 (1) (427 SE2d 101) (1993). The State’s evidence showed more than Copeland’s mere presence in the property and spatial proximity to the contraband. The evidence was that Copeland resided in the property, and therefore not only had the power to exercise control over the property, Dickerson v. State, 312 Ga. App. 320, 321 (1) (718 SE2d 564) (2011), but also that he had the intent to do so. Intent to exercise control may be inferred from the circumstances. Strozier v. State, 313 Ga. App. 804, 808 (723 SE2d 39) (2012). The quantum of marijuana seized in conjunction with the presence of the weapon and ammunition found in the bedroom he ran to on being confronted by police, as well as the cell phones containing his photograph, the Hope Scholarship application in his name, the video security system, the police scanner, and his mother’s pill bottle therein, linked Copeland to the charged offenses. There also was evidence that Copeland had been warned that the police were coming; that such warning was received 23 minutes before the search warrant was executed, a time period sufficient to barricade the front door and hide the evidence. The foregoing, combined with other circumstantial evidence of intent, supported an inference that Copeland was connected to the contraband. Vines, supra, 296 Ga. App. at 545-547 (1).

“When the State’s constructive possession case is based wholly on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Former OCGA § 24-4-6.” (Punctuation omitted.) Maddox v. State, 322 Ga. App. 811, 814 (1) (746 SE2d 280) (2013). The circumstantial evidence presented by the State was consistent with the charge that Copeland had constructive possession of the marijuana and weapon; was sufficient to exclude every reasonable hypothesis save that of his guilt; and was sufficient to allow the jury to find beyond a reasonable doubt that Copeland had constructive possession thereof. Jackson v. Virginia, supra, 443 U. S. at 307.

Copeland also argues that Henley had equal access to the contraband rendering the evidence against him insufficient. See Wilkerson v. State, 269 Ga. App. 190, 191-192 (2) (603 SE2d 728) (2004) (presumption of constructive possession arising from ownership or control of the premises can be overcome by evidence that other persons had equal access to the contraband found there). But absent “unrebutted affirmative evidence demanding a finding of equal access,” the question of whether the presumption of possession has been overcome is for the jury to resolve. (Punctuation and footnote omitted.) Mangum v. State, 308 Ga. App. 84, 87 (1), n. 10 (706 SE2d 612) (2011). “While the presence of others in [or outside] the house may be viewed as inculpating those individuals, their presence need not be viewed as exculpating [Copeland].” (Citation omitted.) Daugherty v. State, 283 Ga. App. 664, 667 (1) (a) (642 SE2d 345) (2007). Copeland’s arguments regarding equal access address the weight of the evidence, which the jury decided against him after being properly charged thereon. We find no error on such account.

Accordingly, the evidence was sufficient to authorize a rational trier of fact to find Copeland guilty, beyond a reasonable doubt, of possession of marijuana more than an ounce, possession of marijuana with intent to distribute, possession of a firearm during the commission of a crime, and reckless conduct endangering the bodily safety of Henley.

2. Copeland also argues that the trial court erred when it ignored his post-trial request to weigh the “general grounds” on his behalf as to the sufficiency of the evidence. See OCGA §§ 5-5-20 and 5-5-21. This argument is without merit.

OCGA § 5-5-20 authorizes the trial court to grant a new trial “[i]n any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity,” and OCGA § 5-5-21 empowers the trial court to grant a new trial “where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.” Read together, the statutes provide

the trial court broad discretion to sit as a thirteenth juror and weigh the evidence on a motion for new trial alleging [the foregoing] general grounds. Our sovereign, the law, has in effect said to the trial judge: We charge you to let no verdict stand unless your conscience approves it, although there may be some slight evidence to support it.

(Citations and punctuation omitted.) Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d 311) (2013). See also Mills v. State, 188 Ga. 616, 624 (4 SE2d 453) (1939); Hargrave v. State, 311 Ga. App. 852, 855 (2) (717 SE2d 485) (2011). It is therefore incumbent upon the trial judge to “consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence.” White v. State, 293 Ga. 523, 524 (2) (753 SE2d 115) (2013). Atrial court’s discretion “should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” White v. State, 312 Ga. App. 421, 423-424 (1) (b) (718 SE2d 335) (2011); Damerow v. State, 310 Ga. App. 530, 532 (1) (714 SE2d 82) (2011); Rutland v. State, 296 Ga. App. 471, 475 (3) (675 SE2d 506) (2009).

Of note, “[t]he trial court does not exercise its discretion when it evaluates the general grounds by applying the standard of Jackson v. Virginia, supra, to a motion for new trial based on the general grounds embodied in OCGA §§ 5-5-20 and 5-5-21.” Walker, supra, 292 Ga. at 264 (2); see also Manuel v. State, 289 Ga. 383, 386 (2) (711 SE2d 676) (2011) (trial court’s use of the Jackson v. Virginia standard of review shows that the trial court failed to apply its discretion since the question of whether there is sufficient evidence to support the verdict is one of law, not of discretion). However, it is likewise true that

[generally, in interpreting the language of an order overruling a motion for a new trial, it must be presumed that the trial judge knew the rule as to the obligation thus devolving upon him, and that in overruling the motion he did exercise this discretion, unless the language of the order indicates to the contrary and that the court agreed to the verdict against his own judgment and against the dictates of his own conscience, merely because he did not feel that he had the duty or authority to override the findings of the jury upon disputed issues of fact.

Copeland v. State, 325 Ga. App. 668, 672 (3) (754 SE2d 636) (2014); Moore v. Stewart, 315 Ga. App. 388, 391 (3) (727 SE2d 159) (2012).

In this case, Copeland raised the “general grounds” encompassing OCGA §§ 5-5-20 and 5-5-21. Counsel for Copeland also presented brief argument to the trial court specifically citing OCGA §§ 5-5-20 and 5-5-21. In fact, Copeland’s counsel engaged in a brief colloquy with the trial court concerning Brockman v. State, 292 Ga. 707, 713 (4) (739 SE2d 332) (2013) (evaluating “general grounds” argument), in which the trial court confirmed its familiarity with that decision. Ultimately, the trial court denied Copeland’s motion for new trial as amended.

In reaching its conclusion, the trial court evaluated the record as well as the argument and evidence Copeland presented at the hearing on his motion for new trial. The trial court first noted that “I paid close attention during this trial, and I felt then and feel now that there was sufficient evidence to find the defendant guilty beyond a reasonable doubt.” The trial court further found that Copeland presented no evidence that caused it “to question the credibility of the witnesses who testified at trial.” Finally, the trial court cited the “strength and totality of the evidence in this case” as an additional basis for denying Copeland’s motion.

Although Copeland has not identified anything in the record suggesting that the trial court failed to apply the proper standard of review, see Copeland, supra, 325 Ga. App. at 672, taken together, the trial court’s findings confirm that the trial court properly exercised its discretion as the thirteenth juror and rejected Copeland’s “general grounds” argument. See Jimenez v. State, 294 Ga. 474, 475 (754 SE2d 361) (2014); Sellers v. State, 325 Ga. App. 837, 842 (1) (b) (755 SE2d 232) (2014); Copeland, supra, 325 Ga. App. at 672; Tolbert v. State, 313 Ga. App. 46, 54 (2) (720 SE2d 244) (2011) (trial court considered witness credibility and decided issue against defendant). Compare Alvelo v. State, 288 Ga. 437, 438 (1) (704 SE2d 787) (2011) (trial court “explicitly declined to consider the ‘credibility of witnesses’ ”); Moore, supra, 315 Ga. App. at 391 (trial court repeatedly stated that witness credibility was solely for jury and that court did not have authority “to usurp this power”). This case is therefore distinguished from recent decisions holding that trial courts failed to exercise discretion and weigh the evidence when faced with claims on the general grounds. See White, supra, 293 Ga. at 525 (2) (judgment vacated and case remanded due to trial court’s repeated statement that it viewed evidence in the light most favorable to the verdict); Walker, supra, 292 Ga. at 264 (2) (same); Rutland, supra, 296 Ga. App. at 475 (3) (same). See also Choisnet v. State, 292 Ga. 860, 861 (742 SE2d 476) (2013) (judgment vacated and case remanded where trial court reviewed evidence in light most favorable to verdict and failed to consider witness credibility); Manuel, supra, 289 Ga. at 386 (2) (judgment vacated and case remanded where trial court “personally disagreed with the jury’s verdict” yet found the evidence was sufficient to support the jury’s verdict); Alvelo, supra, 288 Ga. at 438; Moore, supra, 315 Ga. App. at 391. As a result, “this is not a case where it is necessary for us to remand to the trial court for consideration of this issue under the proper standard.” Sellers, supra, 325 Ga. App. at 843 (1) (b).

3. Copeland next argues that he received ineffective assistance of trial counsel because counsel: (a) asked a question of a witness that brought Copeland’s character into question; (b) failed to present witness testimony that Copeland lived at an address other than the property where the crimes occurred; (c) failed to present witness testimony that a wooded area adjoining the property where the crimes occurred allowed for easy equal access for others to commit the crimes charged; and (d) failed to object to the equal access charge given by the trial court. Upon review, the record does not reveal any evidence to support Copeland’s contentions.

Under Georgia law,

[t]o obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel’s performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. To establish deficient performance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. In considering adequacy of performance, trial counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”

(Citations and punctuation omitted.) Reyes v. State, 322 Ga. App. 496, 502 (5) (745 SE2d 738) (2013). “Counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel.” (Citations and punctuation omitted.) McMorris v. State, 263 Ga. App. 630, 634 (2) (a) (588 SE2d 817) (2003). “Indeed, tactical decisions by counsel will not form the basis for an ineffective assistance claim unless the decisions are so patently unreasonable that no competent attorney would have chosen them.” Ware v. State, 321 Ga. App. 640, 642 (3) (742 SE2d 156) (2013).

(a) Introduction of Copeland’s Character.

First, Copeland contends that he received ineffective assistance of counsel because trial counsel asked a question that brought Copeland’s character into question. Part of trial counsel’s strategy was to demonstrate the history of Copeland’s harassment by the Griffin Police Department. Thus, trial counsel asked an officer about shooting Copeland’s dog during a prior raid. The question, coupled with trial counsel’s extended response to an objection, permitted trial counsel to show that a member of the Griffin Police Department shot and killed Copeland’s pet. During Copeland’s hearing on his motion for new trial, trial counsel acknowledged that the question “incidentally” implicated Copeland’s character, but also noted the importance of the history between the parties and that he specifically wanted to refer to the incident where Copeland’s dog was killed to show harassment.

Trial counsel’s decision to demonstrate harassment of Copeland by law enforcement was a reasonable strategic decision. Accordingly, Copeland has failed to demonstrate error by trial counsel. Moreover, given the amount of testimony against him in this case, Copeland has not shown that the outcome of his trial would have been different save for trial counsel’s singular reference to Copeland’s history with the Griffin Police Department. As a result, Copeland has failed to demonstrate ineffective assistance of counsel in this instance.

(b) Failure to Present Testimony that Copeland Lived Elsewhere.

Copeland also argues that trial counsel should have presented testimony that Copeland lived at a location other than the property where the crimes occurred. While trial counsel suggested that he might have called such a witness “in hindsight,” trial counsel also testified that he attempted to show Copeland did not live at the property. The record supports trial counsel’s testimony, which contains repeated cross-examination regarding Copeland’s residence.

[Djecisions regarding which witnesses to call and all other tactical and strategic decisions are the exclusive province of the lawyer after consultation with the client. And decisions regarding matters of trial strategy, whether wise or unwise, do not constitute ineffective assistance of counsel.

Reynolds v. State, 267 Ga. App. 148, 151 (1) (598 SE2d 868) (2004). Here, Copeland has failed to show that his counsel’s strategic decision to address the subject of Copeland’s residence through cross-examination was unreasonable or deficient. Accordingly, Copeland has not demonstrated ineffective assistance of counsel.

(c) Failure to Present Testimony Concerning Equal Access.

Next, Copeland contends that trial counsel provided ineffective assistance by failing to call witnesses to demonstrate that a wooded area adjoining the property where the crimes occurred allowed for easy equal access for others to commit the crimes charged. Trial counsel testified that his theory of the case was based upon equal access and that Copeland did not possess any drugs. He further testified that he viewed photographs of the back yard and that it would not have been helpful to present testimony concerning the wooded area. Trial counsel also addressed equal access repeatedly through cross-examination of the State’s witnesses. In view of this reasonable strategic decision, we cannot say that Copeland received ineffective assistance on this point. See Reynolds, supra, 267 Ga. App. at 151.

(d) Failure to Object to Equal Access Charge.

Finally, Copeland alleges that his trial counsel was ineffective for failing to object to the trial court’s instruction on equal access. During its charge, the trial court instructed the jury:

If you determine from the evidence that persons other than the defendants had equal opportunity to possess or to place the articles of contraband upon the described premises, then, and in that event, you should acquit the defendants, unless it is shown, beyond a reasonable doubt, that the defendants knowingly possessed the contraband, or shared possession and control with other persons and helped or procured the other persons in possessing and having control of the contraband.

Neither Copeland nor his co-defendant submitted requests for instructions, and neither Copeland nor his co-defendant objected to the trial court’s instruction. Copeland now complains that the trial court’s use of the plural term “defendants” was error because “equal access would not apply between the two defendants.” Trial counsel testified that he would have objected had he realized, after reading the charge carefully, that it included the plural term “defendants.”

Generally, “[wjhen an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless.” Overstreet v. State, 250 Ga. App. 336, 340 (3) (551 SE2d 748) (2001). However, “it is not necessary in considering a charge to assume a possible adverse construction, for a charge that is sufficiently clear to be understood by jurors of ordinary capacity and understanding is all that is required.” (Punctuation omitted.) Feblez v. State, 181 Ga. App. 567, 568 (2) (353 SE2d 64) (1987). Asathreshold matter, use of the plural “defendants” in the equal access instruction, when a case involves co-defendants, has been previously affirmed by this Court. See Gee v. State, 130 Ga. App. 634, 636 (2) (204 SE2d 329) (1974). Moreover, any alleged confusion in the charge must be resolved against Copeland, inasmuch as the jury convicted Copeland of Counts 1 and 2 of the indictment, yet only convicted his co-defendant of a lesser included offense of Count 1 and acquitted him on Count 2. This result “lends itself to the conclusion that the jury did not harbor any confusion as to whether they could convict one of [the defendants] independent of the other.” Hill v. State, 302 Ga. App. 291, 294 (2) (690 SE2d 677) (2010). See also Overstreet, supra, 250 Ga. App. at 340; Feblez, supra, 181 Ga. App. at 569 (2). We therefore conclude that the charge as a whole is a correct statement of Georgia law and was sufficient to convey its intended meaning to the jury; accordingly, trial counsel was not ineffective in failing to object to it. See generally Van v. State, 294 Ga. 464, 466 (3) (754 SE2d 355) (2014) (failure to make meritless objection not basis for ineffective assistance).

Likewise, although not separately enumerated as error, the combination of these alleged errors did not result in ineffective assistance of trial counsel. See Schofield v. Holsey, 281 Ga. 809, 812 (642 SE2d 56) (2007); Cobb v. State, 309 Ga. App. 70, 80 (4) (709 SE2d 9) (2011). In sum, based upon the foregoing, the trial court did not err in denying Copeland’s motion for a new trial based upon ineffective assistance of counsel.

4. Finally, Copeland contends that the trial court erred when it admitted certain evidence of local law enforcement’s general practices in drug case investigations over his relevancy objection. In his enumeration of error, Copeland argues that the question “I would like for you to tell the jury how a drug case is worked here in the City of Griffin” was improper because it allowed “evidence to explain [an officer’s] conduct” and “to show that Copeland was a drug dealer[.]” This enumeration is without merit.

Decided June 11, 2014.

James E. Bischoff, for appellant.

As a threshold matter, “[e]vidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly.” OCGA § 24-2-1 (2011). Furthermore,

unless the potential for prejudice substantially outweighs probative value, Georgia law favors the admission of relevant evidence, no matter how slight its probative value.... Indeed, even where the relevancy or competency is doubtful, the evidence should be admitted, and its weight left to the determination of the jury.

(Citations omitted.) Pate v. State, 315 Ga. App. 205, 213-214 (6) (726 SE2d 691) (2012). Despite Copeland’s characterization to the contrary, the testimony cited in the enumeration does not implicate a specific instance of officer conduct or hearsay upon which such conduct may have been based. Rather, the challenged testimony focused upon the general course of a drug investigation conducted by the Griffin Police Department. As a result, questioning in this case was not a “trial by dossier” and did not suggest that the State concerned itself “with why an investigating officer did something.” See Teague v. State, 252 Ga. 534, 536 (1) (314 SE2d 910) (1984). See also Foster v. State, 314 Ga. App. 642, 648 (2) (725 SE2d 777) (2012). We therefore conclude that Copeland’s argument that the background testimony was improper, based upon Teague, supra, 252 Ga. at 536 (1), and as posited in his enumeration of error, is without merit.

Judgment affirmed.

McFadden and Ray, JJ., concur.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

       Henley was convicted of possession of marijuana less than an ounce (OCGA § 16-13-2 (b)).

       This Court expresses no opinion on the precise language necessary to demonstrate the exercise of the trial court’s discretion. See Sellers, supra, 325 Ga. App. at 842 (1) (b); Lavertu v. State, 325 Ga. App. 709, 712 (1) (754 SE2d 663) (2014). Rather, this Court simply holds that the totality of the trial court’s analysis in this case is sufficient.

       Copeland also states that, following a brief bench conference, trial counsel failed to ask further questions concerning Copeland’s history with the Griffin Police Department. This action is not specifically enumerated as error, however, and we find that Copeland’s argument on this point is waived. See OCGA § 5-6-40; Fradenburg v. State, 296 Ga. App. 860, 863 (676 SE2d 25) (2009). Without passing on the nonenumerated error, we note that trial counsel indicated his decision to refrain from additional questioning concerning Copeland’s harassment was a strategic decision.

       It is axiomatic that “the test regarding effective assistance of counsel is to be not errorless counsel, and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance.” (Citations and punctuation omitted.) Adams v. State, 322 Ga. App. 782, 786 (2) (746 SE2d 261) (2013).

       Although trial counsel suggested he may have handwritten an instruction on equal access, any such request is not included in the record.

       With the exception of the plural form, the instruction as given complied with the pattern instruction for equal access. See Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 2.76.20.

       Copeland references additional questions concerning officers’ “experience in the ‘drug business.’ ” Although Copeland failed to include citations to the record for these additional questions, we have determined that there was no contemporaneous objection to them and that, as a result, any potential error has been waived. See Jackson v. State, 314 Ga. App. 806, 808 (3) (726 SE2d 63) (2012).

       In fact, in the instance where the State attempted to introduce evidence in this manner, the trial court sustained Copeland’s objection.


author: Dillard, Judge.

text:
    A14A0571.
    SOWELL v. THE STATE.
    (759 SE2d 602)
   Dillard, Judge.

Following trial, a jury convicted Cody Sowell on one count of aggravated child molestation, two counts of child molestation, and one count of possession of a controlled substance (i.e., hydrocodone). Sowell appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred in (1) failing to limit the manner in which the jury could consider evidence of prior difficulties and (2) denying his claims of ineffective assistance of counsel. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that some time near the end of the summer of 2011, three-year-old A. H. and her aunt were watching a movie together while the child’s father and Sowell, who was married to the father’s sister, were working on Sowell’s truck outside. Upon hearing the truck start up rather loudly, A. H. asked her aunt if that was “Uncle Cody’s truck.” When her aunt responded that it was, A. H. replied, “Oh, Uncle Cody licked my tootie.” Alarmed, the aunt asked A. H. what she meant, at which point the child repeated the statement while pointing to her vaginal area. The aunt called A. H.’s grandmother into the room and then asked A. H. to repeat what she had just said. A. H. repeated her claim and, again, pointed to her vaginal area. Afew hours later, A. H.’s mother returned home from work, and A. H.’s aunt and grandmother immediately told her of A. H.’s outcry. Upset but unsure of what to believe, A. H.’s mother decided against going to the police at that time but also resolved that she would not allow her daughter to be alone with Sowell.

On October 11,2011, a few months after A. H.’s outcry to her aunt and grandmother, Sowell and his family were staying with A. H.’s family while he coped with some financial difficulties. That night, after everyone in the home went to bed, A. H.’s mother heard noises from A. H.’s room via the baby monitor she had placed there. As A. H.’s mother walked down the' hall to investigate, she noticed that A. H.’s bedroom door, which she had closed earlier after putting A. H. to bed, was now cracked open. Quietly peering into the bedroom, A. H.’s mother saw Sowell standing next to A. H.’s bed with the child’s legs straddled around him. At that point, A. H.’s mother flung open the bedroom door and yelled at Sowell as he placed his genitals back into his pants. She then picked up her daughter and noticed that A. H.’s underwear had an indentation in the vaginal area as if she had been touched there. And as she was carried from her bedroom, A. H. told her mother that “Uncle Cody touched her tootie with his big tootie.”

Subsequently, A. H.’s mother took the child to the local hospital. There, she was examined by a nurse, who noted that A. H.’s vaginal area appeared red and irritated. And during this examination, A. H. told the nurse that “Uncle Cody licked her tootie,” which she identified by pointing between her legs, and then noted that he “put his tootie back in his pants.” Later that same night, A. H.’s mother took her daughter to a child-advocacy center, where a sexual-assault nurse examiner made similar findings, including that A. H. referred to her vagina as her “tootie.” Additionally, A. H. was interviewed by a counselor, while the investigating deputy observed the interview via a video monitor in another room. During that interview, A. H. claimed that Sowell licked and touched her “wee wee.”

Sowell was arrested later that evening, and as he was being processed, the arresting sheriff’s deputy found a green pill in his pocket. Sowell identified the pill as hydrocodone and admitted that he did not have a prescription for the drug. One month later, he was charged, via indictment, with one count of aggravated child molestation, two counts of child molestation, and one count of possession of hydrocodone. Prior to his trial, Sowell filed a motion in limine to exclude A. H.’s aunt from testifying about the child’s initial outcry, arguing that such testimony constituted similar-transaction evidence for which the State failed to provide sufficient notice. However, at the State’s behest, the trial court ultimately ruled that such testimony was admissible as evidence of prior difficulties between the parties.

Thereafter, the matter went to trial, during which A. H.’s aunt recounted the child’s initial outcry, and A. H.’s mother testified regarding the night she found Sowell in A. H.’s bedroom. Both nurses also testified regarding their examinations of A. H., and the sheriff’s deputy discussed his investigation and observation of A. H.’s forensic interview, which was played for the jury. Additionally, A. H. was called as a witness and testified that Sowell touched her where her “tootie lives” while motioning toward her vaginal area. But when asked to point out Uncle Cody in the courtroom, A. H. stated that he was not present.

After the State rested, Sowell called A. H.’s great-grandmother, who testified that she was visiting with A. H. and her mother a few weeks after Sowell’s arrest and that during this visit A. H.’s mother, in commenting on the case, stated: “[T] hey’re trying to say it was [A. H.’s father].” According to the great-grandmother, A. H. then replied, “I thought you told me it was Uncle Cody.” Finally, Sowell testified in his own defense, claiming that he never inappropriately touched A. H. and that at the time her mother found him in A. H.’s room, he was merely putting A. H. back into bed after she had wandered into the hallway. Sowell did admit, however, that he had a hydrocodone pill in his possession at the time of his arrest and that he did not have a prescription for the drug.

At the conclusion of the trial, the jury convicted Sowell on all four counts in the indictment. Subsequently, Sowell obtained new counsel and filed a motion for new trial, which alleged, inter alia, that his trial counsel rendered ineffective assistance. The trial court then held a hearing on Sowell’s motion, during which his trial counsel testified. Ultimately, the court refused to grant a new trial. This appeal follows.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And, of course, in evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Thus, the jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” With these guiding principles in mind, we turn now to Sowell’s specific claims of error.

1. Sowell contends that the evidence was insufficient to support his convictions on the aggravated child molestation count and the two child molestation counts. We disagree.

Aperson commits the offense of child molestation when he or she “[d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. . . .” And a person commits the offense of aggravated child molestation “when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.”

Count 1 of the indictment in this matter charged Sowell with aggravated child molestation by alleging that on or about October 11, 2011, he “lick[ed] the vagina of [A. H.] . . .’’And the State presented sufficient evidence of this offense when the hospital nurse testified that A. H. told her that Sowell licked her “tootie,” which was the child’s term for her vagina. In addition, Count 2 of the same indictment charged Sowell with child molestation by alleging that on October 11, 2011, he “touch[ed] the vagina of [A. H.j ...,” and Count 3 alleged that he committed the same offense on that same date by “showing the penis of the accused to [A. H.] . . And here, the State presented testimony from A. H.’s mother that Sowell hurriedly placed his genitals back in his pants when she flung open the door to A. H.’s room and that the vaginal area of A. H.’s underwear at that time was indented as if it had been touched. Furthermore, A. H. testified at trial that Sowell touched her “tootie” and told her mother and the hospital nurse that he did so. In addition, both nurses testified that the child’s vagina was red and irritated, which was consistent with it having been touched. Accordingly, the evidence was also sufficient to support both charges of child molestation.*

Nevertheless, Sowell argues that the video of A. H.’s forensic interview was not adequately authenticated by the sheriff’s deputy at the time it was introduced. Thus, Sowell contends that A. H.’s statements during the interview were hearsay and without probative value. Again, we disagree.

Generally, a videotape is admissible where “the operator of the machine which produced it, or one who personally witnessed the events recorded testifies that the videotape accurately portrayed what the witness saw take place at the time the events occurred.” Here, although the person who conducted the forensic interview of A. H. did not testify, the investigating deputy testified at trial that he was present when the interview was recorded and watched the interview via a video monitor in another room. And when askedby the State whether the images depicted on the video accurately portrayed the interview as he witnessed it, the deputy responded affirmatively. But focusing on the word “images,” Sowell argues that the deputy’s testimony demonstrates visual authentication but fails to demonstrate that the deputy also heard what was being said during the interview. However, Sowell’s interpretation of the deputy’s testimony strains credulity. As previously noted, the deputy stated that he observed the interview as it was being recorded, and to construe such a statement as meaning that he could see but not hear what transpired defies common sense.

Furthermore, if trial counsel desires to preserve an objection as to a specific point, “the objection must be on that specific ground” in order for this Court to consider it. Here, Sowell failed to object in any way to the video’s admission and therefore he has waived this issue. But even assuming arguendo that the video was improperly admitted and constituted hearsay, A. H.’s interview statements were cumulative of other evidence at trial and, thus, Sowell was not prejudiced.

2. Sowell also contends that the evidence was insufficient to support his conviction on the charge of possession of hydrocodone. Once again, we disagree.

During Sowell’s trial, the investigating deputy testified that after Sowell told him that the pill found in his pocket at the time he was arrested was hydrocodone, the deputy compared the pill to photographs in a pill-identification chart in his office. And based on this comparison, the deputy testified that he confirmed that the pill in Sowell’s possession was, indeed, hydrocodone.

Although Sowell did not object to this testimony, he now argues that the deputy’s discussion of the pill-identification chart constituted nonprobative hearsay, and, therefore, the evidence was insufficient to support his possession conviction. Of course, this argument elides the fact that Sowell took the stand in his own defense, swore an oath to tell the truth, and testified that the pill found in his pocket was hydrocodone. In fact, Sowell further testified that although he did not have a prescription, he used the drug to alleviate back pain. Accordingly, the deputy’s testimony regarding the pill-identification chart— even if it constituted hearsay—was merely cumulative of Sowell’s sworn testimony, which was sufficient to support his conviction for possession of hydrocodone.

3. Sowell contends that the trial court erred in failing to limit the manner in which the jury could consider evidence of prior difficulties. As previously noted, before his trial, Sowell filed a motion in limine to exclude A. H.’s aunt from testifying about the child’s initial outcry, arguing that such testimony constituted similar-transaction evidence for which the State failed to provide sufficient notice. But the State argued, and the trial court ultimately ruled, that such testimony was admissible as evidence of prior difficulties between the parties. Indeed, in its order denying Sowell’s motion, the trial court specifically held that A. H.’s initial outcry constituted admissible prior-difficulties evidence.

Then, during the charge conference, which occurred after the evidence was closed, Sowell inquired about including a jury instruction on the limited purpose for which the jury could consider prior difficulties. But the State argued that such an instruction was unnecessary because the aunt’s testimony regarding A. H.’s initial outcry could be considered as evidence of the offenses alleged in the indictment (despite the fact that the indictment alleged that the offenses occurred on a specific date). The trial court agreed, citing the principle that the date in the indictment was not material to the offense, and, therefore, holding that the jury could convict Sowell if it found that his actions were committed within the statute of limitation, which in this case encompassed all four years of A. H.’s life. Consequently, the court refused to instruct the jury regarding prior difficulties.

The State and the trial court are certainly correct that when

the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations, as long as the defendant is not surprised or prejudiced by presentation of evidence that the offenses occurred at a time substantially different from that alleged in the indictment.

However, when the indictment “specifically alleges the date of the offense is material, the accused may be convicted only if the State’s proof corresponds to the date alleged.”

Sowell does not contest the trial court’s general assessment of the law regarding this issue. Rather, Sowell argues that having decided just prior to trial that A. H.’s aunt’s testimony about the child’s initial outcry was admissible specifically as evidence of prior difficulties between the parties, the trial court could not change course after both parties rested and allow the jury to consider the testimony for a more expansive purpose, i.e., as evidence of the indicted offenses. In support of this argument, Sowell cites State v. Johnston, in which the Supreme Court of Georgia held that if a “trial court decides to rule on the admissibility of evidence prior to trial, the court’s determination of admissibility is similar to a preliminary ruling on evidence at a pretrial conference and it controls the subsequent course of action, unless modified at trial to prevent manifest injustice.” And here, Sowell contends that allowing A. H.’s aunt’s testimony to be considered as evidence of the indicted offenses constituted a modification that actually created a manifest injustice.

We agree that the trial court’s decision to expand the purposes for which the jury could consider A. H.’s aunt’s testimony ran afoul of our Supreme Court’s holding in Johnston. Moreover, the State’s argument that the trial court’s pre-trial ruling merely denied Sowell’s motion in limine and admitted A. H.’s aunt’s testimony for unlimited purposes is patently belied by the language in the court’s order, which explicitly characterized the evidence as “prior difficulties.” Nevertheless, it is a fundamental principle that “harm as well as error must be shown for reversal.” And here, we do not find that Sowell was harmed by the trial court’s ruling.

Whether it was characterized as evidence of prior difficulties or instead as evidence of the indicted offenses, A. H.’s outcry to her aunt was undoubtedly admissible. Indeed, Sowell does not claim that he was surprised by the admissibility of the aunt’s testimony in and of itself, and he has not appealed on such grounds. Furthermore, regardless of how this testimony was to be considered by the jury, Sowell’s defense—even after the denial of his motion in limine—was that he had never inappropriately touched A. H. Thus, it does not appear that Sowell was prejudiced by this evidence to the extent that he was deprived of presenting an alibi defense or was otherwise deprived of a fair trial. Accordingly, we find no basis for reversing his convictions.

4. Finally, Sowell contends that the trial court erred in denying his claims of ineffective assistance of counsel. Again, we disagree.

It is well established that in order to prevail on his claim of ineffective assistance of counsel, Sowell must show that his trial counsel’s performance was “deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” Additionally, there is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. And unless clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court’s legal conclusions in this regard are reviewed de novo.

(a) Sowell first contends that his trial counsel rendered ineffective assistance by failing to object to the State cross-examining him regarding his driver’s license without admitting it into evidence and then referring to the cross-examination during its closing argument. We disagree.

As previously noted, Sowell testified in his own defense at trial. During its cross-examination of Sowell, the State attempted to explain why A. H. had not been able to identify Sowell in the courtroom during her testimony by questioning Sowell as to whether his appearance had changed since his arrest. Specifically, the State’s prosecutor noted that Sowell was currently clean-shaven and wore glasses but that he had a beard and did not wear glasses at the time of the incident that resulted in his arrest. Following up on this line of questioning, the State’s prosecutor asked Sowell to produce his driver’s license, which Sowell did. The prosecutor then noted that the photograph on Sowell’s license showed that he had a beard and that the license did not indicate that Sowell was required to wear glasses to drive. The driver’s license was never admitted into evidence or shown to the jury, and Sowell’s trial counsel lodged no objection. Then, during closing argument, the State’s prosecutor noted again that Sowell’s driver’s license showed that his current appearance differed significantly from the last time A. H. had seen him.

Sowell now contends that his trial counsel performed deficiently, arguing that he should have either objected to the State’s cross-examination regarding his driver’s license or introduced the license into evidence. But this Court has long held that decisions regarding when and how to raise objections are “generally matters of trial strategy, and such strategic decisions do not constitute deficient performance unless they are so patently unreasonable that no competent attorney would have chosen them.” Here, during the hearing on Sowell’s motion for new trial, Sowell’s trial counsel testified that he did not object to the State’s references to Sowell’s driver’s license because he did not want the jury to think the defense had anything to hide. And minimizing objections in an effort to show the jury that the defense had nothing to hide was sound strategy. Accordingly, the trial court did not err in denying this specific claim of ineffective assistance of counsel.

Decided June 11, 2014

Mark A. Yurachek, for appellant.

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

(b) Sowell further contends that his trial counsel rendered ineffective assistance by failing to object when the State’s prosecutor referred to facts not in evidence during closing argument. Again, we disagree.

As previously mentioned, one of the defense witnesses was A. H.’s great-grandmother, who testified that A. H.’s mother, in commenting on the case, stated that “they’re trying to say it was [A. H.’s father,]” and that A. H. replied, “I thought you told me it was Uncle Cody.” Attempting to address this evidence during closing argument, the State’s prosecutor argued, “Well, who are they? Well, it ain’t the D.A.” Sowell now argues that his trial counsel should have objected to this argument because failing to do so allowed the State to essentially testify that A. H.’s father was never suspected of being the person who actually sexually abused the child. However, during the motion-for-new-trial hearing, Sowell’s trial counsel testified that his goal in calling the great-grandmother as a witness was to emphasize the second part of the aforementioned testimony, i.e., A. H.’s response to her mother, which seemingly indicated that the child had been coached regarding whom to accuse. Given that context, Sowell’s trial counsel further testified that he did not object to the prosecutor’s comments on this evidence because he thought the prosecutor’s attempt to refute it was unsuccessful. And viewed without the “distorting effects of hindsight, trial counsel’s conduct was reasonable in this case.” Thus, the trial court did not err in denying Sowell’s claim of ineffective assistance in this regard.

For all the foregoing reasons, we affirm Sowell’s convictions.

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

        See OCGA § 16-6-4 (c).

        See OCGA§ 16-6-4 (a) (1).

        See OCGA §§ 16-13-30 (a), (g); 16-13-27 (4) (D).

        See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Jones v. State, 318 Ga. App. 26, 29 (1) (733 SE2d 72) (2012) (punctuation omitted); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

       OCGA § 16-6-4 (a) (1).

       OCGA § 16-6-4 (c).

       See Maloney v. State, 317 Ga. App. 460, 461 (731 SE2d 133) (2012) (holding that testimony that defendant licked victim’s vagina was sufficient to support aggravated child molestation conviction); see also former OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”), repealed by Ga. L. 2011, p. 99, § 2. OCGA § 24-14-8, which became effective January 1,2013, contains language nearly identical to former OCGA § 24-4-8, but because Sowell was tried on June 7 and 8, 2012, Georgia’s new Evidence Code was not applicable. See Ga. L. 2011, p. 99, § 101.

        See Lipscomb v. State, 315 Ga. App. 437, 440 (1) (727 SE2d 221) (2012) (holding that evidence that defendant exposed his genitals to victim was sufficient to support his child molestation conviction); Dew v. State, 292 Ga. App. 631, 633 (1) (b) (665 SE2d 715) (2008) (holding that testimony that defendant touched victim’s vaginal area was sufficient and that “a conviction for child molestation does not require a showing that the victim was touched beneath her clothing” (punctuation omitted)).

        See Grindle v. State, 299 Ga. App. 412, 417 (1) (b), n. 4 (683 SE2d 72) (2009) (“Hearsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact.” (punctuation omitted)).

        Phagan v. State, 268 Ga. 272, 281 (5) (486 SE2d 876) (1997).

        Phillips v. State, 284 Ga. App. 224, 229 (1) (d) (644 SE2d 153) (2007) (punctuation omitted).

        See id.

        See Stillwell v. State, 294 Ga. App. 805, 810 (2) (g) (670 SE2d 452) (2008) (holding that trial counsel’s failure to object to admissibility of victim’s videotaped interview did not prejudice defendant because video was cumulative of other evidence).

        See Martin v. State, 251 Ga. App. 149, 150 (1) (553 SE2d 827) (2001) (holding that defendant’s sworn testimony that bags found on his person contained crack cocaine was sufficient to prove corpus delicti and, thus, crime laboratory reports were cumulative and their admission was harmless even if it was error). Compare Johnson v. State, 205 Ga. App. 760, 761 (423 SE2d 702) (1992) (holding that defendant’s confession to arresting officer cannot establish the corpus delicti, which must be proved beyond a reasonable doubt, independently of the confession).

        See OCGA §§ 17-3-1 (c); 17-3-2.1 (a) (5).

        Moore v. State, 319 Ga. App. 766, 776 (8) (d) (738 SE2d 348) (2013) (punctuation omitted).

        State v. Swint, 284 Ga. App. 343, 344 (2) (643 SE2d 840) (2007) (punctuation omitted); accord Ledesma v. State, 251 Ga. 885, 885 (1) (a) (311 SE2d 427) (1984).

       249 Ga. 413 (291 SE2d 543) (1982).

        Id. at 415 (3) (punctuation omitted).

        O’Neal v. State, 288 Ga. 219, 223 (2) (702 SE2d 288) (2010) (punctuation omitted).

        See Rayner v. State, 307 Ga. App. 861, 864 (1) (706 SE2d 205) (2011) (holding that evidence that the victim previously alleged that the defendant inappropriately touched her, conduct not charged in the indictment, was admissible); Stillwell, 294 Ga. App. at 809 (2) (e) (same); Brown v. State, 287 Ga. App. 857, 860-61 (5) (652 SE2d 807) (2007) (holding that evidence of molestation at a time different than that alleged in the indictment was, nevertheless, sufficient to support defendant’s conviction on indicted offense); Norman v. State, 278 Ga. App. 497, 499 (4) (629 SE2d 489) (2006) (same).

        Brown, 287 Ga. App. at 861 (5) (finding no reversible error because even though child-molestation offense for which defendant was found guilty took place at times different from time alleged in the indictment, defendant was not deprived of presenting an alibi defense or otherwise deprived of a fair trial); Norman, 278 Ga. App. at 499 (4) (same).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

        Chapman, 273 Ga. at 350 (2).

        Henderson v. State, 303 Ga. App. 898, 898 (1) (695 SE2d 334) (2010).

        Nesbitt v. State, 296 Ga. App. 139, 142 (3) (d) (673 SE2d 652) (2009) (punctuation omitted); accord Crawford v. State, 294 Ga. App. 711, 712-13 (1) (b) (670 SE2d 185) (2008).

        See Hartsfield v. State, 294 Ga. 883, 889(3) (b) (757 SE2d 90) (2014) (holding that defense counsel’s failure to object to hearsay statements in an effort to show that defendant had nothing to hide was reasonable trial strategy); Wright v. State, 322 Ga. App. 622, 625 (2) (c) (745 SE2d 866) (2013) (holding that defense counsel’s decision not to object to replaying of video of victim’s interview because, in part, strategy was to portray defendant as having nothing to hide did not amount to ineffective assistance).

        Cammer v. Walker, 290 Ga. 251, 255 (1) (719 SE2d 437) (2011) (citation and punctuation omitted); see Jackson v. State, 271 Ga. App. 317, 320 (1) (b) (609 SE2d 643) (2004) (holding that trial counsel’s failure to object to prosecutor’s comments concerning facts not in evidence were presumed strategic in absence of evidence to the contrary).


text:
    A14A0626.
    HUMPHRIES v. THE STATE.
    (759 SE2d 611)
   BARNES, Presiding Judge.

After a bench trial, at which the appellant stipulated to using evidence adduced at a motion to suppress hearing as evidence for trial, the trial court found Jennifer Humphries guilty of DUI per se and failure to maintain a lane. On appeal, she contends the trial court erred in finding that the officer used “fair and reasonable” means of obtaining her consent to take a breathalyzer test. Specifically, she argues that after she initially refused to submit to a breath test, the officer threatened that her refusal would result in a forcible blood draw and longer confinement while a search warrant was obtained to draw her blood. For the following reasons, we affirm.

“On appeal from a criminal conviction that follows a bench trial, the defendant no longer enjoys a presumption of innocence, and we view the evidence in a light favorable to the trial court’s finding of guilt.” (Citation and punctuation omitted.) Hinton v. State, 319 Ga. App. 673 (738 SE2d 120) (2013). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

Viewed in this light, the evidence shows that on October 26,2012, Humphries was pulled over by two policemen for weaving and driving “excessively slow in the fast lane” of the highway. While they were talking, the officer noted a strong odor of alcohol coming from her breath. Humphries admitted to consuming a couple of beers, but declined to take a preliminary roadside alco-sensor test and was not asked to do field sobriety tests because she was on crutches. Humphries told the officer that she had been told that “I don’t have to blow,” and the officer replied, “That’s absolutely right, you don’t have to.” Humphries then told the officer that she would not take the test, and the officer indicated that it was her choice, but that based on his observations, he was going to arrest Humphries for DUI. The officer instructed Humphries to call someone to pick up her car. When she asked further questions about the alco-sensor test, the officer said, “Ma’am, it’s not optional, either you’re submitting or you’re not, which do you want to do?” She again said no. The officer read her the implied consent notice, and asked again if she would consent to testing, and when Humphries replied that she would not, the officer said that was fine, and that he would get a search warrant to draw her blood.

As they waited on a friend to pick up her car, Humphries questioned the officer about the intake process, and the officer told her that “it’s going to be a longer process [getting out of jail] because you refused... the State’s test.” But he also repeatedly told her again that it was her decision. Humphries was transported to jail, and after being re-read the notice at the jail, she agreed to take the state-administered breath test. She registered a 0.216 on the Intoxilyzer 5000.

Humphries filed a motion to suppress, arguing, among other things, that after her initial refusal to take the breath test, the police officer later coerced her into rescinding her refusal by threatening her with obtaining a search warrant to take a blood sample, and delayed release from jail. In denying her motion to suppress, the trial court found that actions of the police officers were “fair and reasonable,” and the “refusal was not coerced.” On appeal, Humphries contends that the trial court erred in holding that the officers’ actions were fair and reasonable and not coercive. We do not agree.

[0]n appellate review of a trial court’s order on a motion to suppress evidence, we never second-guess the trial court’s factual findings where they are based on testimonial evidence. We construe the evidence most favorably to the upholding of the trial court’s findings and judgment and affirm unless the court has committed an error of law.

(Punctuation and footnotes omitted.) State v. Rowell, 299 Ga. App. 238, 239 (682 SE2d 343) (2009).

One who operates a motor vehicle on Georgia’s highways is deemed to have given consent to chemical testing of a bodily substance to determine the presence of alcohol or other drugs. Although consent is implied, before test results may be admitted into evidence the state must show that the accused had been advised of his rights under the Implied Consent Statute.

(Citations omitted.) Travis v. State, 314 Ga. App. 280, 282 (2) (724 SE2d 15) (2012); see OCGA § 40-5-67.1 (b) (2). However,

[e]ven when the officer properly gives the implied consent notice, if the officer gives additional, deceptively misleading information that impairs a defendant’s ability to make an informed decision about whether to submit to testing, the defendant’s test results or evidence of his refusal to submit to testing must be suppressed. The suppression of evidence, however, is an extreme sanction and one not favored in the law.

(Punctuation and footnote omitted.) Page v. State, 296 Ga. App. 431, 433 (1) (a) (674 SE2d 654) (2009).

If a person has declined to submit to a state-administered test, officers are allowed to use “fair and reasonable” methods of persuasion to get them to rescind the refusal. Howell v. State, 266 Ga. App. 480, 485 (597 SE2d 546) (2004). See State v. Highsmith, 190 Ga. App. 838, 839 (380 SE2d 272) (1989) (a suspect may revoke his implied consent, although “the court must evaluate the officer’s actions to determine if the officer acted reasonably in the situation and whether the procedure was applied in a fair manner”). If it is determined that the officer acted in a manner to coerce consent, then the evidence obtained must be suppressed. See Rowell, 299 Ga. App. at 239-240 (affirming trial court’s finding that an officer’s actions were not fair or reasonable when the defendant testified that she felt coerced when the officer told her if she blew under the legal limit, he would let her go home to her son).

Humphries contends that, although she later consented to the Intoxilyzer test, some of the officer’s statements before she changed her mind rose to the level of coercion, specifically the statements that the test was not optional and that it would take longer to be processed out of jail if she did not submit to the test. We do not agree.

Despite Humphries’ contentions, none of the officer’s statements to Humphries were deceptively misleading or inaccurate. Although he said it would take longer to be processed and released as a result of her refusal, this information was not misleading or deceptive information, as he explained to Humphries that the process of acquiring a warrant would mean additional time before she could be processed out of custody. Further, regarding the officer’s statement that he would obtain a warrant to retrieve Humphries blood, a statement that police would obtain a warrant if defendant refused to consent to search, being true, “does not amount to such duress or coercion as would invalidate the subsequent search.” (Punctuation omitted.) Farley v. State, 195 Ga. App. 721, 722 (394 SE2d 585) (1990); compare Wallace v. State, 325 Ga. App. 142, 144-145 (751 SE2d 887) (2013) (when an officer incorrectly informs a defendant that his refusal to submit a breath test could not be used against him, a motion to suppress should be granted). Moreover, although Humphries contends that by saying consent was “not optional,” the officer was giving her any choice but to take the test, upon our review of the video of the stop, it appears that the officer’s statement was that she either had to submit or not submit and that to not do one or the other was not optional. However, the officer repeatedly told Humphries that the decision was up to her.

Decided June 11, 2014.

Stein & Ward, George A. Stein, Erin H. Gerstenzang, for appellant.

Jessica K. Moss, Solicitor-General, David M. McElyea, Assistant Solicitor-General, for appellee.

Under the circumstances, we conclude that the trial court had a substantial basis for making its finding that the officer’s statements did not render Humphries incapable of making an informed decision about whether to submit to the breath test. The traffic stop video does not clearly suggest that the officer’s statements were made to coerce Humphries into consenting. The officer continued to alert Humphries that it was her decision to make, and that the booking department at the jail would provide her with further information regarding future processes.

Thus, the trial court did not err in denying Humphries’ motion to suppress, and we find the evidence sufficient to sustain her convictions for DUI per se and failure to maintain a lane. See Page, 296 Ga. App. at 434 (1) (b) (officer’s actions not unreasonable or coercive when Page initially refused consent to testing when asked at the scene of the traffic stop, but later rescinded her refusal and consented to the test).

Judgment affirmed.

Boggs and Branch, JJ., concur.


text:
    A14A0637.
    ROBERSON v. 21ST CENTURY NATIONAL INSURANCE COMPANY.
    (759 SE2d 614)
   ANDREWS, Presiding Judge.

Danny Roberson sued Larry Booker and Michael Snipes for injuries Roberson sustained in a motor vehicle accident. Roberson also served his wife’s uninsured motorist insurance carrier, 21st Century National Insurance Company, as permitted by OCGA § 33-7-11. 21st Century then moved for summary judgment because its policy contained a “Named Driver Exclusion Endorsement” that excluded Roberson from all coverage under the policy; the trial court agreed and granted 21st Century’s motion. Roberson appeals, claiming that the exclusion does not apply and that enforcement of the exclusion would contravene OCGA § 33-7-11 and Georgia public policy. Because we conclude that OCGA § 33-7-11 requires a written rejection of uninsured motorist coverage to properly exclude Roberson and that the record contains no such rejection, we reverse.

The facts of record in this appeal are sparse. On August 3, 2009, Roberson was injured when a vehicle driven by Snipes, and owned by Booker, collided with Roberson’s police cruiser at the intersection of Mercer University Drive and Grosso Avenue in Macon. As a result of the collision, Roberson received injuries and sued Snipes and Booker; Snipes denied the allegations of Roberson’s complaint. At that time, Roberson’s wife, Tera, maintained a “Personal Automobile Insurance Policy” with 21st Century. Included in the 21st Century policy is “Part C —■ Uninsured Motorists Coverage.” Tera Roberson’s policy provides that 21st Century “will pay compensatory damages that an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of: A. Bodily injury sustained by an insured.” “Insured” is partially defined as “[the named insured] or any family member.” As a result, Roberson served 21st Century pursuant to the provisions of OCGA § 33-7-11, seeking the benefit of the policy’s uninsured motorist coverage.

However, the policy also contains a “Named Driver Exclusion Endorsement” which provides, in part, that “ALL coverages under this policy are excluded” for claims arising from an accident when certain vehicles are operated by a “named excluded driver.” The policy’s declaration page includes a section entitled “Driver Information”; under that heading, “Tera Roberson” is named, along with additional information (date of birth, etc.). “Danny Roberson” is identified as an “Excluded Driver.”

Based upon these provisions, 21st Century filed a motion for summary judgment, arguing that Roberson was not entitled to uninsured motorist coverage since he was a “named excluded driver” under the plain language of the endorsement. Roberson responded, arguing that the endorsement did not apply because Roberson “is not ‘listed’ as a named excluded driver on the declaration page” and because “O.C.G.A. § 33-7-11 and public policy considerations foreclose application of [21st Century’s] exclusion.” The trial court found that Roberson was excluded from all coverage under the 21st Century policy; that Tera Roberson’s premium was adjusted “as consideration for the exclusion of Mr. Roberson”; and that neither OCGA § 33-7-11 nor Georgia public policy “require [d] a driver who does not have coverage under a policy to sign a written rejection of UM coverage under that policy.” The trial court therefore granted 21st Century’s motion, and Roberson now appeals.

Our standard of review may be stated thusly:

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Layer v. Clipper Petroleum, 319 Ga. App. 410, 411 (735 SE2d 65) (2012).

1. Roberson claims that the 21st Century policy is “illegal and against public policy” because it excludes Roberson from uninsured motorist coverage in purported violation of OCGA § 33-7-11. Based upon the evidence of record, we find that the 21st Century policy does not comply with the requirements of OCGA § 33-7-11 (a) (3).

OCGA § 33-7-11 (a) (1) provides:

No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this state upon any motor vehicle then principally garaged or principally used in this state unless it contains an endorsement or provisions undertaking to pay the insured damages for bodily injury... of an insured under the named insured’s policy sustained from the owner or operator of an uninsured motor vehicle [.]

However, such coverage “shall not be applicable where any insured named in the policy shall reject the coverage in writing.” (Emphasis supplied.) OCGA § 33-7-11 (a) (3). OCGA § 33-7-11 (b) (1) (B) defines “insured,” in part, as “the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise.” In contrast to OCGA § 33-7-11, the “Named Driver Exclusion Endorsement” of the 21st Century policy states:

In consideration of the premium charged for this policy, it is agreed that ALL coverages under this policy are excluded and no coverage will be provided for any claim arising from an accident or loss that occurs while a covered auto or a non-owned auto is operated by an individual listed as a named excluded driver on your Declarations Page.

The declarations page clearly identifies “Tera Roberson” as the sole “named insured” and Roberson as an “Excluded Driver.” Yet despite the inclusion of the named driver exclusion endorsement, the record does not contain any rejection in writing of uninsured motorist coverage for Roberson.

It is generally true that “named driver exclusions which are clear, unambiguous and supported by consideration are enforceable.” Ison v. State Farm Fire & Cas. Co., 230 Ga. App. 554, 555 (496 SE2d 478) (1998). Indeed, “an insurer may fix the terms of its policy as it wishes, insuring against certain risks and excluding others, provided the terms are not contrary to law.” (Emphasis supplied.) Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996). Accordingly, when an uninsured motorist policy provision is in conflict with the clear intent of OCGA § 33-7-11, the policy provision is unenforceable, and the statute controls. Dees v. Logan, 282 Ga. 815, 816 (653 SE2d 735) (2007); Hartford Accident & Indem. Co. v. Booker, 140 Ga. App. 3, 4 (1) (230 SE2d 70) (1976). “Exclusions in uninsured motorist endorsements cannot ‘circumvent the clear mandate of [OCGA § 33-7-11] by withholding the protection required.’ ” (Citations and punctuation omitted.) Id. When viewed in tandem, these authorities confirm that OCGA § 33-7-11 (a) (3) permits waiver of uninsured motorist benefits, as long as “any insured named in the policy shall reject the coverage in writing.” Here, there is no evidence of a written rejection of uninsured motorist coverage. It necessarily follows that the attempt to exclude Roberson from uninsured motorist coverage violated the plain requirements of OCGA § 33-7-11. See Dees, supra, 282 Ga. at 816. As a result, we conclude that the named driver exclusion endorsement in the 21st Century policy is ineffective.

We are mindful of the authority cited by 21st Century and the trial court suggesting that the exclusion of Roberson from uninsured motorist coverage is enforceable. See Fountain v. Atlanta Cas. Co., 204 Ga. App. 165 (419 SE2d 67) (1992) (‘Fountain II”). See also Fountain v. Atlanta Cas. Co., 200 Ga. App. 643 (409 SE2d 239) (1991) (‘Fountain I”). In Fountain, Stanley and Marsha Fountain procured an insurance policy that included a named driver exclusion for their 16-year-old daughter Cynthia. Fountain I, supra, 200 Ga. App. at 643. When Cynthia was injured in an all-terrain vehicle accident, her parents sought uninsured motorist coverage from their insurer. Id. This Court ultimately held that the named driver exclusion endorsement was enforceable and affirmed the trial court’s award of summary judgment to the insurer. Id. See also Fountain II, supra, 204 Ga. App. at 166, 167. However, Fountain is distinguishable on one key point.

In Fountain I, we noted that the policyholders “rejected in writing all uninsured motorist coverage” for Cynthia. See Fountain I, supra, 200 Ga. App. at 643. In addition, the named driver exclusion at issue in Fountain included a provision that the named insured “hereby consents and agrees to the exclusion set forth above and also rejects in writing all uninsured motorist coverage if the vehicle is being operated by the excluded driver in the policy.” Fountain II, supra, 204 Ga. App. at 166 (1). Finally, we observed that “the named insured under the policy, as well as the named driver herself, rejected uninsured motorist coverage for the named driver.” (Emphasis supplied.) Id. at 166 (2). See also Atlanta Cas. Co. v. Cash, 209 Ga. App. 123 (433 SE2d 311) (1993) (named driver exclusion for uninsured motorist coverage upheld where named insured and named driver consented to exclusion). Accordingly, the primary case upon which 21st Century relies included a written rejection of uninsured motorist coverage, an element that is not supported by the record of this case.* ** See also Doe v. Rampley, 256 Ga. 575, 577 (1) (351 SE2d 205) (1987) (“We note the absence in the record of any written waiver of uninsured motorist coverage.”).

Decided June 11, 2014.

Reynolds, Horne & Survant, Oliver W. Horne III, Bradley J. Survant, for appellant.

Cruser & Mitchell, Evan R. Mermelstein, for appellee.

Other authority addressing named driver exclusions is similarly inapposite. See Ison, supra, 230 Ga. App. at 555 (named driver exclusion valid for liability coverage). Nor can the mere existence of the named driver exclusion endorsement satisfy the waiver requirement of OCGA § 33-7-11 if the endorsement does not conform with the statute. Compare Doe, supra, 256 Ga. at 577 (no written waiver) with Fountain II, supra, 204 Ga. App. at 166 (named driver exclusion provided that named insured “hereby consents and agrees to the exclusion set forth above and also rejects in writing all uninsured motorist coverage”).

In addition, 21st Century is not rescued by its reliance upon contract principles to support its arguments. See Anderson v. Mullinax, 226 Ga. App. 672 (487 SE2d 607) (1997). It is only partially true that, as cited by 21st Century, “[c]overage for uninsured motorists is a matter of insurance contract”; rather, such matters must yield to “the statutory requirements of OCGA § 33-7-11.” Id. See also Hurst, supra, 266 Ga. at 716 (4). Here, Tera Roberson was free to contract with 21st Century for whatever coverage she wished, including the exclusion of Roberson from coverage; clearly, uninsured motorist coverage may be rejected if it is accomplished in writing. See Fountain II, supra, 204 Ga. App. at 166, 167; Fountain I, supra, 200 Ga. App. at 643. The flaw comes not from what Tera Roberson bargained for, but from the fact that the policy purports to provide the coverage she bargained for without including a written rej ection as required by OCGA § 33-7-11 (a) (3). As aresult, the 21st Century policy runs afoul of OCGA § 33-7-11, and the trial court erred when it awarded summary judgment to 21st Century.

2. Because we reverse on the basis that the record fails to demonstrate that the 21st Century policy complied with OCGA § 33-7-11, we need not reach the remainder of Roberson’s arguments.

Judgment reversed.

McFadden, J., concurs. Ray, J., concurs in judgment only.

       While both parties’ briefs have freely included factual allegations without citation to the record, in violation of this Court’s rules, see Court of Appeals Rule 25 (a), those allegations have not been considered.

       Roberson’s reply brief in this Court exceeds the applicable page limit by several pages. See Court of Appeals Rule 24 (f). Rather than strike the reply brief, we have not considered these additional pages in our analysis of this appeal.

       We need not reach the question of whether Roberson and Tera Roberson should execute a rejection of uninsured motorist coverage or whether, as the only “named insured” on the policy, such a rejection could be executed by Tera Roberson alone; the record contains neither.

       We do not hold that a named driver exclusion endorsement can never waive uninsured motorist coverage. See Fountain v. Atlanta Cas. Co., 204 Ga. App. 165 (419 SE2d 67) (1992). Rather, we merely state that the record in this case does not support enforcement of such an exclusion because of the absence of a rejection in writing, by a named insured, of uninsured motorist coverage.

       We take no position relative to the manner in which the “writing” required by OCGA §33-7-11 is accomplished; rather, we state only that the record in this case contains no such “writing.” See Nat. Union Fire Ins. Co. v. Johnson, 183 Ga. App. 38, 39 (357 SE2d 859) (1987) (rejection of uninsured motorist coverage by letter during policy term effective); Blalock v. Southern Ins. Co., 180 Ga. App. 319 (349 SE2d 32) (1986) (checking box to reject uninsured motorist coverage effective); Whatley v. Universal Security Ins. Co., 177 Ga. App. 424 (339 SE2d 398) (1986) (same).