author: MCMILLIAN, Judge.

text:
    A14A0249.
    MINOR v. THE STATE. CLAYTON v. THE STATE.
    A14A0250.
    (761 SE2d 538)
   MCMILLIAN, Judge.

Duvalle Rene Minor and Robert Anthony Clayton were tried together and convicted of the crimes of armed robbery and criminal attempt to commit armed robbery arising out of the same incident. Minor and Clayton appeal following the trial court’s denial of their motions for new trial.

Viewed in the light most favorable to the verdict, the evidence shows that on the night of December 19, 2011, Jose Hernandez (“J. H.”) and Bardomiano Hernandez (“B. H.”) (collectively “the victims”), were walking along a pathway off Franklin Road in Cobb County on their way home from the store when they were suddenly attacked by two men. The men were wearing black, or dark, clothes with long sleeves. Both men had hoodies or caps over their heads, and the shorter of the two men had a gun. As B. H. began to struggle with the shorter man, the man’s hoodie fell, and the victims were able to see him and could identify his face and hair. The shorter man was trying to go through B. H.’s pockets, and when B. H. resisted, the man hit him in the face with the gun, causing him to fall to the ground. Meanwhile, the other, taller man stuck his hand in J. H.’s jacket pocket and grabbed his cell phone. J. H. started backing away, out of the darkness, because he could not tell if the taller man also had a weapon. J. H. saw a patrol car nearby and started shouting.

Meanwhile, Officer Jeremy Slatton of the Marietta Police Department, who was patrolling the area, saw a “scuffle” between two men on the side of Franklin Road. As he looked further, he saw another man standing over someone lying on the ground. At this point, the two perpetrators ran off, jumping a fence and running into a nearby apartment complex. Slatton turned his car around and reported the incident on his radio. When he came back, he saw two men on the side of the road pointing toward an apartment complex. Slatton looked in the direction the men were pointing and saw a man wearing black clothing jumping the fence into the apartment complex and another man was ahead of him, running through the complex.

The officer directed J. H. and B. H. to stay where they were, while he gave chase to the two men in his car. Slatton drove to the apartment complex to which the men had fled, exited his car, and ran after them. He saw them jumping another fence, but they were too far ahead, so he radioed their direction of travel to other officers who had arrived on the scene. Officer Steven Miller of the Marietta Police Department responded to Slatton’s report of a robbery in progress, and when he arrived at the apartment complex, he saw two men with dark clothing jumping the fence from inside the apartment’s pool area to a parking lot. Miller said the two matched Slatton’s description and were running in the direction he had indicated. Miller detained the two men at gunpoint, and each one was placed in the back of a patrol car.

In the meantime, Slatton had returned to the crime scene to interview the victims. When he was notified that two suspects had been detained, he placed the victims in his patrol car and drove them to the apartment complex where the men were being held. The victims were asked, individually, if they could identify two men, who were each sitting in the back of a patrol car. Both victims were able to identify the shorter man because they had seen his face, but they were unable to identify the other man because his face had been covered during the robbery. At trial, Slatton identified the shorter man, who was identified by the victims, as Clayton and the other man as Minor.

Police later searched the area of the robbery, and although they never located a gun, Slatton was able to recover J. H.’s cell phone. He also discovered “a black, knit-like skull cap” on the ground just on the other side of the fence near the area where the suspects had jumped it. The cap had a slit cut in it, which would allow the wearer to see through the cap if it was pulled down over his face. Although hair samples taken from the inside of the cap did not match samples provided by Minor, the GBI scientist who tested the samples said that the hat also contained a number of hair fragments that were too short or otherwise not suitable for testing. He clarified that he could not definitively say that the hat had not been on Minor’s head, only that, of the testable samples, he did not find any that matched Minor’s hair.

Case No. A14A0249

1. Minor first asserts that the evidence was insufficient to support a finding of his guilt. He notes that the victims never identified him as one of the men who accosted them and the hairs in the skull cap did not match his.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). This same standard applies to our review of the trial court’s denial of [a] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citation and punctuation omitted.) Favors v. State, 326 Ga. App. 373, 373-374 (1) (756 SE2d 612) (2014). “As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, this Court will uphold the jury’s verdict.” (Citation omitted.) Heard v. State, 299 Ga. App. 44, 44 (1) (681 SE2d 701) (2009).

Furthermore, “[ejvery person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). Although mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. If the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor. Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime.

(Citation omitted.) Kinsey v. State, 326 Ga. App. 616, 621-622 (2) (757 SE2d 217) (2014).

Here, although neither victim could identify Minor as a perpetrator of the crimes, “[circumstantial evidence of identity may be sufficient to enable a rational trier of fact to find a defendant guilty beyond a reasonable doubt.” (Citations and punctuation omitted.) Sellers v. State, 325 Ga. App. 837, 842 (1) (a) (755 SE2d 232) (2014). Further, circumstantial evidence of a defendant’s identity “need not exclude every conceivable inference or hypothesis — only those that are reasonable. To set aside the conviction it is not sufficient that the circumstantial evidence show that the act might by bare possibility have been done by somebody else.” (Citations and punctuation omitted; emphasis in original.) Jordan v. State, 320 Ga. App. 265, 269 (1) (739 SE2d 743) (2013).

The victims testified that they were attacked by two men wearing black or dark clothes. Slatton also observed two men in dark clothes scuffling with the victims. A few moments later, he saw one of the men climbing over a fence and the other in front running through an apartment complex. Slatton drove straight to that complex and saw the men climbing another fence and running away. He radioed the direction of their flight to other officers, and Miller arrived within minutes of the crime to see two men wearing dark clothes climbing over a fence and fleeing together in the direction Slatton described. He arrested the two men, later identified as Clayton and Minor. Both victims positively identified Clayton as the man who scuffled with and tried to rob B. H. Although they could not identify Minor as the man who robbed J. H., the other perpetrator had worn a mask over his face, and police discovered a mask beside a fence that the two perpetrators had climbed. And even though the GBI was unable to match any hairs in the hat to Minor, other hair samples in the hat were not suitable for testing and the GBI scientist could not definitively eliminate the possibility that Minor had worn the hat. Under these circumstances, we find this evidence sufficient to support Minor’s convictions beyond a reasonable doubt.

2. Minor also argues that his trial counsel was ineffective in failing to object to a misstatement of law in the trial court’s charge to the jury.

(a) To prevail on his 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), “[Minor] 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.” (Citations and punctuation omitted.) Anthony v. State, 317 Ga. App. 807, 813 (4) (732 SE2d 845) (2012). On appeal of a claim of ineffective assistance, “we accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, while we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Philpot v. State, 311 Ga. App. 486, 489 (3) (716 SE2d 551) (2011). Moreover, “[i]f a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by the Court.” Barge v. State, 294 Ga. 567, 569 (2) (755 SE2d 166) (2014).

Minor argues that his trial counsel’s performance was deficient in that he failed to object to the portion of the final jury charge in which the trial court instructed, “The burden of proof rests on the Defendant (sic) to prove every material allegation in the indictment and every essential element of the crime charged beyond a reasonable doubt.” Minor asserts that this omission cannot be considered a matter of trial strategy, because his trial attorney testified at the hearing on his motion for new trial that he did not remember that charge being given and that had he noticed it, he would have brought it to the trial court’s attention. The quoted charge is undoubtedly a misstatement of law, as denoted by the insertion of “(sic)” in the transcript. But pretermitting whether Minor’s trial counsel’s performance was deficient in failing to object to the charge, we find that Minor has failed to prove the requisite prejudice to establish his claim of ineffective assistance of counsel.

It is well settled that “[t]he charge to the jury is to be taken as a whole and not out of context when making determinations as to [its] correctness ...” (Citations and punctuation omitted.) Mitchell v. State, 242 Ga. App. 694, 697 (5) (531 SE2d 143) (2000). Here, the trial judge instructed the jury in her pre-evidentiary charge that the defendants were presumed innocent, that each element of the crime must be proved beyond a reasonable doubt, and that “[t]he burden of proof rests on the State to prove each essential element of the offense charged beyond a reasonable doubt.” In the same charge, the judge repeated that “[t]he burden is always on the State to prove each essential element of the offense charged beyond a reasonable doubt,” and that the defendant never has a burden to present any evidence.

Further, in her formal charge at the close of the evidence, the trial judge again charged the jury on the presumption of innocence immediately before the contested charge. And immediately after it, she charged, “There is no burden of proof on the Defendant whatsoever, and the burden never shifts to the Defendants to introduce evidence or to prove innocence.” Later in the charge, the trial court instructed that “[i]ntent is an essential element of any crime and must be proved by the State, beyond a reasonable doubt.” The trial court also instructed that “[t]he burden of proof rests on the State to prove beyond a reasonable doubt the identity of the Defendants as the person[s] who committed the crime alleged in this bill of indictment” and that “[i]t is not necessary that the Defendants show another person committed the alleged offense.” Similarly, the charge noted that the State must prove venue beyond a reasonable doubt “as to each of the crimes charged in the indictment just as any element of the offenses.” The trial court also twice identified for the jury “[t]he elements of the [lesser included] offense [of robbery] that the State must prove beyond a reasonable doubt.” (Emphasis supplied.)

Thus, a review of the charge as a whole clearly demonstrates that on a number of occasions, both before and after the misstatement, the trial court correctly instructed the jury that the State bore the burden of proof beyond a reasonable doubt as to the charges in this case. And the misstatement was so fleeting that neither the trial court, the prosecutor, nor the two defense attorneys noticed it. Therefore,

at no time was the jury misinformed as to the substance of the actual burden. While a correct instruction will not necessarily cure an erroneous one on the same point, we find under the circumstances of this case that the court’s substitution of [“Defendant”] for “the State” amounted to a “palpable ‘slip of the tongue’ and clearly could not have misled or confused the jury.”

(Citations omitted.) Mitchell, 242 Ga. App. at 697 (5) (no ground for reversal where jury charge contained single misstatement that the sole issue for the jury was to consider “whether or not the court has proved the defendant guilty beyond a reasonable doubt” following several correct statements of the law) (punctuation omitted; emphasis in original). See also White v. State, 233 Ga. App. 276, 277-278 (3) (503 SE2d 891) (1998) (considering charge as a whole, reversal not required based on trial court’s “slip of the tongue” in stating “the State is not required to prove the guilt of the accused beyond a reasonable doubt, all doubt or to a mathematical certainty”) (punctuation omitted); Volcey v. State, 200 Ga. App. 881, 883 (3) (410 SE2d 36) (1991) (considering charge as a whole, no ground for reversal for trial court’s slip of the tongue in charging jury that the defendant “will be presumed to have acted with criminal intent”). We find, therefore, that Minor failed to establish a reasonable probability that the outcome of the trial would have been different if his trial attorney had raised an objection. Therefore, Minor is not entitled to a new trial on this ground.

(b) In his reply brief, Minor also argues that the misstated charge constituted plain error requiring reversal. Although this Court generally will not consider arguments raised for the first time in a reply brief, Vann v. Finley, 313 Ga. App. 153, 154, n. 2 (721 SE2d 156) (2011) , we note that Clayton also raised this issue in his appellate brief. Accordingly, we will consider the charge under a plain error analysis.

Because neither defense attorney objected to the trial court’s misstatement, any appellate review of the charge is precluded, “unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” OCGA § 17-8-58 (b). Under the plain error standard,

[rjeversal is authorized if all four prongs of the standard adopted in [State v.] Kelly[, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011),] are met: the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation omitted.) White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012) .

We have already determined that the contested charge was erroneous, and the error in the charge is obvious on its face. But for the reasons previously discussed, we found that the trial court’s slip of the tongue did not constitute reversible error. “[I]t follows[, therefore,] that there could be no plain error either (since plain error does not exist in the absence of reversible error).” (Citation and punctuation omitted.) Dolphy v. State, 288 Ga. 705, 710 (3) (707 SE2d 56) (2011). Accordingly, we find no basis for reversal on this ground. See Pitchford v. State, 294 Ga. 230, 239 (5) (751 SE2d 785) (2013) (no plain error where charge was “an inadvertent slip of the tongue on the part of the trial judge and most likely went unnoticed by those present; had it not, both defendants’ attorneys would likely have immediately objected”); Tanksley v. State, 323 Ga. App. 299, 304 (2) (c), n. 2 (743 SE2d 585) (2013) (trial court’s slip of the tongue in jury charge “did not rise to the level of plain error” when charge considered asa whole).

3. Minor next asserts that the trial court improperly invaded the province of the jury by insisting that the jurors consider the defendants’ guilt or nonguilt in a particular order. He cites to the portion of the trial court’s charge addressing the verdict forms for each defendant and for each count. The trial judge charged that if the jury found all the elements of armed robbery beyond a reasonable doubt, it should check the first blank on the verdict form. But if the jury found the elements of robbery beyond a reasonable doubt, but did not find an offensive weapon, it would be authorized to convict the defendants of robbery and thus to check the second blank on the form. However, if the jury did not believe the defendants were guilty, or if they had reasonable doubt as to guilt, it should check the third blank on the form, indicating an acquittal. The judge gave similar instructions for the verdict form on the charge of attempted armed robbery.

Because Minor has not demonstrated that he objected to this charge in the trial court below, we must consider this argument under the plain error rule. White, 291 Ga. at 8 (2). Minor argues that the trial court’s charge violated the rule set forth in Edge v. State, 261 Ga. 865, 867 (2) (414 SE2d 463) (1992), barring sequential charges in cases where the evidence demonstrated a single assault that could authorize a conviction for either felony murder or voluntary manslaughter. We note, however, that the Supreme Court of Georgia has subsequently identified the Edge rule regarding sequential charges as dicta, Morgan v. State, 290 Ga. 788, 792 (2) (725 SE2d 255) (2012), and limited its application. Foster v. State, 264 Ga. 369, 369 (1) (444 SE2d 296) (1994). Moreover, this Court previously has determined that the prohibition against sequential charges has no application in a case such as this one involving a charge of armed robbery and a lesser included offense of robbery. Davis v. State, 264 Ga. App. 221, 227 (5) (590 SE2d 192) (2003);Kirk v. State, 210 Ga. App. 440, 443-444 (2) (436 SE2d 553) (1993). And this Court also has approved a sequential charge, where, as here, it incorporated the reasonable doubt standard. Parks v. State, 241 Ga. App. 381, 384 (5) (526 SE2d 893) (1999).

Accordingly, the contested charge was not reversible error, much less plain error, Dolphy, 288 Ga. at 710 (3), and Minor is not entitled to a new trial on this ground.

4. Minor further contends that during jury selection, the State violated Batson v. Kentucky, 476 U.S. 79 (106 SCt 1712, 90 LE2d 69) (1986), by using six of its nine jury strikes to eliminate six black veniremen and by failing to give a race-neutral reason for one of its strikes.

Batson provides a three-step process for adjudicating a claim that a peremptory challenge was based on race: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent. A trial court’s finding as to whether the opponent of a strike has proven discriminatory intent is entitled to great deference and will not be disturbed unless clearly erroneous.

(Citation omitted.) Woodall v. State, 294 Ga. 624, 627 (3) (754 SE2d 335) (2014). The Batson test enforces the criminal defendant’s “constitutional right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria” and the individual juror’s “right not to be excluded from a jury on account of race.” Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993). “The exercise of a peremptory challenge must not be based on either the race of the juror or the racial stereotypes held by the party.” (Citation and punctuation omitted.) Id. And the “proffer of a pretextual explanation naturally gives rise to an inference of discriminatory intent.” (Citation and punctuation omitted.) Toomer v. State, 292 Ga. 49, 55 (2) (b) (734 SE2d 333) (2012).

Although voir dire was not transcribed, the Batson hearing reflects that the State used six of its eight strikes for the regular jury on black veniremen, leaving a jury composed of two blacks and nine females. The State exercised a ninth strike in excluding another black venireman from serving as an alternate juror. Defense counsel made a Batson challenge on this basis. On appeal, Minor takes issue only with the State’s strike of Juror No. 31, a black male. The prosecutor explained this strike by noting that the juror had a conviction for theft by receiving and this case “is a theft-related case.” He also noted that the juror had gold teeth, and he did not like gold teeth. The prosecutor stated that he would have had the same reaction to a white juror with gold teeth. The prosecutor emphasized that his strike was primarily based on the juror’s prior conviction.

Defense counsel countered, however, that somebody else had been charged with theft, but Juror No. 31 hadbeen charged only with misdemeanor criminal damage. Defense counsel then started to address the “gold teeth” explanation, but the trial court interrupted and interjected that she “[was] not impressed [with] the [State’s] gold teeth argument.” Defense counsel replied that he was not impressed with it either andbegan to reference another case when the trial court again interrupted, stating, “Let’s not go there. I said I’m not going to accept the gold teeth argument. Do you want to talk me out of it?” Defense counsel replied, ‘You say you’re not impressed with it. I’m good with that.” The trial court then agreed with the prosecution that Juror No. 31 had been charged with theft and found that the juror’s prior theft charge presented a race-neutral basis for the strike. And after noting that the State’s last strike was of a white female, she denied the Batson challenge.

On appeal, Minor argues that he is black and “the prosecutor used six of his nine strikes to remove black jurors” to support his claim that the defendants established a prima facie showing of purposeful discrimination. Brown v. State, 291 Ga. 887, 889 (2) (734 SE2d 41) (2012). And he further asserts that the prosecution’s reference to gold teeth in striking Juror No. 31 was clearly based on an improper racial stereotype.

Although the trial court did not expressly determine that the defense had established a prima facie case under Batson, “the trial court did require the State to articulate its reasons for the peremptory strikes, rendering moot the issue of whether [Minor] had established a prima facie case.” Arrington v. State, 286 Ga. 335, 339 (9) (687 SE2d 438) (2009). See also Hernandez v. New York, 500 U.S. 352, 358 (II) (A) (111 SCt 1859, 114 LE2d 395) (1991); Lewis, 262 Ga. at 680 (2). Accordingly, we do not address whether Minor established a prima facie case under Batson.

The State cited two reasons for striking Juror No. 31, his prior theft-related charge and his gold teeth. Minor argues that in striking the juror based on his gold teeth, the prosecution was relying upon a racial stereotype, citing this Court’s opinion in Rector v. State, 213 Ga. App. 450, 452 (2) (444 SE2d 862) (1994). In Rector, this Court addressed the strike of a juror based, in part, on her “big gold tooth with a pattern on it right in the front of her mouth.” 213 Ga. App. at 452 (2). The trial court expressed concern as to whether this explanation reflected a racial stereotype and refused to accept that reason in and of itself for striking the juror. The court found, however, that other race-neutral reasons supported the strike. Id. at 454 (2). But this Court reversed for a new trial, finding that the other race-neutral reasons given by the prosecutor for striking the juror were insufficient to cure “the element of the stereotypical reasoning employed by the State’s attorney in exercising [the] peremptory strike.” ****8 Id.

In reversing for a new trial, Rector relied on this Court’s opinion in Strozier v. Clark, 206 Ga. App. 85 (5) (424 SE2d 368) (1992), which held that the jury selection process is invalidated under Batson when a racially motivated explanation for striking a juror accompanies a racially neutral explanation for removal of that juror. The Supreme Court of Georgia has interpreted Strozier as standing for the proposition “that where it can be determined that the racially neutral explanation is, in fact, pretextual since there is a racially motivated reason that can be independently determined, the jury selection process is invalid under Batson.” Lingo v. State, 263 Ga. 664, 667 (1) (c), n. 4 (437 SE2d 463) (1993). Nevertheless, the Supreme Court emphasized that “[t]he cases cited by Strozier illustrate that there must be some indication that the ‘additional reason’ is, in fact, racially motivated.” (Emphasis in original.) Id. The Supreme Court further noted that in Strozier,

the prosecutor, in addition to stating the apparently neutral reason of the juror’s age as his reason for striking her, also gave his completely unsupported opinion that the juror was dishonest in her answer to questions, an opinion he stated was based on an experience the prosecutor had previously, with other jurors, in an unrelated case.

Id. Thus, the Court concluded that “in Strozier, as well as the cases cited in its support, it is apparent that the ‘additional reasons,’ in themselves, were racially motivated and, accordingly, rendered the selection process invalid under Batson.” Id.

Here, defense counsel never argued that the prosecution’s strike based on Juror No. 31’s gold teeth arose from a racial stereotype, but each time that counsel began to address the gold teeth explanation, the trial court interrupted him. And although the trial judge stated that she was “not impressed” with the gold teeth explanation and was not going to “accept” it, she made no express finding as to whether the prosecutor’s reliance on Juror No. 31’s gold teeth to strike him was inherently discriminatory or whether it was race neutral. Although the trial court apparently found the reason to be invalid in some regard, she failed to make the express finding required under Batson. As Rector demonstrates, a possibility exists that the trial court may have found the gold teeth explanation not to be racially neutral, or the defense may have been able to show that the “additional reason” was merely pretextual. But, the defense had no such opportunity, and the trial court did not make a finding, one way or the other.

Our Supreme Court recently reviewed the Batson test and emphasized the importance of the three-step process and the trial court’s adherence to that process, noting that the appellate courts

look to our State’s trial judges to ferret out and eliminate invidious discrimination in the jury selection process. But they should do so using the well-defined framework set forth in Batson, Purkett [v. Elem, 514 U.S. 765, 768 (115 SCt 1769, 131 LE2d 834) (1995)], and the similar decisions of [the Supreme Court of Georgia]. If trial judges instead were given undefined flexibility to shape and mold the law to fit the particular situation, the result would be unequal and essentially unreviewable legal standards applied in various courtrooms across Georgia. That would not advance our shared goal of ensuring that race and gender have no place in the administration of justice.

(Citations and punctuation omitted.) Toomer, 292 Ga. at 55 (2) (b).

Here, the defense was deprived of the opportunity to fully address the prosecution’s explanations for the strike, and the trial court also failed to decide whether “the opponent of the strike [had] proven the proponent’s discriminatory intent” as required under Batson. (Citation and punctuation omitted.) Toomer, 292 Ga. at 52 (2) (a). Since the trial court did not allow the defense to explain its argument that the strike was racially discriminatory,

we remand the case in order to permit the [defense] to do so and to allow the trial court to make findings under Batson. Should the trial court determine that the State did not fulfill its burden to provide racially-neutral reasons, a new trial is in order. Should the trial court determine that no Batson violation occurred, appellant’s convictions ... will remain in effect. Either party may file a notice of appeal from the trial court’s ruling made on remand.

Lewis, 262 Ga. at 681 (2).

Case No. A14A0250

5. Although Clayton does not contest the sufficiency of the evidence presented against him at trial, from our review of the record, we find that the evidence at trial was sufficient to support his convictions beyond a reasonable doubt. See Jackson, 443 U.S. 307.

6. Clayton similarly asserts that the State violated Batson during jury selection. Clayton takes issue with the State’s strikes of Jurors No. 11 and No. 16, both black females, in addition to the strike of Juror No. 31. Although Clayton is also entitled to a remand on the Batson issue with regard to Juror No. 31, for the reasons discussed in Division 4 above, we find no clear error in the trial court’s rulings with regard to the other two jurors and that no remand is required for further findings as to those jurors.

As to Juror No. 11, the prosecutor stated that the juror had been held up at gunpoint years ago, and he was concerned that she might want to interject and insert ideas about what she would see or would not see at trial. His concerns arose out of the fact that this was an identification case, presumably referring to the fact that Minor was never identified by the victims. The prosecution also noted that she admitted watching a crime-related television show that often emphasizes fingerprint and DNA evidence, which was lacking in this case, but the trial judge stated that she was not concerned about the “fingerprint issue” with this juror. Rather, the trial court found the prosecution’s concerns about the juror’s prior experience as a victim of a crime to be a race-neutral reason, noting that Juror No. 11 was shaking, was a “nervous wreck,” and did not want to reveal her address or her place of work.

The prosecutor explained that he struck Juror No. 16 because she was not from Georgia and she had been unemployed for five years, explaining that he has concerns about someone who, although able to work, has been unemployed for such a long time. The trial judge found this to be a race-neutral reason based on these concerns and noted that the prosecution had also struck a white male who had been unemployed for a long time.

In contrast to the argument regarding Juror No. 31, Clayton does not argue that the reasons cited for striking Jurors No. 11 and No. 16 were inherently racially discriminatory or based on racial stereotypes, nor has he cited us to any authority holding that similar reasons have been found to be based on racial stereotypes. And without the transcript of the voir dire, we must assume that the trial court’s recollection of voir dire, including her recollection of each juror’s responses and demeanor, was accurate and supported her decision to find the prosecution’s explanations as to Jurors No. 11 and No. 16 to be race neutral. Therefore,

[wjithout access to a complete transcript of the voir dire of the jury, we cannot conclude that it was clearly erroneous for the trial court to rule that [Clayton] failed to carry [his] burden of proving that the race-neutral reasons given by the proponent of the strike were merely pretexts for purposeful racial discrimination. The posture of the evidence in the partial transcript does not support [Clayton’s] Batson challenge. Since the voir dire was not transcribed, we must assume that the trial court did not err in its Batson ruling.

Russell v. Parkford Mgmt. Co., Inc., 235 Ga. App. 81, 83 (2) (508 SE2d 454) (1998). Cf. Cammon v. State, 269 Ga. 470, 473 (4) (b) (500 SE2d 329) (1998).

Thus, we find that Clayton has failed to overcome the presumption that the trial court’s findings were supported by the record and we find no basis for granting a new trial based on the strikes exercised on these two jurors.

7. As previously noted, Clayton also argues on appeal that the trial court committed plain error in charging the jury that the defendants carried the burden of proof as to the charges against them, citing the trial court’s misstatement discussed above. But as we found in Division 2 (b) that this charge did not constitute plain error, this enumeration is without merit.

8. Clayton further contends that he received ineffective assistance of counsel because his trial attorney failed to file a motion to suppress the out-of-court identification by the victims and failed to object to “selected” jury charges.

(a) Turning first to Clayton’s argument concerning his counsel’s failure to object to “selected” jury charges, we note that Clayton fails to identify any such “selected” charges. Accordingly, he has failed to carry his burden on this ground. Even if we assume that Clayton is referring to the trial court’s misstatement regarding the burden of proof, we find, for the reasons discussed in Division 2 (a) above, that Clayton’s argument is without merit because he has failed to establish the requisite prejudice to support his claim of ineffective assistance of counsel on this ground.

(b) With regard to Clayton’s argument concerning his trial counsel’s failure to file a motion to suppress, we note that his counsel testified at the hearing on the motion for new trial that he did not file a motion to suppress because after reviewing the evidence and conducting research, he concluded that he did not have a substantive motion. He determined that because the showup was in such close proximity to the time of Clayton’s arrest, “all the case law was against us and I just didn’t feel that we . . . had a valid motion to suppress identification based on that.” Trial counsel also stated that he had several meetings with Clayton about his case, during which they reviewed discovery and watched videotapes. Additionally, the attorney attempted to contact the victims, prepared jury charges, and conducted his “typical investigation.”

As a general matter,

the decisions on which witnesses to call, whether to put on evidence so as to preserve the final word in closing argument, how to conduct cross-examinations, what motions to file, and what objections to make are strategic and tactical decisions that, after thorough investigation and client consultation, are virtually unchallengeable and do not require a finding of ineffective assistance of counsel.

(Citation omitted.) Goodrum v. State, 293 Ga. App. 856, 858 (3) (668 SE2d 831) (2008).

Moreover, in order “[t]o establish ineffective assistance of counsel on the basis of counsel’s failure to file a timely motion to suppress, [Clayton] must make a strong showing that had the motion been considered, the damaging evidence would have been suppressed.” (Citation and punctuation omitted.) Williams v. State, 316 Ga. App. 383, 384 (729 SE2d 517) (2012). See also Brown v. State, 311 Ga. App. 405, 407 (2) (715 SE2d 802) (2011).

Although a one-on-one showup is inherently suggestive, identification testimony produced from the showup is not necessarily inadmissible. We must apply a two-part test to determine whether the showup was impermissibly suggestive, and, if the showup was impermissibly suggestive, we then consider the totality of the circumstances to determine whether a very substantial likelihood existed of irreparable misidentification.

(Citations and punctuation omitted.) Singleton v. State, 324 Ga. App. 141, 142 (1) (749 SE2d 753) (2013).

As to part one of the test, “[o]n-the-scene showup identifications, like the one here, have been held not to be impermissibly suggestive but necessary due to the practicabilities inherent in such situations.” (Citation and punctuation omitted.) Watson v. State, 243 Ga. App. 636, 638 (c) (534 SE2d 93) (2000). “Those include the needfor a speedy police investigation and the need to resolve promptly any doubts as to identification so as to enhance the accuracy and reliability of the identification, thus expediting the release of innocent subjects.” (Citation and punctuation omitted.) Butler v. State, 276 Ga. App. 161, 164 (1) (623 SE2d 132) (2005). “As long as the showup was reasonably and fairly conducted at or near the time of the offense, we do not reach the second part of the test.” Young v. State, 272 Ga. App. 304, 311 (4) (a) (612 SE2d 118) (2005).

As to the second part of the test,
[i]n evaluating the likelihood of misidentification, we look to the totality of the circumstances, including the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

(Citation omitted.) Pullins v. State, 323 Ga. App. 664, 667 (2) (747 SE2d 856) (2013).

Here, both victims testified that they were able to see Clayton during the robbery because his hoodie fell down. Slatton also observed the crime and was able to provide a description of the perpetrators’ clothing and actions and to track their progress as they fled. Miller apprehended Clayton and Minor in the act of fleeing because their appearance and actions matched the information provided by Slat-ton. Once they were in custody, Slatton immediately took the victims to the showup, only a short time after the crimes had occurred.

Significantly, neither victim identified Minor, but both victims readily identified Clayton as one of the men involved. Slatton testified that when B. H. was shown Minor, “[h]e held his hands up like he wasn’t sure ... and then he looked at me and made a motion with his hands, as if his face was covered. And I asked him, he had his face covered[?] [H]e was wearing a mask[?] [A]nd he indicated that he was.” But when B. H. was shown Clayton, he “emphatically started pointing” at Clayton, indicating “yes, that’s him, that’s him.” Slatton testified that J. H.’s response was almost identical. The victims’ ability to distinguish between the two men and to identify only the man whose face they were able to see provides additional support to the validity of their identification of Clayton.

Under these circumstances, we find that Clayton has failed to demonstrate either that the showup was impermissibly suggestive, or the existence of a substantial likelihood of irreparable misidentification. “Thus, a motion to suppress the [out-of-court identification] . . . would have been without merit, and the failure to raise a meritless motion or objection is not ineffective assistance of counsel.” (Citation omitted.) Moore v. State, 293 Ga. 676, 679 (5) (a) (748 SE2d 419) (2013).

Decided July 10, 2014 —

Ashleigh B. Merchant, James M. Miller, Chanco Schiffer, W. Thomas Kemp II, for appellant (case no. A14A0249).

Raina J. Nadler, for appellant (case no. A14A0250).

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

Judgments of conviction affirmed and cases remanded with direction.

Phipps, C. J., and Ellington, P. J., concur.

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

       Clayton’s trial attorney testified that he did not recall hearing the trial judge giving this charge to the jury. The prosecutor also advised the trial court at the motion for new trial hearing that he did not recall the charge being given in this manner.

       We note that this Court also found in Rector that the trial court could refuse to accept the prosecution’s argument regarding the gold teeth because it did not relate “in any way to the outcome of the case.” Id. Subsequently, in Toomer, 292 Ga. at 54 (2) (b), the Supreme Court of Georgia expressly disapproved prior Georgia cases holding that a reason for a strike must be case-related. However, this holding does not affect Rector’s holding that the race-neutral reasons did not cure the prosecution’s other stereotypical reasoning.

       Although we have remanded the case for further Batson proceedings as to Juror No. 31, which could result in a new trial, we have addressed the appellants’ remaining enumerations, even though some of them are not likely to reoccur in any new trial, in order to ensure that they were not entitled to a new trial on other grounds, thus obviating the need for remand on the Batson issue.

       Moreover, Clayton does not assert that anything in the voir dire would help to establish his Batson claim with regard to these jurors.

       See Johnson v. State, 302 Ga. App. 318, 323 (3) (690 SE2d 683) (2010); Watson, 243 Ga. App. at 638 (c).

        Singleton, 324 Ga. App. at 144 (1).


source: Caselaw Access Project

license: Public Domain

text:
    A14A0267.
    TOLER et al. v. GEORGIA DEPARTMENT OF TRANSPORTATION.
    (761 SE2d 550)
   MCMILLIAN, Judge.

On May 3, 2000, the Georgia Department of Transportation (“DOT”) initiated proceedings to condemn 1.7 acres of land in Wilkinson County (the “Property”) owned by Charlotte Lord Toler, Ray E. Toler, and William T. Toler (the “Tolers”). The Tolers appealed the condemnation and demanded a jury trial. They later asserted a claim for business losses arising out of kaolin production on the land. The matter proceeded to trial more than 12 years after the initial taking, and on June 30, 2012, the jury awarded the Tolers $212,135 for “real property taken and damaged,” but awarded them nothing on their business loss claim. The Tolers appeal the portion of the verdict denying them any recovery on the latter claim.

The record shows the Property was part of a larger tract, which was encumbered by a 1991 lease agreement (the “Lease”) under which the Tolers granted J. M. Huber Corporation (“Huber”) the right to mine kaolin and other like minerals. Under the Lease terms, Huber was required to pay the Tolers a lump sum of $50,000, along with an earned royalty of $2.07 per ton of mined kaolin, with a periodic cost of living adjustment. Huber had conducted mining on the Property in two separate phases and had paid the Tolers over $ 1 million under the Lease, but the Property was not being actively mined on the date of the taking. Although originally named as a party to the proceedings, approximately ten years into the litigation, on January 28, 2010, Huber assigned to the Tolers all rights to any condemnation awards to which it was entitled (the “Assignment”). It is undisputed that the Tolers did not pay Huber any consideration for the Assignment.

At trial, the Tolers sought compensation not only for the loss of their fee simple interest in the Property, but also for the business loss Huber suffered as a result of the taking, which, in the Pretrial Order, they asserted totaled $3,718,251.39. They contended that these losses were based on the loss of the ability to sell kaolin that would have been extracted from the 1.7 acres condemned by the DOT “and the surrounding area as required by setbacks and slopes.” The Tolers assert that their business loss claim was hampered by a series of evidentiary rulings by the trial court that the Tolers enumerate as error on appeal.

“The admissibility of evidence lies in the trial court’s discretion, and the appellate court reviews evidentiary rulings under the abuse of discretion standard.” Thornton v. Dept. of Transp., 275 Ga. App. 401, 403 (1) (620 SE2d 621) (2005). See also Davis Co., Inc. v. Dept. of Transp., 262 Ga. App. 138, 142 (2) (584 SE2d 705) (2003). Similarly, we review the trial court’s denial of a motion in limine for an abuse of discretion. Forsyth County v. Martin, 279 Ga. 215, 221 (3) (610 SE2d 512) (2005). We now turn to the Tolers’ enumerations, reciting additional facts as necessary to consider the parties’ arguments.

1. The Tolers first assert that the trial court erred in denying their motion in limine seeking to exclude evidence and argument regarding the consideration they paid for the Assignment and by allowing such evidence and argument at trial.

The Tolers filed a pre-trial motion in limine “to exclude any documentary or oral testimony by DOT, any of DOT’S witnesses and/or mention by counsel for DOT regarding the consideration paid by the Tolers to [Huber] for the Assignment of its claim.” They argued in their motion that such evidence had no probative value for the issues in the case. The trial court denied the motion in limine at trial and also overruled the Tolers’ objections to this evidence at trial during the cross-examination of their valuation expert. The trial court stated in response to the objection that the evidence was “entirely relevant” to the issue of the value of the business loss claim. The DOT, in fact, relied on this evidence in both their opening statement and closing argument to rebut the Tolers’ claimed losses of $3.7 million. The Tolers assert that this evidence and argument was prejudicial because it allowed the jury to infer that the amount paid for the Assignment reflects the value of Huber’s business losses. We agree.

The Tolers, as condemnees, were entitled to just compensation for the taking of the Property, and “where, as here, there is a partial taking of property by condemnation, just and adequate compensation is the sum of the market value of the property that is taken and the consequential damage, if any, to the property that remains, both measured as of the time of the taking.” Gwinnett County v. Ascot Investment Co., 314 Ga. App. 874, 875 (1) (726 SE2d 130) (2012). In addition to their just compensation for the taking, the Tolers also sought to recover Huber’s business losses. Business losses may be recoverable as an additional element of damages in a condemnation proceeding under certain conditions.

[Wjhen the business belongs to a separate lessee [such as Huber], the lessee may recover for business losses as an element of compensation separate from the value of the land whether the destruction of his business is total or merely partial, provided only that the loss is not remote or speculative.

Dept. of Transp. v. Dixie Highway Bottle Shop, Inc., 245 Ga. 314, 315 (265 SE2d 10) (1980). Therefore, “[b]usiness [loss] is not an element of consequential damages, but an entirely separate element of recoverable damages. The destruction of an established business is and must be a separate item of recovery.” (Citation and punctuation omitted.) Buck’s Svc. Station, Inc. v. Dept. of Transp., 191 Ga. App. 341, 342 (2) (381 SE2d 516) (1989). “Further, to be recoverable, business losses must have been caused by the taking.” (Citation and punctuation omitted.) Ga. Power Co. v. Jones, 211 Ga. App. 332, 335 (1) (626 SE2d 554) (2006). Additionally, “business losses are recoverable as a separate item only if the property is ‘unique.’ ” (Citations omitted.) Dixie Highway Bottle Shop, 245 Ga. at 315.

The issue of whether a business property is “unique” so as to support an award of business loss is a question for the jury. Carroll County Water Auth. v. L. J. S. Grease & Tallow, Inc., 274 Ga. App. 353, 356 (3) (b) (617 SE2d 612) (2005). And the Georgia courts have established three general rules for determining whether a business property is unique. But “[t]hese rules have been merged to include all three concepts as independent criteria under one general rule. Only one of the three criteria need be satisfied in order to authorize recovery of business loss damage.” (Citation and punctuation omitted.) Id. The first rule provides that “[i]f the property must be duplicated for the business to survive, and if there is no substantially comparable property within the area, then the loss of the forced seller is such that market value does not represent just and adequate compensation to him.” (Citation and punctuation omitted.) Id. at 355 (3) (b). The second test narrowed the first test “by requiring that the property have a value particular to the owner incapable of being passed to a third party before the property can be considered unique.” Id. And the third rule provides that

unique properties are generally not of a type bought or sold on the open market. Hence, there is no market value in the ordinary sense of the term, since market value pre-supposes a willing buyer and willing seller, which do not ordinarily exist in such a case. In cases of such a character, therefore, market value will not generally be the measure of compensation.

(Citation and punctuation omitted.) Id. at 355-356 (3) (b). The trial court charged the jury on these legal principles at trial.

In arguing that evidence of what they paid for the Assignment has no relevance to these issues, the Tolers rely on this Court’s opinion in Dept. of Transp. v. Mendel, 237 Ga. App. 900 (517 SE2d 365) (1999). In that case, the DOT condemned a portion of a larger tract of land for a road project. The original condemnee was in bankruptcy at the time of the taking, and the bankruptcy trustee filed an appeal of the DOT’s condemnation proceeding on behalf of the bankruptcy estate. Before the condemnation matter proceeded to trial, Mendel offered to purchase the condemnee’s remaining property for $ 187,500. After Mendel raised his offer to $220,000, the trustee sold him the property and also assigned him the rights to the bankruptcy estate’s pending claim in the condemnation proceeding. Id. at 900. Before trial, the DOT filed a motion in limine to limit Mendel’s claim for recovery to the amount he paid for the assignment, which the DOT calculated as $32,500, which was the difference between Mendel’s original offer of $187,500 and the final purchase price of $220,000. Id. at 900-901 (1). The DOT argued that unless Mendel’s recovery was limited to that amount, he would receive “an unauthorized windfall.” Id. at 901 (1). The trial court denied the motion, and the DOT appealed after the jury returned a verdict for $165,000 in favor of Mendel. Id. at 900.

In affirming the trial court’s ruling on the motion in limine, this Court noted that after the assignment, Mendel stood in the shoes of the original condemnee. Mendel, 237 Ga. App. at 901 (1). And the Court reasoned that “[t]he only relevant inquiry” in such a case, which did not involve any claim for business losses, “is the fair market value of the property at the time of the taking” and found that “[t]he amount of money which Mendel may have paid for the assignment is not relevant to this determination.” Id. Instead, “[t]he real issue is what is just and fair compensation for the taking. Just compensation must be based on the value of the rights taken, without regard to the owner’s personal relationship to the property taken.” Id.

Although this appeal concerns the recovery of business losses, and not the issue of just compensation for the taking, the same principles apply. The relevant inquiry in a claim for business loss centers around causation and the uniqueness of the Property. We find that evidence of what the Tolers paid for the Assignment is not relevant to those determinations. The DOT presented absolutely no evidence regarding how the parties arrived at the amount of consideration to be paid for the Assignment and no evidence that it represented to Huber the value of the business or the value of any claim for business losses. In fact, as the DOT admits, the only testimony on the issue, from a Huber employee, indicated that Huber entered into the Assignment “on advice of counsel.” Accordingly, Huber may have considered a number of factors in determining whether to assign its rights, including the risk and costs associated with litigating a business loss claim. We note that when Huber executed the Assignment, the litigation already had been ongoing for almost ten years, and Huber could have simply decided that it did not want to incur the further legal costs involved in such a protracted litigation. Accordingly, we find that the trial court abused its discretion in admitting this evidence at trial.

And we cannot say that this error was harmless in light of the DOT’s argument to the jury that it could consider the consideration paid for the Assignment in determining the amount of any business loss. In the opening statement, the DOT’s counsel asserted that Huber does not contend that they sustained any losses and “lest there be any doubt, Huber was not paid one penny for relinquishing this claim.” And in closing, counsel argued that jurors could infer from the fact that the Tolers paid nothing for the Assignment that Huber did not have a loss. Accordingly, the Tolers are entitled to a new trial on their claim of business loss. See Aycock v. Fulton County, 95 Ga. App. 541, 543 (4) (98 SE2d 133) (1957) (“utterly irrelevant” evidence as to the sale price of real estate “in no particular similar or comparable to the property condemned” was prejudicial, requiring grant of a new trial).

We will further address any remaining enumerations of error that bear on evidentiary matters likely to recur at any subsequent retrial of the case.

2. The Tolers contend that the trial court also erred in denying their motion in limine to exclude evidence or commentary regarding the fact that the DOT made an initial deposit into the trial court of its estimated compensation for the taking.

The DOT initially deposited $4,755 with the clerk of the trial court “as just compensation” for the Property (the “Deposit”). The Tolers filed a motion in limine seeking to exclude any evidence or commentary concerning the Deposit. They argued that allowing the DOT to tell the jury that it “already deposited an undisclosed compensation estimate for the taking and/or damaging of the [Tolers’] property [would be] misleading, irrelevant, immaterial and extremely prejudicial,” leading to improper inferences by the jury. The trial court denied the motion, ruling that the parties could not discuss the amount of the Deposit, but they could comment “on the fact that there was an amount that had to be paid into court.” And the DOT subsequently told the jury in its opening statement that “the DOT has to deposit the appraised value of the property with the clerk.” And later, the trial court charged the jury that “the condemning authority tenders and pays into the court certain monies.”

This Court has previously found that evidence as to the amount and fact of the DOT’s deposit of funds into the Court at the time of the taking is inadmissible. CNLAPF Partners, LP v. Dept. of Transp., 307 Ga. App. 511, 516 (4) (a) (705 SE2d 862) (2010); Dept. of Transp. v. Gunnels, 175 Ga. App. 632 (334 SE2d 197) (1985), rev’d on other grounds, 255 Ga. 495 (340 SE2d 12) (1986). Accordingly, the trial court erred in denying the Tolers’ motion in limine on this ground, which improperly opened the door for the DOT to mention the payment in its opening argument. Additionally, pretermitting whether the trial court’s reference to the Deposit in its jury charge rose to the level of reversible error considering the charge as a whole, we find that it was nevertheless error to reference the Deposit and that it should not be referenced in any subsequent retrial.

3. The Tolers next assert that the trial court erred in granting the DOT’s motion in limine to limit the testimony of one of the Tolers’ experts, Michael Ginn, an independent mining engineer.

On April 28, 2008, the DOT filed a motion to compel discovery from Huber and a nonparty, Ginn Mineral Technology, Inc., which was owned by Ginn. One of the items the DOT sought in discovery was a copy of a 2001 report prepared by Ginn, which purportedly contained test results of kaolin taken from core samples of four holes drilled on the Property and/or the surrounding area. During the hearing on the discovery motion in 2008, Huber’s counsel, Hubert C. Lovein, stated that he had never listed Ginn as a potential expert “on the question of value and [he] will not be listed as a value expert by Huber.” Lovein explained that the opinions as to value that Ginn reached in his 2001 report would not satisfy any tests to make them admissible in court. Thus, he stated that Huber did not “intend” to introduce those opinions and did not “think” Huber would use him for anything at trial. Rather, Huber planned to use its own analysis. Nevertheless, Lovein conceded that the DOT would be entitled to Ginn’s 2001 report if he drilled different holes and used different samples from those relied upon in Huber’s own report. Lovein further stated that they did not intend to use Ginn because “as the law has developed, his value opinion — he’s a geologist, I understand — his value opinion is not admissible.”

Before trial, the DOT filed a motion in limine to exclude evidence of Ginn’s 2001 report “and any testimony or evidence related to the contents of the report and the valuations cited therein.” The DOT argued that Lovein’s statements during the discovery hearing were binding admissions in judicio that prevented the Tolers from introducing Ginn as an expert on the value of the kaolin on the Property. Although the Tolers opposed the motion, arguing that Lovein’s comments were conclusions of law and thus not binding admissions, the trial court granted the motion based on his conclusion that Lovein’s representations to the Court “would trump [the Tolers’] authority.”

The DOT asserts that Lovein’s agreement not to call Ginn as a valuation witness is binding on the Tolers under the authority of State Farm Fire & Cas. Ins. Co. v. Terry, 230 Ga. App. 12 (495 SE2d 66) (1997). In that case, State Farm’s attorney “affirmatively stated in open court that State Farm agreed not to raise [certain] affirmative defenses,” and this Court found that agreement binding on State Farm. Id. at 17 (4). Pretermitting whether that agreement is properly characterized as an admission in judicio, the essence of the holding was that State Farm had affirmatively agreed not to raise those defenses, and that agreement was binding. Similarly, Lovein affirmatively agreed that Huber would not call Ginn as a valuation witness, and it was within the trial court’s discretion to find that agreement binding on Huber and the Tolers, as Huber’s assignees. See generally Southern Telecom, Inc. v. TW Telecom of Georgia, L.P., 321 Ga. App. 110, 114 (3) (741 SE2d 234) (2013) (“assignee acquires all of the rights and remedies possessed by the assignor at the time of the assignment, and takes the obligation, contract, chose, or other thing assigned subject to the same restrictions, limitations, and defects as it had in the hands of the assignor”) (citation omitted; emphasis in original); Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 739 (6) (698 SE2d 19) (2010) (“trial court retains broad discretion in determining whether to admit or exclude evidence”) (citation and punctuation omitted).

Accordingly, we affirm the trial court’s grant of the DOT’s motion in limine on this ground.

4. The Tolers further assert that the trial court erred in preventing one of their experts, Robert Quintus-Bosz (“Bosz”), from testifying about the processes for kaolin production or the amount of finished product Huber could have derived from mining crude clay on the Property.

Because the trial in this case occurred in June 2012, former OCGA § 24-9-67.1 (b) governed the standards for the qualification of experts in civil cases. See Ga. L. 2011, p. 99, §§ 2,101. Our Supreme Court has explained that in determining the admissibility of expert testimony under the applicable standards,

the trial court acts as a gatekeeper, assessing both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.... Reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training. There are many different kinds of experts and many different kinds of expertise, and it follows that the test of reliability is a flexible one, the specific factors neither necessarily nor exclusively applying to all experts in every case.

(Citations and punctuation omitted.) HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 642-643 (1) (697 SE2d 770) (2010). The Supreme Court has emphasized that “the importance of the trial court’s gatekeeper role . . . cannot be overstated,” noting that

the objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

(Citations and punctuation omitted.) Id. at 645 (1). “Thus, regardless of an expert’s experience or qualifications, the proffering party bears the burden of presenting evidence of reliability in order to meet the [applicable] standards.” Id. at 646 (2). And this Court will not disturb the trial court’s determination as to the qualification of an expert to present testimony absent a manifest abuse of discretion. Id. at 642 (1).

The trial court in this case made its determination based on the Tolers’ proffer of Bosz’s qualifications and his voir dire at trial. Because the evidence regarding Bosz’s qualifications may differ, at least in emphasis and scope, at any subsequent retrial, the trial court may render a different ruling in that proceeding. Accordingly, we cannot consider, in this appeal, the issue of Bosz’s qualifications to give the disputed testimony in the retrial. “[W]e have no authority to impose our judgment” on any potential issues as to which the trial court has yet to rule. Taylor Auto Group, Inc. v. Jessie, 241 Ga. App. 602, 604 (2) (527 SE2d 256) (1999).

Judgment reversed. Phipps,

C. J., and Ellington, P. J., concur.

Decided July 10, 2014 —

Baker, Donelson, Bearman, Caldwell & Berkowitz, Charles L. Ruffin, Ivy N. Cadle, Boone, Scott & Boone, Joseph A. Boone, for appellants.

Samuel S. Olens, Attorney General, Capers, Dunbar, Sanders & Bruckner, Paul H. Dunbar III, Sell & Melton, John Draughon, M. Devlin Cooper, for appellee.

       Although the Tolers objected a second time during the cross-examination of another of their experts, the trial court did not specifically rule on that objection.

       Although the DOT attempts to distinguish Mendel by noting that they were not attempting to limit the Tolers’ evidence on their business loss claim to the consideration paid for the Assignment, this is a distinction without a difference. The DOT clearly argued to the jury that the evidence of such consideration defined the amount of any business losses.

       Although the DOT argues that other evidence in the record could have supported the jury’s verdict, there is no way to determine what effect the irrelevant evidence regarding the Assignment may have played in its deliberations based on the DOT’s arguments in the case. Additionally, we find that the trial court made another evidentiary error, as addressed below, which may have improperly affected the parties’ presentation of evidence and argument at trial.

       “Admissions in judicio apply only to facts in litigation in a particular case.” Liberty Nat. Bank & Trust Co. v. Diamond, 231 Ga. 321, 323 (III) (201 SE2d 400) (1973) (holding that attorney’s statement in prior litigation that if his client won that case she would make no further claims on estate at issue were not admissions in judicio).

       That Lovein made this affirmative agreement based on his legal conclusion that the testimony would not be admissible does not alter the fact of his agreement.

       “Pursuant to that legislative act, former OCGA § 24-9-67.1 (b) has essentially been reenacted as OCGA § 24-7-702 (b).” Van Leuvan v. Carlisle, 322 Ga. App. 576, 580 (2), n. 5 (745 SE2d 814) (2013). Moreover, we note OCGA § 22-1-14 (b), which exempts expert testimony regarding just and adequate compensation for the value of condemned property from the standards of OCGA § 24-9-67.1, does not apply in any condemnation proceeding filed before February 9, 2006. See Ga. L. 2006, p. 39, §§ 5, 25.


author: Miller, Judge.

text:
    A14A0349.
    CULBREATH v. THE STATE.
    (761 SE2d 557)
   Miller, Judge.

Following a jury trial, Johnny Culbreath was convicted of four counts of aggravated assault with a deadly weapon (OCGA § 16-5-21 (b) (2)), three counts of false imprisonment (OCGA § 16-5-41), five counts of possession of a firearm during the commission of certain crimes (OCGA § 16-11-106), and one count each of burglary (OCGA § 16-7-1 (b)), aggravated assault with intent to rob (OCGA § 16-5-21 (b) (1) ), attempted armed robbery (OCGA § 16-8-41), kidnapping (OCGA § 16-5-40), and cruelty to children in the first degree (OCGA § 16-5-70 (b)). Culbreath appeals from the denial of his motion for new trial, contending that (1) the witnesses’ in-court identifications were tainted; (2) his convictions for burglary, false imprisonment, and aggravated assault should have merged with his attempted armed robbery conviction; (3) the trial court erred in allowing the prosecutor to comment in closing on Culbreath’s failure to present an alibi; and (4) the trial court erred in its analysis of his speedy trial claim. For the reasons that follow, we vacate Culbreath’s conviction and sentence as to aggravated assault against victim Margaret Parris, and we vacate the denial of Culbreath’s speedy trial motion for discharge and remand this case with direction. As to Culbreath’s remaining contentions, we affirm the judgment.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on July 14, 2009, Culbreath broke into the home of John and Margaret Parris in Cobb County. Mrs. Parris, who was 81 years old at the time of the offense and Mr. Parris, who was 83 years old at the time of the offense, lived in the downstairs unit of a home belonging to their daughter and son-in-law, Danny Carlson. The Parrises heard dogs barking, and Mrs. Parris went to investigate. When Mrs. Parris pushed open the downstairs bathroom door, Culbreath stepped out with a gun and put it to her head. Culbreath demanded to know where the money was and threatened to “blow her brains out.” Culbreath then forced Mrs. Parris to lie down on the floor and bound her wrists, ankles and mouth with duct tape. Culbreath then entered the dining room, where he pointed his gun at Mr. Parris, demanded money, asked him where he could find Danny Carlson, bound his hands, feet and mouth with duct tape, and put an afghan over his head. Culbreath then went upstairs, to the main level of the house, where he found then ten-year-old K. M., a tennis student of Carlson’s, eating lunch in a room next to the kitchen. Culbreath pointed a gun at her and asked her to take him to Carlson, and they wandered the house, looking for him. Upon finding Carlson in his office on the top floor, Culbreath ordered Carlson and K. M. to the floor and bound them with duct tape. Culbreath also put a blanket over Carlson’s head.

Meanwhile, Mr. Parris cut the tape off his hands and feet and retrieved a revolver from his bedroom drawer. Mr. Parris went upstairs and yelled when he saw Culbreath tying up Carlson. Culbreath fired at Mr. Parris, who fired three shots back. Culbreath yelled, grabbed his stomach, and ran downstairs and out of the house. Carlson, who had been shot in the leg, broke free from his bindings, retrieved his own gun, and went downstairs and out the door, but gave up his intent to chase Culbreath when he realized his gun was not loaded. Police recovered 9 mm ammunition and a magazine from the house.

At the end of the initial investigation, police had no suspects. After viewing an online news report about the crime, Culbreath’s daughter called police and told them she believed her father might have been involved in the home invasion. Police visited Culbreath, who had suffered a recent gunshot wound to his side. A fingerprint on a piece of duct tape found in the downstairs dining room of the victims’ home matched Culbreath’s right thumb print. Police also recovered duct tape and spent 9 mm casings inside a stolen truck that Culbreath had been driving.

1. Culbreath contends that K. M. and Carlson’s in-court identifications were tainted because they had been told that the perpetrator would be in court. We discern no error.

Setting aside the issue of whether Culbreath waived his claim of error with regard to K. M. by failing to object to her in-court identification, Davis v. State, 286 Ga. 74, 77 (2) (b) (686 SE2d 249) (2009), both of his claims fail.

“It is error to allow testimony concerning a pre-trial identification of a defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification.” Clark v. State, 271 Ga. 6, 12 (7) (b) (515 SE2d 155) (1999). However, in-court identifications are not subject to the same requirements as pre-trial identifications. Milner v. State, 258 Ga. App. 425, 427-428 (1) (574 SE2d 457) (2002). “Common sense dictates that there is no secret as to who the defendant is once a trial has begun, and the state is not required to provide a lineup from which a witness may select the defendant when making an in-court identification.” Id. at 428 (1).

The “totality of the circumstances” test for reliability . . . applies to extrajudicial pretrial identification procedures such as lineups, showups and photographic displays, not to the in-court procedures used in this case. Because pretrial identification procedures occur beyond the immediate supervision of the court, the likelihood of misidentification in such cases increases, and courts have required that pretrial identification procedures comport with certain minimum constitutional requirements in order to [ejnsure fairness. These extra safeguards are not, however, applicable to [the witnesses’] in-court identification[s] of [Culbreath] in this case. Rather, [their] testimony is subject to the same rules of evidence, witness credibility, and cross-examination as all testimony in a criminal trial.

(Citations and punctuation omitted.) Ralston v. State, 251 Ga. 682, 683-684 (2) (309 SE2d 135) (1983).

Here, the evidence shows that both K. M. and Carlson had ample opportunity to view Culbreath at the time of the crime; they testified, under oath, that he was the intruder; and they were subject to cross-examination. Accordingly, the in-court identifications were properly admitted.

2. Culbreath also contends that the burglary against the Par-rises, the false imprisonment counts related to the Parrises, and the aggravated assaults against the Parrises, K. M., and Carlson should have merged with his attempted armed robbery against Mr. and Mrs. Parris. We agree that the aggravated assault against Mrs. Parris (Count 2) should have merged with the attempted armed robbery (Count 5). The remaining crimes do not merge.

“Whether two offenses should be merged is a question of law, and we apply a ‘plain legal error’ standard of review.” Lavigne v. State, 299 Ga. App. 712, 714 (2) (683 SE2d 656) (2009). A defendant may not be convicted of more than one crime if one crime is included in the other. See OCGA § 16-1-7 (a). In making this determination we apply the “required evidence” test:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

(Punctuation and footnote omitted.) Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006).

(a) Burglary and False Imprisonment.
Under Georgia law, a person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime. Aperson commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. Thus, the elements of burglary and attempted armed robbery and the culpable mental states required of these crimes are different.

(Citations and punctuation omitted.) Carter v. State, 299 Ga. App. 689, 690 (683 SE2d 654) (2009); see also OCGA §§ 16-7-1 (b); 16-4-1; 16-8-41 (a). “False imprisonment requires proof that a person, in violation of the victim’s personal liberty, arrests, confines or detains the person without legal authority.” Jackson v. State, 298 Ga. App. 33, 34 (2) (679 SE2d 65) (2009). Thus, all three offenses — burglary, attempted armed robbery, and false imprisonment — require proof of at least one fact different from the others. See id.; Carter, supra, 299 Ga. App. at 690. Accordingly, these crimes did not merge.

(b) Aggravated Assault.

“Under [the required evidence] test, we examine whether each offense requires proof of a fact which the other does not.” (Citation and punctuation omitted.) Long v. State, 287 Ga. 886, 888 (2) (700 SE2d 399) (2010). In Long, the Supreme Court of Georgia concluded that, when considering two charges related to a single victim and arising from the same transaction, “there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery.” Id. at 888-889 (2).

(i) Aggravated Assaults Against K. M. (Count 11) and Carlson (Count 16). The aggravated assaults against K. M. and Carlson do not merge with Culbreath’s attempted armed robbery conviction as a matter of law or fact because the crimes have different victims. Verdree v. State, 299 Ga. App. 673, 684 (6) (b) (683 SE2d 632) (2009). Notably, Culbreath was charged with attempted armed robbery only against Mr. and Mrs. Parris.

(ii) Aggravated Assault Against Mr. Parris (Count 8). Here, Count 8 of the indictment charged Culbreath with aggravated assault against a person age 65 or older with a handgun, whereas Count 5 charged Culbreath with attempted armed robbery against both Par-rises. Since the evidence supported a finding that the conviction for aggravated assault against Mr. Parris was premised on different conduct than the evidence supporting the conviction for attempted armed robbery, the two offenses do not merge.

As noted above, when there is one act or transaction, there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery. Long, supra, 287 Ga. at 888-889 (2). “The doctrine of merger does not apply, however, if the multiple convictions are not premised upon the same conduct.” Johnson v. State, 305 Ga. App. 838, 840 (2) (700 SE2d 726) (2010). Moreover, where one crime is completed before the other begins, there is no merger. Reeves v. State, 233 Ga. App. 802, 805 (2) (505 SE2d 540) (1998) (aggravated assault and armed robbery did not merge because aggravated assault was complete when defendant threatened victim with knife, and defendant then went on to attack victim and take her belongings). Here, Culbreath’s attempted robbery of Mr. Parris occurred downstairs, when Culbreath first encountered Mr. Parris and pointed a gun at him, demanding money. The evidence also supported a finding that the aggravated assault on Mr. Parris occurred upstairs when Culbreath fired his gun at Mr. Parris. Accordingly, the evidence of Culbreath’s shooting at Mr. Parris upstairs was not the same evidence used to prove the attempted armed robbery. See Wright v. State, 243 Ga. App. 167, 169 (532 SE2d 724) (2000) (where evidence is not “used up” to prove one crime, it is available to support a separate conviction). Therefore, the aggravated assault against Mr. Parris and the attempted armed robbery did not merge. Id.

(iii) Aggravated Assault Against Mrs. Parris (Count 2). Count 2 charged Culbreath with aggravated assault against a person age 65 or older with a handgun. The evidence showed that Culbreath approached Mrs. Parris, pointed a gun at her, demanded money, and threatened her. Culbreath then forced Mrs. Parris to lie down on the floor and he bound her wrists, ankles, and mouth with tape. The State argues that the aggravated assault and attempted armed robbery against Mrs. Parris do not merge because the State had to show an additional element of aggravated assault not included in armed robbery: namely, that Mrs. Parris was age 65 or older. We do not agree.

The age-related provisions of aggravated assault are penalty enhancements, and they do not create a separate offense. In Bundren v. State, 247 Ga. 180, 181 (2) (274 SE2d 455) (1981), the Supreme Court held that legislative intent determines whether an amendment creates a separate crime or is simply a penalty enhancement. The General Assembly enacted the age-related provisions of the aggravated assault statute “so as to change the penalty provisions relating to persons convicted of the [crime] of aggravated assault.” Ga. L. 1984, p. 900. Accordingly, the victim’s age is not a separate element of the crime, and the convictions must merge where, as here, the two crimes occurred against the same victim as part of the same act or transaction. See Long, supra, 287 Ga. at 888-889 (2). We therefore vacate Culbreath’s conviction for aggravated assault against Mrs. Parris and remand to the trial court for resentencing.

3. Culbreath also contends that the trial court erred in allowing the prosecutor to comment during closing argument on Culbreath’s failure to present an alibi. We do not agree.

Defense counsel told the jury during closing argument that Culbreath’s gunshot wound had “nothing to do with this case” and “[w]e don’t know when it happened.” Defense counsel then said that after the case was over, jurors would have an opportunity to talk with him about the gunshot wound. The prosecutor responded that there was no evidence that the gunshot wound was unrelated to the case and that the jury was sworn to return a verdict based on the evidence. The prosecutor went on to state that other witnesses had been eliminated due to their alibis and that there were no alibi witnesses here. Defense counsel objected that the prosecutor was shifting the burden of proof to Culbreath, and the trial court overruled the objection.

During closing argument, the State may comment on the general failure of the defense to produce evidence or rebut the State’s evidence placing defendant at the scene of the crime. Ponder v. State, 268 Ga. 544, 545 (2) (491 SE2d 363) (1997) (prosecutor made authorized comment on defendant’s failure to rebut State’s proof placing defendant at scene of crime). Moreover, the trial court instructed the jury that counsels’ closing statements were not evidence and that the case was to be decided on the facts in evidence. “[Q]ualified jurors under oath are presumed to follow the instructions of the trial court.” Allen v. State, 277 Ga. 502, 504 (3) (c) (591 SE2d 784) (2004). Accordingly, the trial court properly overruled Culbreath’s objection. Ponder, supra, 268 Ga. at 545 (2).

4. Finally, Culbreath argues that the trial court failed to properly analyze his speedy trial claim and, therefore, remand is required so that the trial court can enter findings of fact and conclusions of law. We agree, and remand the case to the trial court so that an adequate record can be made.

Every constitutional speedy trial claim is subject to a two-tiered analysis as set forth in the United States Supreme Court decisions Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 (II) (112 SC 2686, 120 LE2d 520) (1992). As for the first tier of the analysis, it must be determined if the delay in question is presumptively prejudicial. If not, there has been no violation of the constitutional right to a speedy trial and the second tier of analysis is unnecessary. If, however, the delay is determined to be presumptively prejudicial, then the [trial] court must engage the second tier of analysis by applying a four-factor balancing test to the facts of the case. Those four factors include: (1) whether the delay is uncommonly long; (2) reason for delay/whether the government or the defendant is more responsible; (3) defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant. On appeal, the relevant standard of review is whether the trial court abused its discretion.

(Citations omitted.) Rafi v. State, 289 Ga. 716, 716-717 (2) (715 SE2d 113) (2011). The trial court’s order, however, “must provide sufficient findings of fact and conclusions of law to permit this Court to determine if the trial court properly exercised its discretion under the Barker analysis.” (Citation omitted; emphasis supplied.) State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011); see also Higgenbottom v. State, 288 Ga. 429, 430-431 (704 SE2d 786) (2011) (absent findings of fact and conclusions of law consistent with Barker, there is no exercise of discretion for this Court to review).

(a) Presumptive Prejudice

Generally, a delay of one year is considered presumptively prejudicial. Ruffin v. State, 284 Ga. 52, 55 (2) (a) (663 SE2d 189) (2008). The delay should be calculated from the date of defendant’s arrest or other formal accusation until the date on which the defendant’s speedy trial motion was granted or denied. Porter, supra, 288 Ga. at 526 (2) (b). Here, the record shows that Culbreath was arrested on July 22,2009. Culbreath filed a constitutional demand for speedy trial and an out-of-time statutory demand for speedy trial on November 11, 2010. The trial court denied Culbreath’s speedy trial motion on January 14, 2011, and in its order the trial court correctly determined that the 18-month delay here raised a presumption of prejudice, requiring full analysis of the four Barker-Doggett factors. See State v. Pickett, 288 Ga. 674, 676 (2) (b) (706 SE2d 561) (2011).

(b) Barker-Doggett Balancing Test
With regard to the balancing test,
[n]o one factor is either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. The four factors emphasized in Barker and Doggett do not constitute an exhaustive list; they have no talismanic qualities and must be considered together with such other circumstances as may be relevant given the animating principles behind the speedy trial guarantee. Thus, the second stage of the constitutional speedy trial analysis requires courts to engage in a difficult and sensitive balancing process and necessarily compels them to approach speedy trial cases on an ad hoc basis.

(Footnotes omitted.) Ruffin, supra, 284 Ga. at 56 (2) (b). This Court is not permitted to weigh the Barker-Doggett factors in the first instance where the trial court has failed to do so. See Pickett, supra, 288 Ga. at 679-680 (2) (d).

Accordingly, we look to the trial court’s order in this case and examine each factor in turn.

(i) Whether the Pre-trial Delay Was Uncommonly Long.
As the Supreme Court of Georgia has held:
The length of the pretrial delay in absolute terms plays a role in the threshold determination of presumptive prejudice. However, it also wears another hat as one of the four interrelated criteria that must be weighed in the balance at the second stage of the Barker-Doggett analysis. It is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis. As the [United States] Supreme Court has explained, this latter enquiry is significant to the speedy trial analysis because the presumption that pretrial delay has prejudiced the accused intensifies over time. The uncommon length of the pretrial delay thus merits consideration beyond its use as a liminal screening mechanism.

(Punctuation and footnotes omitted.) Ruffin, supra, 284 Ga. at 56-57 (2) (b) (i). In this case, the trial court made no findings as to whether the delay was uncommonly long given the circumstances of the case. To the extent the trial court overlooked this factor in the four-factor balancing process, it erred. See id. at 59 (2) (b) (i).

(ii) The Reason for the Delay.

With regard to the 18-month delay between Culbreath’s arrest and the trial court’s denial of his motion, the trial court found that discovery had been ongoing, Culbreath expressed his desire for a speedy trial to his initial counsel, but she was concerned about the complexity of the case and, ultimately, initial counsel withdrew from the case for personal reasons and new counsel was appointed. The trial court erred, however, because it did not indicate whether it attributed the delay to Culbreath or the State and what weight, if any, it gave to the delay. This Court is prohibited from making factual findings and weighing the results of those findings in the first instance. See Porter, supra, 288 Ga. at 527 (2) (c) (2).

(iii) Culbreath’s Assertion of His Right.

The trial court found that Culbreath did not file his speedy trial demand until sixteen months after his arrest and seven months after his second trial counsel was appointed. The trial court, however, did not explicitly indicate what weight, if any, it attributed to Culbreath’s delay in asserting his rights.

(iv) Whether Culbreath Suffered Prejudice as a Result of the Delay.

The fourth and final factor is prejudice.
The concept of prejudice in this context is not limited to consideration of the likely effect the pretrial delay had or might have on the ultimate outcome of the trial. . . . The Supreme Court has identified three values underlying the speedy trial guarantee that warrant special consideration in the prejudice inquiry. The central aims of the Founders in enacting the Speedy Trial Clause were to (i) prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense would be impaired.

Decided July 10, 2014.

(Punctuation and footnotes omitted.) Ruffin, supra, 284 Ga. at 64-65 (2) (b) (iv). In this case, the trial court noted that Culbreath asserted oppressive pre-trial detention but found that Culbreath had not shown any specific impairment to his defense.

(c) Balancing the Four Factors.

The Supreme Court of Georgia has made clear that trial courts must “consider and weigh all four factors under the circumstances of each case.” (Emphasis supplied.) Porter, supra, 288 Ga. at 533 (2) (d). As set forth above, the trial court failed to make findings of fact regarding whether the delay was uncommonly long; the trial court failed to indicate whether it attributed the reason for the delay to Culbreath or to the State and what weight it gave to this factor; and the trial court failed to indicate what weight, if any, it gave to the timing of Culbreath’s motion.

While the trial court made some findings of fact, it failed to weigh various factors for or against Culbreath and, therefore, did not properly balance the four Barker-Doggett factors. As set forth above, it is not the job of this Court to weigh the Barker-Doggett factors in the first instance. State v. Johnson, 291 Ga. 863, 868 (3) (734 SE2d 12) (2012); Pickett, supra, 288 Ga. at 679-680 (2) (d). Accordingly, the trial court’s order on Culbreath’s motion for speedy trial must be vacated and the case remanded for the entry of a proper order, consistent with this opinion. Porter, supra, 288 Ga. at 533-534 (2) (e); Higgenbottom, supra, 288 Ga. at 430-431.

In sum, we find no error in the trial court’s admission of the witnesses’ in-court identifications or in the prosecutor’s comments on Culbreath’s failure to present an alibi. We vacate Culbreath’s conviction and sentence as to aggravated assault against victim Margaret Parris and remand for resentencing, but we find no merger of the remaining convictions. We vacate the denial of Culbreath’s speedy trial motion and remand the case with direction.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Doyle, P. J., and Dillard, J., concur.

Lawrence J. Zimmerman, Christopher R. Geel, for appellant.

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

       At sentencing, as to the crimes against victim K. M., the trial court merged Culbreath’s convictions for cruelty to children and false imprisonment into his kidnapping conviction; as to crimes against victim Margaret Parris, the court merged Culbreath’s conviction for aggravated assault with intent to rob with his false imprisonment conviction.

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

       K. M. testified that Carlson and the prosecutor told her that the man with the gun would be in court, she might be asked whether she saw him in the courtroom and she should tell the truth. However, as noted, Culbreath’s identity was no secret once his trial began. Milner, supra, 258 Ga. App. at 428 (1).