author: Mikell, Judge.

text:
    A11A0222.
    MICELI v. THE STATE.
    (707 SE2d 141)
   Mikell, Judge.

Following a jury trial, Steven Charles Miceli was found guilty of three counts of child molestation (Counts 1, 2, and 4), in violation of OCGA § 16-6-4; he was acquitted of one count of aggravated sexual battery (Count 3). After the trial court granted Miceli’s motion for an out-of-time appeal, Miceli brought this appeal, contending in his sole enumeration of error that the trial court erred in restricting his cross-examination of the victim’s mother. Discerning no error, we affirm.

Viewed in the light most favorable to the verdict, the record reflects that A. B., who was eight years old at the time of trial, testified that when she was six years old, she lived with her mother and her mother’s boyfriend, Miceli. A. B. testified that on several occasions, starting when she was five years old, Miceli molested her. She testified that he touched her on her “front” private parts and on her “butt”; that while he was naked, he climbed on top of her while she was in bed and “humped” her, until she felt something “kind of” wet; and that he made her put her hand on his “thing,” that is, his private part. In May 2005, when A. B. was seven, she disclosed the abuse, first to the older sister of one of her friends, and the next day to her mother, who reported it to the police. In the course of their investigation, the police collected the bed linens from A. B.’s bed. These items were analyzed by Dr. Charity Davis, a forensic scientist with the Georgia Bureau of Investigation, who testified that chemical examination of stains on the linens indicated the presence of seminal fluid; that she performed a DNA analysis of one of the semen stains; and that the DNA from the semen on the sheet matched Miceli’s DNA. Also testifying at trial was Dr. Susan Campbell, a clinical psychologist, who was qualified by stipulation as an expert in psychology. Campbell testified that she had treated A. B. both before and after A. B.’s disclosure of the abuse; that when she saw A. B. in June 2005, after the disclosure, A. B. made drawings depicting the abuse she had endured from Miceli. Campbell further testified that A. B. exhibited many behaviors consistent with sexual abuse.

Miceli testified in his own defense. He denied ever touching A. B. inappropriately, and further testified that he and A. B.’s mother sometimes had sex in A. B.’s bedroom on A. B.’s bed; that he last had sex with A. B.’s mother on that bed on the Thursday before his arrest; and that A. B.’s mother sometimes failed to wash the sheets for as long as two weeks at a time.

1. Although Miceli does not challenge the sufficiency of the evidence on appeal, we conclude that it was sufficient, under the standard of Jackson u. Virginia, to authorize the jury to find him guilty beyond a reasonable doubt of the three counts of child molestation of which he was convicted. Indeed, the testimony of A. B., standing alone, would have been sufficient to authorize the guilty verdicts.

2. In his sole enumeration of error, Miceli argues that the trial court erred in restricting his cross-examination of the victim’s mother. This enumeration of error fails.

A. B.’s mother was called as a witness by the state during the state’s case-in-chief. On cross-examination, Miceli’s counsel asked the witness about her testimony at Miceli’s bond revocation hearing. The state objected to this line of questioning on the ground that it was not relevant to the proceeding at hand. Miceli’s counsel responded, “Your Honor, it goes to her tendency to make false accusations and it also looks at her ability to —.” At this point the trial court interposed, in order to make clear that the bond revocation hearing had taken place before a different judge. The trial court then sustained the state’s objection. Without making any further proffer of evidence, and without requesting the opportunity to make a proffer outside the presence of the jury, Miceli’s counsel continued his cross-examination of the witness.

“The state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury,” and a defendant has the right to make “a thorough and sifting cross-examination” of the witnesses against him. However, “[cjontrol of the nature and scope of cross-examination of a witness is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.” It is also well settled that “[t]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.”

Miceli argues in his appellate brief that his cross-examination of the victim’s mother would have shown that this witness had a possible bias or motive for testifying against him, and that she had made prior allegations that one of her children had been molested (although it is not clear by whom). However, because Miceli did not perfect the record with a sufficient proffer of the testimony, we are unable to reach the merits of his claim.

Decided March 4, 2011.

Drummond & Swindle, Jason W. Swindle, for appellant.

Peter J. Skandalakis, District Attorney, Kevin T. McMurry, Assistant District Attorney, for appellee.

Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort so that both the trial court and the appellate court can know whether the evidence really exists. In the absence of such a proffer, the assignment of error is so incomplete as to preclude its consideration by this [C]ourt.

Moreover, even if review of this alleged error had not been waived, Miceli has not shown how the trial court’s ruling on this issue in any way prevented him from showing any bias or prejudice against him on the part of A. B.’s mother. Miceli was not prohibited from cross-examining the witness about the state of her feelings toward him and about his relationship with her. Further, the evidence at trial included the direct testimony of the victim, who testified as to the offenses Miceli committed against her, as well as the chemical evidence of Miceli’s semen on the victim’s bed sheets. In light of this overwhelming evidence, any error in the restriction of his cross-examination of the victim’s mother was harmless.

Judgment affirmed.

Smith, E J., and Dillard, J., concur.

       The jury reached its verdict on June 28, 2006; judgment was entered on July 6, 2006; and Miceli filed a notice of appeal on July 24, 2006. The appeal was dismissed for failure to file a timely brief. On April 29, 2010, the trial court entered an order allowing an out-of-time appeal, but Miceli’s notice of appeal was not timely filed; and on September 9, 2010, the appeal was dismissed. On September 10, 2010, the trial court granted Miceli’s motion for an order allowing an out-of-time appeal, and this appeal followed.

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

       Supra.

       See McKinney v. State, 269 Ga. App. 12, 16 (2) (602 SE2d 904) (2004).

       OCGA § 24-9-68.

       OCGA § 24-9-64.

       (Punctuation and footnote omitted.) Brown v. State, 280 Ga. App. 884, 886-887 (1) (635 SE2d 240) (2006). Accord Lawton v. State, 281 Ga. 459, 461 (1) (640 SE2d 14) (2007).

       (Citation and punctuation omitted.) Banks v. State, 250 Ga. App. 728 (1) (552 SE2d 903) (2001). Accord Schneider v. State, 267 Ga. App. 508, 510 (2) (603 SE2d 663) (2004).

       See Patrick v. State, 247 Ga. App. 495, 497 (544 SE2d 194) (2001) (“A proffer is inadequate unless it informs the trial court, at the time the questions were propounded, what answers were expected.”) (footnote omitted).

       See French v. State, 288 Ga. App. 775, 777 (3) (655 SE2d 224) (2007).

       (Citations omitted.) Bearfield v. State, 305 Ga. App. 37, 41 (2) (699 SE2d 363) (2010). Accord French, supra.

       See Beck v. State, 250 Ga. App. 654, 661 (6) (551 SE2d 68) (2001).

       See Letlow v. State, 222 Ga. App. 339, 343 (2) (474 SE2d 211) (1996) (error in restricting cross-examination of witness was harmless where witness’s testimony did not contradict victims’ direct testimony concerning crime). Accord Fields v. State, 285 Ga. App. 345, 346-347 (3) (646 SE2d 326) (2007).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A10A2323.
    JUDICE v. THE STATE.
    (707 SE2d 114)
   Dillard, Judge.

Following a jury trial, Daniel Judice was convicted on one count of attempted statutory rape and one count of child molestation. He appeals his convictions and the denial of his motion for new trial, arguing that the trial court erred in denying his motion for directed verdict of acquittal as to the statutory-rape and child-molestation counts and in charging the jury on attempted statutory rape. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the verdict, the record shows that in the early evening of January 7, 2007, 19-year-old Daniel Judice and one of his friends were “hanging out” with 14-year-old S. W at the home of her grandparents (where she lived). Initially, Judice and his friend watched television with S. W. and helped her download music to her computer in her bedroom. Later in the evening, however, Judice, his friend, and S. W took some prescription anti-anxiety medication (Xanax), which Judice’s friend had brought with him so that the three of them, according to S. W, could get “messed up.” At some point after midnight, Judice and S. W began kissing in her bedroom, and Judice’s friend left. Then, with S. W lying on the edge of her bed, Judice unbuttoned his pants, positioned himself between S. W.’s legs, and began rubbing the upper inside part of S. W’s thighs.

Meanwhile, in the adjacent bedroom, S. W’s grandfather awoke to the sound of voices and someone saying “I’m leaving.” As the grandfather walked out of his own bedroom, he saw Judice’s friend walking down the hall toward the front door of the house. Although the grandfather had seen Judice and his friend in the house earlier in the evening (when he returned home from work), he thought that the two young men had left around the time he went to bed. The grandfather then turned toward S. W’s bedroom to check on her, and as he opened her door, he saw S. W. lying on her bed with Judice positioned between her legs, making thrusting motions. Startled by S. W’s grandfather entering the room, Judice jumped up, at which point S. W.’s grandfather saw him push his exposed privates back into his pants while trying to button them. Immediately, the grandfather grabbed Judice and told him to leave, which he did post haste. S. W would not talk to her grandfather about the incident, and consequently, her grandfather did not report what had happened to the police until he learned Judice’s name from a friend several days later.

Judice was thereafter indicted on one count of statutory rape and one count of child molestation. During the trial, S. W.’s grandfather testified regarding the incident, and two police officers testified as to their investigation. Additionally, the State proffered two of Judice’s friends as witnesses. Although neither was present on the night of the incident, both testified that Judice had bragged afterward about having sex with S. W. and getting caught by her grandfather. And while S. W denied having sexual intercourse with Judice, she testified that on the night in question, Judice had his pants unbuttoned and was kissing her and rubbing her thigh while she was lying on her bed. She further testified that she and Judice were about to have sexual intercourse, but were interrupted when her grandfather came into her bedroom.

After the State rested, Judice moved for a directed verdict of acquittal on both charges, which the trial court denied. Thereafter, Judice and the friend who was with him on the night of the incident testified in Judice’s defense. Both testified that Judice never kissed S. W, rubbed her legs, or engaged in sexual intercourse with her, and that S. W’s grandfather kicked them out of the house for no valid reason. Nevertheless, at the conclusion of the trial, the jury found Judice guilty of attempted statutory rape, as a lesser-included offense of statutory rape, and child molestation. Subsequently, Judice filed a motion for new trial, which the trial court denied after a hearing. This appeal follows.

1. We first address Judice’s contention that the trial court erred in denying his motion for directed verdict of acquittal on the charge of statutory rape because the evidence proffered by the State at trial was insufficient to prove that he engaged in sexual intercourse with S. W

It is well established that “[o]n appeal, the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction.” In considering whether the evidence adduced at trial is sufficient to sustain a conviction, we ask whether any rational jury could find, in the evidence proffered below, proof beyond a reasonable doubt, viewing that evidence in the light most favorable to the verdict. This is because “it is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence.” Thus, “if the record contains some competent evidence to prove each element of the crime of which the defendant was convicted, even though that evidence may be contradicted, we must uphold the conviction.”

In the case sub judice, however, we need not engage in any analysis on this particular enumeration of error because Judice was not convicted on the statutory-rape charge but was, instead, found guilty of attempted statutory rape as a lesser-included offense. As such, the issue of whether the trial court erred in denying his motion for directed verdict of acquittal as to the statutory-rape charge is moot.

2. Judice also maintains that the trial court erred in denying his motion for directed verdict of acquittal as to the child-molestation count, arguing that the evidence was insufficient to prove that he committed the offense as alleged in the indictment. We disagree.

A person commits the offense of child molestation when he “does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. . . .” In this matter, the indictment charged Judice with child molestation by alleging that he “kissed [S. W.] on the mouth, exposed his [privates] to and had intercourse with [S. W], a child under 16 years of age, with intent to arouse and satisfy the sexual desires of said accused and said child. ...” And S. W. testified that she and Judice were kissing in her bedroom, and that Judice had his pants unbuttoned because they were about to have sexual intercourse. Additionally, S. W.’s grandfather testified that Judice was positioned between S. W’s legs while making thrusting motions, and that he saw Judice’s exposed privates when he surprised Judice and S. W by walking into S. W.’s bedroom.

Nevertheless, Judice maintains that the trial court erred in denying his motion for directed verdict because the State failed to prove that he kissed S. W on the mouth and that he had sexual intercourse with her, as alleged in the indictment. This argument is without merit.

First, while it is true that S. W. did not specifically testify where Judice kissed her, she did testify that “we were kissing.” Given this testimony, and the fact that “jurors are entitled to use their own common sense as intelligent human beings on many questions,” the jury was authorized to infer that Judice was kissing S. W. on the mouth. Furthermore, whether there was sufficient evidence to prove that Judice had sexual intercourse with S. W, as alleged in the indictment, 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, the evidence was sufficient to show that Judice violated the statute prohibiting child molestation in at least two of the ways alleged in the indictment. Accordingly, the evidence was sufficient to support the jury’s findings that Judice committed the offense of child molestation.

3. Finally, Judice argues that the trial court erred by instructing the jury on attempted statutory rape because he was not explicitly charged with this offense in the indictment. We disagree.

It is well established that in reviewing an allegedly erroneous jury instruction, “we apply the plain legal error standard of review.” And in this matter, the State requested that the trial court instruct the jury on criminal attempt specifically with regard to the statutory-rape charge. Over Judice’s objection, the trial court agreed and instructed the jury on attempted statutory rape. Judice contends that in doing so, the trial court erred. Specifically, he argues that the instruction on attempted statutory rape was improper because he was not explicitly charged with this offense in the indictment. OCGA § 16-4-3, however, makes clear that “[a] person charged with commission of a crime may be convicted of the offense of criminal attempt as to that crime without being specifically charged with the criminal attempt in the accusation, indictment, or presentment.”

Furthermore, the trial court’s instruction to the jury on attempted rape in this matter was properly “tailored to fit the allegations in the indictment and the evidence admitted at trial.” Under OCGA § 16-4-1, “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” Moreover, OCGA § 16-6-3 (a) provides that “[a] person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse. ...” And here, as noted supra, S. W testified that Judice positioned himself between her legs with his pants unbuttoned, and that the two of them were about to engage in sexual intercourse before her grandfather came into her bedroom. Additionally, S. W’s grandfather testified that he saw Judice lying between S. W’s legs with his privates exposed. Based on this evidence, a rational trier of fact could conclude that Judice attempted to have sexual intercourse with a person under the age of 16. Accordingly, the trial court did not err in charging the jury on attempted statutory rape.

Judgment affirmed.

Barnes, B J., and Blackwell, J., concur.

Decided February 24, 2011

Reconsideration denied March 7, 2011.

Louis M. Turchiarelli, for appellant.

Garry T. Moss, District Attorney, Lara A. Snow, Assistant District Attorney, for appellee.

        See, e.g., Davis v. State, 275 Ga. App. 714, 715 (1) (621 SE2d 818) (2005).

       OCGA § 16-6-3 (a).

       OCGA § 16-6-4 (a) (1).

        Terry v. State, 293 Ga. App. 455, 455 (667 SE2d 109) (2008) (punctuation omitted).

        See, e.g., Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010); Dennis v. State, 294 Ga. App. 171, 171 (669 SE2d 187) (2008).

        Ferguson, 307 Ga. App. at 233 (1) (citation and punctuation omitted); see also Wilson u. State, 304 Ga. App. 743, 745 (1) (698 SE2d 6) (2010) (same).

         Ferguson, 307 Ga. App. at 233 (1) (citation and punctuation omitted); see also Cooper v. State, 299 Ga. App. 199, 200 (682 SE2d 154) (2009) (same).

        See, e.g., Thomas v. State, 253 Ga. App. 58, 63 (4) (557 SE2d 483) (2001) (holding that because the defendant was acquitted on the armed-robbery charge, and instead convicted on the lesser-included offense of theft by taking, the issue of whether the trial court erred in failing to direct a verdict of acquittal as to the armed-robbery charge was moot).

       OCGA § 16-6-4 (a) (1).

        Johnson v. State, 246 Ga. App. 109, 111 (2) (539 SE2d 605) (2000) (punctuation omitted).

        Wilson v. State, 234 Ga. App. 375, 375 (1) (506 SE2d 882) (1998); see also Martin v. State, 299 Ga. App. 845, 848 (2) (683 SE2d 896) (2009) (holding that the trial court did not err in instructing the jury that although an indictment may charge the commission of child molestation in two ways, the accused may be convicted by proof that he committed the crime in either way).

       Judice also arguably violated OCGA § 16-6-4 (a) (1) by “dirty dancing” with S. W, which he admitted to doing while testifying in his own defense. And while there is obviously no authoritative definition as to what constitutes “dirty dancing,” the general sense of this colloquial term is for two or more individuals to engage in pseudo-sexual behavior while dancing and wearing clothing. See Evans v. Evans, No. CA04-1268, 2005 WL 1349822, at *4 (Ark. App. June 8, 2005) (containing the following description: “[W]hen you dirty dance, you touch each other about the body where you probably wouldn’t touch otherwise”). Cf. People v. Janini, 89 Cal. Rptr. 2d 244, 252 (Cal. App., 4 Dist. 1999) (noting that “[e]rotic performances, even such relatively tame ones as . . . Patrick Swayze’s dirty dancing, are inevitably designed to sexually arouse or gratify”).

        See, e.g., Cardenas v. State, 282 Ga. App. 473, 475 (1) (638 SE2d 866) (2006) (holding that the jury was authorized to conclude that under the circumstances, the kiss was an “immoral or indecent act” done “with the intent to arouse or satisfy [the defendant’s] sexual desire.” (punctuation omitted)); Arnold v. State, 249 Ga. App. 156, 158 (1) (a) (545 SE2d 312) (2001) (holding that exposing one’s sexual organs, even though the child does not actually see them, is sufficient evidence to support a defendant’s child-molestation conviction).

        Johnson v. State, 299 Ga. App. 706, 711 (2) (683 SE2d 659) (2009) (punctuation omitted).

        See, e.g., Climpson v. State, 253 Ga. App. 485, 486 (1) (559 SE2d 495) (2002) (holding that it was not necessary that the offense of attempted burglary be charged in the indictment in order for defendants to be found guilty of same); Gatlin v. State, 199 Ga. App. 500, 501 (2) (405 SE2d 118) (1991) (affirming defendant’s conviction on attempted armed robbery as a lesser-included offense of the armed-robbery charge despite the fact that the defendant was not charged with criminal attempt).

        Milner v. State, 297 Ga. App. 859, 859 (1) (678 SE2d 563) (2009) (punctuation omitted).

        See, e.g., Neal v. State, 264 Ga. App. 311, 311-12 (1) (590 SE2d 168) (2003) (holding that the evidence was sufficient to prove attempted statutory rape when defendant testified that he was in a “position to have sex” with the victim, and he and the victim were nude on his bed and he “got on her”).

        See Singleton v. State, 229 Ga. App. 135, 137 (2) (493 SE2d 556) (1997) (holding that the trial court did not err in charging the jury on attempt to sell cocaine when the evidence warranted such a charge and despite the fact that defendant was indicted only on two counts of selling cocaine). Cf. Arnold v. State, 305 Ga. App. 45, 47-48 (1) (b) (699 SE2d 77) (2010) (holding that the defendant could be convicted of lesser-included offense of attempted aggravated child molestation, pursuant to a proper jury instruction on attempt, even though defendant was not charged with attempt in the indictment).


author: MCFADDEN, Judge.

text:
    A11A0217.
    CARDINALE v. CITY OF ATLANTA et al.
    (706 SE2d 692)
   MCFADDEN, Judge.

Matthew Cardinale filed a pro se complaint against the City of Atlanta and several city officials (collectively, “the City”) for failure to comply with the Open Meetings Act, OCGA § 50-14-1 et seq. (“the Act”). The City moved to dismiss Cardinale’s complaint for failure to state a claim. The trial court granted the motion, and Cardinale appeals. Cardinale argues that the minutes of a meeting of the Atlanta City Council omit information required by the Act, but the language of the Act does not support his contention. He also argues that his complaint states a claim against the City for failure to advertise the meeting as required by the Act, but his complaint only refers in passing to the possibility that the City may have violated the advertising requirement. We therefore agree that his complaint fails to state a claim and affirm.

A motion to dismiss may be granted “if the allegations in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.” (Punctuation omitted.) Chisolm v. Tippens, 289 Ga. App. 757 (658 SE2d 147) (2008). We review the trial court’s ruling on a motion to dismiss de novo, construing the pleadings in favor of the plaintiff. Id.

Viewed in this manner, Cardinale’s complaint shows that in February 2010, the Atlanta City Council held its annual elected officials’ retreat at the Georgia Aquarium. The event was advertised as a “public meeting.” During the retreat, members of the City Council voted on whether to amend its rules regarding public comment at council committee meetings. According to the complaint, members voted eight to seven not to amend the rules. The minutes of the meeting, however, did not reflect how each member voted. Instead, the minutes stated: “After an extensive discussion it was determined that the membership was not in support of amending the existing law.”

Following the meeting, Cardinale sought information from the City regarding how the members voted on the issue. Although he obtained information from several individual members, others did not disclose their votes. Cardinale subsequently filed this action, alleging that he had a statutory right under the Act to detailed information about the vote. He sought details on who voted for and against the proposed rule change, a declaration that the City had acted unlawfully by not providing the vote information, and an injunction ordering the City to amend the meeting minutes to reflect the information. Cardinale also asked the trial court to fine the individual defendants for failing to comply with the Act.

The City moved to dismiss the complaint, arguing that the Act did not require a detailed record of the vote at issue. The trial court granted the City’s motion. This appeal followed.

1. Pursuant to OCGA § 50-14-1 (e) (2), meeting minutes of governing bodies that fall within the Act must, at a minimum,

include the names of the members present at the meeting, a description of each motion or other proposal made, and a record of all votes. In the case of a roll-call vote the name of each person voting for or against a proposal shall be recorded and in all other cases it shall be presumed that the action taken was approved by each person in attendance unless the minutes reflect the name of the persons voting against the proposal or abstaining.

Cardinale argues that, pursuant to this provision, the City was required to set out in the minutes how each member voted. We disagree. Without dispute, the vote at issue was not a “roll-call” vote. And by its plain terms, the statute only requires that names of persons voting for or against a proposal be recorded “[i]n the case of a roll-call vote.” OCGA § 50-14-1 (e) (2). The results of all other votes are presumed unanimous unless the minutes reflect otherwise. Id.

Seeking to avoid the statute’s plain language, Cardinale notes that the vote in this case was not unanimous. He argues, therefore, that a presumption of unanimity makes no sense here. Relying on the principle that a statute should not be given an absurd construction, he contends that the portion of OCGA § 50-14-1 (e) (2) addressing “all other cases” must be viewed as requiring detailed information about any vote that is not unanimous.

The fundamental rules of statutory construction, however, “require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” (Punctuation omitted.) Beneke u. Parker, 285 Ga. 733, 734 (684 SE2d 243) (2009). Ultimately, “we must seek to effectuate the intent of the legislature.” (Punctuation omitted.) Id. Through its statutory language, the legislature expressed an intent to require detailed voting information only for roll-call votes. It could have placed a similar requirement on other types of votes, but it did not. Imposing such a requirement at this point would render the specific language relating to roll-call votes meaningless and would undermine the legislature’s intent. See id.

Nothing in OCGA § 50-14-1 demands detailed information on nonroll-call votes, and we cannot graft such a requirement onto the provision. Accordingly, neither the City nor its officials violated the Act by refusing to provide Cardinale with additional information about the public comment vote. The trial court, therefore, properly dismissed Cardinale’s vote-related claims. See Chisolm, supra.

2. Alternatively, Cardinale asserts that he has sufficiently alleged a claim against the City for failure to properly advertise the retreat meeting pursuant to OCGA § 50-14-1 (d). Cardinale’s complaint contains no such allegation, however. It focuses on the alleged violation of the vote reporting requirement. The causes of action and requested relief relate to the voting issue, and the preamble to his complaint states that he brought the action to address that alleged violation. The only reference to the advertising requirement occurs in the first paragraph of the complaint’s “factual background” section, which states: “According to Clerk Johnson, the meeting was advertised as a public meeting and was open for members of the public to attend, although it is not immediately clear whether the meeting was adequately advertised in compliance with the law.”

The City argues, and the trial court found, that this factual assertion did not allege a violation of the Act’s advertising requirements and thus was insufficient to state a claim. We agree. Cardinale has not alleged that an advertising violation actually occurred, and he has not sought relief for such a violation. We recognize that a pro se complaint “is not held to stringent standards of formal pleadings.” Johnson v. Jones, 178 Ga. App. 346, 349 (343 SE2d 403) (1986). At base, however, a complaint must offer a short, plain statement that places a defendant on notice of what claims are alleged. See Dillingham v. Doctors Clinic, 236 Ga. 302, 303 (223 SE2d 625) (1976). A complaint will be dismissed if it alleges no claim for relief. See Massey v. Perkerson, 129 Ga. App. 895, 896 (2) (201 SE2d 830) (1973).

Although Cardinale’s complaint clearly alleged a violation of the Act’s vote reporting requirement, it did not allege an advertising violation. The City was not placed on fair notice that the case involves an advertising violation claim. Cardinale has not alleged any facts supporting such a claim. His appellate brief notes simply that he would like to explore through discovery whether the City met the advertising requirements. Consequently, the trial court properly dismissed Cardinale’s complaint relating to the advertising issue. See Ralston Purina Co. v. Acrey, 220 Ga. 788, 791 (1) (142 SE2d 66) (1965) (statement asserting mere possibility that violation occurred does not amount to allegation that statute was violated).

Decided February 10, 2011

RECONSIDERATION DENIED MARCH 7, 2011

Matthew Cardinale, pro se.

Amber A. Robinson, Kristen E. Brooks, for appellees.

Judgment affirmed.

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


author: Miller, Presiding Judge.

text:
    A10A2001.
    MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. et al. v. SAMUEL et al.
    (707 SE2d 154)
   Miller, Presiding Judge.

Mortgage Electronic Registration Systems, Inc., as nominee for Flagstar Bank, and Flagstar Bank (“Appellants”) filed an action for reformation of a security deed, declaratory judgment, and equitable relief against its debtor, Leroy Samuel, and May Gordon. Appellants alleged, inter alia, that the property described in the security deed was vague and ambiguous, and that Gordon held a 2.065-acre parcel subject to its lien. Gordon answered, denying the allegations, and counterclaimed, seeking a declaratory judgment that her parcel (“Gordon parcel”) was not subject to Appellants’ lien. Samuel did not file an answer. Appellants voluntarily dismissed their complaint without prejudice, but the case proceeded on Gordon’s counterclaim. After a bench trial, the trial court granted judgment in favor of Gordon, finding that the property described in the security deed was ambiguous with respect to the Gordon parcel, and not subject to the security deed. Appellants appeal, contending that the trial court erred in finding (i) that Gordon was a bona fide purchaser for value without notice and (ii) that the Gordon parcel was not subject to the security deed. For the reasons set forth below, this appeal is dismissed as moot.

“A trial court’s factual findings in a nonjury trial shall not be set aside unless clearly erroneous.” Claxton Enterprises v. Evans County Bd. of Commrs., 249 Ga. App. 870 (549 SE2d 830) (2001). On appeal, we will not disturb the trial court’s findings of fact if there is any evidence to support them. Id.

So viewed, the evidence shows that in 2004, Samuel purchased property in Clayton County from Carl E and David W Michel. To finance the purchase, Samuel executed a promissory note in favor of Century Funding, Ltd. in the amount of $333,700. In conjunction with the note, Samuel executed a security deed in favor of Mortgage Electronic, as nominee for Century Funding. The promissory note and the security deed were subsequently transferred to Flagstar Bank. The security deed lists an address of 14360 Woolsey Road and describes the property by reference to the legal descriptions in Exhibits A and C. Exhibit A describes a ten-acre parcel “less and except an improved 2.065 acres parcel of land called Exhibit C.” Exhibit C describes a 2.065-acre parcel.

In 2004, Samuel conveyed the 2.065-acre parcel to Gordon by warranty deed. It is undisputed that Gordon did not obtain a title examination or use an attorney to handle the purchase. Samuel later defaulted on the note by failing to make the required monthly payments. This lawsuit followed.

On December 29, 2010, Gordon filed a motion to dismiss the instant appeal showing that in September 2010, Appellants sent Gordon a notice of foreclosure sale as to the ten-acre parcel described in Exhibit A, which excluded the Gordon parcel. Thereafter, Flag-star Bank conducted a foreclosure sale and purchased the ten-acre parcel of property, less and except the Gordon parcel, for $418,919.91. Flagstar Bank, in turn, conveyed the ten-acre parcel, less and except the Gordon parcel, to Federal Home Loan and Mortgage Corporation. Appellants have not filed a response to the motion to dismiss appeal. Thus, we find the foregoing facts to be undisputed. See Ring v. Williams, 192 Ga. App. 329, 330 (1) (384 SE2d 914) (1989).

By taking actions inconsistent with their position on appeal, Appellants have acquiesced in the final order and judgment of the trial court. See Claxton, supra, 249 Ga. App. at 872-873 (1) (“As a general rule, any voluntary act by a party, with knowledge of the facts, by which he expressly or impliedly recognizes the validity and correctness of a judgment against him, will operate as a waiver of his right to bring action to reverse it, as where he . . . takes a position inconsistent with his right of review.”) (citations and punctuation omitted).

Thus, the issue of whether the Gordon parcel is subject to Appellants’ lien is now moot (OCGA § 5-6-48 (b) (3)), and any resolution of the issue would “amount to the determination of an abstract question not arising upon existing facts or rights[.]” City of Comer v. Seymour, 283 Ga. 536, 537 (661 SE2d 539) (2008). Accordingly, this appeal is hereby dismissed.

DeCided March 7, 2011.

Heyman & Sizemore, William B. Brown, Jacqueline Marcucci, Andrew B. Goldberger, for appellants.

Joe H. Bynum, Jr., for appellees.

Appeal dismissed.

Phipps, P. J., and McFadden, J., concur.

       Appellants alleged in their complaint that Flagstar Bank was prevented from foreclosing on its interest under the power of sale contained in the security deed due to the vague property description described therein.


author: MILLER, Presiding Judge.

text:
    A10A2050.
    BRANDON v. THE STATE.
    (706 SE2d 772)
   MILLER, Presiding Judge.

Following a stipulated bench trial, Devon Douglas Brandon was found guilty of one count of Driving Under the Influence Less Safe (OCGA § 40-6-391 (a) (1)) (“DUI-Less Safe”), and one count of Failure to Maintain Lane (OCGA § 40-6-48). Brandon appeals, contending that the trial court erred in denying his motion to suppress. Discerning no error, we affirm.

When reviewing a trial court’s order on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court. Welchel v. State, 255 Ga. App. 556, 557 (565 SE2d 870) (2002). Moreover, “the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Alex v. State, 220 Ga. App. 754 (1) (470 SE2d 305) (1996).

So viewed, the stipulated facts show that Brandon was involved in a single vehicle accident in Gwinnett County in the early morning hours of Saturday, May 30, 2009. Officer S. A. Clark responded to the scene and found Brandon sitting outside his overturned vehicle, his head covered in blood. Officer Clark detected the odor of alcohol about Brandon’s person and asked whether he had been drinking, whereupon Brandon admitted that he had consumed “about five beers about five hours earlier.” Field sobriety tests were not performed due to possible trauma to Brandon’s head; however, Brandon did submit to an alco-sensor test of his breath, which revealed the presence of alcohol.

Decided March 7, 2011.

Robert D. Lenhardt, for appellant.

Brandon explained to Officer Clark that another vehicle traveling in the opposite direction had entered his lane causing him to swerve to avoid a collision. No other vehicle, however, was present on the scene when Officer Clark arrived, and except for tire marks belonging to Brandon’s vehicle, there were no other tire marks. Officer Clark concluded that Brandon’s vehicle had gone off the road and that he over corrected, causing his vehicle to overturn. Given such opinion, Brandon’s admission that he had been drinking, the odor of alcohol on his person, and the results of the breath test, Officer Clark placed Brandon under arrest for DUI. Following Brandon’s arrest, Officer Clark read the implied consent warning to Brandon and he submitted to a breath test using the Intoxilyzer 5000, the result of which showed an alcohol concentration level of 0.125 grams. The trial judge denied the motion to suppress and a stipulated bench trial followed at the conclusion of which defendant Brandon was found guilty.

Brandon argues that the trial court erred in denying his motion to suppress the breath test results because Officer Clark lacked probable cause to detain him at the scene and to arrest him for DUI-Per Se or DUI-Less Safe. We disagree.

Contrary to Brandon’s contention, this case is not analogous to Handley v. State, 294 Ga. App. 236 (668 SE2d 855) (2008), wherein we reversed the trial court’s denial of a motion to suppress upon finding no evidence that Handley’s driving ability was impaired by alcohol. In particular, the officer in Handley noted “nothing remarkable about [the defendant’s] driving.” Id. at 238. Here, the contrary is true given the presence of only a single set of skid marks on the roadway indicating that Brandon had over corrected to avoid an oncoming vehicle. Moreover, there also is Brandon’s admission as to the consumption of alcohol and the result of blood-alcohol testing of his breath. Construing the evidence most favorably to upholding the findings and judgment of the trial court, as we must {Alex, supra, 220 Ga. App. at 754 (1)), we find that the trial court’s ruling was not clearly erroneous. Gilliam v. State, 295 Ga. App. 358, 359 (671 SE2d 859) (2008). For the preceding reasons, therefore, we affirm.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

Rosanna M. Szabo, Solicitor-General, Zachary W Procter, Assistant Solicitor-General, for appellee.

       The trial court merged its finding of guilty of one count of Driving Under the Influence Per Se (OCGA § 40-6-391 (a) (5)) (“DUI-Per Se”) with its finding of guilty of DUI-Less Safe.


author: Andrews, Judge.

text:
    A10A2045.
    IN RE BOWENS.
    (706 SE2d 694)
   Andrews, Judge.

John Bowens, the sheriff of Terrell County, appeals from the order of the Terrell County Superior Court finding him in criminal contempt for wilful violation of the Court’s order and sentencing him to five days in jail and a $500 fine. For the following reasons, we affirm the order’s contempt finding and vacate the portion of the order addressing a prior court order requiring Terrell County to pay the sheriffs attorney fees and costs.

1. Contrary to Sheriff Bowens’s contention, we find that the evidence was sufficient to prove beyond a reasonable doubt that he was guilty of criminal contempt for wilful violation of the court order.

Sheriff Bowens was cited for contempt for disobeying a written order of the Terrell County Superior Court entered by Judge Ronnie Joe Lane on the afternoon of February 16, 2010, and delivered the same afternoon to Sheriff Bowens’s office. The order directed Sheriff Bowens to transport to the Terrell County Courthouse, not later than 9:00 a.m. on February 17, 2010, four named criminal defendants imprisoned at the Terrell County jail, for the purpose of hearings in criminal cases before the Court. At the hearing on the contempt citation, evidence showed that Judge Lane issued the order to Sheriff Bowens because, at the previous scheduled date for criminal hearings, Judge Lane was unable to complete the Court’s business, and was forced to adjourn early, because Sheriff Bowens failed to timely transport all of the scheduled defendants from the jail to the courthouse. Evidence further showed that Sheriff Bowens operated the county jail and had the responsibility to transport criminal defendants from the jail to the county courthouse for hearings and trials. Sheriff Bowens admitted that he had prior notice of the Court’s order; that he discussed the order with one of his deputies on February 17, 2010, prior to the 9:00 a.m. time specified in the order; and that, contrary to the order, he directed the deputy to transport two rather than four jailed defendants to the courthouse by 9:00 a.m. When the deputy arrived at the courthouse with two of the defendants, Judge Lane asked the deputy if he was aware of the Court’s order. The deputy advised Judge Lane that “the Sheriff and I had discussed it that morning, that due to security reasons, we would just bring two inmates over here, and as soon as those were disposed of, we would bring two more over.” In explanation of his decision not to comply with the court order, Sheriff Bowens testified that, on February 17, 2010, he was working in his patrol car to answer calls, and that he had only two deputies working, one in the courtroom at all times, and one transporting prisoners from the jail to the courthouse. But Sheriff Bowens also testified that he employed ten deputies (each with a patrol car), an investigator with a car, fifteen full-time jailors, two part-time jailors, ajail administrator, and two office assistants. Part of Sheriff Bowens’s defense was that Terrell County had not adequately funded his office to allow him to safely carry out his responsibilities. Sheriff Bowens explained that he did not wilfully disobey the court order, but that he was not able to comply with the order “because of a lack of personnel that I had that day.” According to Sheriff Bowens, it would have been unsafe to comply with the court order because it required him to send one deputy with four prisoners. Judge Lane testified that Sheriff Bowens’s failure to comply with the order interfered with the Court’s ability to conduct the scheduled hearings.

The proper administration of justice demands that the superior court have inherent power to enforce its orders by contempt proceedings. Griggers v. Bryant, 239 Ga. 244, 246 (236 SE2d 599) (1977); OCGA § 15-6-8 (5) (superior courts have authority to punish contempt by imprisonment up to 20 days and fines up to $500).

In order to establish criminal contempt [for violation of a court order], there must be proof beyond a reasonable doubt not only that the alleged contemnor violated a court order, but also that he did so wilfully. And to show wilfulness, there must be proof beyond a reasonable doubt that the alleged contemnor had the ability to comply with the court order: It is essential to constitute a contempt that the thing ordered to be done be within the power of the person against whom the order is directed.

(Citations and punctuation omitted.) Thomas v. Dept, of Human Resources, 228 Ga. App. 518, 519-520 (492 SE2d 288) (1997). “[0]n appeal of a criminal contempt conviction the appropriate standard of appellate review 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.” (Punctuation omitted.) In re Irvin, 254 Ga. 251, 256 (328 SE2d 215) (1985). Moreover, in a contempt hearing before a judge sitting as the trier of fact, the hearing judge, and not the appellate court, determines the credibility of witnesses. Reece v. Smith, 292 Ga. App. 875, 877 (665 SE2d 918) (2008).

The hearing judge found not credible Sheriff Bowens’s testimony that he did not wilfully disobey the court order because he did not have the ability or personnel to safely comply with the order to transfer four prisoners from the jail to the courthouse for the 9:00 a.m. hearing. Accordingly, the judge found Sheriff Bowens in criminal contempt for wilfully violating the court order and thereby interfering with and obstructing the Court’s administration of justice. Although the legislature has vested the office of county sheriff with broad authority to determine the safe administration of the county jail and the prisoners confined therein, Judge Lane was empowered to determine that the orderly administration of justice required the presence of the four prisoners at the courthouse by 9:00 a.m., and to order Sheriff Bowens to transfer the prisoners from the jail to the courthouse by that time. See In re Irvin, 254 Ga. at 253-254. Contrary to Sheriff Bowens’s contention, the order was clear and it did not direct him to send one deputy with four prisoners. If Sheriff Bowens believed in good faith that, because of a lack of funding and personnel for his office, the court order erroneously compelled him to transport the prisoners in an unsafe manner, his remedy was to appeal the order, not to disobey it. Britt v. State, 282 Ga. 746, 749-751 (653 SE2d 713) (2007). Since evidence showed that Sheriff Bowens had notice of and disobeyed the court order, his sole defense to the contempt citation was that he did not do so wilfully because he lacked the ability to comply. The evidence, especially evidence that Sheriff Bowens had ample deputies and resources under his control to comply with the court order, was sufficient to prove beyond a reasonable doubt that he wilfully violated the order and was guilty of criminal contempt.

2. Sheriff Bowens contends that the judge erroneously allowed the Terrell County attorney to make an opening statement and to cross-examine him at the hearing on the contempt citation.

The record shows that, prior to the hearing, the attorney for Terrell County filed a motion to allow the Terrell County Board of Commissioners to intervene in the contempt proceeding for the purpose of opposing a prior court order entered in the proceedings which authorized Sheriff Bowens to employ private counsel for defense of the contempt citation and required Terrell County to pay all his attorney fees and costs. At the commencement of the contempt hearing, the judge stated that he would first conduct the contempt hearing, and then would rule on the motion to intervene. Nevertheless, after Sheriff Bowens’s attorney made an opening statement in the contempt hearing, the judge allowed the County attorney to make an opening statement related to the motion to intervene. Sheriff Bowens objected to the opening statement given by the County attorney on the basis that he did not receive adequate notice of the motion to intervene. Assuming (without deciding) that this was error, there was no harm, especially in light of the fact that, after the contempt hearing concluded, the judge considered and denied the motion to intervene.

During the contempt hearing, the judge also allowed the County attorney to cross-examine witnesses. Sheriff Bowens’s attorney objected to the cross-examination to the extent it was “asking questions about the contempt,” but stated he had no objection to cross-examination about the sheriffs contention that lack of funding from the County was responsible for his inability to comply with the court order. Noting that there was considerable overlap between those types of questions, the judge simply ruled that he would allow the County to proceed with cross-examination and “see what happens.” Because the County’s subsequent cross-examination of Sheriff Bowens related to the sheriffs contentions about lack of funding, the sheriff waived any objection, and the trial court did not err by overruling the objection to the cross-examination.

3. Sheriff Bowens contends that, because the judge denied the Board of Commissioners’ motion to intervene, the judge erred by subsequently issuing a ruling voiding or reversing the prior court order requiring Terrell County to pay his attorney fees and costs.

After the judge concluded the contempt hearing, he immediately considered the motion to intervene brought by the Board of Commissioners for the purpose of opposing the prior court order requiring Terrell County to pay Sheriff Bowens’s attorney fees and costs. About a month after the contempt hearing, the judge entered a written order finding Sheriff Bowens guilty of criminal contempt and denying the motion to intervene. In the same order, the judge then ruled sua sponte that the prior attorney fees and costs order was void because it was issued by a judge who had recused himself from the case. The judge also sua sponte reversed the order for additional reasons. We agree that the prior court order was no longer an issue before the court after the judge denied the Board of Commissioners’ motion to intervene. Under these circumstances, the judge erred by ruling sua sponte on the prior court order, and we vacate the portion of the judge’s ruling voiding or reversing the prior order requiring Terrell County to pay the sheriffs attorney fees and costs.

Decided February 15, 2011

Reconsideration dismissed March 8, 2011

Leonard Danley, for appellant.

Judgment affirmed in part and vacated in part.

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

       A hearing on the contempt citation was held in the Terrell County Superior Court before Superior Court Judge C. Dane Perkins of the Alapaha Circuit, sitting by appointment. It is undisputed that Sheriff Bowens was given notice of the contempt charges, an opportunity to respond, and was permitted assistance of counsel and the right to call witnesses. See Ramirez v. State, 279 Ga. 13, 15 (608 SE2d 645) (2005).

       We render no opinion on the status of the prior order. The Terrell County Board of Commissioners did not appeal from the denial of the motion to intervene. See Morman u. Bd. of Regents &c. ofGa., 198 Ga. App. 544 (402 SE2d 320) (1991); Kipp v. Rawson, 193 Ga. App. 532, 535 (388 SE2d 409) (1989).


text:
    A10A1822.
    ALEXANDER v. THE STATE.
    (707 SE2d 156)
   Miller, Presiding Judge.

A jury convicted Antonio Alexander of one count of sexual battery (OCGA § 16-6-22.1) as a lesser included offense of rape (OCGA § 16-6-1) and one count of child molestation (OCGA § 16-6-4 (a) (1)). Alexander appeals contending that the trial court erred in instructing the jury that it was required to convict him of rape or the lesser included offenses of statutory rape and sexual battery. Finding the foregoing claim to be without merit and that the charge, read as a whole, properly charged the State’s burden of proof, we affirm.

We review a trial court’s erroneous charge to determine whether it constituted harmful error under the facts of this case. Hambrick v. State, 256 Ga. 688, 689 (2) (353 SE2d 177) (1987).

Viewed in the light most favorable to the jury’s verdict (Cross v. State, 285 Ga. App. 518, 519 (646 SE2d 723) (2007)), the evidence shows that on September 3, 2005, Alexander was a visitor in the apartment of Cicely Holliday with whom Holliday’s younger sister, the 13-year-old victim E H., then lived. E H. testified that while Holliday and her boyfriend were out that evening, Alexander kissed her about the face and neck and followed her into a bedroom where he laid her on the floor and inserted his penis into her vagina against her will. E H. reported what had occurred to her mother a day later. Confronted by the victim’s mother, Alexander denied having touched E H. The police were called and responded to the scene. Alexander’s arrest followed.

At trial, a forensic biologist employed by the Georgia Bureau of Investigation testified that the possibility of penal penetration of the vagina could not be ruled out, although he acknowledged that seminal fluid had not been detected upon an examination of E H.’s vagina following the incident. The physician who examined E H., however, testified that she had observed an abrasion inside E H.’s vagina consistent with her report of forced penetration. For his part, Alexander denied the allegations and indicated that he had been left in the household as a babysitter.

Alexander claims that the trial court erred in instructing the jury that it was required to convict him of rape, statutory rape, or sexual battery as to Count 1 of the indictment. We disagree.

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citations and punctuation omitted.) Vergara v. State, 287 Ga. 194, 198 (3) (b) (695 SE2d 215) (2010). In its instruction, the trial court correctly charged the jury as to Count 1 of the indictment (Rape) and its lesser included offenses as follows:

[I]f you believe and believe beyond a reasonable doubt that the defendant is guilty in Count 1 . . . , of the offense charged, the form of your verdict would be “We, the jury, find the defendant guilty of Count [1].” On the other hand[,] as charged[,] you can also consider whether or not the defendant is guilty of the two lesser included offenses under Count 1[.]

(Functuation omitted; emphasis supplied.) Based upon this charge, Alexander’s claim of error is without merit.

We further review the record to determine if substantial error, requiring reversal, is present in light of the foregoing portion of the charge arguably suggesting that the jury was authorized to convict if it “believed” that Alexander was guilty. See OCGA § 5-5-24 (c) (“Notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.”). Our appellate courts have previously held that reversal was required when a trial judge, immediately after giving the standard charge on reasonable doubt, summarized such burden of proof by authorizing the jury to convict the defendant if the jury had an “honest belief” that the defendant was guilty, in effect, lowering the State’s burden of proof to the preponderance standard applicable in civil trials. See Ward v. State, 271 Ga. 62, 64 (515 SE2d 392) (1999) (after concluding its charge on reasonable doubt, the trial court explained that its reasonable doubt charge was better expressed as a simple, honestly held belief that defendants were guilty); see also Jones v. State, 252 Ga. App. 332, 334 (2) (a) (556 SE2d 238) (2001) (immediately after charging the jury on reasonable doubt, the trial court neutralized the same by instructing the jury that “reasonable doubt, ‘in other words,’ means honest belief”).

Here, early in its charge, the trial court properly instructed the jury as to the State’s burden to prove Alexander’s guilt beyond a reasonable doubt, substantially in accordance with the pattern charge as follows:

And I charge you that the State has the burden to pro[ve] beyond a reasonable doubt that the defendant committed these offenses as I have read [them] to you and prove that they were committed in the manner that’s alleged in the indictment.... [Further,] a defendant is innocent until proven guilty. The defendant enters upon the trial of the case with a presumption of innocence in his favor. This presumption remains with the defendant until it is overcome by the State with evidence . . . sufficient to convince you beyond a reasonable doubt of the defendant’s guilt of the offense charged. No person shall be convicted of any crime unless and until each element of the crime is proved . . . beyond a reasonable doubt. The burden of proof rests upon the State ... to prove every essential allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. ... A reasonable doubt means just what it says. It is a doubt of a fair minded impartial juror honestly seeking the truth. A reasonable doubt is a doubt. . . based upon common sense and reason. It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given arising from consideration of the evidence, a lack of the evidence ... or conflicts in the evidence. After giving consideration to all the facts in this case, if your minds are wavering, unsettled, unsatisfied, then that is the doubt of the law and you should acquit the defendant. But if that doubt does not exist in your mind as to the guilt of the accused, then you would be authorized to convict the defendant.

See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.20.10. After doing so, unlike Ward and Jones, the trial court made no attempt to summarize its reasonable doubt charge as an honestly held belief or to otherwise explain it. Twice thereafter, the trial court made reference to its reasonable doubt charge as initially given by charging the jury that it could convict Alexander of Counts 1 and 2 of the indictment, if it believed beyond a reasonable doubt that Alexander was guilty thereof.

Decided March 8, 2011.

Peters, Rubin & Reynolds, Robert G. Rubin, Mary Erickson, for appellant.

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

Although the trial court used the term “believe” in both instances, it did so in the context of the reasonable doubt standard which the trial court clearly and correctly charged in its instruction. Under these circumstances, we find no substantial error and conclude that the instant charges were distinguishable from those condemned by Ward and Jones. On the record before us, there simply is no objectionable “summary” of the reasonable doubt standard as an honest belief.

In the same sense, we find no meaningful difference between the words “firmly convinced” as the equivalent of reasonable doubt approved in Boone v. State, 250 Ga. App. 133, 143 (15) (549 SE2d 713) (2001), and the word “believe” used synonymously with reasonable doubt as in this case.

Thus, while the best practice would not have been to employ the word “believe” in its charge as it did, the trial court did not improperly summarize the burden of proof or otherwise confuse the same in doing so. Accordingly, we find no substantial error, and the charge, read as a whole, was proper. See OCGA § 5-5-24 (c); see also Vergara, supra, 287 Ga. at 198 (3) (b).

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

       As to Count 2 of the indictment, the trial court further charged the jury that it could convict Alexander “if you believe the evidence and believe[ ] beyond a reasonable doubt sufficient to prove the defendant guilty of the offense. . . .” (Emphasis supplied.)


author: SMITH, Presiding Judge.

text:
    A10A1907.
    BILLINGS v. THE STATE.
    (707 SE2d 177)
   SMITH, Presiding Judge.

Arkelia Billings was convicted of cruelty to children, two counts of family violence terroristic threats, two counts of family violence battery, and one count of cruelty to children in the third degree. His amended motion for new trial was denied, and he appeals, asserting four enumerations of error. We find no reversible error and affirm.

1. Billings first complains that the trial court erred in refusing to excuse a juror for cause. During voir dire, the juror, an employee of an insurance company, testified that she had spoken to the prosecutor “a few times.” The voir dire examination does not reveal the exact nature of the juror’s dealings with the district attorney’s office, beyond that the juror provided some information to the prosecutor involving restitution and trial dates. Although Billings argues that, if these cases involve the collection of restitution payable to the insurer, it would benefit the juror’s employer, no evidence was presented to that effect. Nothing indicates that the juror was involved in the case before us.

Billings contends that the juror had an “ongoing business relationship with the District Attorney’s Office” that precluded her from serving on the jury. He relies on Daniel v. Bi-Lo, 178 Ga. App. 849 (344 SE2d 707) (1986), a civil action in which we held that “a person is not competent to serve as a juror in a cause when there exists any business relation between himself and one of the parties which may tend to influence the verdict.” (Citation and punctuation omitted.) Id. at 850 (1). The definition of a business relation includes “parties who, although not named in the suit, have a financial or other interest in the outcome of the litigation to be tried . . . whereby the juror could be motivated by financial concerns affirmatively or negatively towards a party interested in the outcome of a suit.” (Citations and punctuation omitted.) Id. at 850-851 (1). That reasoning is not applicable here.

In Daniel, the juror, an insurance adjuster, worked for several insurers who, while not named as parties, insured the defendants in the civil litigation. Noting that “[a]n insurance adjuster’s livelihood is dependent upon the assignments received from insurance companies such as those defending appellees in the instant suit,” id. at 851 (1), we concluded that the juror had a pecuniary interest in the result of the case and found that the trial court erred in refusing to disqualify the juror for cause. Id. at 852 (1).

The case before us, in contrast, is a criminal prosecution in which the juror’s employer is neither a party nor a representative of a party. In this, it more closely resembles Berry v. State, 302 Ga. App. 31 (1) (690 SE2d 428) (2010), in which a juror worked as a consultant for the district attorney’s office. We concluded that a person with an ongoing business relationship with the district attorney is not a “party at interest,” and that a per se rule with regard to mere business relations is inappropriate. Id. at 34 (1). We therefore looked to the juror’s responses to voir dire and found no abuse of discretion by the trial court in declining to strike the juror for cause. Id. at 34-35 (1).

“The decision to strike a juror for cause lies within the sound discretion of the trial court.” (Citation and punctuation omitted.) Berry, supra at 31. The juror testified that she would not give more weight or credibility to the prosecutor because of an ongoing work relationship; she also testified that she could decide the case fairly and impartially based solely on the evidence and the law. The trial court therefore did not err in declining to strike this juror for cause.

2. Billings contends the trial court erred in denying his third motion for continuance.

A motion for continuance is addressed to the sound discretion of the trial court, and this court will not interfere unless it is clearly shown that the court abused its discretion. The trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require. Broad discretion must be granted trial courts on matters of continuances.

(Citation and punctuation omitted.) Westmoreland v. State, 281 Ga. App. 497, 498 (1) (636 SE2d 692) (2006).

Billings had already filed two motions for a continuance, and he obtained both. The second motion for continuance was granted ten days before Billings’s third motion for a continuance was made and jury selection began. Billings’s primary complaint in his first motion was that his attorney had insufficient time to contact various witnesses or to prepare his defense. In his second motion, Billings enumerated many of the same grounds later urged in his third motion, as well as complaining of his inability to obtain GCIC records in time for trial. But, according to the State, some of the witnesses could not be located, some did not want to speak to Billings’s counsel, some of the information sought was provided earlier in discovery material, and some was not admissible at trial.

Seven days after receiving the second continuance, Billings moved to dismiss on speedy trial grounds. During jury selection, Billings filed a motion to recuse the trial judge, which was denied. Immediately before the jury was sworn, Billings’s counsel asked for a delay because his client was considering entering a guilty plea, and the trial court gave Billings ten minutes to discuss the matter with his counsel. After the recess, Billings attempted to file a pro se “Motion to Quash Indictment and Challenge the Composition of the Grand and Petit Juries” which the trial court declined to consider because Billings was represented by counsel. As noted in Division 3, below, Billings’s counsel also sought to withdraw.

A party must show due diligence in applying for a continuance. Westmoreland, supra at 498. Moreover, a denial of continuance is authorized when it appears that it was sought for purposes of delay. Gipson v. State, 297 Ga. App. 413, 415-416 (2) (677 SE2d 431) (2009). Under the circumstances presented here, we cannot say that the trial court abused its discretion in denying a third motion for continuance.

3. Billings next complains that the trial court erred in denying his counsel’s motion to withdraw from representation, contending that the record shows “irreconcilable conflict and complete breakdown in the attorney-client relationship.”

The Sixth Amendment guarantees effective assistance of counsel, not preferred counsel or counsel with whom a meaningful relationship can be established. An indigent defendant is not entitled to have his appointed counsel discharged unless he can demonstrate justifiable dissatisfaction with counsel, such as conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between counsel and client. Where a defendant does not have a good reason for discharging his court-appointed attorney, the trial court does not err in requiring him to choose between representation by that attorney and proceeding pro se. We evaluate a trial court’s decision regarding whether to appoint new trial counsel for an indigent defendant under an abuse of discretion standard.

(Citations, punctuation and footnotes omitted.) Holsey v. State, 291 Ga. App. 216, 218-219 (2) (661 SE2d 621) (2008).

As trial began, Billings through his counsel moved for a continuance, which was denied. Billings then told the court that he was dissatisfied with his counsel, believing that he had not spent sufficient time to prepare his case. The trial court informed him that his dissatisfaction was not necessarily sufficient grounds to continue the case, and that he could proceed pro se or with trial counsel. At that point, Billings asserted that trial counsel had threatened him. The trial court asked for more information regarding the alleged threats, and Billings was unable to provide specific information other than that he believed that trial counsel “wasn’t going to help me” and had not spent enough time on his case. After a recess, Billings’s counsel moved to withdraw on the ground that “Billings has come into this court and made serious allegations and accusations against me. Accusations which I do not take quietly. ... I have not in any way ever threatened Mr. Billings. I’ve not in any way . . . failed to investigate any leads.” The trial court then took a recess in order to investigate the issue.

The trial court engaged in a lengthy colloquy with the prosecutor, Billings, and Billings’s counsel, then excused everyone from the courtroom, including counsel, so that the court could examine Billings privately. Even then, Billings was unable to articulate anything other than that trial counsel “made me feel uncomfortable . . . the way he gave that D.A. a look and the way he was walking,” that counsel would not look him in the eye, and that counsel “just copped an attitude with me.” The trial court repeatedly pressed him for more information on the alleged threats, but Billings was unable to identify a specific threat beyond his dissatisfaction with trial counsel’s tone and “the way he said it to me. Like he really don’t care.” He reiterated that he believed counsel needed more time to prepare the case.

After hearing from Billings and calling counsel back into the courtroom, the trial court ruled as follows:

While the court has some sympathy for [trial counsel], my questioning of this issue of the threat leads me to the conclusion that the things that he said to you were not — not threats of any nature, other than statements about the possible consequences that you face in this case, and you don’t like — you don’t like that.
You didn’t — didn’t appreciate what I can only hear as, you know, candor on his part. In other words, he was shooting straight with you. And you would have rather had him give you a pep talk.
That’s not a basis for a conflict of interest or allowing him to withdraw.

The trial court gave Billings the option of proceeding pro se, which Billings declined, repeating that “if he’s going to be my lawyer, he needs more time to work on this case.” When asked if he was “not Pecessarily dissatisfied with [trial counsel], you just want more time?” Billings responded, “Because . . . there’s a lot of stuff he ain’t done to help me in my case.” The trial court denied Billings’s request for continuance and counsel’s motion to withdraw.

In Bryant v. State, 268 Ga. 616, 617 (2) (491 SE2d 320) (1997), the Georgia Supreme Court concluded that mere “vague complaints” about counsel, unsupported by any showing of “justifiable dissatisfaction,” would not support a finding that the trial court abused its discretion in finding that an attempt to discharge counsel was a dilatory tactic. Here, Billings was unable to articulate any support for his claim of threats, beyond stating repeatedly his belief that counsel needed more time.

Given these circumstances and the trial court’s commendable and thorough investigation of the allegations, it did not abuse its discretion in giving Billings the option of proceeding pro se and denying the motion to withdraw. Bryant, supra; Holsey, supra; Johnson u. State, 283 Ga. App. 524, 529 (5) (642 SE2d 170) (2007) (disagreement between defense counsel and appellant “causing tension in their relationship” did not require grant of counsel’s motion to withdraw on basis that appellant “was angry” and “had lost confidence in him”).

4. Finally, Billings asserts ineffective assistance of trial counsel. He contends that counsel was ineffective in failing to seek a mistrial after successfully objecting to a witness’s testimony that Billings told her that “he would have a shoot-out with police before he ever went back to jail.” He contends this response placed his character in evidence by suggesting both that he had previously been incarcerated and “that he intended to use deadly force on law enforcement officers.” Billings contends the testimony was so prejudicial that, even though counsel’s objection was sustained, failure to move for a mistrial constituted ineffective assistance of counsel. We disagree.

With respect to Billings’s first contention, “even if counsel’s failure to request a mistrial were deemed deficient, no mistrial would have been granted as a nonresponsive answer that impacts negatively on a defendant’s character does not improperly place the defendant’s character in issue.” (Citations and punctuation omitted.) Hinely v. State, 275 Ga. Ill, 782 (2) (d) (573 SE2d 66) (2002). “[A] nonresponsive answer that impacts negatively on a defendant’s character does not improperly place his character in issue [cits.]” Lewis v. State, 287 Ga. 210, 212 (2) (695 SE2d 224) (2010), and a “passing reference to a defendant’s incarceration” therefore does not put his character in evidence. Id. at 212 (3).

With respect to the second contention, another witness had already testified without objection that she did not call the police on another occasion because Billings had told her “if the cops came he would come out shooting.” “Where certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, the admission of the evidence objected to will not constitute reversible error, even if the admission of the evidence was erroneous.” (Citations and punctuation omitted.) State v. Rigdon, 284 Ga. App. 785, 787 (645 SE2d 17) (2007).

Since “failure to pursue a futile motion does not constitute ineffective assistance,” Rose v. State, 263 Ga. App. 263, 264 (1) (b) (587 SE2d 326) (2003), Billings has failed to establish a claim of ineffective assistance of counsel.

Judgment affirmed.

Mikell and Adams, JJ., concur.

Decided March 8, 2011.

H. Maddox Kilgore, for appellant.

Garry T. Moss, District Attorney, Lara A. Snow, Cliff Head, Assistant District Attorneys, for appellee.

       That motion was withdrawn at the time of Billings’s third motion for continuance.


author: Smith, Presiding Judge.

text:
    A10A1977.
    COSTELLO INDUSTRIES, INC. v. EAGLE GROOVING, INC.
    (707 SE2d 168)
   Smith, Presiding Judge.

Costello Industries, Inc. (“Costello”) appeals from the trial court’s grant of Eagle Grooving, Inc.’s (“Eagle’s”) motion for summary judgment on Costello’s breach of contract claim. Because genuine issues of material fact remain, we reverse.

On appeal from a grant of summary judgment, we apply a de novo standard of review. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). “[T]he 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.” (Punctuation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see OCGA § 9-11-56 (c).

The record reveals that on July 7 and 8, 2008, Eagle, a subcontractor, submitted proposals to Costello, a contractor, to perform work on a South Carolina Department of Transportation (“DOT”) construction project that Costello planned to pursue through the bidding process. Each proposal submitted by Eagle stated that it was valid for thirty days, and Eagle does not dispute that an Eagle representative orally agreed that if Costello was the successful bidder for the project, Eagle’s proposals would remain valid for seven days from the date of the award.

Costello’s former division president, Richard Brockman, deposed that Eagle was the lowest bidder for the subcontract work and that Costello used Eagle’s proposal prices in preparing its bid for the DOT project. Eagle’s owner, Wayne Bloodworth, deposed that during the week of July 22, 2008, Brockman informed him that Eagle was not the lowest bidder and that Costello would consider Eagle if it reduced its proposal price. Bloodworth stated further that he refused to lower the proposal price.

On August 5, 2008, Costello was awarded the DOT project and received notice of the award on August 11. On August 14, Costello faxed and mailed a letter to Eagle informing Eagle that Costello was awarded the project and stating further:

This is to inform you we will be sending you a Subcontract Agreement that includes the prices from the attached quotes for this project. As discussed, your prices are valid through the completion date of this project. Please forward your bond and insurance information .... We look forward to completing this project with Eagle Grooving and Grinding Contractors as our partner in this project. When scheduled, we will notify you of the time and location of our Partnering meeting and Preconstruction conference.

Costello contends that it received no response to this letter from Eagle. Eagle, on the other hand, claimed that in response to the letter, it sent Costello a letter the same day informing Costello that Eagle’s offer had expired and that no contract existed.

Also on August 14, Costello sent Eagle a letter inviting Eagle to participate in saw blade testing. Costello claims it did not receive a response to this letter nor did it receive a response to a September 12 e-mail informing Eagle and other parties of a scheduled “Partnering/Preconstruction” meeting. Bloodworth deposed that, in response to Costello’s August 14 letter concerning saw blade testing, he informed a Costello representative that Eagle would not attend because it had no contractual relationship with Costello.

On September 18, 2008, Costello sent an e-mail to Eagle and other subcontractors requesting an Equal Employment Opportunity policy. Less than an hour later, Eagle submitted the requested information. Eagle also sent Costello other required information on October 10. On October 30, Costello sent Eagle a letter requesting a meeting on November 3 to discuss “[Eagle’s] subcontract, current job progress and Eagle[’]s scheduled work.”

The parties dispute what occurred at the November 3 meeting. Costello’s owner, John Costello, deposed that during the meeting, Bloodworth informed him that Eagle was being purchased by a party that did not want to perform the subcontract work and that he was in the process of determining a way to fulfill Eagle’s obligation to Costello. Brockman, who also attended the meeting, admitted that Bloodworth stated during that meeting that he felt Eagle was not obligated and that no contract was formed. Brockman explained that he was not under the impression that Eagle would not perform, but rather believed that the meeting was a “partnering meeting” designed to determine how Costello and Eagle could work together through the sale of Eagle to another party.

Bloodworth deposed that he told Brockman during the meeting that Eagle never entered into a contract with Costello and did not plan on entering into a contract. He stated further that he only attended the meeting at Costello to “clarify the situation that was going on with regards to their continuing efforts to expect me to act on a contract I didn’t have.”

When Eagle failed to perform the subcontract work on the project, Costello sued Eagle for breach of contract. Early in the litigation, Eagle filed a motion for summary judgment. The trial court granted Eagle’s motion for summary judgment, finding that although Costello was awarded the contract on August 5, 2008, it made no contact with Eagle until August 14, 2008, more than seven days after the award of the contract. The court concluded that because Eagle’s offer expired prior to Costello’s attempt to accept the offer Eagle was entitled to summary judgment on Costello’s breach of contract claim because no contract had been formed.

On appeal, Costello argues that material issues of fact exist with regard to “whether Eagle assented to Costello’s acceptance or whether Eagle waived the time limitation for acceptance of the proposals.” Eagle contends that Costello’s August 14 letter was not an acceptance of Eagle’s offer and that, in any case, because Costello presented Eagle with a counteroffer by asking Eagle to lower its bid, and Eagle rejected the counteroffer, Eagle’s original offer was no longer open for acceptance.

Eagle’s offer expired on August 12, seven days after Costello was awarded the DOT project on August 5. Assuming Costello’s August 14 fax to Eagle was an unconditional and unequivocal acceptance of the offer, see Morrison v. Trust Co. Bank, 229 Ga. App. 145, 147 (1) (493 SE2d 566) (1997), that acceptance was late. It is well settled that “[i]f a contract requires that an offer be accepted within a stated time, no contract is formed when the offer is accepted after the stated time, unless the late acceptance became a counteroffer which was then accepted by the original offeror.” (Citation and punctuation omitted.) Century 21 Pinetree Properties v. Cason, 220 Ga. App. 355, 357 (2) (c) (469 SE2d 458) (1996). And, “an acceptance of an offer after the time limited is binding on the offeror if he assents to the acceptance after it is made.” (Citations and punctuation omitted.) Reny v. Sneed, 285 Ga. App. 722, 724 (647 SE2d 379) (2007).

Under the application of either of these principles, a genuine issue of material fact remains in this case. Eagle presented evidence that after receiving Costello’s notice of the award, it informed Costello that no contract existed, while Costello presented evidence that Eagle provided Costello with certain project-related information, some upon request, which implies that Eagle assented to Costello’s late acceptance. Therefore, an issue of fact remains concerning whether Eagle assented to Costello’s late acceptance or whether it accepted Costello’s late acceptance as a counteroffer.

DeCided March 8, 2011.

Vaughn, Wright & Boyer, Frederick L. Wright II, for appellant.

McGahren, Gaskill & York, Don G. Gaskill, Jr., for appellee.

Also, there was conflicting evidence concerning whether Costello presented Eagle with a counteroffer that Eagle rejected prior to the expiration of Eagle’s original offer. “[A] subsequent communication by one party to the alleged contract that varies even one term of the original offer is a counteroffer.” (Citation omitted.) Lamb v. Decatur Fed. Sav. &c., 201 Ga. App. 583, 585-586 (1) (411 SE2d 527) (1991). A counteroffer acts to reject and nullify the original offer. Id. If the original offer was nullified and not renewed by Eagle, there was no offer left for Costello to accept. See id.

Because genuine issues of material fact remain, we reverse the trial court’s grant of Eagle’s motion for summary judgment. See Century 21 &c., supra.

Judgment reversed.

Mikell and Adams, JJ., concur.

       Costello contends that it first became aware that Eagle did not intend to perform the subcontract work at some point between September 23 and October 30, 2008.

       Costello also sought prejudgment interest and attorney fees.