author: ELLINGTON, Presiding Judge. DILLARD, Judge,

text:
    A15A1257.
    CISNEROS v. THE STATE.
    (780 SE2d 360)
   ELLINGTON, Presiding Judge.

Gustavo Cisneros and eight others were indicted in the Superior Court of Gwinnett County for crimes arising out of a series of home invasions. Cisneros was tried separately in 2008 on the 24-count indictment, and the jury found him guilty of eight counts of burglary (Counts 1, 5, 7, 9, 12, 15, 18, and 22), six counts of armed robbery (Counts 2, 6, 8, 10, 13, and 16), two counts of criminal attempt to commit armed robbery (Counts 19 and 23), two counts of aggravated sexual battery (Counts 3 and 4), and one count of sexual battery (Count 14). The jury found him not guilty on the remaining five counts. On appeal, Cisneros claims that the evidence was insufficient to support his convictions on Counts 1 through 10,14,18, and 19. He also contends that he received ineffective assistance of trial counsel. For reasons that follow we conclude that the evidence was insufficient as to Counts 1 through 6,18, and 19, and we reverse Cisneros’s convictions as to those counts. The remainder of Cisneros’s convictions are affirmed.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that from February to April 2004, several Gwinnett County homes were invaded by masked gunmen who tied up their victims and stole money, jewelry, and other property. In chronological order, and by reference to the street on which they occurred and the corresponding counts of the indictment for which Cisneros was convicted, the home invasions at issue are as follows:

Oakland Walk Court (Counts 1 through 4). During the early morning of February 25, 2004, a resident of a home on Oakland Walk heard a loud noise; shortly thereafter, “four or five” masked men armed with guns entered her bedroom. The men pointed guns at her and demanded money, and she gave them her gold jewelry. They also took her cell phone and the keys to her van. One of the men then penetrated the victim’s vagina with his hand. Before they left, the men tied her hands behind her back with shoelaces and gagged her.

The first victim’s mother was also in the house. Five masked gunmen, who were speaking in Spanish, knocked down the door to her bedroom, and one of them hit her in the head with his gun. The men took some compact discs and jewelry, and they demanded money, after which she gave them $100. One of the men put his hand in the second victim’s vagina. Before leaving, they tied her hands and feet with shoelaces and put tape over her mouth.

River Landing Drive (Counts 5 and 6). On March 5, 2004, the residents of a home on River Landing Drive, two adults and their young child, were asleep in the master bedroom when they were awakened by five masked men carrying guns. The men, who were speaking in Spanish, asked for money. They took the two adults to another bedroom and tied their hands and feet with shoelaces. The men took cash, a bracelet, a rosary, and a watch, among other items.

Glenwhite Drive (Counts 7 and 8). In the early morning of March 29, 2004, several masked men invaded a home on Glenwhite Drive. One of the residents had arrived home from a nightclub and was preparing to go to bed when several men entered his room in the basement of the house. The men pointed a gun at him and told him to get on the floor. They tied the resident’s hands behind his back with an electrical cord and took $300 from his pocket. Other residents were also tied up and moved to the basement, and the home invaders then ransacked the house. The men took $4,000 from under a mattress in one of the bedrooms. They also took a truck that was parked outside the house. According to a responding police officer, the victims described the suspects as five Spanish-speaking males armed with semiautomatic pistols.

Sandune Drive (Counts 9 and 10). On April 9, 2004, six individuals shared a house on Sandune Drive. One of the residents fell asleep on the living room sofa; he awoke to find a gun pressed against his head. The resident saw that the men in the room wore masks, but he was not sure how many there were as he was placed face down on the floor. The men, who were speaking in Spanish, bound the resident with tape and took $2,000 from his pocket. One of the gunmen guarded the first victim while the others went upstairs and robbed the other occupants. The assailants also took a truck parked outside the house. Before they left, one of the gunmen shot the first victim in the leg.

Skyview Lane and Shadowood Road (Counts 12 through 16). In the early morning of April 18, 2004, masked gunmen broke into a home on Skyview Lane. The men tied up the residents, two children, their mother, and her husband, with shoelaces. Some of the intruders spoke in English and others in Spanish. The husband recalled that four men initially entered the home, but that more arrived later. The intruders took credit cards, gold, chains, and $2,600, among other items. After the robbery, the family’s GMC Jimmy truck was missing.

The men knew the mother’s name, and they threatened to kill her children if she did not give them the money. One of the intruders pulled down her panties and touched her breasts, her body, and her legs. They then asked her where her sister lived. The men informed her that she would take them to her sister’s house, which was located in the same mobile home park community. After she was untied and allowed to redress, four men took her to their car, and others remained behind with her two children and her husband.

The gunmen drove to the house on Shadowood Road where the mother’s sister resided, and they directed her to knock on the door. When her brother-in-law opened the door, the gunmen forced their way inside. They again tied up the mother, along with her sister, her brother-in-law, and her nephew. The intruders took a consulate identification card, a watch, a bracelet, and $200 from the sister, among other items. After one of the men tortured the brother-in-law with a heated knife and threatened to cut off his son’s fingers, he disclosed that he kept some cash in a shoe. The intruders took the money and left.

Appian Way (Counts 18 and 19). After the robbery at Shadowood Road, the residents of that home moved to a house on Appian Way. On April 27, 2004, the family was asleep when the husband heard someone hit the door. The husband grabbed a gun, ran outside, and shot twice. The individuals outside, who had been trying to knock the door down with a metal bar, ran away.

Davenport Park Lane (Counts 22 and 23). In the early morning of April 30, 2004, a resident of a home on Davenport Park Lane awoke to find a masked gunman in his bedroom. The resident snatched at the gunman’s weapon. The intruder fired approximately ten times, and five bullets hit the resident. The resident’s daughter reported that two other men had been in her bedroom. The men left the house without taking anything.

The investigation and trial. Also during the early morning hours of April 30, 2004, a Gwinnett County resident whose home was a short distance from the home invasion on Davenport Park Lane noticed a car with an “after-market exhaust” repeatedly driving through the neighborhood. Police responded to the resident’s report of a suspicious vehicle, stopped the car, and placed the occupant, Jaime Carrera-Carmago, under arrest for driving without a driver’s license. The arresting officers found a pistol and an uzi-type automatic weapon in the car.

After Carrera-Carmago was in custody, he was interviewed by police in connection with the series of armed robberies. Based upon the information provided by Carrera-Carmago, police set up surveillance at the Willow Trail and Clairmont Springs apartment complexes. Police arrested Cisneros shortly after he got into a vehicle which left the Clairmont Springs apartments. During an inventory search of the vehicle, officers recovered a pair of gloves, “a mask or cap balled up,” and an empty holster.

Following his arrest on April 30, 2004, officers interviewed Cisneros at their Gwinnett County headquarters. During the first interview, Cisneros volunteered that he was aware of the incidents where a man had been shot and where a man had been burned with a knife, but he maintained that he had been in Mexico for the previous two months and had just recently returned. He did not admit participating in any home invasions. Also on April 30, 2004, another officer conducted a second interview of Cisneros, during which he acknowledged having transported people to the “trailer park,” although he changed his story in the course of an interview to having followed people to the trailer park.

Police executed a search warrant for the apartment at the Willow Trail apartment complex that had been identified by Carrera-Carmago. Officers found, among other items, electronic equipment, such as DVDs and monitors; clothing, including three ski masks; and a blue pouch containing numerous items of jewelry, a necklace, earrings, and a watch. At trial, victims of the Oakland Walk and River Landing home invasions identified items found in the blue pouch as having been taken from them during the robberies. Police also executed a search warrant at the Clairmont Springs apartment, where they found a large number of guns, jewelry, cash, and several ski masks.

Jose Martinez, one of Cisneros’s co-indictees, testified for the State at trial. According to Martinez, he and Cisneros were both “driver[s]” for the Davenport Park Lane home invasion. After the robbery, everyone returned to the Clairmont Springs apartment residence of Gonzalo Ortega, another co-indictee. Martinez further testified that he and Cisneros acted as the drivers for the group when they robbed the residents of the mobile homes on Skyview Lane and Shadowood Road. Martinez was also involved in the attempted home invasion at Appian Way. However, according to Martinez, Cisneros was not present at the Appian Way incident. Martinez further testified that he was a driver for the Glenwhite Drive robbery. Martinez maintained that Cisneros was not involved in the robbery on Glenwhite Drive. Martinez did not participate in the robbery at Sandune Drive, according to his testimony.

Ortega also testified for the State. According to Ortega, he and a co-worker were asked by Cisneros and Martinez to participate in the Sandune Drive robbery. He later met with Cisneros and Martinez, and the other co-indictees, to plan the crime. Ortega maintained that he acted as a “lookout” for the group, who bought duct tape and some ski masks at a convenience store before the robbery. They wore all black and carried, according to Ortega, a “book bag” full of weapons. After the robbery everyone, including Cisneros, went to a motel and split the money.

Ortega also testified that he initially acted as a lookout in the robberies of the two mobile homes. According to Ortega, everyone listed in the indictment was there, including Cisneros, who also acted as a lookout. The plan was to rob one location. After the robbery had commenced, Ortega received a call that there was more money at another house. Cisneros picked up Ortega and they drove to the Skyview Lane residence. One of the co-indictees brought the victim out, and the three men, along with a fourth man unknown to Ortega, took her to the Shadowood Road residence, where they had the victim knock on the door. Ortega testified that after the door was opened, the four men then entered the home and took money. Everyone then went back to the Clairmont Springs apartment and divided the cash.

Ortega further testified that he and Cisneros, along with the others listed in the indictment, participated in the Davenport Park Lane robbery. According to Ortega, he was one of the men who went inside the residence, and Cisneros served as a lookout. Ortega testified that “something went wrong” and he shot the victim. Ortega also maintained that he and Cisneros, along with the other co-indictees, were involved in the Glenwhite Drive robbery.

Ortega further testified that he and the others conducting the home invasions were members of a gang, the “PL-14,” and that Cisneros, as an older gang member, could give orders to Ortega. Cisneros, Martinez, and Silverio, according to Ortega, were obtaining information through “tips” as to whether there would be money at a residence, and the location of the residence to be “hit” would come from one of the three. One of these three would always be present at the residence to be burglarized, and Ortega did not recall any instances where the person who gave the information to the group did not also go the location.

1. Cisneros contends that the evidence was insufficient to sustain his convictions on Counts 1 through 10, 14, 18, and 19 of the indictment. In reviewing the sufficiency of the evidence, “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.” (Punctuation and footnote omitted.) Salazar v. State, 326 Ga. App. 627, 627 (1) (757 SE2d224) (2014). Further, “[t]he appellant no longer enjoys a presumption of innocence, and an appellate court determines only the legal sufficiency of the evidence and does not weigh the evidence or assess the credibility of the witnesses.” (Punctuation and footnote omitted.) Id.

(a) Counts 1 through 4. Cisneros was convicted of one count of burglary, one count of armed robbery, and two counts of aggravated sexual battery arising out of the Oakland Walk home invasion. Cisneros argues that the evidence was insufficient to support his convictions for these crimes. We agree.

The State acknowledges that no witness specifically identified Cisneros as a participant in the Oakland Walk robbery. The State contends that the evidence is nevertheless sufficient to support his convictions on Counts 1 through 4 because (i) Ortega testified that Cisneros told him that Cisneros had robbed additional locations, (ii) all of the home invasions involved a clear modus operandi, and (iii) items taken from the victims during the Oakland Walk robbery were found in the Willow Trail apartment where, the State maintains, Cisneros resided. See, e.g., Berry v. State, 274 Ga. App. 366, 369 (1) (618 SE2d 72) (2005) (“Once it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods.”) (citations and punctuation omitted). The evidence showed that Cisneros admitted to Ortega, who maintained that he did not have personal knowledge of the home invasions that occurred before Sandune Drive, that “they had done this before.” But Cisneros did not specify the time or locations of the other crimes, and Ortega had no idea which residences were involved. The State bases Cisneros’s connection to the Willow Trail apartment on a crime scene technician’s testimony that he “was told that the apartment was occupied by the defendant.” The technician’s testimony, however, was hearsay and, under the rules of evidence that applied at the time of Cisneros’s 2008 trial, nonprobative even in the absence of an objection. See, e.g., Lopez v. State, 259 Ga. App. 720, 722 (2) (578 SE2d 304) (2003) (The officer’s testimony that radio dispatch identified a pistol as stolen was nonprobative hearsay.); Feagin v. State, 198 Ga. App. 460, 461 (1) (402 SE2d 80) (1991) (“Hearsay evidence is without probative value and will not establish fact in issue even in the absence of a timely objection.”) (citation and punctuation omitted). The State also points to evidence that Cisneros did not live at Ortega’s Clairmont Springs apartment, but it does not follow that this was evidence that Cisneros therefore lived at the Willow Trail apartment.

Without evidence showing that Cisneros had been in possession of the property taken at Oakland Walk, the circumstantial evidence is insufficient to support his convictions on Counts 1 through 4. As applicable here, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6 (2008). The modus operandi of the numerous home invasions, including the ones in which the evidence showed that Cisneros participated, were, as the State argues, markedly similar. The evidence authorized the jury to conclude that Cisneros participated in some of the home invasions committed by the group, as discussed infra, but the State does not point to any evidence from which a trier of fact could infer that, because Cisneros was associated with a gang that conducted home invasions, he participated in, or did otherwise aid, abet, advise, encourage, counsel, hire, or procure, every home invasion committed by the gang. Nor was there any evidence that Cisneros knew about the Oakland Walk home invasion or shared in the proceeds of the crime. See James v. State, 260 Ga. App. 350, 352 (1) (579 SE2d 750) (2003) (Although appellant, a gang leader, may have approved and rewarded criminal conduct by gang members generally, the evidence did not show he shared in the criminal intent to commit the particular crimes at issue). The evidence, which is entirely circumstantial as to Cisneros’s participation in the Oakland Walk home invasion, did not exclude as a reasonable hypothesis that Cisneros did not participate in, or otherwise aid or abet, those particular offenses. See, e.g., Parker v. State, 297 Ga. App. 384, 385-387 (1) (677 SE2d 345) (2009) (Evidence that created a suspicion that appellant burglarized the barn did not exclude every other reasonable hypothesis.). A rational trier of fact could not conclude beyond a reasonable doubt that Cisneros was guilty of the crimes that occurred at Oakland Walk.

(b) Counts 5 and 6. We similarly conclude that the evidence was insufficient to support Cisneros’s convictions for armed robbery and burglary in connection with the River Landing home invasion. Police found proceeds of the River Landing robbery in the Willow Trail apartment, and the State contends that this was sufficient to establish that Cisneros committed the crimes. The State did not show, however, as discussed in Division 1 (a), supra, that Cisneros resided in the Willow Trail apartment. Nor did the State show that Cisneros was in possession of the property taken from River Landing. No witness identified Cisneros in connection with the River Landing home invasion. Thus, the evidence did not exclude the reasonable possibility that Cisneros did not participate in the crimes committed at River Landing, or did not otherwise aid or abet the perpetrators of that crime, and the evidence is not sufficient to support Cisneros’s convictions on Counts 5 and 6.

(c) Counts 7 and 8. Cisneros was convicted of burglary and armed robbery in connection with the Glenwhite Drive home invasion. Ortega testified that he was involved in the Glenwhite Drive incident, along with Cisneros and the other co-indictees. Cisneros argues that the evidence was insufficient to support his convictions because no evidence independently corroborated Ortega’s testimony.

Former OCGA § 24-4-8, applicable at the time of [Cisneros’s] trial, did require corroborating circumstances in a felony prosecution in which the only witness was an accomplice. Thus, the State had to present the testimony of at least one other witness or evidence of such corroborating circumstances; however, the required additional evidence could be circumstantial, slight, and in and of itself, insufficient to warrant a conviction of the charged crime. But, such independent evidence has to either directly connect the defendant with the crime or justify an inference that the defendant is guilty; it must corroborate the identity of the defendant and that the defendant participated in the crime.

(Citation and footnotes omitted.) Lindsey v. State, 295 Ga. 343, 347 (3) (760 SE2d 170) (2014).

Independently of Ortega, Cisneros was named by Martinez as a participant in the Davenport Park Lane, Skyview Lane, and Shadowood Road home invasions. The victims of those home invasions, as well as the victims of the Glenwhite Drive home invasion, described a markedly similar modus operandi in which, within a period of weeks and in the same county, multiple masked gunmen would storm the targeted home in the early morning hours, tie up the residents, and demand money. If the independent evidence was circumstantial and insufficient in itself to warrant Cisneros’s conviction for the crimes at Glenwhite Drive, it was nevertheless sufficient to corroborate Ortega’s testimony that Cisneros participated in the Glenwhite Drive home invasion. See Bradford v. State, 261 Ga. 833, 834 (1) (412 SE2d 534) (1992) (The similarity between another crime in which appellant participated and the crime at issue gave rise to the inference that appellant participated in the crime at issue and was sufficient to corroborate the testimony of his accomplice.); Martinez v. State, 306 Ga. App. 512, 520-521 (1) (a), (d) (702 SE2d 747) (2010) (Given similarity between other crimes which appellant was shown to have committed and the offenses at issue, the evidence of appellant’s participation in those crimes could be used to corroborate the accomplice’s testimony that appellant participated in the crime at issue.); Grimes v. State, 291 Ga. App. 585, 589 (1) (662 SE2d 346) (2008) (Evidence corroborating accomplice’s testimony that appellant was a party to the bank robbery committed by accomplice included evidence connecting appellant to a bank robbery employing the same modus operandi.); McConnell v. State, 166 Ga. App. 530, 531-532 (2) (304 SE2d 733) (1983) (Modus operandi of a series of burglaries constituted independent evidence corroborating accomplice’s testimony.). Accordingly, the evidence was sufficient to support Cisneros’s convictions on Counts 7 and 8.

(d) Counts 9 and 10. Cisneros was convicted of armed robbery and burglary arising out of the home invasion on Sandune Drive. Ortega testified that he participated in that robbery, along with Cisneros and the other co-indictees. Cisneros argues that the evidence was insufficient to support his convictions because the evidence did not corroborate Ortega’s testimony. As with the crimes committed at Glenwhite Drive, evidence independent of Ortega’s testimony showed that Cisneros participated in a series of home invasions employing the same modus operandi as the crimes committed at Sandune Drive. If not sufficient in and of itself to support his convictions, the independent evidence was sufficient to corroborate Ortega’s testimony that Cisneros participated in the home invasion at Sandune Drive. See Bradford v. State, 261 Ga. at 834 (1); Martinez v. State, 306 Ga. App. at 512, 520 (1) (a); Grimes v. State, 291 Ga. App. at 589 (1); McConnell v. State, 166 Ga. App. at 531-532 (2). Accordingly, the evidence was sufficient to support Cisneros’s convictions on Counts 9 and 10.

(e) Count 14. Cisneros was convicted of two counts of burglary, two counts of armed robbery, and one count of sexual battery arising out of the Skyview Lane and Shadowood Road home invasions on April 18, 2004. Cisneros does not contest the sufficiency of the evidence to support his burglary and armed robbery convictions, but he contends that the evidence was insufficient to support his conviction for sexual battery. The victim of the sexual battery was in her home in Skyview Lane when one of the intruders pulled down her panties and touched her breasts and other parts of her body. This is the same victim that Cisneros, who had initially been acting as a driver or lookout for the group, later transported to Shadowood Road. Cisneros argues that he could not have committed the sexual battery because the evidence shows without dispute that he was not the man who molested the victim. Nor, he argues, was he a party to that crime inasmuch as there is a lack of evidence that he possessed an intent to have the victim sexually battered.

We agree with Cisneros to the extent that it cannot be discerned from the evidence that he was the individual who personally molested the victim. We disagree that he was not a party to that crime. “All of the participants in a plan to rob are criminally responsible for the acts of each, committed in the execution of the plan, and which may be said to be a probable consequence of the unlawful design, even though the particular act may not have actually been a part of the plan.” (Citations omitted.) Lobdell v. State, 256 Ga. 769, 773 (7) (353 SE2d 799) (1987). See OCGA § 16-2-20 (a) (“Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.”). Here, a trier of fact could conclude that the perpetrators’ criminal design was not only to commit burglary and armed robbery, but to threaten, intimidate, and abuse the victims in the process. If the participants did not plan every indignity to be imposed on their victims, the jury could reasonably conclude that sexual battery was a probable consequence of what Cisneros and the others intended to be a brutal home invasion. See Short v. State, 276 Ga. App. 340, 344 (1) (b) (623 SE2d 195) (2005) (“[A] jury could reasonably conclude that sexual assault was a probable consequence of the conspiracy to kidnap the female victim at gunpoint and drive around with her in a vehicle.”). Accordingly, the evidence was sufficient to support Cisneros’s conviction for sexual battery. See Lobdell v. State, 256 Ga. at 773 (7).

(f) Counts 18 and 19. Cisneros was convicted of burglary and attempted armed robbery arising out of the aborted home invasion on Appian Way. No one identified Cisneros as being present at that incident. According to Martinez, he and others went to Appian Way, but Cisneros was not there. The State contends that the evidence was sufficient to show that Cisneros was a party to the crime because he was one of the members of the group that targeted residences for burglary and planned the crimes, and because the victims in the Appian Way incident were the same victims that had been robbed by Cisneros at Shadowood Road. In particular, the State points to Ortega’s testimony that the individuals conducting the home invasions were members of a gang, that Cisneros was one of the gang members who gave orders, and that Cisneros was one of the gang members who had identified locations to be robbed.

If a person does not directly commit the crime, he may be convicted as a party to the crime “if he ... [intentionally aids or abets in the commission of the crime; or . . . [intentionally advises, encourages, hires, counsels, or procures another to commit the crime.” OCGA § 16-2-20 (b) (3), (4). “Proof that the defendant shares a common criminal intent with the actual perpetrators is necessary and may be inferred from the defendant’s conduct before, during, and after the crime.” (Citations omitted.) Eckman v. State, 274 Ga. 63, 65 (1) (548 SE2d 310) (2001). Here, there is no direct evidence that Cisneros participated in any manner in the crimes at Appian Way, either in person or by selecting Appian Way as a target or by planning the crime, or that he knew the group planned to burglarize Appian Way and shared their intent. Compare Greene v. State, 257 Ga. App. 837, 840 (3) (572 SE2d 382) (2002) (evidence was sufficient to support appellant’s conviction as a party to the crime because, although appellant was not present at the commission of the crime by the group, beforehand he was privy to discussions about the crime and the others in the group requested his participation; afterward, the defendant asked if he could still get money from the robbery, he met with others in the group to discuss the crime, and he then drove them around in search of an insider involved in the crime). Nor does circumstantial evidence exclude the reasonable possibility that someone other than Cisneros selected and planned the crime, and that Cisneros did not aid, abet, advise, encourage, counsel, hire, or procure the perpetrators in their commission of the crimes at Appian Way. See James v. State, 260 Ga. App. at 352 (1). Accordingly, we cannot conclude that the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Cisneros was guilty of Counts 18 and 19.

In summary, as to those convictions for which Cisneros contests the sufficiency of the evidence, we conclude that the evidence was not sufficient to support Cisneros’s convictions for Counts 1, 2, 3, 4, 5, 6, 18, and 19. The evidence was sufficient to support Cisneros’s convictions on Counts 7, 8, 9, 10, and 14.

2. Cisneros contends that his trial counsel was ineffective in failing to challenge the courtroom interpreter’s interpretation and by failing to require the trial court to follow the Supreme Court of Georgia’s guidelines regarding challenged interpretations. In order to prevail on his claim of ineffective assistance, Cisneros

must show counsel’s performance was deficient and that the deficient performance prejudiced [him] to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct. If a defendant fails to meet [his] burden on one prong of the two-prong test, then the other prong need not be reviewed by the Court.

(Citations and punctuation omitted.) Powell v. State, 297 Ga. 352, 356 (5) (773 SE2d 762) (2015).

During the third day of the trial, the court’s interpreter stated during a bench conference that, “I don’t know if Your Honor [has] been noticing, but we’ve got the Colombian woman on the jury, she is shouting out words to the interpretation.” After excusing the jury, the prosecutor commented that the second alternate juror, M. B., “has made a couple of different times sort of an outburst basically translating the word. I mean she says the word in English when [the interpreter] has asked the witness to clarify.” The trial court asked a bailiff to instruct M. B. to “refrain from shouting out” during the course of the proceedings.

After the close of evidence, the trial court told M. B. that the court had been “made aware” that the juror had been expressing her thoughts “about this case and the resolution of this case” to the other jurors. Upon questioning by the prosecutor and the defense attorney, M. B. denied having commented about the case or about the defendant. She acknowledged, however, that she made “comments about the words” and that she had explained to other jurors why it required “a lot of words in Spanish” to express a thought.

The trial court brought in the other jurors for questioning. One of the jurors reported that M. B. had made comments about the interpretation to the other jurors. Another said that M. B. “told everybody that she could not give a guilty verdict because she couldn’t live with herself for the rest of her life if she did that.” After questioning the jurors, the prosecutor and defense counsel agreed that M. B. be dismissed. Cisneros’s trial counsel then moved for a mistrial and argued that the jury had been tainted because M. B. had provided an ongoing separate interpretation to the other jurors. After the motion for mistrial, the trial court questioned the jurors a second time, and all but two said that they had heard M. B. criticizing, critiquing, or correcting the translation from the jury stand. All the jurors who heard M. B.’s comments said that they would set them aside and follow the translation from the jury stand. The trial court then denied the motion for mistrial.

Cisneros argues that his trial counsel was deficient in failing to object to the courtroom interpreter’s interpretation because, given M. B.’s comments, he was on notice by the third day of the two-week trial that there was a problem with the interpretation, and, he asserts, his counsel’s failure to object at any point in the proceedings waived Cisneros’s opportunity to challenge the interpretation. See Baldivia v. State, 267 Ga. App. 266, 272 (3) (599 SE2d 188) (2004) (Appellant’s claim that the court-provided interpreter failed to translate effectively for him was waived by his failure to pose a timely objection to the interpretation.). Cisneros claims that he was prejudiced by his trial counsel’s performance in that the majority of the victim and co-indictee testimony was made through the courtroom interpreter, and expert testimony during the hearing on the motion for new trial showed that the courtroom interpreter made numerous specific errors and, the expert testified, “inserted meaning with the errors that she made, consistently because of proficiency problems,” which errors “statistically [affected] the defense more, much more than the prosecution.” Compare generally Choi v. State, 269 Ga. 376, 377 (3) (497 SE2d 563) (1998) (Where the trial court did not abuse its discretion in finding interpreter to be qualified, and appellant “has not pointed to any specific errors made in the interpretation that harmed him,” there was no error in trial court’s overruling of appellant’s objection to the interpreter.).

The interpreter in question is Allison Epps, who provided the courtroom interpretation of and for the Spanish-speaking witnesses. A second interpreter, Katherine Murillo-Brueck, sat at the defense table and interpreted the proceedings into Spanish for Cisneros. Trial counsel did not speak Spanish. His counsel testified that Cisneros also spoke English, that he communicated with Cisneros in English, and that, to his knowledge, Cisneros had no difficulty with English.

Cisneros points to nothing that should have caused his trial counsel to object to the courtroom interpretation. First, Cisneros does not show that his trial counsel had any reason to doubt Epps’s professional qualifications. Epps’s testimony at the motion for new trial hearing showed that she has a master’s degree in bilingual legal interpreting and that she is, and was at the time of Cisneros’s trial, a court-certified interpreter. Further, according to trial counsel, in his experience if a client, as in this case, spoke English, the client would generally bring a problem with courtroom interpretation to his attention. Counsel did not recall that Cisneros ever said to him that there was a problem with the interpretation. According to trial counsel, “there was nothing to indicate to me that there was an issue.”

Counsel testified that he also relied on Murillo-Brueck, who “had sat [with him]... in murder trials,” to alert him if anything was wrong with the courtroom interpretation. Although, as Cisneros points out, Murillo-Brueck was acting for the court and not as an advocate for the defense, Murillo-Brueck, a court-certified interpreter, testified at the hearing on motion for new trial that it was her professional and ethical duty to alert the courtroom interpreter to translation errors “that could affect the case.” As to this trial, Murillo-Brueck recalled raising a translation issue with Epps, which Epps then corrected and brought to the court’s attention. According to Murillo-Brueck, during the trial she had been “able to hear the witness’s testimony and Ms. Epps’s interpretation fully.” Even if trial counsel could not have expected Murillo-Brueck to report any translation errors made by Epps directly to him, it was nevertheless reasonable for trial counsel to take into account the presence and actions of a second court-certified interpreter in assessing whether he had reason to doubt the accuracy of Epps’s translations.

As to M. B., trial counsel testified that he did not know “at that time if ¡M. B.] was that good of a Spanish speaker or not. Or whether she was just . . . conversational^] [and] nothing indicated to [him] what her... interpreting skills were.” Cisneros does not show that his counsel had any basis to doubt the interpretation provided by Epps because of what M. B. said during the course of the trial or upon her voir dire following the close of evidence. Trial counsel did have reason to suspect that the jury had been tainted because M. B. had provided her own interpretation for the other jurors, and he moved for a mistrial on that ground. But we cannot discern any basis for a valid objection to the interpretation provided by the court-certified interpreter on the ground that M. B. was in apparent disagreement with portions of that interpretation.

Nor can we conclude that trial counsel acted unreasonably in failing to insist on a hearing under the Supreme Court of Georgia’s Rules for the Use of Interpreters (the “Rules”). The Rules provide for such a procedure “[w]here a challenge is made to the accuracy of a translation^.]” Cisneros maintains that M. B. had challenged the accuracy of the courtroom translation during the trial and then during the hearing on her misconduct, and that trial counsel “merely needed to insist that the trial court follow” the Rules. Although the Rules do not specify how the accuracy of a translation may be challenged, or who may make such a challenge, the Rules do not reasonably contemplate that a hearing must be held where a juror is making comments from the jury stand and complaining to other jurors about the translation, as occurred here. Further, under the Rules the trial court “shall resolve the issue of the contested translation,” so long as the trial court has “first determine [d] whether the interpreter is able to communicate accurately with and translate information to and from the non-English speaking person.” Nothing put trial counsel on notice that Epps was not able to perform her duties as an interpreter, and his failure to insist on a hearing on that issue was reasonable. And Cisneros does not point to any specific portion of the courtroom translation that was brought to either trial counsel’s or the court’s attention as then being in dispute and therefore resolvable by the trial court. In view of the foregoing, Cisneros does not show that his trial counsel’s performance was professionally deficient in failing to object to Epps’s interpretation or to insist on a hearing under the Rules, and the trial court did not err in rejecting his claim of ineffective assistance.

Judgment affirmed in part and reversed in part.

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

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As a result, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

Decided November 18, 2015

Mark A. Yurachek; Bruce S. Harvey, Jennifer S. Hanson, Kimberly H. Cornwell, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Lisa A. Jones, Assistant District Attorneys, for appellee.

       The other co-indictees were Gonzalo Ortega, Jose Martinez, Hugo Hernandez Delfino, Paulino Gonzalez Martinez, Mario Alberto Silverio, Jaime Carrera-Carmago, Cecilio Castro-Delacruz, and Javier Alonso Quiroz.

       OCGA § 16-7-1.

       OCGA § 16-8-41 (a).

       OCGA §§ 16-4-1; 16-8-41 (a).

       OCGA § 16-6-22.2.

       OCGA § 16-6-22.1.

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

       Cisneros does not contest the sufficiency of the evidence to support his convictions for Counts 12, 13, 15, 16, 22, and 23, that is, the offenses arising out of the home invasions at Skyview Lane (other than Count 14, sexual battery, for which he maintains the evidence is not sufficient), Shadowood Road, and Davenport Park Lane.

       On cross-examination, the technician said that he had been told by Keith Wiggins, a detective, that the Willow Trail apartment was the defendant’s residence. The technician acknowledged that the identification of co-indictee Mario Silverio had been found in the apartment. As to who lived in the apartment, the technician testified: ‘T don’t know. That’s what I’ve been telling you. I don’t know.” Wiggins testified that Silverio’s address was the Willow Trail apartment.

       By contrast, under our new Evidence Code, which became effective January 1, 2013: “Hearsay shall not be admissible except as provided by [OCGA §§ 24-8-801 through 24-8-807]; provided, however, that if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.” OCGA § 24-8-802.

       This rule is also reflected in our new Evidence Code. See OCGA § 24-14-6.

       A detective testified that he had identified Cisneros as a suspect in the River Landing robbery after determining that Cisneros had previously visited the residence. However, neither the victim who had alerted the investigator that two unknown men had visited his house with his brother-in-law, nor the victim’s brother-in-law, who apparently knew Cisneros, testified at trial. The State does not contend that the detective’s testimony placed Cisneros at the scene of the River Landing robbery.

       Martinez denied that Cisneros participated in the Glenwhite Drive home invasion, but it was for the jury to determine if, in that respect, his testimony was credible. See, e.g., Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009) (“It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.”) (citation and punctuation omitted).

       Section VII (A) (1) of the Rules provide, in pertinent part:
      ... Where a challenge is made to the accuracy of a translation, the court shall first determine whether the interpreter is able to communicate accurately with and translate information to and from the non-English speaking person. If it is determined that the interpreter cannot perform these functions, arrangements for another interpreter should be made, unless testimony that is cumulative, irrelevant, or immaterial is involved. Where the court determines that the interpreter has the ability to communicate effectively with the non-English speaker, the court shall resolve the issue of the contested translation and the record to he made of the contested testimony in its discretion. . . .


source: Caselaw Access Project

author: Ellington, Presiding Judge. DILLARD, Judge,

license: Public Domain

text:
    A15A1313.
    BROWN v. THE STATE.
    (780 SE2d 372)
   Ellington, Presiding Judge.

Richard Evan Brown was found guilty by a DeKalb County jury of trafficking over 400 grams of a mixture containing methamphetamine, OCGA § 16-13-31 (e) (3). On appeal, Brown contends that the State presented insufficient evidence of his guilt. More specifically, Brown argues that the State failed to prove that he knew he was in possession of a trafficking weight of methamphetamine. For the reasons set forth below, we disagree and affirm.

The standard for reviewing the sufficiency of the evidence

is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.

(Citation omitted.) Hayes v. State, 292 Ga. 506 (739 SE2d 313) (2013). Further, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6.

So viewed, the evidence shows that on the morning of June 22, 2012, Brown and his co-defendant, Jesse Ray Scheidal, were traveling in a Nissan Maxima on Highway 78 in DeKalb County. Brown had borrowed the car from a friend the night before. The car veered off the highway without slowing down, rolled over several times, and came to rest upside down. A witness identified Scheidal as the driver, although Brown later told police that he had been driving. Brown and Scheidal refused medical treatment at the scene.

After seeing the accident, a witness turned around and came back to the wrecked car. When he arrived at the scene, Scheidal had already exited the Maxima, and the witness helped pull Brown out of the passenger’s side of the car. After Brown and Scheidal went to the guardrail, the witness overheard Scheidal tell Brown that Brown was driving the car. Brown went back to the Maxima and returned with a cell phone. When the police arrived, the witness reported that Scheidal and Brown were “acting strange,” with one standing by the side of the road and the other “just wandering around.” A second witness described Brown as walking with his head down near the wrecked car “looking for something on the ground.” Against the advice of the witness, Brown also re-entered the overturned and still smoking vehicle.

After firefighters arrived at the scene they searched the debris field to make sure that no one had been ejected from the car. They could discern the car’s “direction of travel” as there were pieces of the guardrail on the ground, pointing toward the wood line. Near the wood line, they found a black box “in line with the debris field,” and between 75 and 100 feet from the Maxima. A firefighter recognized the box as a “pelican” box, a watertight box that absorbs shock and which the fire department uses to carry its cardiac drugs. Attached to the bottom of the box were two “doughnut magnets,” which the firefighter had not seen on that type of box. The box contained 433 grams of crystal methamphetamine.

Police, with the help of a canine unit, searched the Maxima but found no drugs or drug-related paraphernalia in the car or on Brown’s person. The owner of the Maxima testified that the box was not attached to her vehicle when she loaned her car to Brown, and that the drugs in the box did not belong to her.

The State also introduced similar transaction evidence, which was admitted to show knowledge and intent. Following the accident, Brown was arrested on October 4, 2012 in Gwinnett County for possession of marijuana and eight grams of methamphetamine. At the time of the arrest, Brown had recently left Scheidal’s residence driving a borrowed car. Brown told one officer that he had gotten the drugs from Scheidal’s residence, and he told the arresting officer that “he no longer uses drugs; he just delivers them.”

On October 21, 2012, persons, not including Brown, were pulled over by police after they drove away from Scheidal’s residence in a Ford Mustang. Police found a black box with magnets underneath the rear bumper of the car. Methamphetamine and marijuana were in the box. After obtaining a search, warrant, officers found 167 grams of methamphetamine, marijuana, sandwich bags, and a digital scale in Scheidal’s residence.

Brown and Scheidal were indicted in this case for trafficking methamphetamine in violation of former OCGA § 16-13-31 (e) in that, on or about June 22, 2012, they “did knowingly possess 400 grams or more of a mixture containing methamphetamine.” As a preliminary issue, Brown argues that the State was required to prove that he knew the methamphetamine was 28 grams or more. The State disagrees. Former OCGA § 16-13-31 (e), applicable here, provided that “[a]ny person who knowingly sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine ... or any mixture containing . . . methamphetamine” commits the offense of trafficking in methamphetamine. This provision is substantially analogous to the former cocaine trafficking statute, OCGA § 16-13-31 (a) (1), which the Supreme Court of Georgia has held includes knowledge of the quantity of the drug as an element of the crime. See Scott v. State, 295 Ga. 39, 40 (1) (757 SE2d 106) (2014). The State argues that the former cocaine trafficking statute and the former methamphetamine trafficking statute nevertheless differ in that the former cocaine trafficking statute provided, in relevant part, that “[a]ny person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine,” commits the offense of trafficking in cocaine. (Emphasis supplied.) OCGA § 16-13-31 (a) (1) (2012). Because former OCGA § 16-13-31 (e) does not contain a second “knowingly,” the State maintains, the legislature intended to treat trafficking in cocaine differently from trafficking in methamphetamine. Rather, the State contends, former OCGA § 16-13-31 (e) requires that a defendant need only be in knowing possession of methamphetamine.

In its argument, the State pointed out that Scott had not then been applied to former OCGA § 16-13-31 (b), (c), or (e). However, following the submission of the State’s appellate brief, this Court, in Summerville v. State, 332 Ga. App. 617, 619 (1) (774 SE2d 190) (2015), held “that the reasoning of Scott applies to the former marijuana trafficking provision,” and concluded that former OCGA § 16-13-31 (c) required that the State prove the appellant knowingly possessed more than ten pounds of marijuana. The Supreme Court of Georgia has implied that it would reach the same conclusion. See Wilson v. State, 291 Ga. 458, 459 (729 SE2d 364) (2012) (“[W]e believe that Appellant’s argument that OCGA § 16-13-31 (c) requires proof that he knew the amount of the marijuana he possessed may be meritorious.”). As former OCGA § 16-13-31 (c) andformer OCGA § 16-13-31 (e) are the same to the extent that a “person who knowingly... brings into this state or has possession of” the designated amount of contraband commits the offense of trafficking, our finding in Summerville that Scott applies to former OCGA § 16-13-31 (c) logically extends to former OCGA § 16-13-31 (e). Nor, given the Supreme Court’s analysis in Wilson and Scott, do the State’s arguments show that Summerville was wrongly decided. Accordingly, we agree with Brown that the State was required to show, as an element of the crime of trafficking in methamphetamine, that Brown knew that the weight of the contraband was at least 28 grams or more.

Notwithstanding that we agree with Brown as to the requirements of former OCGA § 16-13-31 (e), we disagree that the evidence was insufficient to establish that he was guilty beyond a reasonable doubt of trafficking in methamphetamine. Knowledge and possession, as any other fact, may be shown by circumstantial evidence. Freeman v. State, 329 Ga. App. 429, 432 (1) (765 SE2d 631) (2014). A jury may consider “the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” (Punctuation and footnote omitted.) Id. Given the presence of the box in the debris field of the wreck, a trier of fact could conclude that the box had been in or attached to the Maxima. The jury could also conclude that Brown knew about the box and was searching for it after the accident. Although he had been involved in a serious accident, Brown was seen walking around the wrecked car looking for something on the ground. An officer also noted that, before he was detained, Brown appeared nervous. Brown also acknowledged to an officer in his later arrest for possession of methamphetamine that he delivers drugs.

Brown argues that evidence nevertheless does not show that he knew how much contraband was in the box. It is a reasonable possibility, Brown contends, that he had simply agreed to provide transportation for Scheidal, but that “he was not so nosy as to demand the details,” or that Brown knew that the box contained drugs but did not know the weight of the contraband. However, to support a conviction on circumstantial evidence, the proved facts need exclude only reasonable hypotheses. Jackson v. State, 284 Ga. App. 619, 620 (1) (644 SE2d 491) (2007). “And questions of reasonableness are generally decided by the jury.” (Citation and punctuation omitted.) Id. In this case, in light of the totality of the evidence, including Brown’s behavior at the scene of the wreck, the jury could conclude that it was not a reasonable hypothesis that Brown did not have personal knowledge of the contents of the box. And because the amount of methamphetamine was over 15 times the threshold trafficking amount, and in light of the similar transaction evidence from which a trier of fact could infer Brown’s knowledge of the drug trade, the evidence was sufficient to establish beyond a reasonable doubt that Brown knew that he possessed 28 grams or more of a mixture containing methamphetamine. See Summerville v. State, 332 Ga. App. at 620 (1) (that marijuana found in the defendant’s car was more than twice the amount required to constitute trafficking was among evidence sufficient to show that defendant knowingly possessed more than the trafficking amount); Robinson v. State, 331 Ga. App. 872, 877-878 (772 SE2d 223) (2015) (evidence sufficient to show defendant’s knowledge of trafficking weight of cocaine where, among other things, the cocaine weighed nearly ten times the trafficking threshold amount) (physical precedent only); Freeman v. State, 329 Ga. App. at 432 (1) (evidence sufficient to support trafficking conviction where cocaine weighed 50.62 grams, and State submitted evidence of five similar transactions). Compare Childs v. State, 330 Ga. App. 727, 730-731 (1) (769 SE2d 147) (2015) (evidence insufficient to show defendant’s knowledge of trafficking weight of cocaine where the quantity was just in excess of 28 grams and there was no evidence that defendant had scales or other items used to measure, weigh or package contraband). Accordingly, Brown’s conviction for trafficking in methamphetamine must be affirmed.

Judgment affirmed.

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

Decided November 18, 2015.

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Anna G. Cross, Leonora Grant, Assistant District Attorneys, for appellee.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As a result, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       OCGA § 16-13-31 (e) (2012) provided:
      (e) Any person who knowingly sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine, amphetamine, or any mixture containing either methamphetamine or amphetamine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in methamphetamine or amphetamine and, upon conviction thereof, shall be punished as follows: (1) If the quantity of methamphetamine, amphetamine, or a mixture containing either substance involved is 28 grams or more, but less than 200 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of ten years and shall pay a fine of $200,000.00; (2) If the quantity of methamphetamine, amphetamine, or a mixture containing either substance involved is 200 grams or more, hut less than 400 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of 15 years and shall pay a fine of $300,000.00; and (3) If the quantity of methamphetamine, amphetamine, or a mixture containing either substance involved is 400 grams or more, the person shall he sentenced to a mandatory minimum term of imprisonment of 25 years and shall pay a fine of $1 million.

       Effective July 1,2013, OCGA § 16-13-31 (e), and the other provisions of OCGA § 16-13-31, were amended to delete “knowingly” throughout the Code section. Ga. L. 2013, p. 222, §§ 4,21. See Summerville v. State, 332 Ga. App. 617, 619 (1), n. 1 (774 SE2d 190) (2015).


author: Ray, Judge.

text:
    A15A1365.
    AGIC et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
    (780 SE2d 79)
   Ray, Judge.

Abedina Agic and her parents, Mehmed and Alma Agic (the “plaintiffs”), filed a complaint for damages against Metropolitan Atlanta Rapid Transit Authority (“MARTA”) and one of its bus drivers, Nolan Davis, for injuries that Abedina Agic (“Agic”) sustained in a motor vehicle collision involving a MARTA bus. Following a trial, the jury returned a verdict in favor of MARTA and Davis, which was made the final judgment of the trial court. The plaintiffs appeal from the verdict and judgment, contending that the trial court erred in excluding evidence regarding a traffic citation that had been issued to Davis in conjunction with the accident. For the reasons that follow, we reverse.

Although certain aspects of the accident were contested, it was undisputed that the accident started with a collision between a MARTA bus driven by Davis and a car driven by Katy Cole, and that the collision occurred while Davis was attempting to change lanes on North Druid Hills Road. Following this initial collision, Cole’s car traveled across the roadway into the lanes of oncoming traffic, where it was struck by a sport-utility vehicle driven by Justin Hawkins. Agic, who was a passenger in Hawkins’ SUV, was seriously injured in the accident.

After the wreck, the police initially told Davis that he was “clear to go.” Shortly after leaving, however, Davis was directed to return to the scene of the accident, where the police issued him a citation for improper lane change. The citation indicates on its face that the improper lane change was involved in the accident. Davis ultimately paid the citation online without appearing in traffic court, which resulted in a bond forfeiture. Furthermore, after an internal investigation by MARTA, Davis signed a report acknowledging that the accident was “preventable.” Within MARTA, this meant that Davis was at fault or responsible for the accident.

Prior to trial, MARTA and Davis filed a motion in limine to exclude any reference to the citation that had been issued to Davis in connection with the accident, including the fact that he had paid the fine for the citation. The trial court granted the motion without stating its findings.

At trial, Davis’ testimony regarding his actions and the circumstances of the accident differed from other witness testimony. An eyewitness to the accident testified that Davis activated his turn signal “for like half a second” and immediately merged into the right lane of traffic “[w]ithout looking or anything[.]” The eyewitness further testified that Cole’s car had been traveling in the right lane at the time and that the front of Davis’ MARTA bus collided with Cole’s car, causing it to spin in front of the bus and veer across the roadway into oncoming traffic, where it was struck by Hawkins’ SUV. Davis, however, testified that he activated his turn signal and looked in his mirror twice to confirm that the right lane was clear before he attempted to change lanes. He further testified that he felt a “bump” in the rear of his vehicle, but that he did not know what it was. He then testified that he looked in his mirror again and observed Cole’s car behind his bus making a turn into the path of oncoming traffic, where it was struck by Hawkins’ SUV.

To bolster his version of events, Davis testified that the police officer told him during the accident investigation that he was “clear to go.” He even testified that he asked the police officer if it was a good idea to leave because “I didn’t know whether I was involved or not[,]” and that the officer “demanded that I leave.” Although he admitted that he signed the internal MARTA report acknowledging that he was at fault for the “preventable” accident, he endeavored to minimize his acknowledgment of fault by testifying that “[MARTA] told me it was preventable, so I had to sign the [report].” Thus, Davis’ testimony was not only inconsistent with eyewitness testimony, it was inconsistent with him having been issued a citation in connection with the accident, inconsistent with his acknowledgment of fault in the internal MARTAreport, and inconsistent with his decision to pay the fine for the improper lane change citation without appearing in traffic court to contest it.

Before cross-examining Davis, the plaintiffs’ counsel asked the trial court, outside the presence of the jury, to reconsider its ruling on the motion in limine. After hearing argument from counsel, the trial court upheld its earlier ruling. Consequently, the plaintiffs were precluded from cross-examining Davis regarding the citation to establish negligence per se in the violation of a traffic law, as well as for the purposes of impeachment.

In three related enumerations of error, the plaintiffs contend that the trial court erred in excluding admissible evidence that Davis had made an admission of guilt regarding the citation for improper lane change by forfeiting his bond. Under the circumstances presented here, we agree.

1. “Decisions regarding the admissibility of evidence and the scope of cross-examination fall within the trial court’s discretion. Such decisions will not be reversed absent a clear abuse of discretion.” (Footnotes omitted.) Eubanks v. Waldron, 263 Ga. App. 75, 75 (587 SE2d 253) (2003).

We have consistently held that where a party pays a fine on a citation and fails to appear in court on a citation, the party’s failure to appear is deemed an admission of guilt, and this admission may subsequently be used in a civil action for damages as an admission against interest to establish negligence. See Cannon v. Street, 220 Ga. App. 212, 214 (2) (469 SE2d 343) (1996) (defendant admitted that he committed the offense alleged in the citation by virtue of his failure to appear in court and by forfeiting his cash fine); Roberts v. Ledbetter, 218 Ga. App. 860, 860 (1) (463 SE2d 533) (1995) (defendant’s admission that he failed to appear to contest a traffic citation could be used to establish negligence per se). These rulings are consistent with OCGA § 40-13-58, which provides that a party cited for a traffic violation who posts a cash bond and subsequently forfeits the bond by failing to appear has legally pled guilty. “Under such circumstances, plaintiff has established negligence per se in the violation of a statute, which is a prima facie showing of negligence.” (Citation and punctuation omitted.) Roberts, supra.

However, we have also ruled that no such admission occurs when a defendant simply pays a fine after pleading not guilty on a citation, pleads nolo contendere, or is adjudicated guilty by a traffic court after pleading not guilty. Waszczak v. City of Warner Robins, 221 Ga. App. 528, 528-530 (1) (471 SE2d 572) (1996) (no explicit voluntary admission of guilt shown where defendant pled not guilty to citation and then posted a cash bond, particularly where there was no evidence to show that defendant changed his plea or totally failed to appear in court); Hunter v. Hardnett, 199 Ga. App. 443, 443 (1) (405 SE2d 286) (1991) (“an adjudication of guilt by a traffic court that the defendant was in violation of a law alleged to be the proximate cause of the plaintiff’s injuries is inadmissible ...” because the defendant makes no admission of guilt under this circumstance) (citations omitted); Reese v. Lyons, 193 Ga. App. 548, 548 (5) (388 SE2d 369) (1989) (evidence of a nolo contendere plea to a traffic citation is inadmissible since it is not an admission of guilt). Such circumstances are not present in the instant case.

Here, there is no evidence that Davis entered any plea or took any action with regard to the citation which would preclude the admissibility of his failure to appear as an admission against interest. While it is true that simply paying a fine is not, in and of itself, an admission of guilt, see Waszczak, supra at 529-530 (1), the record in this case is not limited to the payment of the fine. In the instant case, there was evidence that Davis signed an internal MARTA report acknowledging that the accident was preventable and understood this to mean that he was at fault. Furthermore, Davis “admitted that he [improperly changed lanes] as alleged in the traffic citation, by failing to appear in court and by forfeiting his . . . bond.” Cannon, supra. Accordingly, we find no reasonable basis for excluding evidence of the bond forfeiture at the trial of this case.

Although MARTA and Davis argue on appeal, as they did below, that Davis asked one of his daughters to go online and pay the fine for the citation on his behalf, there is a lack of evidentiary support for this argument. Even if such facts had evidentiary support, we find no merit in their argument that such payment and the resulting bond forfeiture should not be construed as an admission against interest on Davis’ part. Regardless of whether Davis paid the fine personally or had his daughter do it on his behalf, the evidence is undisputed that Davis was aware of the citation and that he authorized the payment of the fine. See Burnette v. Brown, 272 Ga. App. 383, 383-384 (2) (612 SE2d 489) (2005) (where defendant was aware that she had been issued a citation for failure to maintain lane, defendant’s husband paid citation on defendant’s behalf and later informed her of that fact, and defendant subsequently failed to appear in court to contest the citation, the resulting bond forfeiture was admissible as evidence of an admission against interest in a personal injury action brought against defendant). Compare Howard v. Lay, 259 Ga. App. 391, 391-393 (1) (577 SE2d 75) (2003) (evidence of bond forfeiture properly excluded where defendant was unconscious after the accident and did not find out that she had been issued a citation or that her husband had paid the fine until long after her court date had passed).

2. Given our finding that the exclusion of evidence regarding the bond forfeiture was in error, we must now determine whether the error affected the verdict. The doctrine of harmless error in civil cases is set forth in OCGA § 9-11-61, which provides, in relevant part:

No error in . . . the exclusion of evidence ... by the court... is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

There appears to be no explicit standard in our case law for weighing error in civil cases. Thus, the determination of whether the error affected a party’s “substantial rights” or whether the failure to correct the error would be “inconsistent with substantial justice” is often difficult to ascertain. Clearly, “whether an error requires reversal depends on the nature of the error and the importance of the issue to which it applies.” (Citation and punctuation omitted.) Phillips v. Harmon, 297 Ga. 386, 392 (I) (B) (744 SE2d 596) (2015).

In forfeiting his bond, Davis made an admission of guilt to making an improper lane change. See OCGA § 40-13-58; Cannon, supra. Had this admission been allowed into evidence, the plaintiffs would have established negligence per se in the violation of a traffic law and, thus, a prima facie showing of negligence on the part of Davis. See Roberts, supra. We are unpersuaded by the appellees’ argument that this admission against interest would have been merely cumulative of Davis’ acknowledgment of fault in the internal MARTA report because Davis was allowed to provide unfettered testimony to discredit his acknowledgment. We find that the exclusion of Davis’ bond forfeiture on the citation affected “substantial rights” of the plaintiffs because it prevented them from impeaching Davis on this important aspect of the case. Furthermore, as a result of the exclusion of the citation and bond forfeiture, Davis was allowed to provide testimony that the police officer investigating the accident had informed him that he was “clear to go,” thereby creating the impression that Davis had been exonerated by the police.

Decided November 18, 2015.

Warshauer Law Group, Trent S. Shuping, Sutton T. Slover, for appellants.

Mabry & McClelland, Walter B. McClelland, Lara P. Percifield, for appellees.

In sum, the trial court’s exclusion of the evidence relating to Davis’ citation and bond forfeiture precluded the plaintiffs from establishing negligence per se by virtue of his admission against interest, and it further deprived them of viable opportunities to impeach Davis. Accordingly, we find that under the facts of this case the verdict cannot stand.

Judgment reversed.

Barnes, P. J., and McMillian, J., concur.

       Katy Cole was the driver of one of the other vehicles involved in the collision and was named as an additional defendant, hut she was voluntarily dismissed from the action prior to trial. Cole is not a party to this appeal.

       MARTA and Davis argue in their appellate brief that the plaintiffs failed to make a proffer of the citation to the trial court and, thus, that the citation is not properly in the record for the purposes of appellate review. However, as noted by the trial court, a copy of the citation was duly filed in the record below.

       Although MARTA and Davis argue in their appellate brief that there was no evidence in the record to show that Davis did not appear in traffic court, we note that defense counsel presented argument to the trial court on the motion in limine that Davis understood “that he paid a fine and did not have to appear [in traffic court],” but that he did not realize that his payment of the fine and failure to appear would result in a bond forfeiture. Thus, counsel implicitly admitted that Davis failed to appear in traffic court and that Davis forfeited his bond. See 9766, LLC v. Dwarf House, Inc., 331 Ga. App. 287, 291 (4) (a) (771 SE2d 1) (2015) (“[a]dmissions of fact, made by a party’s counsel during a hearing or trial, are regarded as admissions in judicio and are binding on the party”) (citation and punctuation omitted).


text:
    A15A1420.
    DAVIS v. BRANTLEY COUNTY SCHOOL DISTRICT et al.
    (780 SE2d 60)
   ELLINGTON, Presiding Judge.

Donna Davis brought this action in the Superior Court of Brantley County against the Brantley County School District, Matt Thrift, and Dean Horne for injuries she received at a school event held at Hoboken Elementary School. Following a hearing, the trial court granted the appellees’ motion for summary judgment, based, inter alia, on its conclusion that Thrift and Horne are immune under the doctrine of official immunity. Davis appeals from this ruling, and, for the reasons explained below, we affirm in part and reverse in part.

Under OCGA § 9-11-56 (c), a party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]”

On appeal from the grant of summary judgment, we construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences. The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact. Our review of the grant or denial of a motion for summary judgment is de novo.

(Citations and punctuation omitted.) Johnson v. Omondi, 294 Ga. 74, 75-76 (751 SE2d 288) (2013).

Construing the evidence in the light most favorable to Davis, as the nonmoving party, the record showed the following. On May 12, 2011, Davis attended Hoboken Elementary’s “Olympic Day” as the parent of a student. At that time, Thrift was employed as a teacher by the Brantley County School District, and he worked at Hoboken Elementary. Horne was also employed by the School District, as a teacher and varsity basketball coach at Brantley County High School. At the time, Horne’s son attended Hoboken Elementary and participated in the Olympic Day activities.

As part of Olympic Day, Thrift, along with three other teachers, organized tug-of-war contests in a grassy area inside the school’s track. Each contest consisted of ten students from one class grasping one end of a 75-foot rope and ten students from another class grasping the other end. Thrift deposed that, in order to prevent the students from pulling the rope before the teacher signaled the students to pull, the teachers would get “a staff member or some school employee .. . to stand in the middle of the rope. Preferably a bigger person because [the students] are pulling on [the rope].” For a third-grade contest, Thrift asked Horne, whose son was in third grade, to hold the rope down for the contest at issue. Thrift deposed that he repeatedly asked spectators to move back and leave a 10- to 15-foot clearance around the contest. Thrift set up one such contest and gave the signal, “On your mark. Get set. Pull.” Just as Thrift yelled, “Pull,” and Horne removed his foot from the rope, Davis stepped across the rope. The students’ pulling tautened the rope and lifted it at the middle. Davis was thrown to the ground and injured.

Thrift deposed that he was not following any rule, guideline, policy, or procedure regarding how to organize the contests or manage the spectators and was not directed to have Horne press the rope down before each contest. Hoboken Elementary’s principal deposed that the school had no employee rules, guidelines, policies, or procedures in place regarding Olympic Day nor any rules, guidelines, policies, or procedures that an employee was to follow when conducting recreational activities in general. Thrift used his own judgment in determining how to organize, conduct, and supervise the tug-of-war contest, including having Horne press the center of the rope down with his foot. Similarly, Horne was not acting pursuant to any rule or policy, nor to any direction from the School District.

The appellees moved for summary judgment, arguing that Thrift and Horne are entitled to official immunity for suit against them in their personal capacities for actions taken within the scope of their duties as employees of the School District.

1. Davis contends that supervising and conducting a tug-of-war contest is a ministerial duty and, therefore, the doctrine of official immunity does not bar her claims against Thrift and Horne (if Horne was acting as an employee).

School system employees are entitled to official immunity from any claim against them “in their private (individual) capacity, when they are sued for discretionary acts taken within the scope of their employment and without actual malice or an actual intent to injure.” (Citations omitted.) Crisp County School System v. Brown, 226 Ga. App. 800, 802 (2) (487 SE2d 512) (1997). Thus, school system employees, like other public officers and employees,

may be held personally liable only for ministerial acts negligently performed or acts performed with malice or intent to injure. In other words, [they] can only be sued in their official capacities if they (1) negligently perform a ministerial duty, or (2) act with actual malice or actual intent to cause injury while performing a discretionary function.

(Punctuation and footnotes omitted.) Chisolm v. Tippens, 289 Ga. App. 757, 759-760 (2) (a) (658 SE2d 147) (2008).

In this case, Davis does not contend that Thrift or Horne acted with actual malice. Assuming their actions were within the scope of their employment duties, the determination whether they are entitled to official immunity therefore turns on the issue of whether their actions were discretionary or ministerial. McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009); see Crisp County School System v. Brown, 226 Ga. App. at 802 (2) (“The term ‘actual malice,’ as it is used in the context of official immunity, requires a deliberate intention to do wrong.”) (citation omitted).

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

(Citation and punctuation omitted.) McDowell v. Smith, 285 Ga. at 593.

The determination whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the defendant’s job, and is to be made based on the facts of the particular case. McDowell v. Smith, 285 Ga. at 594-595; Crisp County School System v. Brown, 226 Ga. App. at 803 (2). Generally, supervising and controlling students’ activities has been held to be a discretionary action which is protected by the doctrine of official immunity, and may be so even where specific school policies designed to help control and monitor students have been violated. Griswold v. Collins, 318 Ga. App. 556, 558 (2) (a) (734 SE2d 425) (2012); Chamlee v. Henry County Bd. of Ed., 239 Ga. App. 183, 184 (1) (521 SE2d 78) (1999); Crisp County School System v. Brown, 226 Ga. App. at 803; cf. McDowell v. Smith, 285 Ga. at 593-595 (A school district employee was not entitled to official immunity from a claim based on her violation of an early release policy that did not allow for any exercise of discretion by employees, and instead required them merely to execute specific tasks.).

In this case, Davis failed to point to any evidence from which a trier of fact could infer that Thrift and Horne’s conduct in organizing and conducting the tug-of-war contest constituted a simple, absolute, and definite act that required merely the execution of a specific duty. To the contrary, pretermitting whether Horne acted in his capacity as an employee or as a parent volunteer, the evidence is undisputed that the two men exercised personal judgment and acted on the facts presented in a way not specifically directed by the School District. The trial court did not err in concluding that they were engaged in discretionary rather than ministerial activities. Griswold v. Collins, 318 Ga. App. at 558 (2) (a); Chisolm v. Tippens, 289 Ga. App. at 759-760 (2) (a); Chamlee v. Henry County Bd. of Ed., 239 Ga. App. at 184 (1); Crisp County School System v. Brown, 226 Ga. App. at 803.

2. Davis contends that Horne was involved in the tug-of-war as a parent and not as a school employee and, therefore, the doctrine of official immunity does not bar her claim against him. Hoboken Elementary’s principal deposed that Horne was helping out “as a parent”; she did not know whether he was “on the payroll that day.” Because the evidence does not establish that Horne was acting within the scope of his duties as a public employee entitled to the protection of official immunity, rather than as a private person, the trial court erred in granting the appellees’ motion for summary judgment on the basis of official immunity. See McDowell v. Smith, 285 Ga. at 593.

The appellees now contend that Horne is entitled to immunity regardless whether he was acting as a School District employee or as a parent volunteer, citing OCGA § 51-1-30.3 (a) (1). Although a grant of summary judgment must be affirmed if it is right for any reason, whether stated or unstated in the trial court’s order, this is so only where the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond. Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013); City of Gainesville v. Dodd, 275 Ga. 834, 839 (573 SE2d 369) (2002). In this case, the record shows that the appellees did not raise the issue of OCGA § 51-1-30.3 (a) (1) in the summary judgment proceedings below. Accordingly, we cannot affirm under the right-for-any-reason rule. Georgia-Pacific, LLC v. Fields, 293 Ga. at 504 (2).

Decided November 18, 2015.

W. Douglas Adams, for appellant.

Brannen, Searcy & Smith, Jordan D. Morrow, for appellees.

Judgment affirmed in part and reversed in part.

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

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As a result, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       The trial court also determined that Davis’s suit against the School District is barred under the doctrine of sovereign immunity. Davis raised no claim of error with regard to this ruling. Thus, any error in that portion of the court’s order is deemed abandoned, and the court’s grant of summary judgment to the School District is affirmed by operation of law. Cotton v. Smith, 310 Ga. App. 428, 429 (1) (714 SE2d 55) (2011).

       See Division 2, infra.

       See also Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d) (“Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.”); McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009) (“The doctrine of official immunity, also known as qualified immunity, protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption.”) (citation and punctuation omitted); Griswold v. Collins, 318 Ga. App. 556, 558 (2) (a) (734 SE2d 425) (2012) (The doctrine of official immunity protects individual public agents including school teachers “from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption.”) (citation and punctuation omitted); Chisolm v. Tippens, 289 Ga. App. 757, 759 (2) (a) (658 SE2d 147) (2008) (accord).

       OCGA § 51-1-30.3 (a) (1) provides:
      Unless it is established that injuries or death were caused by gross negligence or willful or wanton misconduct:... [n]o natural person who voluntarily and without the expectation or receipt of compensation provides services for and at the request and sanction of a public school or private school and who does not expect or receive compensation with respect to such services from the recipient of such services .. . shall be liable for damages or injuries alleged to have been sustained by another person or damages for the injury or death of the other person when the injuries or death are alleged to have occurred by reason of an act or omission occurring on school property in the rendering of such services if such services are provided upon school property or at a school sponsored function.


author: McFadden, Judge.

text:
    A15A1583.
    EARL’S PEARLS, LLC et al. v. COBB COUNTY.
    (780 SE2d 64)
   McFadden, Judge.

In this condemnation action, condemnee D & B Child Care II, Inc. appeals from separate trial court orders denying its motion for partial summary judgment on the issue of its duty to mitigate business loss damages and granting condemnor Cobb County, Georgia’s motion for partial summary judgment as to D & B’s claim that it had no duty to mitigate its business loss damages by attempting to relocate the business. Because D & B has attacked only one ground for the trial court’s denial of its motion for partial summary judgment and has not challenged alternative grounds for the ruling, we must presume that those grounds are correct and affirm that ruling. But because there exist genuine issues of material fact as to D & B’s claim that it had no duty to mitigate business losses by relocating, we reverse the grant of partial summary judgment to condemnor.

“Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law.” Stennette v. Miller, 316 Ga. App. 425, 426 (729 SE2d 559) (2012) (citation omitted). On appeal, we review a trial court’s grant or denial of summary judgment de novo, construing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. SKC, Inc. v. eMag Solutions, 326 Ga. App. 798 (755 SE2d 298) (2014).

So viewed, the evidence shows that D & B operated a Primrose School child care franchise on property leased from property owner Earl’s Pearls, LLC. Richard and Barbara Hett owned both D & B and Earl’s Pearls, and they personally guaranteed D & B’s franchise obligations. On October 15, 2008, Cobb County filed a petition for condemnation and a declaration of taking of the property against Earl’s Pearls, D & B and others, estimating $457,600 as just compensation for the property taken and depositing that amount in the registry of the court. Earl’s Pearls and D & B timely filed an answer, counterclaim, and notice of appeal pursuant to OCGA § 32-3-14, claiming, among other things, that as a result of the taking D & B has been forced to cease operation of its school, that there were no suitable locations to relocate the school, that the amount of money paid into court for the taking is insufficient to compensate Earl’s Pearls for the value of the property taken, and that D & B is entitled to compensation for the business loss it has suffered.

D & B moved for partial summary judgment as to its duty to mitigate its business loss damages, arguing that the cost of relocating the school exceeded the value of its business and therefore, under the authority of Carroll County Water Auth. v. L.J.S. Grease & Tallow, Inc., 274 Ga. App. 353 (617 SE2d 612) (2005), it had no duty to mitigate by relocating. The trial court denied the motion, finding that condemnees had misinterpreted and mistakenly relied on Carroll County in regards to the issue of relocation costs. The trial court also denied the motion by further finding that there exist numerous issues of material fact concerning D & B’s duty to mitigate its business loss. Among other things, the trial court found that there are factual disputes for jury resolution as to whether D & B had other reasonable mitigation options, whether D & B’s attempt to exclude evidence of its failure to relocate was moot, whether D & B as a tenant-operator on the property would have to expend funds to purchase property to relocate its business, and whether D & B had waived the claim that it was relieved of the duty to mitigate by relinquishing its franchisee rights before the condemnation. Based on all those grounds, the trial court denied the motion for partial summary judgment as to D & B’s duty to mitigate its business loss damages.

Thereafter, Cobb County filed a motion for partial summary judgment as to D & B’s claim that it had no duty to mitigate its business loss damages by relocating its business. The trial court granted that motion, finding that the evidence showed that D & B had terminated its franchise rights prior to the date of the taking in this action and thus could not have relocated the business under its franchise agreement. Accordingly, the trial court concluded that D & B was precluded from claiming that it had no duty to mitigate its business loss damages by relocating. This appeal followed.

1. Denial ofD & B’s motion for partial summary judgment.

D & B cites Carroll County, supra, for the proposition that if relocation costs exceeded the value of the business, the condemnee cannot be charged with a failure to mitigate damages by not relocating that business. Pointing to evidence that its cost of relocating exceeds the value of its business, D & B contends that the trial court erred in denying its motion for partial summary judgment as to that issue.

But as noted above, the trial court not only denied summary judgment on the ground that D & B had misconstrued and improperly relied on Carroll County, but also denied the motion on the alternative grounds that there exist numerous issues of material fact concerning D & B’s duty to mitigate its business loss. D & B has failed to attack any of the alternative grounds in support of its enumeration of error claiming that the trial court erred in denying the motion for partial summary judgment.

Consequently, pretermitting whether the proposition for which D & B cites Carroll County is a correct statement of Georgia law, we must affirm based on the unchallenged alternative grounds set forth in the trial court’s order. “Grounds that are not attacked as erroneous will not be considered on appeal and are presumed to be binding and correct. An appellant’s failure to attack alternative bases for [a] summary judgment [ruling] results in the affirmance of that judgment.” Tidwell v. Coweta County Bd. of Ed., 240 Ga. App. 55, 55-56 (1) (521 SE2d 889) (1999) (citations omitted). See also Hewitt v. Community & Southern Bank, 324 Ga. App. 713, 716 (2) (751 SE2d 513) (2013).

2. Grant of condemnor’s motion for partial summary judgment.

D & B asserts that the trial court erred in granting Cobb County’s motion for partial summary judgment. We agree.

That summary judgment ruling was premised on the trial court’s finding that “the evidence of record shows that [D & B] terminated its franchise rights prior to the [October 2008] taking in this action[.]” The trial court did not identify what evidence supported that finding. But Cobb County cites to a clause in a 2010 settlement agreement between D & B and the Primrose School Franchising Company indicating that the franchise agreement was terminated on August 8, 2008.

Decided November 18, 2015.

Carol Clark Law, James B. McClung, for appellants.

Jackel & Phillips, Dana L. Jackel, Christopher L. Phillips, for appellee.

However, D & B has pointed to conflicting evidence, including the June 4, 2009 deposition of Primrose’s chief executive officer, who testified that as of that date, approximately eight months after the taking of the property, the franchise agreement with D & B had not yet been terminated. Furthermore, D & B’s counsel stated in his place that the franchise agreement was not terminated until 2010 and that the August 2008 date referenced in the settlement agreement was merely selected as a retroactive date in order to speed up the expiration of noncompete and confidentiality provisions in the franchise agreement. See Rank v. Rank, 287 Ga. 147, 149 (2) (695 SE2d 13) (2010) (counsel’s statements in his place, if not objected to, serve the same function as evidence). The trial court therefore erred in granting partial summary judgment to condemnor since D & B met its burden of “point [ing] to specific evidence giving rise to a triable issue.” Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted). See also Carroll County, supra at 354 (1) (“Where the imminency of a condemnation forces an established business to close before the date of the condemnation, the absence of a business in operation on the property on the date of the taking does not automatically end all inquiry into the relevancy of business loss evidence.”) (citations omitted). Accordingly, we reverse the grant of partial summary judgment to Cobb County.

Judgment affirmed in part and reversed in part.

Ellington, P. J., and Dillard, J., concur.

       We note that another condemnee, Earl’s Pearls, LLC, is included on the notice of appeal and the appellate brief. However, the issues raised on appeal pertain only to D & B’s business loss claim of damages.