author: Boggs, Judge.

text:
    A13A0220.
    BRADLEY v. THE STATE.
    (745 SE2d 763)
   Boggs, Judge.

After a jury trial, John Bradley was convicted of aggravated assault and armed robbery. His motion for new trial was denied, and he appealed, but his appeal was remanded by this court to allow him to raise an allegation of ineffective assistance of counsel. The motion for new trial based on ineffectiveness was denied, and Bradley appeals, asserting the general grounds, a fatal variance in the indictment, and ineffective assistance of counsel. Finding no error, we affirm.

1. Bradley contends that the State failed to show that he committed an aggravated assault upon the first victim, contending that he merely uttered threats without taking any substantial step towards the commission of a battery. He further contends that he was merely in possession of scissors and did not use them in an offensive manner. Similarly, he argues that he did not use the scissors offensively to rob the second victim, and he further argues that he did not intend to commit a theft.

Construed to support the jury’s verdict, the evidence shows that William Jones, a painter, had fired Bradley after he “messed ... up” a job. Although Jones testified he had paid Bradley in full for his work the previous week, the day after Bradley was fired he showed up at Jones’ house, where Jones and a couple of friends, including Horace Twiggs, had gathered after work. Jones testified that Bradley arrived on a bicycle and then walked up to the house and approached Twiggs with a pair of scissors and challenged him to come out in the road and fight, stating that he wasn’t afraid of him or the police. Twiggs, who is disabled, told Bradley, “I can’t fight you.” Bradley continued to threaten Twiggs while holding the scissors; he was “angry” and “prancing back and forth.” Jones went into his house to call police, and Twiggs testified that after Jones left, Bradley “come up to me and told me what he’s going to do to me,” telling him that “he was going to F me up” while holding the scissors.

When Jones came back outside after calling the police, Bradley asked to borrow ten dollars, and Jones responded that he had no money. Jones walked to the front of the house, and Bradley followed him; when they reached the mailbox, Bradley “threw his bicycle down” and “stepped up to [Jones’] face,” and demanded money while first holding the scissors up to Jones and then “put the scissors like this (indicating).” When Jones pulled some money from his pocket, Bradley “snatched” it and fled. Jones agreed that he was “scared when John Bradley came at [him] with these scissors,” because “he had a weapon” and he was concerned he might use it.

The officer who responded to the 911 call testified that both Jones and Twiggs were “visibly shaken. Trembling voices. Highly excited. Wide eyes.” Based on the information they gave him, he went to a particular apartment in a nearby complex, and the man who answered the door identified himself as John Bradley. The officer read him his Miranda rights and then asked him if he was “down on Wisenbaker Lane today.” Bradley immediately and spontaneously stated, “I didn’t take any money from anybody.... He gave me that money. I didn’t pull no knife on anybody.” He also volunteered that he had used the fifteen dollars to buy alcohol, adding, “I don’t know why they were scared.”

(a) Bradley first contends that the evidence was insufficient to support a conviction of aggravated assault upon Horace Twiggs. A person commits aggravated assault when he commits an assault “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). And a person commits simple assault when he “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a). The indictment alleged that Bradley “did make an assault upon the person of Horace Twiggs with a certain pair of scissors, the same being an object which when used offensively against a person, in the manner then and there used, was likely to result in serious bodily injury or death.” And

where the assault element of an aggravated assault charge is predicated on OCGA § 16-5-20 (a) (2), the State is not required to prove that the defendant acted with an intent to injure the victim. Rather, it need only prove that the defendant intended to commit the act which placed the victim in reasonable apprehension of injury.

(Citations and punctuation omitted.) Lee v. State, 320 Ga. App. 573, 576 (740 SE2d 307) (2013).

Bradley points to Jones’ testimony that Bradley declared “if [Twiggs] wasn’t in my yard, he would — he would hurt him.” He contends this showed he had no present intention to attack Twiggs and just “happened to have a pair of scissors in his possession.” But Jones testified that Bradley approached Twiggs while holding the scissors and threatened him while “prancing up and down,” and Twiggs himself testified that Bradley “come up to me” after Jones went in the house, saying without any qualification that “he was going to F me up” while holding the scissors. Bradley cites Lewis v. State, 253 Ga. App. 578, 581 (560 SE2d 73) (2002), for the proposition that an accused must take a “substantial step towards commission of a battery.” But in Lewis, we held that while a mere verbal threat, without more, does not constitute assault, from the appellant’s

demeanor and actions when he made several threats directly toward the victim [ ] while standing only inches away from [him], we conclude that a rational trier of fact could have found that a substantial step had been taken toward harming the victim [ ], that [the victim] had a reasonable apprehension of receiving immediate physical injury, and that a reasonable person would have felt the need to retreat in order to avoid receiving such injury.

Id. The jury could consider Bradley’s demeanor, statements, and conduct in threatening a disabled man while standing close to him holding a pair of scissors, as well as Bradley’s statements to the investigating officer, and find the evidence sufficient to show a reasonable apprehension of immediate physical injury. Any conflicts in the witnesses’ testimony were for the jury to resolve.

The scissors were displayed for the jury, which was authorized to determine whether they were an “object, device, or instrument which, when used offensively against a person, is likely to . . . result in serious bodily injury.” OCGA § 16-5-21 (a) (2). Davis v. State, 308 Ga. App. 7, 11-12 (1) (b) (706 SE2d 710) (2011) (screwdriver); Crane v. State, 297 Ga. App. 880, 883-884 (2) (678 SE2d 542) (2009) (claw hammer). And “[w]hether [Bradley] held the [scissors] in a threatening manner is a question of fact to be resolved by the jury.” (Citation and footnote omitted.) Brown v. State, 281 Ga. App. 523, 525 (1) (b) (636 SE2d 709) (2006). Viewed in the light most favorable to the prosecution, the evidence showed an aggravated assault.

(b) Bradley also asserts that the evidence showed he had no intent to commit a theft.

The jury, however, is solely responsible for determining the accused’s intent in committing an act, resolving conflicts in the evidence, and judging the witnesses’ credibility. OCGA § 16-2-6 (whether an accused committed an act with criminal intention is a question of fact to be resolved by the trier of fact after consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act).

(Citation omitted.) Gordon v. State, 294 Ga. App. 908, 910 (1) (670 SE2d 533) (2008). While Bradley argues that he did not intend to commit a theft because he believed that Jones owed him money, “[r]obbery is a crime against possession, and is not affected by concepts of ownership. Moreover, the gravamen of the offense of armed robbery is the taking of items from the possession of another by use of an offensive weapon, and not the ownership status of the item taken.” (Citations, punctuation and footnotes omitted.) Holcomb v. State, 268 Ga. 100, 105 (5) (b) (485 SE2d 192) (1997) (contraband cannot be owned by anyone but maybe object of robbery). In addition, Bradley presented no evidence that Jones owed him money; counsel’s questions and arguments are not evidence. Baker v. State, 316 Ga. App. 122, 125 (5) (728 SE2d 767) (2012).

We find the evidence sufficient to uphold Bradley’s convictions under the standard established in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Bradley also asserts that there was a fatal variance between the indictment and the trial court’s instructions to the jury. He appears to be contending that because the trial court did not instruct the jury as to the identity of the victim during that portion of its instructions defining the offense of aggravated assault, the jury might have mistakenly convicted Bradley for aggravated assault upon Jones rather than Twiggs. But even if Bradley had preserved this contention for review, it is without merit. The indictment expressly identifies Twiggs as the victim of the aggravated assault and Jones as the victim of the armed robbery. The trial court read the indictment to the jury in its entirety in both its preliminary and final instructions to the jury, and we consider the jury charges as a whole, not piecemeal. Conn v. State, 300 Ga. App. 193, 197 (3) (685 SE2d 745) (2009). Moreover, “the trial court sent the indictment out with the jury so they could read the specific charges themselves. There was no reversible error. [Cit.]” Hill v. State, 228 Ga. App. 362, 364 (2) (492 SE2d 5) (1997).

3. Finally, Bradley asserts ineffective assistance of trial counsel in numerous respects.

To establish ineffectiveness, [Bradley] must show (1) that counsel’s performance was deficient, and (2) that this deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s result would have been different but for that deficiency. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Citations, punctuation and footnotes omitted.) Lovelace v. State, 241 Ga. App. 774, 775 (3) (527 SE2d 878) (2000).

(a) Bradley contends that counsel was ineffective in failing to request numerous jury charges or in failing to object when the trial court declined to give them on request.

When a claim of ineffective assistance is based on the failure to request a jury charge, the relevant inquiry is whether the charge, if it had been requested, was warranted by the evidence, and if it had been given, whether there is a reasonable probability that it would have changed the outcome of the trial.

(Citation, punctuation and footnote omitted.) Stewart v. State, 285 Ga. App. 760, 763 (3) (647 SE2d 411) (2007).

(i) We first consider the charges which trial counsel requested: simple assault as a lesser included offense of aggravated assault, and theft by taking as a lesser included offense of armed robbery.

With respect to the charge on simple assault, as discussed in Division 1, supra, the evidence presented showed that Bradley threatened Twiggs while holding a pair of scissors, which he also used while threatening Jones. Bradley relies on Cordis v. State, 236 Ga. App. 629 (513 SE2d 45) (1999), to argue that a charge on simple assault as a lesser included offense was required. This is, generally speaking, a correct statement of law.

Although simple assault is necessarily a lesser included offense of aggravated assault, trial courts need not authorize juries to enter verdicts on the lesser crime in every case. Where the evidence of whether an alleged aggravated assault was committed with a deadly weapon is disputed, however, the refusal to give a properly requested charge on assault as a lesser included offense is error. Here, that issue was clearly disputed, as is reflected by the trial court’s instruction that the jury had to decide whether the [object] constituted a deadly weapon.

(Citations and punctuation omitted.) Id. at 630 (1) (broken fragment of plexiglass). And, as in Cordis, the jury here asked for clarification of its instructions.

But that does not end our inquiry. In Cordis, we were considering a properly preserved objection to a jury charge. Id. Here, in contrast, we are considering an allegation of ineffective assistance of counsel, which warrants reversal only if Bradley shows a reasonable probability that an instruction on the lesser included offense would have changed the outcome of the trial. As in Cordis, the jury had to decide whether Bradley’s scissors constituted a deadly weapon. But in deciding the companion charge of armed robbery committed nearly contemporaneously and with the same object, the jury did have the option of finding Bradley guilty of the lesser included offense of robbery by intimidation. The jury having determined, despite the availability of a lesser included offense, that the scissors wielded by Bradley were a deadly weapon, there is no reasonable probability that the giving of a charge on simple assault as a lesser included offense would have changed the outcome of the trial. It therefore “follows that his claim of ineffective assistance of counsel was correctly rejected by the trial court.” (Citation and punctuation omitted.) Sigman v. State, 287 Ga. 220, 222 (2) (695 SE2d 232) (2010) (appellant convicted of felony murder; no reasonable probability that outcome of the trial would have been different if counsel had also requested charges on reckless conduct and simple battery).

With respect to the charge on theft by taking, the trial court correctly charged the requested instruction on robbery by intimidation as a lesser included offense of armed robbery, but refused to charge theft by taking as a lesser included offense. The only evidence presented at trial showed that Bradley was belligerent toward Jones as he demanded and then took money “from the person” of Jones. This constituted robbery in some form, see OCGA §§ 16-8-40 (a), 16-8-41 (a), not theft by taking, which does not require a taking from the presence of a person, and Bradley therefore was not entitled to this charge. Espinoza v. State, 243 Ga. App. 665, 667 (2) (534 SE2d 127) (2000) (appellant entitled to charge on robbery by intimidation but not charge on theft by taking when evidence showed intimidation was used to take money from victim, with or without use of replica of weapon).

Moreover, even if trial counsel’s performance was deficient, Bradley cannot show prejudice. As with the charge of aggravated assault, since the jury found him guilty of armed robbery and rejected the lesser included offense of robbery by intimidation, there is no reasonable probability that the outcome of the trial would have been different if counsel had insisted on a charge of theft by taking as a lesser included offense, and the trial court correctly denied a new trial on this basis. See Sigman, supra, 287 Ga. at 222 (2).

(ii) With respect to charges which counsel did not request, “[decisions as to which charges will be requested generally fall within the realm of trial tactics and strategy. And strategic decisions provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.” (Citations and punctuation omitted.) Ingram v. State, 317 Ga. App. 606, 608 (2) (732 SE2d 456) (2012). Trial counsel testified that he did not request charges of robbery by force, robbery by sudden snatching, terroristic threats, reckless conduct or the defense of claim of right because in his opinion they did not apply to the facts of the case. He testified that he “put everything in that I thought Mr. Bradley and I had a good faith basis for and that the evidence would substantiate.” Either these charges were not warranted or not adjusted to the evidence in this case, or Bradley cannot show a reasonable probability that, but for trial counsel’s failure to request the charge, the outcome of the trial would have been different.

(b) Bradley next claims that trial counsel “failed to subpoena witnesses and present evidence,” but at the hearing on the motion for new trial he presented only one witness, Richard Irvin, that he contended trial counsel should have called. Trial counsel testified that he considered presenting this witness and contacted him, but concluded that Irvin would not have been helpful and that he in counsel’s opinion “was negative.” On direct examination at the hearing, Irvin denied knowing “anything about Mr. Jones owing Mr. Bradley any money.” He only knew what Mr. Bradley had told him, and his testimony was somewhat unclear:

Q: And what did he tell you?
A: He told me that he was working for him and he was wanting to get some money from him and he didn’t want to let him have it.
Q. Mr. Jones didn’t want to let him have the money?
A. No. That he had been working for him and what it was all about, I don’t know nothing about that.

On cross-examination, Irvin confirmed that he only knew what Bradley had told him and did not know anything about the armed robbery or aggravated assault. Strategic decisions regarding which witnesses to call are the exclusive province of trial counsel. Taylor v. State, 318 Ga. App. 115, 117 (2) (a) (733 SE2d 415) (2012).

(c) Finally, Bradley contends counsel was ineffective in failing to file an out-of-time motion to suppress, after he “inherited” the case from another public defender long after the time period for filing a motion to suppress had passed. When claiming ineffectiveness for failure to file a motion to suppress, an appellant “must establish a strong showing that the evidence would have been suppressed had a motion to suppress been filed.” (Citation and punctuation omitted.) Roberts v. State, 263 Ga. 807, 809 (2) (e) (439 SE2d 911) (1994). Here, the victims identified Bradley by name and told a police officer where he could be found. The officer went to the location and made contact with an individual who identified himself as Bradley. The officer then “Terry frisked his outer person because they advised that he used a pair of scissors as a weapon. So, I was Terry frisking outside of his person to discover any weapons.”

In the context of a second-tier encounter, an officer may conduct a pat-down search of a person whom he reasonably believes to be armed or otherwise dangerous to the officer or others. A reasonable search for weapons for the protection of the police officer is permitted where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.

Decided July 1, 2013.

John G. Edwards, for appellant.

J. David Miller, District Attorney, Jessica W. Clark, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Lewis v. State, 307 Ga. App. 593, 595 (705 SE2d 693) (2011). It was not, as Bradley argues, an impermissible routine pat-down. The officer was investigating the victims’ complaint that Bradley had threatened them with a weapon, albeit a somewhat unconventional one. Trial counsel was correct in his conclusion that no basis existed for a motion to suppress. “Failure to pursue a meritless motion cannot be evidence of ineffective assistance.” Banks v. State, 244 Ga. App. 191, 192 (1) (c) (535 SE2d 22) (2000). This enumeration of error is without merit.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       Bradley’s original motion for new trial did not raise this alleged error, it does not appear to have been argued at the hearing after remand, and Bradley failed to include in his brief a statement of how each alleged error was preserved as required by Court of Appeals Rule 25 (a) (1). It not having been raised or ruled on below, it is waived. See Weeks v. State, 316 Ga. App. 448, 450 (1) (729 SE2d 570) (2012).

       In Cordis, the jury specifically asked if “the charge could be reduced to assault.” Id. at 630 (1). Here the jury asked for clarification of armed robbery, robbery by intimidation, simple assault, and aggravated assault, and the trial court re-charged those sections of its original charge.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A13A0320.
    SMITH v. THE STATE.
    (745 SE2d 771)
   BARNES, Presiding Judge.

James Vernard Smith was charged by accusation in 2006 with possession of cocaine with the intent to distribute and unlawful possession of lidocaine, a dangerous drug. On October 11, 2007, he entered into a negotiated plea of guilty to the lesser included offense of possession of cocaine and was sentenced to six years of probation and intensive probation supervision. At the plea hearing, the State relayed that Smith had a prior felony conviction from 1990 for burglary, a 1991 misdemeanor shoplifting conviction and two driving with suspended license convictions from 1998 and 2000. Smith’s attorney asked that, since “there’s never been a prior drug offense,” the trial court sentence Smith under OCGA § 16-13-2, which authorizes a conditional discharge for first offenders, and the State responded that it did not object.

After finding an adequate factual basis for the guilty plea, the trial court instructed Smith as follows:

One of the things that we’ve talked about is whether or not you would enter a plea as what we call a conditional release as a first offender .... You understand that if the Court sentences you as a first offender under this particular statute [,] when you finish your probation you’ll be discharged without a conviction .... Do you wish the Court to sentence you as a first offender?

Smith responded in the affirmative, and was sentenced to six years of probation under OCGA § 16-13-2.

On October 3, 2011, a warrant was issued for Smith’s arrest for violation of his probation for allegedly committing certain crimes on September 8, 2011 and September 30, 2011, including entering an automobile, possession of a schedule IV substance, drugs not in an original container, possession of tools for the commission of a crime, suspended license, suspended or revoked registration, and alteration of license plates. At the probation revocation hearing on February 9, 2012, the trial court found Smith guilty by a preponderance of the evidence of entering an automobile, possession of tools for the commission of a crime, and driving with a suspended license, but deferred disposition until a later time.

Smith filed a motion to withdraw his guilty plea on February 16, 2012, alleging that the October 2007 possession of cocaine sentence was “illegal” because of a previous March 14, 1996 conviction for Violation of the Georgia Controlled Substances Act (“VGCSA”). On February 22, 2012, Smith also filed a motion to set aside his sentence in which he again alleged that the October 2007 sentence was an illegal sentence and asserted that it was not authorized under OCGA § 16-13-2 because of his prior March 1996 felony sentence for VGCSA.

At the March 2012 hearing on his motions, Smith contended that he had a right as a matter of law to withdraw his October 2007 guilty plea for two reasons. First, he contended that his sentence was invalid because he was not eligible for first offender status under OCGA § 16-13-2 given his prior VGCSA conviction. Second, he contended that his sentence was invalid because his six-year sentence exceeded the statutory maximum of five years.

The trial court denied Smith’s motion to withdraw his guilty plea and motion to set aside his sentence. It also adjudicated Smith guilty of the October 2007 possession of cocaine, revoked his probation and sentenced him to 20 years, to serve the first six years in confinement. Smith was given credit toward the probationary term of his sentence for the time he spent on probation from his original sentence date of October 11, 2007 and credit for time served in confinement since the February revocation hearing.

1. Smith first contends that the trial court erred by denying his motion to withdraw his guilty plea because the original sentence imposed was void. He contends that the October 11, 2007 sentence was void because he was not eligible for sentencing under OCGA § 16-13-2 because of a prior felony conviction for VGCSAfor possession of marijuana with the intent to distribute, and that the sentence was void because it imposed a six-year probationary period when OCGA § 16-13-2 (c) provides that the sentence cannot exceed five years.

(a) We consider first Smith’s contention that the sentence was void because ofhis ineligibility to be sentenced under OCGA § 16-13-2 (a) because of a prior felony conviction for VGCSA.

As a rule, a defendant has an absolute right to withdraw his plea before sentence is pronounced. Since a void sentence is the same as no sentence at all, the defendant stands in the position as if he had pled guilty and not been sentenced, and so may withdraw his guilty plea as of right before resentencing, even following the expiration of the term of court in which the void sentence was pronounced.

(Citations and punctuation omitted.) Hallford v. State, 289 Ga. App. 350, 351 (1) (657 SE2d 10) (2008); OCGA § 17-7-93 (b) (a defendant may withdraw his plea as a matter of right “any time before judgment is pronounced.”).

Regarding Smith’s contention that his sentence is void because he was ineligible to be sentenced under the conditional discharge provision of OCGA § 16-13-2, we have foundin similar circumstances where the defendant has failed to disclose a disqualifying prior conviction before being sentenced as a first offender, that defrauding the court as to eligibility for these special sentencing provisions acts as a waiver on appeal. McFadden v. State, 243 Ga. App. 896, 898 (2) (534 SE2d 566) (2000) (evidence of a prior out-of-state felony conviction for a drug offense established that defendant had defrauded the court in testifying that he had no such conviction, and thus defendant waived any right to complain on appeal of error resulting from his own misconduct); Cunningham v. State, 239 Ga. App. 889, 890-891 (1) (522 SE2d 480) (2000); Johns v. State, 223 Ga. App. 553, 554 (2) (479 SE2d 388) (1996).

Similarly here, Smith was aware that he was ineligible under OCGA § 16-13-2 for conditional discharge as a first offender; a fact that he kept hidden until he faced sentencing after his probation revocation adjudication. At that point, he disingenuously recalled his prior felony conviction for VGCSA which made him ineligible for the conditional discharge provisions of OCGA § 16-13-2, and thus asserted that the ensuing sentence was void. Accordingly, as Smith knowingly defrauded the trial court by assenting to his eligibility for sentencing under OCGA § 16-13-2, he cannot request relief from error that his misconduct caused.

(b) Smith also contends that his October 2007 sentence was void because his six-year probation sentence exceeded the maximum sentence of five years pursuant to OCGA § 16-13-2 (c), and thus he had an absolute right to withdraw his guilty plea.

Pretermitting whether Smith’s six-year probationary sentence was void because it exceeded the statutory period, the conditional sentence was revoked before the six-year probationary period expired, and he was resentenced. Thus, his assertion in this regard is moot.

2. The State concedes that the trial court erred in sentencing Smith to a 20-year sentence for possession of cocaine after his adjudication of guilty. The applicable version of OCGA § 16-13-30 (e) provides for a maximum penalty of fifteen years. Thus, as the trial court erred in sentencing Smith to 20 years for possession of cocaine, we vacate Smith’s sentence and remand the case for resentencing in accordance with OCGA § 16-13-30 (e).

Decided July 1, 2013.

Edward H. Brumby, Jr., for appellant.

Kenneth W. Mauldin, District Attorney, Jeffrey P. Kwiatkowski, Assistant District Attorney, for appellee.

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

Miller and Ray, JJ., concur.

       Smith disclosed that on March 14, 1996 he was found guilty of possession of marijuana with intent to distribute and criminal trespass. The record demonstrates that Smith was charged and convicted under the name James “Bernard” Smith, rather than James “Vernard” Smith, as in the present case.

       OCGA § 16-13-2 (a) provides:
      Whenever any person who has not previously been convicted of any offense under Article 2 or Article 3 of this chapter or of any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a narcotic drug, marijuana, or stimulant, depressant, or hallucinogenic drug, the court may without entering a judgment of guilt and with the consent of such person defer further proceedings and place him on probation upon such reasonable terms and conditions as the court may require, preferably terms which require the person to undergo a comprehensive rehabilitation program, including, if necessary, medical treatment, not to exceed three years, designed to acquaint him with the ill effects of drug abuse and to provide him with knowledge of the gains and benefits which can be achieved by being a good member of society. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed accordingly. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this Code section shall he without court adjudication of guilt and shall not be deemed a conviction for purposes of this Code section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this Code section may occur only once with respect to any person.

       OCGA § 16-13-2 (c) provides that the probated sentence under the conditional discharge provisions of OCGA § 16-13-2 “may he for a period of up to five years.”


text:
    A13A0374.
    RUSSELL v. THE STATE.
    (745 SE2d 774)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Bobby Russell appeals his burglary conviction. In addition to his contention that the State failed to prove that he entered the building without authority and without the intent to commit a theft and that trial counsel was ineffective, Russell contends that the State failed to prove venue, that the trial court expressed bias against him, and that the trial court erred by recharging the jury without providing him notice. Upon our review, we affirm.

1. Russell first contends that the State presented insufficient evidence to support his burglary conviction, arguing that the State did not prove beyond a reasonable doubt the essential elements of the burglary — that he had entered the building without authority, and with the intent to commit a theft. We do not agree.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

Viewed in this light, the record reveals that an officer with the LaGrange Police Department responded to a burglary-in-progress call at a local grocery store. The officer observed Russell on the store’s loading dock with unopened beer. When Russell saw the police officer, he ran, and after a brief chase through a wooded path behind the store, he was captured. Police retrieved several discarded cases of beer along the path. Russell’s twelve-year-old nephew and another minor, both of whom were involved in the burglary, testified that Russell was inside the store and that he had taken beer.

In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8 [(2012)]. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support the verdict.

Brown v. State, 199 Ga. App. 18, 21 (4) (404 SE2d 154) (1991).

Here, the circumstantial evidence tying Russell to the crime and justifying an inference of guilt was sufficient to corroborate the accomplices’ testimony. His presence on the loading dock with beer and his subsequent flight from police were sufficiently corroborative of the accomplices’ testimony such that a rational trier of fact could find Russell guilty beyond a reasonable doubt of burglary. See Blair v. State, 246 Ga. App. 533, 534 (541 SE2d 120) (2000) (evidence sufficient where accomplice’s inculpatory testimony was corroborated by defendant’s unexplained recent possession of stolen items and theft tools); Jenkins v. State, 217 Ga. App. 655, 656 (1) (458 SE2d 497) (1995) (proof of unauthorized entry into unoccupied classroom of elementary school, possession of property stolen from that classroom, and flight when questioned about possessing the stolen property supported burglary conviction).

2. Russell’s contention that the State failed to prove venue is also meritless. The store owner testified that his store was located in “LaGrange, Georgia on East Tibo Street” in “Troup County, Georgia.” In this case, venue was proven beyond a reasonable doubt through the testimony of the victim. Rogers v. State, 247 Ga. App. 219, 221 (2) (543 SE2d 81) (2000).

3. Russell also contends that trial counsel was ineffective. He maintains that trial counsel failed to adequately investigate and prepare for the trial, failed to object to impermissible testimony, and failed to object to certain actions of the trial court. We do not agree.

To prevail on such claim, a defendant must establish, pursuant to Strickland v. Washington, [466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984)] that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. A court addressing the ineffective assistance issue is not required to approach the inquiry in that order or even to address both components if the defendant has made an insufficient showing on one. Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. Moreover, the defendant must overcome the strong presumption that his attorney’s performance fell within a wide range of reasonable professional conduct and that the attorney’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.

(Punctuation and footnotes omitted.) Espinosa v. State, 285 Ga. App. 69, 72 (2) (645 SE2d 529) (2007).

(a) Although Russell contends that trial counsel was ineffective for failing to properly investigate his mental health and adequately prepare him to testify at trial in light of his mental condition, at the motion for new trial hearing, trial counsel testified that he had no concerns about Russell’s mental health. Moreover, Russell presented no evidence at the new trial hearing — expert or otherwise — that mental illness might have been an issue to be further explored by his trial counsel. Furthermore, even if counsel were deficient in failing to investigate the issue further, or, as Russell asserts, its impact on his ability to testify at trial, Russell does not demonstrate that he was prejudiced by that failure. See Jennings v. State, 282 Ga. 679, 680 (2) (653 SE2d 17) (2007). With respect to trial counsel’s decision to advise Russell to testify at trial, he must show that “there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors.” (Citation and punctuation omitted.) Tutton v. State, 179 Ga. App. 462, 464 (4) (346 SE2d 898) (1986). This he has not done. Moreover, “whether or not to testify in one’s own defense is considered a tactical decision to be made by the defendant himself after consultation with his trial counsel.” Burton v. State, 263 Ga. 725, 728 (6) (438 SE2d 83) (1994).

(b) Regarding Russell’s claim that trial counsel was ineffective for failing to object when the store owner was asked whether his business had been burglarized, again, Russell has failed to demonstrate prejudice that the outcome of the trial would have been different absent this alleged deficiency in trial counsel’s performance. “If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” (Citations omitted.) Kendrick v. State, 290 Ga. 873, 877 (4) (725 SE2d 296) (2012).

(c) Russell contends that trial counsel was ineffective for failing to object to certain behavior by the trial court, including telling him that he could not get a new appointed attorney because he did not like his current attorney, discouraging him from representing himself, telling him that the State had offered him a good deal to plea bargain, and recharging the jury on “burglary” without input from the parties.

Regarding his complaints about the trial court’s action, our review of the record demonstrates that on the first day of trial, Russell told the trial court that he wanted to fire his appointed attorney. The trial court advised Russell that he could get one appointed attorney and that “[w]e don’t appoint another attorney if you don’t like the lawyer.” The court further advised him that his current attorney was “a good lawyer,” noted the possible delay in his trial if he chose not to proceed with his current attorney, and that Russell could represent himself if he wanted to, but that the court did not think he could “adequately do it.”

It is clear from the record that the trial court did not advise Russell that he could not proceed pro se; likewise, the trial court did not err in advising Russell that he could not have another attorney appointed simply because he did not like his current attorney.

While an indigent defendant accused of a crime for which imprisonment is possible is entitled to have reasonably effective counsel provided to assist him, he is not entitled to counsel of his own choosing. A request by an indigent criminal defendant to discharge one court-appointed counsel and have another substituted in his place addresses itself to the sound discretion of the trial court.

(Citations and punctuation omitted.) Reynolds v. State, 231 Ga. App. 33, 36 (4) (497 SE2d 580) (1998) (trial court acted within its discretion in declining to appoint new counsel simply because defendant “tended not to like or trust his lawyer”).

Moreover, we find no error in the trial court’s statement to Russell that “the State offered you an extremely good deal to plea bargain this case out.” The record shows that the statement was made within the context of Russell’s request to fire his attorney and proceed pro se, not within the context of a plea hearing. The trial court advised Russell that he would receive 20 years because of his prior felonies, that the State’s offer of one year in jail had been a “good deal,” and that he was not “helping [himself] by doing all of this.” Although Russell contends within the context of an ineffective assistance allegation for his attorney not objecting and in a separate enumeration that this behavior exhibited the “judge’s apparent bias” against him, we do not agree.

There was nothing improper in the trial court’s discussion with Russell. “[A]ny alleged bias must be of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court’s prejudgment.” (Citation and punctuation omitted.) Lemming v. State, 292 Ga. App. 138, 141 (1) (663 SE2d 375) (2008). These remarks do not meet this standard, and any objection to them by trial counsel would have been meritless. It follows, therefore, that “counsel’s failure to make a meritless objection . . . does not constitute deficient performance.” Mikell v. State, 286 Ga. 722, 724 (2) (b) (690 SE2d 858) (2010).

Likewise, trial counsel was not ineffective for failing to object to the trial court’s decision to recharge the jury on burglary. The record demonstrates that the trial court did so in response to two written questions it received from the jury during deliberations. The jury asked “Was the store open during the burglary?” and ‘Where did the defendant say he picked up the beer?” The trial court instructed the jury to remember the evidence as best that it could, and then advised that in response to the question it would give them the charge on burglary again.

As a general rule, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court. Where a jury, which has been fully and properly charged, requests a recharge on a specific question, it is within the discretion of the trial court whether to recharge entirely or to recharge only on the specific question. It is not error to recharge only on the specific question so long as the recharge taken alone does not leave an erroneous impression in the minds of the jury.

Decided July 1, 2013.

Herbert Adams, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Caldwell, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Cloyd v. State, 237 Ga. App. 608, 610 (3) (516 SE2d 103) (1999). Within this context, “[t]o determine whether a recharge is erroneous, we examine the charge as a whole, including both the initial charge and the recharge.” Id.

Upon our review of the initial charge and recharge, we conclude that, contrary to Russell’s contention, the recharge did not overemphasize the State’s case and cause undue prejudice to him. The charge and recharge in this case were not misleading; the charges did not imply that a burglary could not be committed in any way other than that charged and were not presented in a way which could possibly mislead the jury. “Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury . . . a reviewing court will not disturb a verdict amply authorized by the evidence.” (Citation and punctuation omitted.) Taylor v. State, 195 Ga. App. 314, 315 (1) (393 SE2d 690) (1990).

Thus, the trial court did not err in its recharge, and trial counsel was not ineffective on this basis.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Georgia adopted a new Evidence Code effective January 1, 2013. See Ga. L. 2011, pp. 99, 214, § 101 which provides that the new Evidence Code “shall apply to any motion made or hearing or trial commenced on or after [January 1, 2013].” Russell’s trial was held in 2008.


author: Ray, Judge.

text:
    A13A0441.
    MONTGOMERY v. MORRIS.
    (745 SE2d 778)
   Ray, Judge.

Woodie M. Montgomery appeals from a trial court order holding her in contempt and from the order she allegedly violated, which served as the basis for the trial court’s contempt finding. Because the trial court lacked jurisdiction to enter the contempt order, we reverse.

The parties in the instant action, appellant Montgomery and her brother, appellee Walter S. Morris, are involved in long-running litigation over alleged improprieties in Montgomery’s handling of their late father’s estate, a trust, and a family limited partnership. After mediation, the parties agreed to settle the dispute, but when the parties’ attorneys attempted to draft a settlement agreement, another dispute arose over the scope of an indemnification provision. The parties in 2007 filed cross-motions to enforce the agreement. The trial court in 2010 granted both parties’ motions in part, and in two orders it attached copies of a written settlement agreement and a written indemnification agreement, ordering the parties to sign those agreements. Shortly after executing the agreements, the parties again cross-motioned for contempt. The trial court denied those motions in one of the orders appealed from, dated October 27, 2010, andimposed requirements on Montgomery to report on her progress in meeting the obligations under the court’s prior order directing execution of the settlement and indemnification agreement. Also on October 27, 2010, the trial court issued a second order sua sponte dismissing the case without prejudice and directing the clerk of court to close the case. However, this order also stated that the trial court “retains complete jurisdiction to vacate this Order and to re-open the action if necessary.” Neither party moved for reconsideration or objected to this order.

Nearly a year later, on October 21, 2011, Morris renewed his motion for contempt under the same case number as the action that had been dismissed, alleging that Montgomery had wilfully failed to comply with the terms of the trial court’s prior orders. After a hearing, the trial court on May 30, 2012, held Montgomery in contempt for failing to subdivide a piece of real property as required by the terms of the settlement agreement, ordered her to have the property surveyed within 30 days of the date of the order, and ordered her to pay half the costs of the survey. The contempt order did not award fees or impose other sanctions. Montgomery filed the instant appeal.

1. Montgomery enumerates as error the contempt finding, arguing that the trial court lost jurisdiction when it dismissed the case without prejudice. We agree.

The question of whether a trial court has jurisdiction to hear a motion and enter a contempt finding is a legal question, and we owe no deference to the trial court’s ruling when we conduct a de novo review of the matter for plain legal error. Gallagher v. The Fiderion Group, LLC, 300 Ga. App. 434, 434-435 (685 SE2d 387) (2009).

OCGA § 9-11-41, which governs dismissal of actions, contemplates both voluntary dismissals upon plaintiff’s motion or stipulation, pursuant to OCGA § 9-11-41 (a), and involuntary dismissals pursuant to OCGA § 9-11-41 (b) for, inter alia, the “failure of the plaintiff to... comply with... any order of court.” The trial court’s sua sponte dismissal order does not specify the subsection under which it operates, but our Supreme Court has found that a sua sponte dismissal may function as an involuntary dismissal. See Smith v. Ga. Kaolin Co., 269 Ga. 475, 476 (1) (498 SE2d 266) (1998) (“[T]he trial court involuntarily dismissed [the] complaint sua sponte. Such an involuntary dismissal is authorized by OCGA § 9-11-41 (b)”) (emphasis supplied), citing Cramer, Inc. v. Southeastern Office Furniture Wholesale Co., 171 Ga. App. 514, 515 (1) (320 SE2d 223) (1984) (where party made no formal motion to dismiss, this Court found that “while it is true that OCGA § 9-11-41 (b) contemplates a motion by a defendant, the court may exercise its inherent power to dismiss sua sponte”) (citations omitted). Although OCGA § 9-11-41 (b) imposes certain requirements for its application, neither party objected to or moved for reconsideration of this dismissal.

The dismissal of a lawsuit generally deprives the trial court of jurisdiction to take further action in a case. A dismissal “deprive[s] the trial court of jurisdiction over the case and [leaves] the parties in the same position as if the suit had never been filed.” (Citation omitted.) Lakes v. Marriott Corp., 264 Ga. 475, 478 (448 SE2d 203) (1994).

Although Morris argues, correctly, that the cases Montgomery cites on this issue address loss of jurisdiction only in the context of a voluntary dismissal without prejudice pursuant to OCGA § 9-11-41 (a) , he points us to no case addressing the status of jurisdiction after an involuntary dismissal without prejudice pursuant to OCGA § 9-11-41 (b) . Nor could we find any case on point. However, automatic dismissals pursuant to OCGA § 9-11-41 (e), which occur when no written order is issued in a case for five years, also are considered involuntary dismissals. See Windsor v. City of Atlanta, 287 Ga. 334, 337 (2) (695 SE2d 576) (2010). Such automatic dismissals are without prejudice and may be refiled within certain limitations. Goodwyn v. Carter, 252 Ga. App. 114, 116 (555 SE2d 474) (2001). As with voluntary dismissals under OCGA § 9-11-41 (a), where a case has been automatically dismissed under OCGA § 9-11-41 (e), any subsequent order is null and void because the trial court has lost jurisdiction over the case, which is no longer pending before it. Cornelius v. Morris Brown College, 299 Ga. App. 83, 85 (1) (681 SE2d 730) (2009). Accord Brown v. Kroger Co., 278 Ga. 65, 68 (597 SE2d 382) (2004). While not identically situated, the common factor these subsections ofOCGA § 9-11-41 and related cases share with the instant action is that the dismissals were without prejudice, allowing them to be refiled within certain parameters. We have held, in a case factually similar to the instant action, that a dismissal following a settlement that left no pending claims divested the trial court of jurisdiction to consider a subsequent contempt motion. Gallagher, supra at 435, 436 (1).

Despite the trial court’s order in the instant case purporting to retain jurisdiction, “[b]ecause the Civil Practice Act makes no provision for the reinstatement of an action after dismissal as distinguished from a recommencement, a trial court has no power to order reinstatement of the action after it has been... dismissed.” (Citation and punctuation omitted.) Id. at 436 (1). Additionally, in an analogous situation, we found that a consent order was a final judgment, and that the trial court was correct in finding that it had no jurisdiction to entertain further motions. See Levingston v. Crable, 203 Ga. App. 16 (416 SE2d 131) (1992). The consent order in Levingston, like the order at issue in the instant case, directed one of the parties to take specific actions to comply with the terms of an injunction and provided that the party could seek future relief, if necessary, from the trial court under the terms of the order or otherwise, and dismissed all pending motions with prejudice. Id. at 17. This Court determined that the consent order was final and the trial court lacked jurisdiction to issue further orders because the consent order “did not leave for further adjudication any claim as between these parties.” (Emphasis omitted.) Id. at 18. “The effect of a judicial act and not the trial court’s characterization of it determines whether it is a final judgment.” (Citations omitted.) Id. Here, the trial court’s order left no pending claims between the parties.

Further, “[a] suit dismissed without prejudice pursuant to OCGA § 9-11-41 leaves the situation the same as if the suit had never been brought in the first place.” (Citation and punctuation omitted.) Smith v. Memorial Medical Center, Inc., 208 Ga. App. 26, 28 (1) (430 SE2d 57) (1993). All prior orders in the case are superseded, and because the dismissal divests the trial court of jurisdiction, orders entered after the dismissal are null. Gallagher, supra at 436.

Contrary to Morris’ contention, however, the nullification of prior orders does not nullify the underlying, executed settlement agreement in the instant case, as that agreement was not incorporated into either of the October 27, 2011, final orders. See, e.g., Longe v. Fleming, 318 Ga. App. 258, 261 (2) (733 SE2d 792) (2012) (rights of parties are resolved under final order, not under settlement agreement, where settlement agreement is “incorporated herein by reference” in and made part of final order).

In the instant case, the trial court did not explicitly vacate its dismissal prior to granting the contempt motion. We note, however, that a court loses jurisdiction to vacate or set aside a judgment after the term of court in which the order was entered lapses, unless a motion is filed and granted pursuant to OCGA § 9-11-60. See, e.g., Bridgestone/Firestone North American Tire, LLC v. Jenkins, 261 Ga. App. 20, 21 (2) (582 SE2d 9) (2003). See also Carnes Bros., Inc. v. Cox, 243 Ga. App. 863, 864 (534 SE2d 547) (2000) (physical precedent only). The term of court in which the trial court entered the final order dismissing the case had long expired before Morris filed his contempt motion a year later. See OCGA § 15-6-3 (3). The record does not indicate that any motion ever was filed under OCGA § 9-11-60.

Decided July 1, 2013.

Woodie M. Montgomery, pro se.

Moore, Ingram, Johnson & Steele, G. Phillip Beggs, for appellee.

The trial court lacked jurisdiction to enter the contempt order.

2. Because of our determination in Division 1, Montgomery’s other enumerations of error are rendered moot.

Judgment reversed.

Barnes, P. J., and Miller, J., concur.

       We note that the trial court clearly dismissed the action, rather than administratively closing the case.

       An exception, which does not apply here, exists for attorney fee motions pursuant to OCGA § 9-15-14. See Harris v. Werner, 278 Ga. App. 166, 167 (628 SE2d 230) (2006).

       The recent amendment to this Code section pursuant to Ga. L. 2013, p. 570, § 3-1, has no effect upon the instant action.


author: DOYLE, Presiding Judge.

text:
    A13A0447.
    WALLEYE, LLC et al. v. CITY OF FOREST PARK.
    (745 SE2d 781)
   DOYLE, Presiding Judge.

Property owners Walleye, LLC, and JGP&P, LLC (collectively “the Property Owners”), appeal from the trial court’s grant of summary judgment in favor of the City of Forest Park with regard to the Property Owners’ suit for inverse condemnation. The Property Owners appeal, arguing that the trial court incorrectly applied the vested property rights requirement to their inverse condemnation claim. For the reasons that follow, we affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. We review de novo a trial court’s grant of summary judgment. A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.

Viewed in this light, the record shows that Walleye, LLC, acquired property at 3920 Jonesboro Road in 1997 at which Red Eyed, Inc., operated the Crazy Horse Saloon, and JGP&P, LLC, acquired property at 4730 Frontage Road in 2004 at which Mia Luna, Inc., operated the Pink Pony South. Red Eyed, Inc., and Mia Luna, Inc., (collectively “the Clubs”) are not parties to this lawsuit. Crazy Horse Saloon and Pink Pony South both operated as nude dancing businesses with private rooms and on-site alcohol service.

In March 2009, the City enacted a new ordinance, which repealed the previous sexually-oriented businesses code under Title 9, Chapter 12, and enacted a revised code, banning the sale of alcohol and the use of private booths at nude dancing establishments. In December 2010, the Clubs renewed their applications for 2011 adult entertainment licenses, but the licenses were not renewed because the premises violated the ban on private booths. Although in 2011 the Clubs’ performers began appearing in bikinis, two employees were cited for violation of the City’s alcohol code. The Clubs’ 2012 business licenses were subsequently non-renewed based on the Clubs’ failure to pay City taxes and previously stated ordinance violations by the Clubs’ employees. Since January 15, 2012, the Clubs have not operated.

Based on the Clubs’ closures, the Property Owners filed the instant lawsuit alleging an inverse condemnation claim because (1) there are no viable uses of the Properties other than that previously operated by the Clubs; and (2) the City has deprived the Property Owners of all viable economic use of the property. The City filed a motion for summary judgment, which the trial court granted, finding that the Property Owners did not have vested property rights in renewed adult business or alcohol licenses, and therefore, they failed to establish a regulatory taking by the City.

Decided July 1, 2013.

Bloom, Sugarman & Everett, Sherri G. Buda, for appellants.

Mack & Harris, Robert L. Mack, Jr., Joe M. Harris, Jr., for appellee.

The Property Owners appeal, arguing that it is unnecessary for them to establish a vested property right in order to establish an inverse condemnation by the City. In their effort to circumvent such a showing, they argue that the license requirement applied only to their tenants, and thus, the vested property right requirement does not apply to their case. Nevertheless, this very argument establishes that the Property Owners have failed to state a claim for which they can recover because not only have they failed to present any evidence that their property could not be converted to a use other than an adult business, but because the zoning for the particular parcels allows for adult businesses, the Property Owners also have failed to show that they could not continue leasing their buildings to other businesses in the same category that have not violated the City’s licensing rules and could operate legally within the City. The only evidence presented is a single conclusory statement in the affidavit of Dennis Williams, the “business agent and representative” of the Property Owners, who summarily concludes that “[i]f the Businesses are not allowed to re-open as adult entertainment establishments, the value of the Properties will fall to next to nothing.” Thus, the Property Owners have failed to present evidence of a compensable taking, and the trial court’s grant of summary judgment to the City was right for any reason.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       In Case No. A12A1620, this Court affirmed without opinion a related appeal brought by the tenants of the Property Owners, who alleged various causes of action against the City related to the City’s denial of the tenants’ licenses to operate adult businesses in the Property Owners’ buildings.

       (Punctuation omitted.) Travelers Excess and Surplus Lines Co. v. City of Atlanta, 297 Ga. App. 326 (677 SE2d 388) (2009), quoting Duke Galish, LLC v. Manton, 291 Ga. App. 827, 827-828 (662 SE2d 880) (2008). See also Prime Home Properties, LLC v. Rockdale County Bd. of Health, 290 Ga. App. 698, 701 (1) (660 SE2d 44) (2008) (“a judgment right for any reason will be affirmed”).

       See Goldrush II v. City of Marietta, 267 Ga. 683, 696-698 (9), (10) (482 SE2d 347) (1997) (“The annual issuance of the licenses could not create a mutually explicit understanding that licenses would annually be issued to appellants indefinitely, for nowhere does the city code provide that the licensing requirements will remain static.” Furthermore, “[t]hose who hold licenses that expire annually act at their peril and assume the risk that their licenses might not be renewed notwithstanding they have committed their lives and their capital to building their businesses which need licenses to operate.”) (punctuation omitted).

       See Dover v. City of Jackson, 246 Ga. App. 524, 528 (2) (a) (541 SE2d 92) (2000) (“a landowner must show that he has been deprived of all economically beneficial use of the property”). See generally Achor Center v. Holmes, 219 Ga. App. 399, 401 (1) (465 SE2d 451) (1995) (“[Ejvidence must be competent and admissible to raise a genuine issue of material fact on review of a summary judgment motion.”).

       See Prime Home Properties, 290 Ga. App. at 702-703 (3) (collecting cases in which owner failed to establish inverse condemnation claim as a matter of law).


author: Phipps, Chief Judge.

text:
    A13A0495.
    FERGUSON v. THE STATE.
    (745 SE2d 784)
   Phipps, Chief Judge.

J ason Ferguson was convicted of aggravated assault. He appeals, contending that the evidence was insufficient to support the conviction and that the court committed errors in its charge to the jury. For the reasons that follow, we affirm.

1. Ferguson challenges the sufficiency of the evidence.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the evidence showed the following. Ferguson’s fiancee, B. G., testified that she and Ferguson were at her residence on January 16, 2010 when Ferguson received a phone call. When the phone call concluded, B. G. asked Ferguson about the call and whether he was having an affair with the caller. Ferguson grabbed B. G. by her hair, threw her against a door, and choked her for several seconds. The two argued, then Ferguson went outside, with B. G. following, and placed some clothing in his vehicle. When B. G. attempted to talk to him, Ferguson grabbed her by the hair and hit her with his fist. B. G. crouched on the ground, and Ferguson hit her several more times, dragged her, and kicked her in the ribs. B. G. attempted to get up, and Ferguson hit, slapped, and kicked her. Ferguson went back inside the residence, leaving B. G. in the yard, bleeding. B. G. went into the garage, grabbed a knife and punctured the tires on Ferguson’s vehicle; she testified that she wanted Ferguson to go to jail for what he had done to her, so she punctured the tires to prevent him from leaving before the police arrived (though she had not yet called the police). Ferguson exited the residence, and B. G. entered it. Ferguson went back inside and struck B. G. repeatedly with his fists, hitting her so hard that her ears rang. She begged him to stop and told him he was going to kill her if he continued. He stopped hitting her and left the room, at which time she hid under the bed and called the police.

When the police officers arrived, Ferguson had blood on his pants, shirt, and hands, but he did not appear to have any injuries. B. G. was under a bed, was bleeding from both sides of her head, and had lacerations on her ear, scalp and hand, bruising on her face, and scratches on her arms and neck; she complained that her head “hurt bad” and her neck “was killing” her. She was transported to a hospital, where she was treated for lacerations (requiring stitches), and rib fractures.

Ferguson testified at trial, claiming that when B. G. asked him about the phone call, he told her he was leaving, retrieved some of his clothing, and headed outside to his vehicle; neither person had touched the other. B. G. had gone outside, and was sitting on the ground, holding her head. Ferguson saw that her head was bleeding, and when he tried to render aid, she called him names, hit him, grabbed a knife off the ground, and lunged at him as though she were going to stab him. He grabbed her wrist and arm, pushed her against the vehicle, and slammed her hand against the vehicle so that she would drop the knife, which she did. He denied having hit her with his fists, and testified that, other than possibly causing the injuries to her hand and arm, he did not know what had caused her injuries.

OCGA § 16-5-21 (a) (2) pertinently provides that a person commits the offense of aggravated assault when he assaults a person “[wjith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”

Ferguson contends that the evidence was insufficient to support his conviction because aggravated assault requires the use of a deadly weapon, and the evidence introduced at trial showed that he struck B. G. with his hands. He asserts that “[fjists are not normally considered deadly weapons per se,” and that the State failed to prove that his hands were used as deadly weapons or were used in a manner likely to cause serious harm to B. G.

However, “subsection [(a) (2) of OCGA § 16-5-21] is a disjunctive clause that provides alternative bases for conviction. Since the indictment charged that [Ferguson’s] fists were likely to result in serious bodily injury, no reference to, or evidence of, a deadly weapon was required at trial.” Further, “[w]hether [Ferguson]’s hands and fists were objects used in a manner likely to result in serious injury was a question of fact for the jury to determine.” “The evidence that [Ferguson] beat [B. G.] about the head and face with his hands is sufficient to authorize the jury’s verdict that he is guilty, beyond a reasonable doubt, of aggravated assault.”

2. Ferguson contends that the court erred in several respects in its charge to the jury. But after the trial court charged the jury, when it asked if the defense had any exceptions to the jury charge, counsel replied “[n]ot at this time,” after which the jury retired to deliberate.

OCGA § 17-8-58 (a) states that

any party who obj ects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Thus, under this Code section, unless a party specifically objects at the conclusion of the jury charge, he has waived his right to urge error on appeal.
Because trial counsel did not object to the jury instructions at trial, appellate review of the contentions is precluded unless the contested portion [s] of the jury charge constitute[ ] plain error which affect[ ] substantial rights of the parties. We review for plain error an alleged jury-instruction error if the error is properly enumerated and argued on appeal. Reversal of a conviction is authorized if all four prongs of the standard adopted in [State v.] Kelly [ ] 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. On “plain error” review, the presence of actual legal error is not enough, as the jury instruction in question must have an obvious defect rather than a merely arguable defect.

(a) Ferguson contends that the court erred by failing to give the jury his requested charge, namely, that: fists are not deadly weapons per se as contemplated by the aggravated assault statute. However, the indictment did not allege that Ferguson’s fists were deadly weapons. And the jury charge given required the state to prove that Ferguson committed aggravated assault in the manner set forth in the indictment. As such, a jury charge concerning whether fists are deadly weapons per se would not have been adjusted to the facts and circumstances of the case, and the trial court committed no error in failing to give such a charge. Thus, Ferguson’s contention “cannot make it past the first prong of the plain error review.”

(b) Ferguson contends that the court failed to give a proper jury charge on the issue of justified use of force to defend against another’s use of unlawful force. He asserts that “[a] proper charge would have allowed the Jury to consider [Ferguson’s] actions in reference to the threat he felt was offered by [B. G.] when she had the knife.”

The court pertinently instructed the jury:

A person is justified in threatening or using force against another person when and to the extent that he reasonable — he reasonably believes that such threat or force is necessary to defend himself against the other’s imminent use of unlawful force. A person is justified in using force that is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself or to prevent the commission of a forcible felony.

The charge given was a correct statement of the law and, contrary to Ferguson’s claim, it instructed the jury that it was allowed to consider Ferguson’s actions in reference to the threat allegedly presented by B. G. Thus, “it cannot be seriously contended that the trial court committed ‘clear or obvious’ error that is necessary for ‘plain error.’ ”

(c) Ferguson argues that the court erred by failing to instruct the jury that the State has the burden of proving that the defendant was not justified in using force. However, the court in fact instructed the jury: “An ‘affirmative defense’is a defense that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it. Once an affirmative defense is raised, the burden is on the State to disprove it beyond a reasonable doubt.” The court then explained justification, and further instructed the jury: “The State has the burden of proving beyond a reasonable doubt that the defendant was not justified.” These were correct statements of the law. The court made no error in its jury charge, and Ferguson’s claim cannot make it past the first prong of the plain error review.

Decided July 1, 2013.

Michael J. Davis, Jr., for appellant.

Daniel J. Porter, District Attorney, Vikki L. Morek, Jennifer M. Taylor, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

        Johnson v. State, 320 Ga. App. 161 (739 SE2d 469) (2013) (citations and punctuation omitted).

        Anthony v. State, 275 Ga. App. 274, 276 (2) (620 SE2d 491) (2005) (footnotes omitted); see also Greene v. State, 295 Ga. App. 803, 806-807 (2) (673 SE2d 292) (2009).

        Sims v. State, 296 Ga. App. 461, 462 (1) (675 SE2d 241) (2009) (punctuation andfootnotes omitted).

       Id.; see Walker v. State, 298 Ga. App. 265, 267 (1) (679 SE2d 814) (2009).

        Cawthon v. State, 289 Ga. 507, 509-510 (3) (713 SE2d 388) (2011) (citations and punctuation omitted).

       290 Ga. 29 (718 SE2d 232) (2011).

        Terry v. State, 291 Ga. 508, 509 (2) (731 SE2d 669) (2012) (citations and punctuation omitted).

        See Brown v. State, 232 Ga.App. 787, 788(1) (504 SE2d 452) (1998) (“fists and hands are not deadly weapons per se within the meaning of OCGA § 16-5-21 (a) (2)”).

       See Stevens v. State, 293 Ga. App. 845, 848 (3) (668 SE2d 467) (2008).

        Hoffler v. State, 292 Ga. 537, 542 (4) (739 SE2d 362) (2013) (no reversal where there was no legal error, obvious or otherwise, injury instruction and appellant was unable to satisfy the first prong of the "plain error” analysis).

       See OCGA § 16-3-21 (a).

        Terry, supra at 510 (2) (a); see generally Hoffler, supra.

       See generally Milinavicius v. State, 290 Ga. 374, 377 (4) (721 SE2d 843) (2012) (appellant’s allegation that trial court gave erroneous jury charge on justified use of force was without merit where the charge as a whole was not an incorrect statement of the law and fairly represented the issue of justification); Arsenault v. State, 257 Ga. App. 456, 457 (2) (571 SE2d 456) (2002) (where defendant raised an affirmative defense of justification and testified to the same, the state bore the burden of disproving the defense beyond a reasonable doubt).

       See Hoffler, supra.


text:
    A13A0583.
    STROBEL v. THE STATE.
    (745 SE2d 796)
   BARNES, Presiding Judge.

Following a jury trial, Steven Strobel was convicted of a single count of first degree arson. Following the denial of his motion for new trial, he now appeals that conviction, asserting that the trial court erred by admitting into evidence credit card receipts — which he contends were unauthenticated business records — without requiring the State to establish a proper foundation. Discerning no error, we affirm.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [the defendant] no longer enjoys a presumption of innocence.” (Citations and punctuation omitted.) Jackson v. State, 252 Ga. App. 268 (1) (555 SE2d 908) (2001). We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses. Id. The decision whether or not to admit an item into evidence is within the discretion of the trial court, whose determinations will not be disturbed on appeal unless they constitute an abuse of that discretion. Id. at 272 (4).

Viewed in the light most favorable to the verdict, the record shows that on January 18, 2009, the Forsyth County Fire Department responded to a fire at Strobel’s girlfriend’s home at about 4:30 a.m. No one was home at the time of the fire. One of the responding firefighters was suspicious because multiple racial slurs and a terroristic threat were “sprayed on the fence” and because of the lack of furniture in the house. An arson investigator with the fire department noted a strong gasoline odor on the basement floor and, based on the burn patterns, concluded that “it was a set fire.”

An investigator with State Farm Insurance Company who was hired to investigate the cause of the fire also concluded that it had been caused by “an intentional human act.” Carpet, padding, and other debris in the house tested positive for gasoline, and the investigator determined that no wiring or appliance failure was capable of causing the fire. A claims representative for State Farm testified that the girlfriend’s home was insured for $273,300, with coverage up to $300,000 to rebuild, and replacement insurance for the contents of $204,975. He testified that he had found several fraud indicators including that the fire had occurred after 11:00 p.m., and the fire was incendiary. The absence of the homeowners, the absence of the remains of personal items normally found in a home, and the absence of family pets were also fraud indicators.

When he was questioned about the fire, Strobel claimed that the couple had left the day before the fire to go to Washington, D. C. for the inauguration, but it was later determined that the couple had not traveled to Washington. Upon execution of a search warrant at Strobel’s home, the arson investigator discovered “large amounts” of items belonging to the girlfriend, including clothing, shoes, jewelry, personal keepsakes, and financial records. Investigators executed a search warrant at two storage units that Strobel said he had rented for his girlfriend and discovered furniture, personal items, clothing, bins of family photographs, scrap books, and videotapes. Although Strobel told investigators that the items in the storage units were “stuff to put in [the girlfriend’s] own yard sale,” the items appeared to be “precious items” that she would be unlikely to sell.

Strobel admitted to the arson investigator that he had driven his girlfriend to her house “to set [it] ... on fire.” At the trial, he testified that the statement was a lie, that he had lied about the trip to the inauguration, that he had made the statement to get his girlfriend in trouble, and denied any involvement with the fire.

In his sole enumeration of error, Strobel contends that the trial court erred in admitting “unauthenticated” credit card receipts from a hotel in Charlotte, North Carolina pursuant to the business records exception to the hearsay rule, OCGA § 24-3-14.

Although hearsay evidence is generally inadmissible, OCGA § 24-3-14 provides an exception for the admission of business records that would otherwise be excluded as hearsay.

To introduce a writing under the business records exception to the hearsay rule, a witness must lay a foundation indicating that he or she is aware of the method of keeping the documents. It is not required that the witness made the records or kept them under his or her supervision or control. Instead, the witness must be able to testify that the record was made (1) in the regular course of business, and (2) at the time of the event or within a reasonable time of the event. The witness’s lack of personal knowledge regarding how the records were created does not render them inadmissible, but merely affects the weight given to the evidence.

(Citations and punctuation omitted.) Ross v. State, 298 Ga. App. 525, 526-527 (680 SE2d 435) (2009).

Here, a deputy fire marshal involved in executing a search of the hotel rooms where Strobel’s girlfriend was staying after the fire testified that they had recovered two credit card receipts from a hotel in Charlotte dated January 18 and 19, 2008. Strobel objected that “there’s no foundation. That’s a business record,” and that there was “no authentication.” The trial court responded that it thought the objection was to hearsay, but Strobel said that he did not think the receipt was hearsay and he was not objecting on that basis. The trial court overruled the objection.

The State maintains that Strobel objected on the basis that the receipts were not properly authenticated rather than hearsay, and thus OCGA § 24-3-14 (b) is not applicable. It asserts that the inquiry into whether the receipts were properly admitted is pursuant to OCGA § 24-7-4 (4) and that because the receipts were only “collaterally material” to the case, the lack of authentication argument must fail.

Decided July 1, 2013.

Mary Erickson, for appellant.

Penny A. Penn, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

Even assuming without deciding that a proper foundation was not presented for introduction of the receipts into evidence, we conclude that such error was harmless as Strobel admitted that he lied about the Washington trip and had instead gone to Charlotte. Because the hotel receipts were not critical but merely cumulative of evidence that was already before the jury through Strobel’s own testimony, any error in admitting the receipts was harmless. Taylor v. State, 249 Ga. App. 538, 541 (2) (548 SE2d 662) (2001).

Judgment affirmed.

Miller and Ray, JJ., concur.

       OCGA § 24-3-14 (b) provides:
      Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall he admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.


text:
    A13A0641.
    HAIRSTON v. THE STATE.
    (745 SE2d 798)
   BARNES, Presiding Judge.

Percy Hairston III was charged with kidnapping with bodily injury, aggravated battery (family violence) and aggravated assault (family violence). Before his December 9, 2010 arraignment, Hairston filed a general and special demurrer, which he later amended on February 11, 2011. Following a hearing, the trial court overruled the motion and found that the demurrer was untimely. Hairston’s case proceeded to trial, after which a jury found him guilty of the charged offenses. Following the denial of his motion for new trial, Hairston appeals his convictions contending that the trial court erred in denying his special demurrer and also that the evidence was insufficient. Upon our review, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citations omitted). Martinez v. State, 278 Ga. App. 500 (629 SE2d 485) (2006). So viewed, the evidence demonstrates that the victim, Hairston’s girlfriend, picked him up in her car during her lunch break, and the couple got into an argument. As she drove, Hairston pulled the victim’s hair and pushed her head into the window. The victim pulled the car over and parked to avoid having a wreck. Hairston then “started choking [the victim] and punching [her] in [her] face.” When the victim saw a woman coming out of an office near where they were parked, she “got out of the car[,] ... kicked off [her] shoes and started running.” The victim yelled at the woman to call 911, but Hairston “came after [her] and... grabbed [her] by [her] shirt and [her] hair and pulled her ... back to the car and put [the victim] in the back seat of the car.”

The woman who called 911 had heard the victim screaming and had begun walking in that direction when the victim came running up to her and asked for help. As she dialed 911, the woman observed Hairston approach the victim, who was shoeless and disheveled, grab her by the “throat and by the back and push[ ] her into the car.” The woman testified that Hairston was standing behind the victim with one arm across the front of the victim’s throat and “she almost half squealed, just kind of stopped by [Hairston] choking her. And then he threw her in the car... and they took off.” The woman was still on her cell phone with 911 and reported that the victim had just been abducted.

Hairston drove the victim to a K-Mart parking lot and stayed there for “about ten minutes” to “lay low from the police.” He then drove the victim to her apartment and allowed her to pick up her children from the bus stop and go back to work. When the victim arrived back at work, a co-worker noticed that “[s]he was crying, she was shaky, her mouth was bloody and... [h]er teeth were messed up.” One of the victim’s front teeth had been pushed behind the other, causing the victim to speak with a lisp. The victim initially reported the incident to police in Murray County, but she was advised to go to the Whitfield County police because the incident had occurred in that county.

1. Although Hairston contends that the evidence was insufficient to demonstrate that the victim incurred any injury during the kidnapping rather than before the kidnapping,

[f]or purposes of OCGA § 16-5-40 (b), bodily injury is accomplished by the infliction of any physical injury upon a victim’s body, however slight. The crime of kidnapping with bodily injury under OCGA § 16-5-40 (b) requires only that an injury, no matter how slight, occur during the kidnapping incident.

(Citations and punctuation omitted; emphasis in original.) Carter v. State, 268 Ga. App. 688, 690 (603 SE2d 56) (2004).

The evidence in this case was more than sufficient to sustain Hairston’s conviction of kidnapping with bodily injury of the victim. See Phillips v. State, 284 Ga. App. 683, 685 (1) (b) (644 SE2d 535) (2007) (evidence the victim had a red mark on her cheek, puffiness and redness around her eyes and ears, and red marks where she was bound with the duct tape was sufficient to show physical injury during the kidnapping).

2. Hairston also contends that the trial court erred in overruling his special demurrer. Hairston filed his special demurrer on December 1, 2010, maintaining that the indictment failed to “state with certainty the time and place” of the offenses, and failed to “adequately describe the manner of the offenses and fails to adequately describe the corpus delicti.” He was arraigned on December 9, 2010, and Hairston subsequently filed an amended special demurrer on February 11, 2011, asserting that the indictment was too vague and did not apprise him of exactly how he “did abduct and steal away [the victim],” held her against her will, or specify the bodily injury she received.

After a hearing on the motion, the trial court found that the amended special demurrer was untimely because the amended grounds were not connected with the original grounds that were filed in the initially filed special demurrer. The court also rejected the special demurrer on the merits.

An accused may challenge the sufficiency of an indictment by filing a general or special demurrer. A special demurrer must be “raised before pleading to the merits of the indictment... [and] if no special demurrer is made, the ground is waived.” (Emphasis omitted.) Eubanks v. State, 239 Ga. 483, 486 (238 SE2d 38) (1977). “[A] special demurrer challenges the sufficiency of the form of the indictment.” (Emphasis in original.) Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993). “By special demurrer, an accused claims, not that the charge in an indictment is fatally defective and incapable of supporting a conviction . . . , but rather that the charge is imperfect as to form or that the accused is entitled to more information.” (Citations and punctuation omitted.) Falagian v. State, 300 Ga. App. 187, 192-193 (3) (684 SE2d 340) (2009). When determining whether an indictment is sufficient to withstand a special demurrer, the applicable standard is

not whether [the indictment] could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Punctuation and footnote omitted.) State v. Barnett, 268 Ga. App. 900, 900-901 (1) (602 SE2d 899) (2004).

Here, the special presentment chargedthat Hairston did, “abduct and steal away [the victim], a person, without lawful authority and did hold said person against her will, and said person received bodily injury.” OCGA § 16-5-40 (a) and (b) provide that kidnapping with bodily injury occurs when “[a] person ... abducts or steals away any person without lawful authority or warrant and holds such person against [her] will,” and “the person kidnapped shall have received bodily injury.”

Pretermitting the issue of the timeliness of the amended special demurrer, the trial court did not err in overruling it on the merits. In his amended special demurrer and at trial, Hairston argued that the indictment should specify more specifically the movement that occurred to satisfy the asportation element of the kidnapping count because he could admit to abducting and stealing away the victim, but not be guilty of kidnapping under the statute because “the movement could be incidental to the other two [family violence] charges.” However, as the trial court noted, whether the movement was sufficient for a conviction on the kidnapping charge is a jury determination. Moreover,

[a] motion seeking to dismiss an indictment on the ground that the [S]tate cannot prove facts essential to the charge is analogous to a motion for summary judgment in a civil case, and there is no basis in Georgia criminal practice for what, in civil practice, would be termed a motion for summary judgment.

(Punctuation and footnotes omitted.) Rader v. State, 300 Ga. App. 411, 417 (3) (b) (685 SE2d 405) (2009). See generally State v. Benton, 305 Ga. App. 332, 336 (699 SE2d 767) (2010) (the trial court abridged the State’s right to prosecute the defendant when it dismissed the accusation on the basis that the State may not be able to carry its burden of proving the defendant’s guilt before the State was required to put forth its evidence).

Decided July 1, 2013.

George B. Sparks, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Dixon A. Lackey III, Assistant District Attorneys, for appellee.

OCGA § 17-7-54 (a) provides that “[e]very indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct.” To that end, where, as here, a presentment used the language of the statute, included the essential elements of the offense, and was sufficiently definite to advise Hairston of what he must be prepared to confront, it was not subject to dismissal. Davis v. State, 272 Ga. 818, 819 (1) (537 SE2d 327) (2000).

Judgment affirmed.

Miller and Ray, JJ., concur.

       “Aperson commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against [her] will.” OCGA § 16-5-40 (a). Furthermore, “if the person kidnapped shall have received bodily injury, the person convicted shall he punished by life imprisonment or by death.” OCGA § 16-5-40 (b).