text:
    A11A2068.
    CULVER v. THE STATE.
    (724 SE2d 485)
   MlKELL, Presiding Judge.

A jury convicted Darius Michael Culver of two counts of first degree forgery and two counts of theft by deception. He appeals the denial of his motion for a new trial, enumerating three errors: (1) the trial court’s grant of the state’s reverse Batson motion; (2) the trial court’s refusal to instruct the jury on impeachment by prior inconsistent statements and the use of prior inconsistent statements as substantive evidence; and (3) that he received ineffective assistance of counsel. We affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.”

So viewed, the evidence shows that Culver entered into a contract with C. E. Hall Construction, Inc. (“Hall”), a general contractor, to serve as a subcontractor providing materials and labor for masonry work at Hall’s construction project at a Savannah-area church. Hall issued two checks totaling more than $12,900 for materials and made payable, jointly, to Culver and to his materials supplier, Clarkes Block Company. Culver endorsed the checks, as did his wife, who used two different names to sign them. No one from Clarkes Block endorsed the checks. When Culver cashed the checks at a liquor store, he created the impression that Clarkes Block had given him permission to cash the checks. The store owner testified that when he asked about the second signature on one of the checks, which was in fact Culver’s wife’s signature, Culver told him the check was signed by a secretary at Clarkes Block. The total amount of the checks was intended to pay Clarkes Block, as Culver had been paid for his labor by separate check.

1. Culver claims the trial court erred in granting the state’s reverse Batson challenge, which resulted in the reseating of juror no. 21, a white juror, after Culver used eight of his nine peremptory strikes to remove white jurors, and the ninth to remove a juror who is Hispanic. This argument is meritless.

After three jurors were excused for cause, of the thirty-seven jurors who remained, twelve were black, two were Hispanic, and twenty-three were white. The record does not reveal the racial composition of the petit jury. In evaluating claims that the defendant used peremptory challenges in a racially discriminatory manner,

the trial court must engage in a three-step process: first, the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; second, the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; and third, the trial court decides whether the opponent of the strike has proven discriminatory intent.

Although Culver argues that the state failed to make a prima facie showing of discrimination, once Culver offered a race-neutral explanation for the strike and the trial court ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the state made a prima facie showing becomes moot. As a result, we need only address the issue of the sufficiency of Culver’s proffered reasons for striking juror no. 21, and the ultimate issue of purposeful discrimination. “A race-neutral explanation need not be persuasive, plausible or even make sense; it must simply be based on something other than the juror’s race. Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race neutral.”

Based on these guidelines, the trial court found that defense counsel’s explanations for all the strikes were race-neutral. After defense counsel has offered race-neutral reasons for his strikes, the burden of proving that the proffered explanations are pretexts for discrimination then shifts back to the opponent of the strikes, in this case, the state.

Culver’s enumeration focuses only on the trial court’s analysis related to juror no. 21. While Culver argues that the trial court improperly placed the burden of disproving pretext on the defense, the record does not support this. Defense counsel stated that he could not recall why he excluded juror no. 21 but thought it was because this juror worked in a science- and detail-oriented job, and he did not want such people on the jury in a criminal case. The state countered that the juror “stated he worked in pest control. . . and he also was a musician by trade . . . he’s not a technician.” The trial court then found that juror no. 21 was excluded for a pretextual reason, and reseated that juror.

A decision on this and the other Batson factors rests upon the trial court’s assessment of defense counsel’s credibility and state of mind. “[I]t therefore lies peculiarly within the trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” Further, as no transcript of voir dire was available, we cannot say that the trial court’s finding of pretext and grant of the state’s Batson motion were clearly erroneous.

2. Culver contends that the trial court erred in failing to instruct the jury on impeachment by prior inconsistent statements, or on the use of prior inconsistent statements as substantive evidence. We disagree.

Culver submitted a written request to charge Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 1.31.40, a broad-based charge on impeachment via several different means, including prior inconsistent statements, which exhorts the court to “charge only those that apply.” Despite this, Culver’s attorney agreed to the charge the court proposed at the charge conference, which included impeachment language related to, inter alia, disproving facts to which the witness testified and to credibility, but did not include language about prior inconsistent statements. The record provides no indication that Culver’s counsel ever requested the charge relating to instructing the jury on the use of prior inconsistent statements as substantive evidence. Culver did not object either at the charge conference or after the jury was charged to the omission of either of these jury instructions.

Despite the lack of objection below, the omission of these jury instructions was raised in Culver’s amended motion for new trial and enumerated as error on appeal. In accordance with our Supreme Court’s recent decision in State v. Kelly, and the mandate of OCGA § 17-8-58 (b), we must review the omission to determine whether it constituted plain error, regardless of preservation below. Kelly sets forth a four-prong test, as follows:

First, there must be an error or defect —- some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

“Satisfying all four prongs of this standard is difficult, as it should be.” Culver’s argument as to both omitted charges fails because he has not satisfied either the first or second prongs of the Kelly test. He has not shown an error or defect from the applicable legal rule, nor has he shown that the alleged error is clear and not subject to reasonable dispute. “A request to charge the jury must be legal, apt and precisely adjusted to some principle involved in the case and be authorized by the evidence.” Further, a trial court must adjust its jury charge to reflect the law and the evidence.

The pattern jury instruction on impeachment exhorts the court to “charge only those [portions of the instruction] that apply .” For this instruction to apply, Culver must have at least attempted to impeach the witness by a prior inconsistent statement. To do so, counsel must

ask the witness whether he made the alleged statement, giving its substance, and naming the time, the place, and the person to whom made. If the witness denies the making of the statement, or fails to admit it, then the requirement of “laying the foundation” is satisfied and [counsel], at his next stage of giving evidence, may prove the making of the alleged statement.

In his appellate brief, Culver identifies the witness his counsel allegedly attempted to impeach via prior inconsistent statements as Trevor Wells, one of the owners of Clarkes Block. Culver testified that Wells gave him permission to cash one of the two-party checks, keep the money, and repay Clarkes Block the whole amount later. He testified that when he got the second two-party check, he cashed it and kept the money without talking with Wells because of their prior conversation. Wells testified as follows:

Q: [D]id [Culver] at some point come to you about a check that he’d been issued from Hall Construction?
A: He came to me and said he had a check. Yes, sir.
Q: Okay. Did he ask you or indicate to you that he needed money for some purpose?
A: He said he had a lot of labor to pay. Yes, sir.
Q: Did he ask you to do anything in regards to that check?
A: No, sir.
Q: Was it your understanding, or do you recall whether or not [Culver] was going to negotiate that, the entire check, and pay Clark[es] later from his draw?
A: I can’t say. I don’t remember. . . .
Q: Okay. Is it possible that you could have given [Culver] authority to negotiate the check?
A: No, sir.

While Wells’s testimony certainly differed from Culver’s, at no point did Culver’s counsel ever present Wells with the substance of any alleged prior statement about giving Culver permission to cash the checks and keep the money, such that in his testimony on the stand, Wells was put in a position to deny or fail to admit any alleged prior statement. As the proper foundation never was set forth for impeachment, it was not plain error for the trial court to omit either the charge on impeachment by prior inconsistent statements or the charge on the consideration of prior inconsistent statements as substantive evidence.

3. Culver alleges that his trial counsel was ineffective. The standard for determining whether a defendant was denied effective assistance of counsel is a two-part test which requires a showing that counsel’s performance was deficient and that but for the deficient performance, there is a reasonable probability that the outcome of the trial would have been different. In examining an ineffectiveness claim, the court need not address both prongs of the inquiry “if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”

(a) Culver first asserts ineffectiveness in that his trial counsel “failed to make clear that his peremptory strike of Juror No. 21 was in no way due to racial bias.”

Neither the trial record nor the transcript of the motion for a new trial, at which trial counsel testified as to Culver’s ineffectiveness claims, supports this argument; nor does Culver’s own appellate brief. First, as discussed in Division 1, above, the trial court found that Culver gave a race-neutral reason for striking juror no. 21, then found that the basis of the strike was pretextual. Also, at the start of the Batson hearing, counsel said, “Well, judge, I didn’t count the white[s] and blacks. I went juror by juror to look at what I noted about them . . . and what their answers were in voir dire.” Second, at the motion for a new trial, trial counsel testified that he did not strike juror no. 21 for any race- or gender-based reason. Finally, Culver’s own appellate brief first quotes the trial court’s statement at the Batson hearing: “the burden falls to you to give me a race neutral reason for exercising this strike” as to juror no. 21; then Culver’s brief asserts that “trial counsel had done so.” This is apparently a reference to trial counsel’s explanation, discussed above, that he struck juror no. 21 because he was a science- and detail-oriented person.

Decided March 1, 2012

Steven L. Sparger, for appellant.

Larry Chisolm, District Attorney, David M. Sneed, Melanie Higgins, Assistant District Attorneys, for appellee.

Unless clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel, though we conduct a de novo review of the trial court’s legal conclusions. “[A] claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight. [Culver] has simply failed to show that trial counsel’s performance was deficient so as to prejudice his defense.”

(b) Culver further alleges trial counsel was ineffective in failing to object to the omission of a jury instruction on the use of prior inconsistent statements as substantive evidence, and in failing to object to and also agreeing when the trial court said it would omit a jury instruction on impeachment by prior inconsistent statements. Because we found in Division 2, above, that no foundation was laid for impeaching a witness by prior inconsistent statements, Culver’s trial counsel cannot be ineffective for failing to object to charges that were not legally warranted. “The failure to pursue a futile objection does not amount to ineffective assistance.” This enumeration fails.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

       The United States Supreme Court has held that criminal defendants, as well as the state, are subject to the restrictions placed upon jury selection in Batson. See Georgia v. McCollum, 505 U. S. 42, 59 (IV) (112 SC 2348, 120 LE2d 33) (1992).

       (Footnote omitted.) Moon v. State, 280 Ga. App. 84 (1) (633 SE2d 418) (2006).

        Bass v. State, 271 Ga. App. 228, 231 (4) (609 SE2d 386) (2005).

       (Punctuation and footnotes omitted.) Id.

       Id. at 232 (4).

       (Citation and punctuation omitted.) Moak v. State, 222 Ga. App. 36, 39 (3) (473 SE2d 576) (1996).

       See LeMon v. State, 290 Ga. App. 527, 530 (1) (b) (660 SE2d 11) (2008).

       (Emphasis in original.)

       Suggested Pattern Jury Instructions, supra at § 1.31.70.

       290 Ga. 29, 32 (1) (718 SE2d 232) (2011).

       (Punctuation omitted; emphasis in original.) Id. at 33 (2) (a), citing Puckett v. United States, 556 U. S. 129, 135 (II) (129 SC 1423, 173 LE2d 266) (2009).

       (Citation and punctuation omitted.) Kelly, supra.

       Id.

       (Citation and punctuation omitted.) Hill v. State, 259 Ga. 557, 558 (3) (b) (385 SE2d 404) (1989).

        Haupt v. State, 290 Ga. App. 616, 620 (2) (a) (660 SE2d 383) (2008).

       (Emphasis in original.) Suggested Pattern Jury Instructions, supra at § 1.31.40.

       See id. at § 1.31.40 (charge applies “[i]f any attempt has been made in this case to impeach any witness by proof of contradictory statements previously made”).

       (Citation and punctuation omitted; emphasis supplied and omitted.) Bryant v. State, 288 Ga. 876, 884-885 (8) (708 SE2d 362) (2011); OCGA § 24-9-83 (before a witness may be impeached by his own prior inconsistent statement, “the time, place, person, and circumstances attending the former statements, shall be called to his mind with as much certainty as possible”).

        Bryant, supra.

        Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

       Id. at 694 (III) (B).

       Id. at 697 (IV).

       (Emphasis supplied.)

        Tyner v. State, 313 Ga. App. 557, 563 (6) (722 SE2d 177) (2012).

       (Citations and punctuation omitted.) Stokes v. State, 281 Ga. 825, 835 (8) (h) (642 SE2d 82) (2007). See Tyner, supra (“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”) (footnote omitted).

       (Citation and punctuation omitted.) Bellamy v. State, 312 Ga. App. 899, 903-904 (3) (c) (720 SE2d 323) (2011).


source: Caselaw Access Project

author: MlKELL, Presiding Judge.

license: Public Domain

text:
    A11A2128.
    THE VILLAGE AT LAKE LANIER, LLC et al. v. STATE BANK AND TRUST COMPANY.
    (724 SE2d 806)
   MlKELL, Presiding Judge.

Following a hearing, the trial court denied confirmation of the nonjudicial foreclosure sale of commercial property in Hall County, finding that State Bank and Trust Company (State Bank) had not shown by a preponderance of the evidence that it sold the property at true market value. The trial court, however, found that State Bank had met its burden of showing good cause, and ordered a resale. The Village at Lake Lanier, LLC (Village) appeals from a September 30, 2010, order denying its Daubert motion to exclude the testimony of State Bank’s expert witness and denying its request for a Daubert hearing to determine that expert’s competency. Village also appeals from an April 5, 2011, decision ordering a resale of the property. For the following reasons, we affirm.

In 2008, Village entered into a modification of its deed to secure debt on a commercial property near Lake Lanier, signing a promissory note for $2.72 million. The loan went into default in 2009, and about a year later, with more than $2 million owing, State Bank hired a third party, Valuation Management Group (VMG), to obtain an appraiser for the property. VMG hired Martinn Winters. Winters appraised the property at $850,000, and State Bank used that appraisal as the basis for its purchase of the property, as sole bidder, at a May 4, 2010, foreclosure sale for $880,000, adding the extra amount to cover ancillary costs such as attorney fees.

Following the trial court’s denial, after a hearing, of Village’s motion to exclude the testimony of State Bank’s expert witness, Winters, and the court’s denial of Village’s Daubert motion seeking a separate hearing to determine Winters’s competence, the instant case came before the trial court for a confirmation hearing on November 11 and 22, 2010. The court found that State Bank had not shown by a preponderance of the evidence that it had sold the property for fair market value; however, after consideration of briefs by the parties, the court found that State Bank could resell the property.

1. Village argues, in two related enumerations, that the trial court erred in ordering a resale of the subject property pursuant to OCGA § 44-14-161, and asserts that the court applied the wrong standard when it found State Bank met its burden of showing good cause sufficient to support a resale.

We have held that OCGA § 44-14-161 (c) provides the court with broad discretion to grant or deny a resale. State Bank’s contention that the “any evidence” standard of review applies here is incorrect. While that standard applies to appellate review of confirmation of sale proceedings, this court has found that in the context of the appeal of a resale following the denial of a confirmation or no confirmation at all, “we determine only whether that discretion was abused. Traditionally, where a trial court is vested by statute with broad discretion, appellate courts do not disturb that exercise of discretion unless it is clearly, patently, and manifestly abused.”

(a) Village, relying heavily on Resolution Trust Corp., argues that a mere failure to sell the property for fair market value is insufficient to entitle a creditor to a resale, does not indicate the creditor met its burden of showing good cause, and does not per se show good cause, especially where a party, as alleged here, relied on a flawed appraisal.

Pursuant to OCGA § 44-14-161 (c), “[t]he court may order a resale of the property for good cause shown.” The statute does not define good cause. We have found that this statute “confers upon the trial court a legal discretion in determining whether to order a resale.” Contrary to Village’s argument, there is no evidence before us indicating that the trial court did not base its order on its own discretion, or that it acted under any belief in a mandate to order a resale simply because the property failed to sell for fair market value. “Generally, a trial court will be presumed to have performed its duties.” This enumeration fails.

(b) Village further argues that the trial court “may have confused good cause with good faith,” thereby applying the wrong standard under OCGA § 44-14-161 and impermissibly shifting the burden to Village, in that using a good faith standard would equate to requiring evidence of bad faith or malfeasance.

The trial court’s order amply demonstrates that it did not reach its decision via the erroneous standard Village postulates. The order, in pertinent part, says: “Focusing on the standard set forth in OCGA § 44-14-161 (c), of ‘good cause,’ the Court finds the plaintiff acted in good faith by having the property appraised prior to the sale and that the failure to sell for fair market value was not brought about by any intentional act, and that they have shown ‘good cause’ We have found, in similar instances, that the trial court did not abuse its discretion in ordering a resale where a bank acted in good faith and where the property failed to sell for its true market value. The trial court did not abuse its discretion in ordering the resale, nor did it rely on an improper standard to do so.

2. Village enumerates as error the trial court’s denial, after a hearing, of its Daubert motion to exclude Winters’s expert testimony pursuant to OCGA § 24-9-67.1 (b), and the trial court’s denial of its motion seeking a Daubert hearing to evaluate the expert witness’s competence.

The trial court’s decisions regarding the competence of expert witnesses are legal determinations and are reviewed under an abuse of discretion standard.

(a) Village asserts error in the denial of its motion to exclude expert testimony, but although the record and the trial court’s order indicate that the court, at Village’s request, held a hearing on this motion on September 29, 2010, no transcript of the hearing appears in the record and nothing in the record indicates whether the hearing was taken down or transcribed. “Absent a record of the arguments made, the facts presented in support, and the basis for the trial court’s ruling, we must assume that the evidence supported the ruling.” We affirm.

(b) Village additionally alleges that the trial court erred both in denying its motion for a hearing to evaluate the expert’s competence, and in failing to apply the Daubert standard when it denied that motion in that the court reasoned that Village’s counsel could address any concerns on cross-examination. As an initial matter, we note that no motion seeking such a hearing appears in the record before us, nor does counsel to Village provide an applicable record cite.

OCGA § 24-9-67.1 (d) provides that “[u]pon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of subsections (a) and (b) of this Code section.” After hearing arguments of counsel, the transcription of which is not included in the record as noted in Division 2 (a), above, the trial court determined that a Daubert hearing was not necessary to determine the competence of expert witness Winters. Village alleges that the trial court misapplied the Daubert standard in denying the hearing and in reasoning that appellant’s counsel could raise issues of concern on cross-examination. We have held that “[disputes as to an expert’s credentials are properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility.” Further, in contravention of Village’s allegations, the trial court did not sidestep its role as gatekeeper in so deciding, in that specific findings of fact are not required in rendering such a decision. An appellate court generally presumes that a trial court has performed its duties in accordance with law. Finally, as no transcript of the hearing at which the trial court apparently gathered the information upon which to base its denial of the motion for a separate hearing on expert competence is in the record before us, we will assume the evidence supported the trial court’s decision. The trial court did not err in applying the Daubert standard, nor did it abuse its discretion in denying the motion for a Daubert hearing or in allowing the expert to testify at the confirmation hearing.

Decided March 1, 2012.

Anderson, Tate & Carr, Jason W. Blanchard, Robert M. Reeves, for appellants.

Siegel & Golder, Mark L. Golder, Lynn L. Carroll, for appellee.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       State Bank is an assignee of the FDIC as the receiver for Buckhead Community Bank.

         Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993).

        Wilson v. Prudential Indus. Properties, 276 Ga. App. 180, 181 (1) (622 SE2d 890) (2005).

        Resolution Trust Corp. v. Morrow Auto Center, 216 Ga. App. 226, 229 (3) (454 SE2d 138) (1995); McDowell v. Regions Bank, 311 Ga. App. 600 (716 SE2d 638) (2011).

        Resolution Trust Corp., supra at 228 (2).

       (Citation omitted.) Id. at 227 (2).

       (Footnote omitted.) CSX Transp. v. McDowell, 294 Ga. App. 871, 872-873 (1) (a) (670 SE2d 543) (2008).

       (Emphasis supplied.)

        Regions Bank, supra. Accord Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233, 234 (3) (230 SE2d 324) (1976); Damil, Inc. v. First Nat. Bank of Dalton, 165 Ga. App. 678 (302 SE2d 600) (1983).

        McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga. App. 595, 598 (1) (b) (660 SE2d 397) (2008).

       (Citation omitted.) Harper v. Barge Air Conditioning, 300 Ga. App. 901, 906 (686 SE2d 668) (2009). Accord Wheeling-Culligan v. Allen, 243 Ga. App. 776, 777 (533 SE2d 797) (2000) (The burden is on the party asserting error to show it affirmatively by the record, and where proof needed for determination of those issues on appeal is absent, an appellate court must assume the judgment below is correct and affirm.).

       (Emphasis supplied.)

       (Footnote omitted.) Savannah Cemetery Group v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 211 (3) (704 SE2d 858) (2010); accord Gotten v. Phillips, 280 Ga. App. 280, 286 (633 SE2d 655) (2006) (Under Daubert, disputes as to expert’s credentials are properly explored through cross-examination at trial.).

        CSX Transp., supra at 872-873 (1) (a).

       Id. at 872 (1) (a). See Byelick v. Michel Herbelin USA, Inc., 275 Ga. 505, 507 (3) (570 SE2d 307) (2002) (Appellate court presumes that trial court performed its official duties in accordance with the law.).

        Harper, supra.


text:
    A11A2191.
    WHITE OAK HOMES, INC. et al. v. COMMUNITY BANK & TRUST.
    (724 SE2d 810)
   MlKELL, Presiding Judge.

White Oak Homes, Inc. (White Oak), appeals from the trial court’s order confirming Community Bank & Trust’s (CB&T) nonjudicial foreclosure sale pursuant to OCGA § 44-14-161, contending that the foreclosure notice was deficient as a matter of law. Finding no error, we affirm.

“The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them. We are not, however, bound by the trial court’s conclusions of law, which are subject to de novo review.”

White Oak defaulted under a deed to secure debt to CB&T. CB&T pursued nonjudicial foreclosure of the property at issue and advertised the sale under power in the Athens Banner-Herald, the legal organ of Clarke County. On the date of the last advertisement, the FDIC, as receiver for CB&T, sold the property to another bank, SCBT, N.A. The subject property then was sold at auction, but because the sale price did not satisfy the amount of the indebtedness, CB&T petitioned for confirmation, which the trial court granted. White Oak appeals.

1. At the confirmation hearing, an attorney for CB&T testified that, as was his practice when running a notice of sale under power, he asked the publisher to provide an affidavit of publication of the foreclosure notice. The attorney submitted into evidence the original affidavit of publication, and, attached to it by the publisher, the tear sheet, or clipping, from the Athens Banner-Herald. Asked if the tear sheet reflected the same advertisement that he transmitted to the newspaper, the attorney confirmed that it did. The publisher’s affidavit attests that the advertisement was published on each of four listed dates. The court admitted both the affidavit and the tear sheet into evidence.

White Oak challenges the admissibility of the publisher’s affidavit and the tear sheet, on the ground of hearsay. However, this court has, in similar situations,

found no error in the admission of publisher’s affidavits over hearsay or authenticity objections where, as here, a witness testified at the hearing that he or she caused the foreclosures to be advertised in the legal organ of the county at issue, identified the publisher’s affidavits, and affirmed that the advertisements ran four times during the month that preceded the foreclosure.

We conclude that the publisher’s affidavit in this case, as identified by the attorney, was “competent proof of the facts recited therein, namely the contents of the advertisement and the dates of publication.” The cases White Oak cites in support of this enumeration are distinguishable. We find no error.

2. White Oak contends that the foreclosure advertisement did not comply with OCGA §§ 44-14-162 and 9-13-140 (a) because it failed to identify the owner of the loan. The advertisement identified CB&T as the party in whose favor the security deed was executed; but White Oak asserts that the FDIC as receiver for CB&T sold the loan to another bank on January 29, 2010, the same date that the last advertisement ran in the Athens Banner-Herald.

This error has been waived on appeal. White Oak, in contravention of our rules, has not shown how this enumeration of error was preserved for our review, nor has White Oak provided any relevant citation to the record showing that this claim of error was raised below. CB&T asserts that this enumeration was not raised below, and our review of the record has yielded nothing contrary to this assertion. “An appellate court will not consider an issue raised for the first time on appeal, because the trial court has not had the opportunity to consider it.”

3. White Oak argues that the confirmation was not filed by the real party in interest as required by OCGA § 44-14-162 (a), because the FDIC in its capacity as receiver for CB&T sold CB&T’s assets to another bank on the same date as the final foreclosure advertisement and prior to the foreclosure sale on February 2, 2010. White Oak also argues that the assignment from CB&T to the other bank was not filed prior to the sale. In support, White Oak cites OCGA § 44-14-162 (b), which provides that “[t]he security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located.” White Oak contends that the statute requires an assignment be filed prior to sale, and that this court should ignore the disjunctive “or” in the statute. However, issues involving standing and assignment are outside the scope of a confirmation hearing:

The only purpose of the confirmation statute is to subject the creditor’s potential deficiency claim to the condition that the foreclosure sale under power be given judicial approval. The confirmation proceeding does not result in a personal judgment and it does not adjudicate the title of the property sold. Except as to the confirmed amount of the sale, it does not establish the liability of any party with regards to the indebtedness.

A confirmation proceeding is a limited statutory proceeding in which an assignment issue is not relevant. Therefore, “the issue of whether [CB&T] was a real party in interest is not relevant to this confirmation proceeding, which was commenced in accordance with OCGA § 44-14-161 (a) by the person instituting the foreclosure proceedings.” The issues of standing and assignment were irrelevant to the confirmation proceeding. The trial court did not err in confirming the sale.

4. White Oak contends that the trial court erred because it made no finding of fact that CB&T published a proper foreclosure notice. Again, White Oak ignores our rules by not indicating how this enumeration of error is preserved for our review; thus, there is nothing for us to review. Moreover, White Oak has failed to support this alleged error by argument and citation to authority, or by any citation to the record. We conclude, therefore, that White Oak has abandoned this claim of error.

Decided March 1, 2012

Thomerson, Spears & Robl, Michael D. Robl, for appellants.

Hulsey, Oliver & Mahar, Joseph D. Cooley III, Jason A. Dean, for appellee.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       (Punctuation and footnotes omitted.) TKW Partners v. Archer Capital Fund, 302 Ga. App. 443 (691 SE2d 300) (2010). Accord Nexgen Cumming, LLC v. State Bank & Trust Co., 313 Ga. App. 715, 717 (1) (722 SE2d 428) (2012). White Oak asserts that this court reviews appeals from an order of confirmation and evidentiary decisions such as the admission of hearsay evidence under a clearly erroneous standard; CB&T asserts that this court sits as a trier of fact in confirmations, and will not disturb decisions below if there is any evidence to support them. Contrary to the parties’ arguments, the standards are the same. See Harper v. JP Morgan Chase Bank Nat. Assn., 305 Ga. App. 536 (699 SE2d 854) (2010).

       (Citations omitted.) Nexgen, supra at 717 (1). Accord Belans v. Bank of America, 306 Ga. App. 252, 256 (3) (701 SE2d 889) (2010).

       (Citations omitted.) Stepp v. Farm &c. Ins. Co., 222 Ga. App. 257, 259 (2) (474 SE2d 108) (1996). Accord Nexgen, supra.

         Hodsdon v. Whitworth, 153 Ga. App. 783, 788 (5) (266 SE2d 561) (1980) (plaintiffs testimony as to whether third parties had asked him about the foreclosure advertisements was hearsay); McInnis v. Community Bank & Trust, 306 Ga. App. 436, 437 (702 SE2d 734) (2010) (publisher’s affidavit insufficient where advertisement that ran in newspaper was not attached to publisher’s e-mails to attorney or to publisher’s affidavit).

       See Court of Appeals Rule 25 (a) (1). As White Oak has not complied with this court’s requirement of specific citation to the record, “if we have omitted any facts or failed to locate some evidence in the record, the responsibility rests with appellant. As we have often stated, it is not our function to cull the record on behalf of a party.” (Punctuation and footnotes omitted.) Drew v. Istar Financial, 291 Ga. App. 323 (661 SE2d 686) (2008).

       (Punctuation and footnote omitted.) Sitton v. Print Direction, Inc., 312 Ga. App. 365, 370 (3) (718 SE2d 532) (2011).

       (Emphasis supplied.)

       (Emphasis omitted.) Boring v. State Bank & Trust Co., 307 Ga. App. 93, 95 (1) (704 SE2d 207) (2010), citing Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 297 (1) (430 SE2d 732) (1993).

        Boring, supra at 96 (1). See also McCain v. Galloway, 267 Ga. App. 505, 507 (1) (600 SE2d 449) (2004).

       (Punctuation omitted.) Boring, supra, citing Sparti v. Joslin, 230 Ga. App. 346 (1) (496 SE2d 490) (1998).

       See Court of Appeals Rule 25 (a).

       See Sitton, supra.

       Court of Appeals Rule 25 (c) (2) (i). See Kappelmeier v. PDQ Property Mgmt., 309 Ga. App. 430, 431 (3) (710 SE2d 631) (2011) (enumerations of error which are not supported by citation of authority or argument may be deemed abandoned).


text:
    A11A2248.
    BLOCKBUSTER INVESTORS LP v. COX ENTERPRISES, INC.
    (724 SE2d 813)
   MlKELL, Presiding Judge.

In this action for breach of a guaranty of a lease, landlord Blockbuster Investors LP (“Investors”) appeals from the trial court’s order dismissing Investors’ complaint against Cox Enterprises, Inc. (“Cox”), and denying Investors’ motion for judgment on the pleadings. We conclude that the trial court correctly ruled that, under the unambiguous terms of the guaranty at issue, Cox undertook to guarantee only the performance of the lease obligations of the tenant named in the guaranty agreement; and therefore Cox was not liable as guarantor of the lease obligations of a subsequent tenant under the lease. Accordingly, we affirm.

On appeal of a trial court’s dismissal of a complaint, our review is de novo. A motion to dismiss

should be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim. We thus construe all the allegations in the complaint in a light most favorable to the complaining party and resolve all doubts in his favor.

Further, “a trial court may properly consider exhibits attached to and incorporated in the pleadings in considering a motion to dismiss for failure to state a claim for relief.”

A trial court’s dismissal of a claim for breach of contract is not error where the clear language of the contract attached to the plaintiffs complaint demonstrates that the plaintiffs claim fails as a matter of law.

Properly construed, the complaint alleged that on June 19, 1990, Corporate Real Estate Developers, Inc. (“CRED”), as landlord, entered into a lease (the “Lease”) with Cox Home Video, Inc. (“CHV”), as tenant, for certain premises located in Auburn, Alabama. On the same day, Cox executed a guaranty (the “Guaranty”) with CRED, pursuant to which Cox guaranteed the performance of the tenant (defined in the Guaranty as CHV) under the Lease. Investors attached copies of the Lease and the Guaranty as exhibits to its complaint.

The complaint further alleged that Investors was successor-in-interest to CRED as landlord under the Lease, and that Blockbuster Inc. was successor-in-interest to CHV as tenant under the Lease. After Blockbuster Inc. defaulted under the Lease, Investors, as landlord, brought the underlying action against Blockbuster Inc. as tenant under the Lease and against Cox as guarantor under the Guaranty.

Cox filed a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6), on the ground that under the terms of the Guaranty, Cox guaranteed the performance of the Lease only as to CHy the original tenant; and that its guaranty did not reach subsequent tenants, such as Blockbuster Inc. The trial court granted Cox’s motion and denied Investors’ motion for judgment on the pleadings. This appeal followed.

1. Investors contends that the trial court erred in applying Georgia law, where the Guaranty recited that it was to be construed “by the laws of the state in which the Property is located” — i.e., Alabama. However, under both Alabama and Georgia law, the rule is that where contractual language is clear and unambiguous, the court is obliged to enforce the contract according to its terms, looking to the contract alone for its meaning. As stated in the Corpus Juris Secundum, “If the laws [of the states at issue] do not conflict, there is no need to resolve the choice of law question, and the law of the forum applies.” Because the Guaranty at issue here was unambiguous as a matter of law, as discussed below, then to the extent the trial court applied Georgia law, any error is harmless.

2. Contrary to Investors’ contention, the Guaranty in this case was unambiguous. Under the terms of the Guaranty, Cox “absolutely and unconditionally” guaranteed to CRED and its successors and assigns,

the due and prompt performance and observance of all of the obligations of the tenant under that certain Lease (“Lease”), dated June 19, 1990 between Landlord [i.e., CRED] and Cox Home Video, Inc. (“Tenant”) concerning [the subject property], including, but not limited to, the payment of rent, additional rent and all other payments to be made under the Lease.

As this language makes clear, the Guaranty defines the term “Tenant” used therein to mean CHY with no mention of any extension of that term to CHV’s successors and assigns. In contrast, the Guaranty specifically provides that it “shall inure to the benefit of the successors, successors-in-title and assigns of Landlord, including any subsequent holder of the Landlord’s interest in the Lease.” Therefore, under the Guaranty, Cox undertook to guarantee the obligations of CHY but not of any of CHV’s assigns.

In Highwoods Realty, we found under similar circumstances that “[the guarantor] promised to make good on the lease obligations of [the lessee] to [the lessor]; it did not agree to make good on the lease obligations of any assigns of [the lessee].” We explained that the absence of language as to the lessee’s assigns, combined with the inclusion of language as to the lessor’s assigns, demonstrated the intent of the parties: “when the parties intended to include assigns in a specified obligation, they did so: the guaranty made specific reference to [the lessor] and its assigns as the beneficiaries of the guaranty, with no reference to assigns of [the lessee] as entities whose obligations [the guarantor] was guaranteeing.” The same reasoning applies in the case before us.

Decided March 1, 2012.

Fellows & LaBriola, Henry D. Fellows, Jr., Kevin P. Weimer, for appellant.

Dow Lohnes, Stacey A. Carroll, Weinberg, Wheeler, Hudgins, Gunn & Dial, Stephen W. Mooney, William C. Buhay, Henry C. DeBardeleben TV, for appellee.

Investors’ efforts to avoid the definition of “Tenant” found in the Guaranty are strained and unpersuasive; and nothing in the remaining language of the Guaranty contradicts the conclusion we reached above. Because Cox’s obligations under the Guaranty were unambiguously limited to guaranteeing the performance under the Lease of CHV only, and not of successor tenants, we affirm the order of the trial court.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

        Smith Svc. Oil Co. v. Parker, 250 Ga. App. 270 (549 SE2d 485) (2001).

       (Punctuation and footnotes omitted.) Rinaldi v. Willison, 289 Ga. App. 87 (656 SE2d 231) (2008).

       (Footnote omitted.) Hendon Properties v. Cinema Dev., 275 Ga. App. 434, 435 (620 SE2d 644) (2005). See OCGA § 9-11-10 (c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes”).

        Smith Svc. Oil Co., supra at 270-271 (1) (complaint based on breach of supply contract was subject to dismissal where contract was unenforceable on its face due to lack of provision for quantity to be supplied or of provision that buyer would obtain supply exclusively from seller).

       Investors acquired the premises and the Lease from CRED on September 25, 1992.

       The action against Blockbuster Inc. was administratively terminated after that entity filed for bankruptcy.

        Highwoods Realty Ltd. Partnership v. Community Loans of America, 288 Ga. App. 226, 227 (653 SE2d 807) (2007) (Georgia law); Shoney’s LLC v. MAC East, LLC, 27 S3d 1216, 1222 (Ala. 2009) (under Alabama law, “[i]f the court determines that the terms [of the contract at issue] are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written”) (citations and punctuation omitted).

       (Footnotes omitted.) 1A CJS, Actions, § 45.

       Supra.

       Id.

       (Footnote omitted.) Id.


author: Dillard, Judge.

text:
    A11A2272.
    A11A2273.
    ADORNO v. THE STATE. RAMIREZ v. THE STATE.
    (724 SE2d 816)
   Dillard, Judge.

Following a jury trial, Sheila Adorno was convicted on two counts of cruelty to children in the first degree, and her co-defendant, Mercedes Ramirez (collectively “defendants”), was convicted on four counts of child molestation. Both appeal their convictions and the denial of their respective motions for new trial. Adorno challenges the sufficiency of the evidence supporting her convictions, and Ramirez contends that the trial court erred in reopening the evidence after closing arguments were completed and in denying his claim that his trial counsel provided ineffective assistance by failing to move for a mistrial after the trial court reopened the evidence. Because the charges arose from the same incidents and the defendants were tried together, we have consolidated their separate appeals for review. And for the reasons set forth infra, we affirm in both cases.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that in April 2008, ten-year-old S. R. and twelve-year-old N. R. were living in an apartment with their mother, Adorno, their mother’s boyfriend, Ramirez, and two other younger half-siblings. On April 18, 2008, S. R. was at school when she told one of her teachers during class that she had a friend whose stepfather came into her bedroom at night and “did things” to her. The teacher responded that the friend should tell her mother, to which S. R. replied that her friend had done so but that her mother did not believe her. Obviously concerned by the discussion, the teacher asked S. R. if she was actually talking about herself. S. R. then began crying, admitted that she was describing her own situation, and told her teacher that Ramirez had been sexually molesting her. When the teacher explained that she would have to tell the school principal and authorities what had happened, S. R. became even more upset and claimed that her mother would “whoop [her] hard” if she learned that S. R. told anyone about Ramirez’s actions.

Nevertheless, that same day, the teacher informed the school’s counselor about S. R.’s outcry, and thereafter, the counselor met with S. R. to discuss the matter. Although S. R. initially denied that she (as opposed to the unnamed friend) had been sexually molested, she eventually began crying and admitted that Ramirez had inappropriately touched her on several occasions and that she had told her mother about the molestation on at least two of those occasions. At the end of their discussion, the counselor told S. R. that she had to call the police. And again, S. R. became more upset and stated that her mother would whip her. But that same day, the counselor contacted the police, and an officer was sent to interview S. R. and her older sister, N. R.

A few days later, a counselor with a local child advocacy center conducted separate interviews with S. R. and N. R. During those interviews, both girls stated that Ramirez had touched their respective chests and privates on several occasions and that they had made their mother aware of the abuse. In addition, both S. R. and N. R. recounted a fairly recent incident, in which N. R. woke up in the middle of the night and found that Ramirez was in the bed where both girls slept and was licking S. R.’s privates. When N. R. attempted to hit Ramirez, he stopped, and both girls ran into their mother’s bedroom to tell her what had happened. However, Ramirez denied doing anything inappropriate and began whipping both girls with a belt until their mother eventually intervened. Both girls also told the child advocacy counselor that the only thing their mother did to try to stop Ramirez’s sexual abuse was to install a dead-bolt on their bedroom door and tell them to lock their door at night.

In a joint indictment, Ramirez was charged with four counts of child molestation, and Adorno was charged with two counts of cruelty to children in the first degree. As previously noted, Ramirez and Adorno were tried jointly, during which S. R.’s teacher, the school counselor, and the child advocacy counselor testified as to the girls’ outcries concerning Ramirez’s sexual abuse and Adorno’s failure to intervene. Importantly, both S. R. and N. R. directly testified about Ramirez’s abuse and that they had informed their mother about it. In addition, Ramirez and Adorno testified in their own defense and denied all the charges. Nevertheless, at the conclusion of the trial, the jury found both Ramirez and Adorno guilty on all counts of the indictment.

Thereafter, Ramirez and Adorno filed separate motions for new trial. And after conducting separate hearings on the respective motions, the trial court denied them. These appeals follow.

1. In her sole enumeration of error, Adorno contends that the evidence was insufficient to support her convictions of cruelty to children in the first degree. This contention lacks merit.

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 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.” Accordingly, 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 now turn to Adorno’s claim of error.

Under OCGA § 16-5-70 (b), a “person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” For purposes of this Code section, “malice in the legal sense imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result.” Furthermore, “[t]he determination of what is cruel or excessive physical or mental pain is to be made by the jury.” And

“[c]ruel” and “excessive” are adjectives which inherently require a consideration of degree; the law does not set a bright line but leaves to the trier of fact, taking into account societal norms generally accepted, whether certain behavior inflicts “cruel” or “excessive” pain (in this situation, mental rather than physical pain).

In the case sub judice, Count 5 of the indictment charged Adorno with cruelty to children “by allowing Mercedes Ramirez to molest [S. R.] and threatening [S. R.] if she told anyone about the molestation.” Using the same language, Count 6 charged Adorno with cruelty to children as to N. R. Adorno specifically argues that there was no evidence that she knew about Ramirez’s actions until the most recent incident or that she had threatened either of her daughters so that they would not tell others about Ramirez’s abuse. However, there was evidence that both S. R. and N. R. told Adorno several times that Ramirez was molesting them but that Adorno did not intervene, except to install a dead-bolt on the girls’ bedroom door, and did not contact the police. In addition, there was evidence that Adorno issued threats to dissuade her daughters from revealing Ramirez’s actions. But even if we were to assume for the sake of argument that evidence showing that Adorno threatened both daughters was lacking, it is of no consequence. As we have previously explained, “(i)f a crime may be committed in more than one way, it is sufficient for the State to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.” And here, as previously noted, there was evidence from which the jury could infer that Adorno was aware of Ramirez’s sexual abuse of her daughters but did not adequately intervene. The evidence was therefore sufficient to support Adorno’s convictions of cruelty to children in the first degree.

2. Ramirez contends that the trial court erred in reopening the evidence after both parties had made closing arguments. We disagree.

With regard to the reopening of evidence, the Supreme Court of Georgia has adopted a forgiving rule, “and grants trial courts very broad discretion in permitting parties to offer additional evidence at any stage of the trial.” In fact, our Supreme Court has noted that “leniency in this area is very unlikely to constitute an abuse of discretion, as the appellate courts are guided by OCGA § 24-1-2, which provides that ‘[t]he object of all legal investigation is the discovery of truth.’ ” Indeed, even after jury deliberations have begun, the trial court, in the sound exercise of discretion, may reopen the evidence and allow the admission of new evidence.

Here, during the investigating police officer’s testimony and over the State’s objection, the trial court ruled that the officer could not testify about her interviews with S. R. and N. R. because such testimony would constitute inadmissible hearsay. And for the same reason, the trial court initially prohibited the State from having the child advocacy counselor testify regarding her forensic interviews of the girls and from playing the video recordings of those interviews.

However, after all parties completed their closing arguments, but before the jury was charged, the trial court held a bench conference outside the presence of the jury, in which it informed the parties that it had made a mistake in excluding the police officer and child advocacy counselor’s testimony. Specifically, the trial court informed the parties that upon further review, it had misread applicable case authority and instead should have allowed the excluded testimony into evidence pursuant to the Child Hearsay Statute. Consequently, the trial court determined that it would reopen the evidence to allow the State to call the child advocacy counselor as a witness and to introduce the recordings of the counselor’s forensic interviews with N. R. and S. R. into evidence. In addition, the trial court ruled that both defendants could also introduce additional evidence if they chose to do so. Both defendants then objected, but neither moved for a mistrial. And thereafter, the State called the child advocacy counselor to testify and played for the jury the recordings of the counselor’s forensic interviews of S. R. and N. R.

Ramirez now argues that the trial court erred in reopening the evidence. But the trial court was correct in determining that it had erred by initially excluding the child advocacy counselor’s testimony and the recordings of her forensic interviews of N. R. and S. R. Accordingly, we conclude that it did not abuse its discretion in reopening the evidence to the testimony and recordings.

3. Ramirez further contends that his trial counsel provided ineffective assistance by failing to move for a mistrial after the trial court reopened the evidence. We disagree.

In order to prevail on his claim of ineffective assistance of counsel, Ramirez “must show that 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.” Furthermore, 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. 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.

Here, when the trial court informed the parties that it had decided to reopen the evidence, Ramirez’s trial counsel initially moved for a mistrial but quickly withdrew the request, stating that he first needed to confer with Adorno’s counsel before proceeding. After a recess, which the trial court called to allow the defendants’ trial counsel to confer and to allow the State to contact the child advocacy counselor, both Adorno and Ramirez’s trial counsel renewed their objections to the trial court’s decision, but neither moved for a mistrial.

Decided March 1, 2012.

Charles M. Evans, for appellant (case no. A11A2272).

Herbert Adams, Jr., for appellant (case no. A11A2273).

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

Ramirez now argues on appeal that his trial counsel rendered ineffective assistance by failing to move for a mistrial. However, as we held in Division 2, supra, the trial court’s decision to reopen the evidence did not constitute an abuse of discretion. Therefore, any objection or motion for a mistrial would have lacked merit, and “[t]he failure to pursue a futile objection does not amount to ineffective assistance.” Accordingly, Ramirez failed to show that his trial counsel provided ineffective assistance.

Judgments affirmed.

Mikell, P. J., and Boggs, J., concur.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        See OCGA § 16-6-4 (a).

        See OCGA § 16-5-70 (b).

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

        Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson, 443 U. S. at 319 (III) (B).

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

        Ferrell v. State, 283 Ga. App. 471, 474-75 (2) (641 SE2d 658) (2007) (punctuation omitted).

        Johnson v. State, 283 Ga. App. 99,106 (4) (640 SE2d 644) (2006) (punctuation omitted).

        Id. at 106-07 (4) (punctuation omitted).

        Judice v. State, 308 Ga. App. 229, 232 (2) (707 SE2d 114) (2011) (punctuation omitted).

        See Johnson, 283 Ga. App. at 106-07 (4) (affirming mother’s cruelty-to-children conviction based on evidence that mother did not intervene despite knowledge that her boyfriend was sexually abusing her daughter); Straker v. State, 259 Ga. App. 904, 906 (b) (578 SE2d 568) (2003) (same). Moreover, although Ramirez does not challenge the sufficiency of the evidence supporting his convictions, we note that “[i]t is well established that in child molestation cases, the victim’s testimony alone is sufficient to support a conviction.” Green v. State, 293 Ga. App. 752, 753-54 (1) (667 SE2d 921) (2008).

        Taylor v. State, 282 Ga. 502, 504 (3) (651 SE2d 715) (2007).

        Id. (punctuation omitted). See Paul S. Milich, Georgia Rules of Evidence § 13:4, p. 228 (2d ed. 2002).

        State v. Roberts, 247 Ga. 456, 458 (277 SE2d 644) (1981).

        See OCGA § 24-3-16 (“A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”).

        See Lynn v. State, 300 Ga. App. 170, 173 (2) (684 SE2d 325) (2009) (holding that under the Child Hearsay Statute, “the out-of-court statements of a child under the age of 14 about sexual contact or physical abuse performed with or on the child are admissible in evidence if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” (punctuation omitted)).

        See Taylor, 282 Ga. at 504 (3) (holding that trial court did not abuse its discretion in reopening the evidence after the State had rested to allow the State to play portions of defendant’s videotaped statement to police or to present testimony from murder victim’s mother).

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

        Chapman, 273 Ga. at 350 (2).

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

        Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008); see Head v. State, 288 Ga. App. 205,208 (2) (653 SE2d 540) (2007) (holding that counsel’s failure to request a mistrial did not constitute ineffective assistance because it affirmatively appeared from the record that the trial court in its discretion would have denied the request).


author: MIKELL, Presiding Judge.

text:
    A11A2303.
    CARSON v. THE STATE.
    (724 SE2d 821)
   MIKELL, Presiding Judge.

Antonio Ramon Carson was convicted by a jury of possession of a controlled substance with intent to distribute. Carson appeals from the order denying his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred in admitting similar transactions into evidence and by improperly denying his motion to suppress. Discerning no error, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

“When reviewing the denial of a motion to suppress, we construe the evidence presented both at the suppression hearing and at trial in a light favorable to upholding the trial court’s findings and judgment.”

So viewed, the record reveals that Savannah-Chatham police officers responded to a shooting outside of a lounge just after midnight. The victim, Loveco Hills, had been shot several times and later died as a result of his injuries. As a result of their investigation into the murder, Carson became a suspect. Officers executed a search warrant on Carson’s residence in connection with the investigation of the murder of Hills. During the Search, officers found 11 pieces of crack cocaine in a zippered compact disc case. Carson was subsequently arrested and charged with, inter alia, possession of a controlled substance with intent to distribute.

1. Carson contends the trial court erred in denying his motion to suppress arguing that the affidavit supporting the search warrant was illegal. We disagree.

(a) Carson argues that the investigating officer’s affidavit was legally insufficient to establish probable cause because it identified another individual as the suspected shooter in a paragraph summarizing the officer’s findings. However, this error exists only in one paragraph of the six-page affidavit, the remainder of which correctly identifies Carson as the suspected shooter. The investigating officer testified that this was a typographical error resulting from the haste in which he prepared his report, and that he did not intentionally misrepresent evidence to the issuing judge.

OCGA § 17-5-31 provides that “[n]o search warrant shall be quashed or evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused.” Given the fact that Carson was named on the warrant and is correctly identified as the suspect throughout the majority of the investigating officer’s affidavit, we find that the trial court could correctly find that any errors at the time the affidavit and warrant were signed “were clearly typographical and were not so material as to destroy the integrity of the affidavit or the validity of the warrant.”

(b) Carson next contends that the trial court abused its discretion in denying his motion to suppress because the supporting affidavit omitted evidence tending to implicate individuals other than Carson for the shooting incident.

An affidavit supporting an application for a search warrant “is presumed valid in the absence of evidence that it contained deliberate falsehoods, was made with reckless disregard for the truth, or that the affiant consciously omitted material facts, that, if included, would have indicated the absence of probable cause.” In the event that false information has been included in an affidavit, or when material information has been omitted, the rule is that “the false statements must be deleted, the omitted truthful material must be included, and the affidavit must be reexamined to determine whether probable cause exists to issue a warrant.”

The affidavit in this case indicated that an eyewitness to the shooting stated that the suspect was wearing plaid shorts and a polo shirt and that another witness confirmed that Carson had been wearing clothing matching that description. The affidavit also stated that a witness noticed Carson in the lounge prior to the shooting and reported that he was visibly upset and was yelling expletives after the shooting. Even if the affidavit had included the alleged omitted information that “many [other] people who would have wanted to kill Loveco Hills” existed, the affidavit contained “facts sufficient to show probable cause that a crime is being committed or has been committed” and that the issuing judge had “a substantial basis for concluding that probable cause existed.”

(c) Carson’s allegation that the search warrant was an unconstitutional general search warrant is also without merit. “A search warrant that fails to state with sufficient specificity what items can be seized is a general warrant and violates the state and federal constitutions.” The warrant in this case sought, among other things, “any and all evidence related to the murder of Loveco Hills; any clothing that may contain blood, fibers, gunshot residue; . . . any ammunition, shell casings, firearm components . . . ; any writings and/or pictues [sic] that depict the offenses as described above, or any other criminal offense.” This description was sufficient.

(d) With respect to Carson’s argument that the warrant was stale,

the proper procedure is to view the totality of the circumstances for indications of the existence of reasonable probability that the conditions referred to in the sworn testimony would continue to exist at the time of the issuance of the search warrant. The mere passage of time does not equate with staleness.

Although Carson argues that the search occurred long after the alleged murder, the items sought here were not perishable, consumable, or disposable, and therefore were unlikely to be affected by the passage of time. The warrant was not based on stale information.

(e) Carson claims that the magistrate who issued the search warrant was not neutral and detached because she suggested that the investigating officer add “no knock” language to the warrant. We disagree.

The Fourth Amendment requires that “the decision of whether to issue a search warrant is made by a neutral and detached judicial officer.” Although the investigating officer testified that “it was the judge herself who suggested that we pencil in the no knock provision,” this suggestion does not “lead to the inescapable conclusion that [this comment] rose to a level of such involvement that [the issuing judge] became engaged in the often competitive enterprise of ferreting out crime.” Accordingly, we find that the trial court’s determination that the issuing judge in this case acted as a neutral and detached magistrate was not clearly erroneous.

2. Carson next contends that the trial court erred in allowing into evidence similar transactions of prior possession of controlled substance with intent to distribute. We disagree.

Before trial, the state filed a notice of intent to present evidence of Carson’s 1996 conviction for possession of a controlled substance with intent to distribute as similar transaction evidence. The transcript of the 1996 plea hearing reveals that Carson was found with a small matchbox containing a plastic bag with eight pieces of crack cocaine in his front right pocket. After conducting a pretrial hearing in accordance with Uniform Superior Court Rule 31.3 (B), the trial court ruled that the similar transaction evidence was admissible for the limited purpose of proving course of conduct and modus operands The trial court also issued limited instructions to the jury as to such evidence and reminded them again during the jury charges that this evidence would be considered only for very limited purposes.

Evidence of an independent offense may be admitted into evidence if the state makes the following affirmative showings:

(1) the similar transaction evidence is offered for some purpose other than to show a probability that the defendant committed the crime on trial because the defendant is a person of criminal character; (2) the accused committed the independent offenses; and (3) a sufficient connection or similarity between the prior offense and the offense charged such that proof of the former tends to prove the latter.

“Implicit also are the concepts that the evidence must be relevant to an issue in the case and that its probative value outweighs its prejudicial effect.” We review the trial court’s ruling for an abuse of discretion.

Carson argues that the 1996 conviction was not sufficiently similar to the charges for which he was on trial.

The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the . . . incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.

In this case, the evidence established that both the 1996 conviction and the present case involved Carson hiding a significant amount of crack cocaine in a small compartment in an area under his control, his person and his home. As such, the trial court’s finding that Carson’s prior drug offense was sufficiently similar was not an abuse of discretion.

Decided March 1, 2012.

Leslie R. Lowry, Jennifer R. Burns, for appellant.

Larry Chisolm, District Attorney, Ian R. Heap, Jr., Assistant District Attorney, for appellee.

3. Carson next argues that the evidence was insufficient to support his conviction because although the substance was found in his home, his girlfriend, who occasionally spent the night there, also had equal access to the drugs. We disagree.

The state proved that Carson lived at the home, thereby giving rise to the rebuttable presumption that Carson was the individual in possession of the contraband found therein. It was for the jury to decide whether this presumption was rebutted, and, based on the evidence adduced, we cannot say that the jury’s verdict is insupportable as a matter of law.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       (Citation, punctuation and footnote omitted.) Burden v. State, 290 Ga. App. 734 (660 SE2d 481) (2008).

       (Footnote omitted.) Thomas v. State, 269 Ga. App. 116 (603 SE2d 689) (2004).

       (Citation and punctuation omitted.) Carlton v. State, 251 Ga. App. 339, 341 (1) (554 SE2d 318) (2001). Accord Lester v. State, 278 Ga. App. 247, 250 (1) (628 SE2d 674) (2006) (officer’s affidavit supporting search warrant is “sufficiently exact to pass muster” even though a typo provided wrong address for search when other elements of description were sufficiently particular to identify the premises to be searched).

       (Citations and punctuation omitted.) Daniel v. State, 306 Ga. App. 48, 52 (2) (701 SE2d 499) (2010).

         Flewelling v. State, 300 Ga. App. 505, 512 (2) (b) (685 SE2d 758) (2009) (holding that the material alleged to have been omitted from the warrant application was not material so as to impact a finding of probable cause).

       OCGA § 17-5-21 (a).

       (Citation and punctuation omitted.) Whitten v. State, 174 Ga. App. 867, 868 (1) (331 SE2d 912) (1985).

       (Citation omitted.) Daniels v. State, 278 Ga. App. 332, 336 (1) (b) (629 SE2d 36) (2006).

       See id.; Smith v. State, 274 Ga. App. 106, 110 (3) (616 SE2d 868) (2005).

       (Citations and punctuation omitted.) State a Graddy, 262 Ga. App. 98, 103 (3) (585 SE2d 147) (2003).

        State v. Lejeune, 277 Ga. 749, 753 (2) (594 SE2d 637) (2004). Accord Bayles v. State, 188 Ga. App. 437 (373 SE2d 266) (1988).

       (Citation and punctuation omitted.) Tabb v. State, 250 Ga. 317, 321 (2) (a) (297 SE2d 227) (1982).

       (Citation and punctuation omitted.) King v. State, 263 Ga. 741, 744 (2) (b) (438 SE2d 620) (1994).

       (Citations omitted.) Hall v. State, 230 Ga. App. 741, 742 (497 SE2d 603) (1998).

       (Citation and punctuation omitted.) Morrison v. State, 300 Ga. App. 405, 407 (685 SE2d 413) (2009).

        Porter v. State, 264 Ga. App. 526, 531 (4) (591 SE2d 436) (2003).

       (Citation omitted.) Morrison, supra at 407-408.

       See Stephens v. State, 208 Ga. App. 291, 292 (1) (430 SE2d 29) (1993) (prior guilty plea to cocaine possession admissible in case involving cocaine trafficking and possession of cocaine with intent to distribute).

       See Turner v. State, 298 Ga. App. 107, 108 (679 SE2d 127) (2009).

       Id.


author: Miller, Judge.

text:
    A11A2322.
    THE STATE v. HIPP
    (724 SE2d 825)
   Miller, Judge.

Following a pre-trial evidentiary hearing, the trial court denied Mark Allen Hipp’s motion to dismiss based on immunity from prosecution under OCGA § 16-3-24.2. After a jury trial, Hipp was convicted of aggravated assault (OCGA § 16-5-21 (a) (2)) and simple battery (OCGA § 16-5-23 (a) (1)). Hipp subsequently filed a motion for new trial. The trial court found the evidence sufficient to sustain his convictions, but granted the motion on the basis that its pre-trial ruling on Hipp’s immunity motion was erroneous. The State appeals, contending that the trial court was not authorized to make a post-conviction immunity determination. For the reasons that follow, we reverse.

We review the grant of a motion for new trial on special grounds involving a legal question de novo and reverse if the trial court committed legal error. O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009) (motion for new trial based on prior denial of motion to sever); State v. Clements, 289 Ga. 640 (1) (715 SE2d 59) (2011) (motion for new trial based on failure to dismiss juror). Moreover, a trial court’s application of OCGA § 16-3-24.2 is subject to de novo review. State v. Green, 288 Ga. 1, 2 (1), (2) (701 SE2d 151) (2010).

The record shows that Hipp was involved in a physical altercation in which he drew a knife. The police were called, and Hipp was subsequently arrested and charged with the offenses of simple battery and aggravated assault.

Hipp moved to dismiss the indictment, arguing that he was immune from prosecution under OCGA § 16-3-24.2, because he was acting in self-defense. At the pre-trial hearing on Hipp’s immunity motion, Hipp and his son testified in support of Hipp’s self-defense claim. Although the testimony of Hipp and his son was uncontro-verted, the trial court denied Hipp’s immunity motion, finding that it suggested that Hipp’s altercation was more of a mutual combat, rather than an action taken in self-defense. Following the denial of Hipp’s motion for immunity, the case proceeded to a jury trial.

At trial, the State presented the testimony from the victim and several eyewitnesses showing that Hipp and the victim had a verbal argument, that Hipp initiated the physical confrontation, and that Hipp pulled out an open knife on the victim. The witnesses stated that no one attempted to attack Hipp at any time. The State also presented evidence of five similar transactions where Hipp assaulted or battered others. Hipp asserted self-defense at trial. After hearing all of the testimony, the jury found him guilty of the charged offenses.

Hipp subsequently filed a motion for new trial on general and special grounds. In particular, Hipp argued that the evidence was insufficient to support his conviction, and that his pre-trial motion for immunity should have been granted because the evidence adduced at the pre-trial hearing was uncontroverted by the State. At the hearing on Hipp’s motion for new trial, Hipp argued that the evidence he presented at the pre-trial hearing was not controverted or impeached. Although Hipp acknowledged that the State’s trial evidence may have impeached his pre-trial testimony, he nevertheless asserted that the trial court should disregard the trial evidence and rely solely on the pre-trial testimony to find that he was immune from prosecution.

Following the hearing, the tried court denied Hipp’s motion for new trial on the ground that the evidence was insufficient to sustain his convictions, but granted it on the basis that Hipp was immune from prosecution. The trial court specifically found that a review of the evidence presented at the pre-trial immunity hearing demonstrated that Hipp had established by a preponderance of the evidence that he was entitled to immunity as contemplated in OCGA § 16-3-24.2.

In its sole enumeration of error, the State contends that the trial court’s post-conviction grant of immunity was not authorized by the evidence and impermissibly invaded the province of the jury. We agree.

OCGA § 16-3-24.2 provides in relevant part that “[a] person who uses threats or force in accordance with Code Section 16-3-21 . . . shall be immune from criminal prosecution[.]” In turn, OCGA § 16-3-21 (a) provides that “[a] person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force[.]”

To avoid trial, a defendant bears the burden of showing that he is entitled to immunity under OCGA § 16-3-24.2 by a preponderance of the evidence. Bunn v. State, 284 Ga. 410, 413 (3) (667 SE2d 605) (2008). “[T]he decision as to whether a person is immune under OCGA § 16-3-24.2 must be determined by the trial court as a matter of law before the trial of that person commences.” (Citations and punctuation omitted.) Fair v. State, 284 Ga. 165, 166 (1) (664 SE2d 227) (2008).

Here, as noted above, the trial court initially denied Hipp’s immunity motion at a pre-trial hearing. The trial court erred, however, by ruling again on Hipp’s claim of immunity in a motion for new trial. The trial court may only decide this question before, not after, trial. Cf. Fair, 284 Ga. at 166 (1) (prohibiting a court from reserving its ruling on an immunity motion under OCGA § 16-3-24.2 until the close of trial evidence). Moreover, after the pre-trial denial of his immunity claim, Hipp was nevertheless permitted to pursue an affirmative defense at trial, which could be based on the same statutory provisions underlying his immunity motion. See Bunn, supra, 284 Ga. at 413 (3). It is clear, however, that once the case proceeded to trial and the jury rejected Hipp’s claim of self-defense, the trial court was not permitted to revisit'its prior ruling or correct any purported error, because OCGA § 16-3-24.2 no longer applied. See Eason v. State, 261 Ga. App. 221, 223 (2) (582 SE2d 194) (2003) (holding that once a jury rejects a defendant’s self-defense justification, OCGA § 16-3-24.2 no longer applies); accord Wood v. People, 255 P3d 1136, 1139 (II) (A), 1141 (II) (C) (Colo. 2009) (examining an immunity statute similar to one at issue here, and holding that the issue of whether the defendant established self-defense immunity by a preponderance of the evidence becomes moot once the jury determines that the prosecution disproved the self-defense beyond a reasonable doubt).

Decided March 1, 2012

William J. Langley, District Attorney, Jeremy D. Clough, Assistant District Attorney, for appellant.

Jeffrey L. Wolff, for appellee.

Moreover, while a trial court is vested with broad discretion to review a case and set the verdict aside if it is not satisfied with it, we cannot discern how the trial court properly exercised such discretion in this case. Significantly, the trial court’s determination that the State proved beyond a reasonable doubt that Hipp committed the crimes charged is irreconcilable with its finding that Hipp proved by a preponderance of the evidence that he acted in self-defense. See State v. Green, 289 Ga. 802, 804 (2) (716 SE2d 194) (2011) (holding that a defendant who acts in self-defense cannot be guilty of a crime); Demery v. State, 287 Ga. 805, 809 (3) (700 SE2d 373) (2010) (“[I]f [a defendant] is justified in killing under OCGA § 16-3-21, he is guilty of no crime at all.”) (citation and punctuation omitted).

Accordingly, the trial court erred in making a post-conviction determination that Hipp was immune from prosecution, and therefore we reverse the trial court’s grant of a new trial on that ground.

Judgment reversed.

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


author: McFADDEN, Judge.

text:
    A12A0025.
    FULTON COUNTY BOARD OF ASSESSORS v. GREENFIELD INVESTMENT GROUP LLC.
    (724 SE2d 828)
   McFADDEN, Judge.

Fulton County Board of Assessors appeals the award of $7,628 in attorney fees and expenses to Greenfield Investment Group, LLC. The Board of Assessors argues Greenfield was not authorized to initiate the tax appeal in which the fees were awarded and that the amount of fees awarded was not reasonable. We find that Greenfield’s appeal was authorized and that the superior court did not abuse its discretion in determining the amount of fees to award. We therefore affirm.

In May 2009, Greenfield became owner of record of the property at issue. It paid the 2009 property taxes under protest, and appealed the 2009 assessment. The Board of Equalization reduced its valúation of the property from $121,400 to $77,900.

In April 2010, Greenfield initiated an appeal of the reduced amount in the superior court and included a claim for attorney fees. The Board of Assessors certified the appeal to the superior court. In that certificate, the Board listed “Banks of New York as Trustee” rather than Greenfield as appellant, because the bank was the trustee of a trust that had owned the property on January 1, 2009.

Greenfield filed a motion to “correct misnomer,” seeking to correct the record to show that it, not the Bank of New York, was the appellant. In response, the Board of Assessors moved to dismiss the appeal on the ground that Greenfield was not the real party in interest. The superior court granted the motion to correct misnomer. Greenfield later filed Bank of New York’s written authorization allowing Greenfield to pursue the appeal.

Eventually, the Board of Assessors stipulated that the value of the property was $12,900, leaving the only issue for resolution Greenfield’s entitlement to attorney fees. The superior court conducted a hearing, denied as moot the Board of Assessors’ motion to dismiss, and awarded Greenfield $7,628 in attorney fees and costs under OCGA § 48-5-311 (g) (4) (B) (ii). That statute provides in part that, “ [i]f the final determination of value on appeal is ... 85 percent or less of the valuation set by the county board of tax assessors . . . , the taxpayer . . . shall recover costs of litigation and reasonable attorney’s fees incurred in the action.” The Board of Assessors filed this appeal.

1. The Board of Assessors contends that the trial court lacked subject matter jurisdiction to issue an attorney fee award to Greenfield because Bank of New York was the property owner/taxpayer as contemplated under OCGA § 48-5-311 and thus only Bank of New York could prosecute the tax appeal in this case, at least until Greenfield obtained the authorization. Greenfield counters that it had standing to initiate the appeal because it paid the taxes, filed the return, and filed the appeals. We are not required to decide whether Greenfield had standing when it initiated the appeal in superior court because once it had the authorization from Bank of New York, any question of standing was resolved. See OCGA § 9-11-17 (a).

This court applies “a de novo standard of review to purely legal questions such as whether a trial court has jurisdiction over a matter.” (Citation and punctuation omitted.) Hall County Bd. of Tax Assessors v. Avalon Hills Partners, 307 Ga. App. 520, 522, n. 7 (705 SE2d 674) (2010).

The Board of Assessors frames its argument that Bank of New York, not Greenfield, was the proper party to file the tax appeal in this case as an issue of subject matter jurisdiction. The Board of Assessors argues that because Bank of New York was “the taxpayer” for 2009 as defined under OCGA § 48-5-311, Greenfield was not authorized to initiate the appeal in its name, and the superior court’s jurisdiction was limited to requiring that the proper party be substituted or joined in the case. The Board of Assessors does not challenge the proposition that, if Greenfield had standing as a matter of law to appeal to the superior court, the superior court possessed the power to determine the appeal and to impose any resulting judgment upon the parties to the litigation, i.e., the court lawfully could exercise jurisdiction over both the subject matter of the petition for tax appeal and over the parties. Nor does the Board of Assessors challenge Greenfield’s right to pursue the appeal once it obtained authorization from Bank of New York. Accordingly, the issue is whether Greenfield was the real party in interest to initiate the appeal.

A review of Greenfield’s motion to correct misnomer makes it apparent that it sought to have the superior court substitute Greenfield for Bank of New York as the appellant because Greenfield, not Bank of New York, paid the 2009 taxes, filed the property return, filed the appeal to the Board of Equalization and filed the appeal to the superior court.

Thus, the motion was more in the nature of a motion to substitute a party under OCGA § 9-11-17. Under that statute, no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.

(Punctuation omitted.) Fulton County Bd. of Assessors v. Calliope Properties, 312 Ga. App. 875, 878 (1) (720 SE2d 312) (2011). “[S]uch ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” OCGA § 9-11-17 (a). The Board of Assessors does not challenge Greenfield’s authority to prosecute the appeal once it received Bank of New York’s authorization. Pretermitting whether Greenfield could initiate the appeal in its own name, the authorization from the Bank of New York was a ratification that had “the same effect as if the action had been commenced in the name of the real party in interest.” OCGA § 9-11-17 (a). See also Walsey v. Lockhart, 136 Ga. App. 624, 625 (2) (222 SE2d 141) (1975). Consequently, the superior court did not err in denying the motion to dismiss, and it had jurisdiction to award attorney fees.

2. The Board of Assessors argues that the trial court erred by failing to exclude those attorney fees Greenfield incurred while it was prosecuting the appeal but was not yet a proper party. For the reasons discussed in Division 1, the authorization from the Bank of New York allowed the superior court to treat Greenfield as if it were the real party in interest from the inception of the appeal. This enumeration lacks merit.

Decided March 1, 2012.

Denval A. Stewart, for appellant.

Busch, Slipakoff & Schuh, Christopher M. Porterfield, Robert J. Proctor, for appellee.

The Board of Assessors also argues that because Greenfield’s attorneys’ invoices reflected “block billing,” the trial court could only speculate whether the fees were reasonable. It also argues that Greenfield relied on hearsay to support its claim. We find that the superior court had sufficient evidence from which to assess a reasonable fee.

Greenfield’s attorney testified about his experience in tax appeals and his familiarity with the rates attorneys charge in the Atlanta area. He testified that he is the firm’s managing partner, and his partner, who did not attend the hearing, did the majority of the work in the case. He testified about the reasonableness of his partner’s rate, which he set. He testified about the work the firm did and introduced the firm’s billing records for the case.

[A]t a hearing held to determine the amount of attorney fees recoverable, each attorney for whose service compensation is sought must provide admissible evidence of fees in the form of personal testimony, or through the testimony of the custodian of the applicable billing records, as an exception to the hearsay exclusion. ... It is clear, however, that the witnesses need not be the attorneys or paralegals who performed the work.

(Citations and punctuation omitted.) Santora v. American Combustion, 225 Ga. App. 771, 775 (3) (485 SE2d 34) (1997). Given the evidence introduced at the hearing, we cannot say that the superior court abused its discretion in determining the amount of fees to award. Calliope, supra, 312 Ga. App. at 880 (3).

Judgment affirmed.

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