text:
    A16A1016.
    McNORRILL v. THE STATE.
    (789 SE2d 823)
   BARNES, Presiding Judge.

A Richmond County jury found Todderius McNorrill guilty of hijacking a motor vehicle, possession of marijuana with intent to distribute, and possession of a firearm during the commission of a crime. On appeal from the denial of his motion for new trial, McNor-rill challenges the sufficiency of the evidence supporting his convictions. McNorrill further contends that he was deprived of his constitutional right to effective counsel because his trial counsel had an actual conflict of interest and failed to object to certain jury instructions. For the reasons discussed below, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). The evidence in the present case, viewed in favor of the verdict, was recently summarized by this Court in Whaley v. State, 337 Ga. App. 50 (785 SE2d 685) (2016), the appeal of McNor-rill’s co-defendant, Meguel Whaley:

[Ajround 10:30 p.m. on July 5, 2010, the victim received a call from his friend Chris asking if the victim wanted to hang out. The victim did not know Chris very welkf] but agreed to pick him up at a gas station. After meeting up with Chris, the victim drove them around until Chris asked to stop at someone’s house for a few minutes. The victim drove Chris to the house, and Chris went inside while the victim remained in his car. After Chris returned to the car, they continued to ride around until Chris received a call on his cell phone. The victim pulled his car into another gas station and let Chris out of the car so that he could talk on the phone privately. After talking on his phone, Chris got back into the car and asked the victim to drive to a nearby elementary school so that they could meet up with two men whom Chris identified as his cousin and his friend.
After Chris directed the victim to the elementary school, the victim drove into a lot on the side of the school to wait for Chris’ cousin and friend to approach the car. Once the victim had driven into the lot, however, Chris asked the victim to turn off his car and walk with him behind the school to meet up with his cousin and friend there. Although he “felt kind of suspicious” at that point, the victim agreed to walk with Chris behind the school. Upon walking behind the school, the victim saw two men, later identified as [co-defendant] Whaley and . . . McNorrill, sitting on some steps. Chris approached Whaley and McNorrill, gave them a high-five, and spoke with them privately for a few minutes while the victim stood nearby
The victim thought they were going to walk back to his car, but Whaley suddenly approached the victim and pointed a handgun at him. Whaley said, ‘"You know what time it is,” which the victim understood to mean that he was being robbed. Whaley held the gun to the victim’s head as he went through the victim’s pockets with his other hand. Chris began protesting, but Whaley told McNorrill to “shut him up,” and McNorrill pulled out a handgun and pointed it at Chris. The victim later told the police that one of the guns was a .22 caliber weapon and the other was a .380 caliber black and silver weapon.
Whaley told the victim to lie down on the ground and asked McNorrill for a roll of duct tape. After the victim lay on the ground, Whaley got the duct tape from McNorrill and wrapped it around the victim’s eyes, mouth, and hands. Whaley placed his gun against the victim’s head and again went through the victim’s pockets, taking $125 in cash, a cell phone, the victim’s keys, and his driver’s license. Whaley warned the victim that he and McNorrill had the victim’s identification and would kill the victim if he called the police. Before running from the scene, Whaley and McNorrill kicked the victim in the legs, ribs, and head.
The victim was able to free himself from the duct tape in time to see Whaley and McNorrill get inside his car and drive away from the school. [] The victim then walked to a gas station a few minutes away and used the phone to call the police. A sheriff’s deputy arrived at the gas station shortly thereafter, and the victim told the deputy about what had happened, described the two suspects, and provided a description of his stolen car. The deputy radioed the information to his dispatcher, and other deputies in the area were told to be on the lookout for the victim’s car.
A few minutes later, another deputy saw the victim’s car stopped at a red light at an intersection, confirmed that it matched the description of the stolen vehicle, and attempted to initiate a traffic stop. When the deputy activated the emergency lights on his marked patrol car, the driver of the victim’s car ignored the lights and drove away, resulting in a police chase.
A deputy in a second marked patrol car activated his emergency lights and took over the chase. As the chase continued, Whaley jumped out of the driver’s side door while the victim’s car was still moving and ran toward the woods. McNorrill remained in the front passenger seat after Wha-ley jumped out, and the victim’s car crashed through a fence and came to a stop against a tree. Deputies pursued Whaley on foot and gave several verbal commands for him to stop, but he continued running from them. One of the deputies caught up with Whaley and was able to apprehend him. . . .
Another deputy approached the crashed car and arrested McNorrill, who was still in the passenger seat. The deputy searched McNorrill and discovered twelve .22 caliber bullets in his pocket. The victim subsequently was driven to the scene where the car chase had concluded, and he confirmed that Whaley and McNorrill were the perpetrators in a show-up identification.
Deputies searched the victim’s car that had been taken by Whaley and McNorrill. Marijuana weighing a total of 4.5 grams was in plain view on the passenger seat and on the driver’s side floorboard. From the way the marijuana was packaged, it appeared to be for distribution. The victim later testified at trial that the marijuana did not belong to him. Additionally, deputies found a loaded Hi-Point .380 caliber handgun on the driver’s seat, and the victim testified that it was the gun that Whaley had pointed at him.
Deputies also searched behind the elementary school, where they found an empty roll of duct tape and a baseball cap that belonged to the victim. However, the victim’s cell phone, cash, and other personal items were never found.
Whaley and McNorrill were jointly charged with hijacking a motor vehicle, armed robbery, false imprisonment, possession of marijuana with intent to distribute, and two counts of possession of a firearm during the commission of a crime. . . . Whaley and McNorrill subsequently were tried together. The victim and responding deputies testified to the events as summarized above, and the State introduced and showed to the jury a video recording of the police car chase and photographs of the items seized at the elementary school and from the victim’s car. Whaley and McNorrill elected not to testify and did not present any defense witnesses.
After reviewing all the evidence, the jury found both Whaley and McNorrill guilty of hijacking a motor vehicle, possession of marijuana with intent to distribute, and one count of possession of a firearm during the commission of a crime.... The jury acquitted Whaley and McNorrill of armed robbery, false imprisonment, and one count of possession of a firearm during the commission of a crime. . . .

Id. at 50-53.

McNorrill filed a motion for new trial, as amended, in which he challenged the sufficiency of the evidence and contended that his trial counsel rendered ineffective assistance. After conducting an eviden-tiary hearing, the trial court denied the motion. This appeal followed.

1. McNorrill contends that there was insufficient evidence to support his conviction of possession of marijuana with intent to distribute. While he concedes that there was evidence that he possessed the marijuana found in the victim’s stolen car, McNorrill maintains that there was insufficient evidence showing that he acted with the intent to distribute the marijuana. We disagree.

To prove possession with intent to distribute, the State must show more than mere possession of a controlled substance. No bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession with intent to distribute, and whether the State has proven an intent to distribute is peculiarly a question of fact for determination by the jury Furthermore, in addressing the sufficiency of the evidence, we are always mindful that it is not our role to weigh the evidence or determine the credibility of witnesses; instead, under the standard enunciated in Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979), we only determine whether a rational trier of fact could have found the defendant guilty of the charged offense beyond a reasonable doubt.

(Citations and punctuation omitted.) Flemister v. State, 317 Ga. App. 749, 752 (1) (732 SE2d 810) (2012). Additionally, where, as in the present case, the conviction at issue is based solely 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,” and whether the State has met this burden is normally a question for the jury. (Citation and punctuation omitted.) Noble v. State, 225 Ga.App. 470, 471 (484 SE2d 78) (1997).

Here, the marijuana found in the car was packaged in nine individual baggies, with eight of the baggies contained in a larger plastic bag on the driver’s side floorboard and the ninth baggie on the passenger seat. The sheriff’s investigator testified that, based on his training and experience, the marijuana was packaged in a manner commonly used for distribution. The evidence that the marijuana was “packaged in a manner commonly associated with the sale or distribution of such contraband would authorize any rational trier of fact to infer that [McNorrill] possessed marijuana, a controlled substance, with intent to distribute.” (Citations and punctuation omitted.) Flemister, 317 Ga.App. at 752 (1). See Williams v. State, 303 Ga. App. 222, 224-225 (2) (692 SE2d 820) (2010); Mayo v. State, 277 Ga.App. 282, 283 (1) (a) (626 SE2d 245) (2006); Rutledge v. State, 224 Ga.App. 666, 668 (1) (482 SE2d 403) (1997); Bowers v. State, 195 Ga. App. 522, 522 (1) (394 SE2d 141) (1990).

Moreover, in addition to the packaging of the marijuana, the evidence shows that a loaded handgun was found on the driver’s seat, bullets were found in McNorrill’s pocket, and the victim testified that McNorrill had a handgun that night. This evidence further supported McNorrill’s conviction for possession of marijuana with intent to distribute. See State v. Jackson, 287 Ga. 646, 652 (2) (697 SE2d 757) (2010) (pointing out that it is “not unusual” for drug dealers to be armed); Smith v. State, 335 Ga. App. 742, 744 (1) (782 SE2d 824) (2016) (noting that a “loaded handgun with a bullet in the chamber was found in the front passenger seat” in affirming conviction for possession of drugs with intent to distribute). Conversely, there was no evidence that McNorrill or his co-defendant was a drug user or was under the influence of drugs, and no evidence of any smoking devices, rolling papers, or other paraphernalia associated with drug use found in the car. Accordingly, under the totality of the evidence, a rational jury could reject the alternative hypothesis that the marijuana was for personal use rather than distribution. See Jackson v. State, 314 Ga. App. 272, 276 (1) (c) (724 SE2d 9) (2012).

Two cases relied upon by McNorrill, Hicks v. State, 293 Ga. App. 830 (668 SE2d 474) (2008), and Clark v. State, 245 Ga. App. 267 (537 SE2d 742) (2000), do not require a different result. In Hicks, we concluded that the evidence presented at trial supported the reasonable alternative hypothesis that the drugs found in the defendant’s car were for personal use rather than distribution, where the only evidence of intent to distribute was that the defendant possessed a pill bottle containing an unidentified number of broken-up pieces of cocaine, and an investigator testified that storing drugs in such a disposable container indicated an intent to sell. 293 Ga. App. at 831-833. We specifically noted, however, that there was no evidence of weapons or of “drug packaging materials such as baggies in the vehicle.” Id. at 832. Hicks thus is materially distinguishable in light of the loaded handgun and individualized packaging of the marijuana found in the car here.

Clark is likewise distinguishable. In Clark, we concluded that the evidence was insufficient to prove that the drugs were for distribution rather than personal use, where the police discovered eight bags of an unidentified amount of marijuana in a van with four people inside of it parked behind a restaurant in the middle of the night. 245 Ga. App. at 267-269. The passengers in the van were sitting on or next to several of the bags. Id. at 268. The police also found a cigar on the dashboard of the van that had been cut open with the tobacco removed, which a police officer testified was “consistent with people getting ready to replace the tobacco with marijuana, [to] make a joint.” (Punctuation omitted.) Id. at 267. Given the number of people in the van where the marijuana was found, the unidentified amount of marijuana, the absence of any guns or “drug packaging materials,” and the presence of the cigar made into a drug smoking device, Clark clearly diverges factually from the situation here. Id. at 269.

As we have emphasized, “the intent with which an act is done is peculiarly a question of fact for determination by the jury. Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this.” (Citation and punctuation omitted.) Mayo, 277 Ga. App. at 283 (1) (a). Given the combined evidence in this case, we conclude that the State met its burden of proving that McNorrill intended to distribute the drugs, and the jury was authorized to find McNorrill guilty beyond a reasonable doubt of possession of marijuana with intent to distribute. Jackson, 443 U. S. at 319 (III) (B).

2. McNorrill next contends that he was denied his constitutional right to effective counsel because his trial counsel had an actual conflict of interest that adversely affected the representation. According to McNorrill, an actual conflict of interest arose because his trial attorney was employed in the same circuit public defender’s office as the attorney who represented his co-defendant, and he and his co-defendant had antagonistic interests that precluded them from being represented by attorneys in the same office. We are unpersuaded.

As our Supreme Court has pointed out, “the potential for serious conflicts of interest [exists] when one lawyer represents co-defendants in a criminal proceeding.” Tolbert v. State, 298 Ga. 147, 148(2) (a) (780 SE2d 298) (2015), citing In re Formal Advisory Opinion 10-1, 293 Ga. 397, 400 (2) (744 SE2d 798) (2013). And

if it is determined that a single public defender in the circuit public defender’s office of a particular judicial circuit has an impermissible conflict of interest concerning the representation of co-defendants, then that conflict of interest is imputed to all of the public defenders working in the circuit public defender office of that particular judicial circuit.

In re Formal Advisory Opinion 10-1, 293 Ga. at 399 (1). See Pryor v. State, 333 Ga. App. 408, 410 (2) (776 SE2d 474) (2015).

But “the mere ‘possibility of conflict is insufficient to impugn a criminal conviction.’ ” Lytle v. State, 290 Ga. 177, 178 (2) (718 SE2d 296) (2011), quoting Cuyler v. Sullivan, 446 U. S. 335, 350 (IV) (C) (100 SCt 1708, 64 LE2d 333) (1980). Rather, “[t]o prevail on a claim that a conflict of interest worked a denial of the effective assistance of counsel, a defendant like [McNorrill] — one who failed to object to the conflict at trial — must show that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” (Footnote omitted.) Tolbert, 298 Ga. at 149 (2), quoting Cuyler, 446 U. S. at 348 (IV) (B). See State v. Abernathy, 289 Ga. 603, 604 (1) (715 SE2d 48) (2011); Pryor, 333 Ga. App. at 412-413 (2).

[T]he critical question is whether the conflict significantly affected the representation, not whether it affected the outcome of the underlying proceedings. That is precisely the difference between ineffective assistance of counsel claims generally, where prejudice must be shown, and ineffective assistance of counsel claims involving actual conflicts of interest, which require only a showing of a significant effect on the representation.

(Citation omitted; emphasis in original.) Abernathy, 289 Ga. at 604-605 (1). Thus, McNorrill had to show that the simultaneous representation of himself and his co-defendant by two lawyers working in the same public defender’s office created a conflict of interest that significantly affected his own lawyer’s performance. See id.; Pryor, 333 Ga. App. at 412-413 (2).

In reviewing whether McNorrill proved that his trial counsel was laboring under a conflict of interest that adversely affected his counsel’s performance, we owe no deference to the trial court’s application of the law to the facts. Tolbert, 298 Ga. at 151 (2) (a). “We owe substantial deference, however, to the way in which the trial court assessed the credibility of witnesses and found the relevant facts.” Id. Mindful of this standard of review, we turn to the record in this case.

While McNorrill and his co-defendant were represented by attorneys in the same trial team at the same circuit public defender’s office, there was no evidence of any communications or collaboration between the attorneys regarding this case. Rather, McNorrill’s trial counsel testified at the hearing on the motion for new trial that she recalled no such communications or collaboration with the other attorney in her office. Furthermore, trial counsel testified that she felt no constraints in her representation of McNorrill and did not feel that there was any conflict that inhibited her trial performance, and there is nothing in the trial transcript reflecting otherwise. Trial counsel also testified that if a conflict had existed, she would have reviewed the issue with her supervisor, but there had been no need to do so under the circumstances here. Given this record, the trial court was entitled to find that McNorrill failed to show that his trial counsel was laboring under an actual conflict of interest that negatively impacted her pre-trial preparation or her performance during trial.

McNorrill nevertheless argues that an actual conflict of interest arose at one point before trial when the prosecutor offered him a plea conditioned on McNorrill testifying against his co-defendant, thereby causing McNorrill and his co-defendant to have interests that were antagonistic to one another. However, McNorrill’s trial counsel testified at the new trial hearing that she fully informed McNorrill of the plea offer, that she told him that it was his decision whether to accept the offer, and that “it [had been] of no account to [her]” whether McNorrill chose to testify against his co-defendant. Trial counsel also testified that McNorrill was very “deferential” to his co-defendant and looked to his co-defendant “for cues ... in making decisions about what he wanted to do.” The trial transcript reflects that when the plea offer was later brought up in open court, McNorrill rejected the offer, stating, “I would take the offer, but I don’t want to testify.” In light of this combined record evidence, the trial court was entitled to find that any potential conflict arising from the plea offer did not adversely affect the manner in which trial counsel handled the offer or conveyed it to McNorrill, and that McNorrill made his own independent decision not to accept the offer because he did not want to testify at trial.

In sum, as the trial court was authorized to conclude, McNorrill failed to establish that the simultaneous representation of himself and his co-defendant by two public defenders in the same office created an actual conflict of interest that significantly affected his own lawyer’s performance before or during trial. See Abernathy, 289 Ga. at 604-605 (1); Lytle, 290 Ga. at 178-179 (2); Pryor, 333 Ga. App. at 413-414 (2); Johnson v. State, 320 Ga. App. 161, 165-166 (4) (739 SE2d 469) (2013). It follows that the trial court did not err when it denied McNorrill’s motion for new trial on this ground.

3. McNorrill also contends that his trial counsel was ineffective for failing to object to the trial court’s jury instruction on possession of marijuana with intent to distribute. We disagree.

Count 5 of the indictment charged McNorrill with violating the Georgia Controlled Substances Act, OCGA § 16-13-30 (j), by possessing marijuana with the intent to distribute. In defining the alleged offense to the jury, the trial court instructed:

The offense charged in [Cjount 5 of this indictment is a violation of the Georgia Controlled Substances Act, which provides that it is unlawful for any person to [(a)] possess, or have under one’s control or [(b)] possess with intent to distribute any quantity of marijuana, which is a controlled substance.

According to McNorrill, the trial court’s instruction was erroneous because it included a reference to simple possession of marijuana as a violation of the Georgia Controlled Substances Act, and thus could have misled the jury into convicting him of a drug crime different, from that charged in the indictment. Consequently, McNorrill contends that his trial counsel was ineffective for failing to object to the instruction.

While instructing the jury that a crime can be committed in a manner different from that charged in the indictment can constitute reversible error, a reversal is not mandated where, as here, the charge as a whole limits the jury’s consideration to the specific manner of committing the crime alleged in the indictment.

(Punctuation and footnote omitted.) Machado v. State, 300 Ga. App. 459, 462 (5) (685 SE2d 428) (2009). See Wheeler v. State, 327 Ga. App. 313, 319 (3) (758 SE2d 840) (2014). Here, the trial court read the indictment to the jury, instructed the jury that the State had the burden of proving every material allegation of the indictment beyond a reasonable doubt, further instructed the jury that it could find McNorrill guilty if it found beyond a reasonable doubt that he committed the offenses “alleged in the indictment,” and provided the indictment to the jury during its deliberations.

These instructions, when considered as a whole, cured any potential error in the trial court’s instruction on Count 5 of the indictment. See Dugger v. State, 297 Ga. 120, 123 (6) (772 SE2d 695) (2015); Faulks v. State, 296 Ga. 38, 39 (2) (764 SE2d 846) (2014); Wheeler, 327 Ga. App. at 319-320 (3); Machado, 300 Ga. App. at 462-463 (5). Under these circumstances, McNorrill cannot show that the jury instruction prejudiced his case, and thus cannot succeed on his ineffective assistance claim. See Gomillion v. State, 236 Ga. App. 14, 18 (3) (c) (512 SE2d 640) (1999) (“Failure to object to a court’s charge[ ] ... is not ineffective assistance where the appellant does not show how this prejudiced his case.”) (citation and punctuation omitted).

4. Lastly, McNorrill contends that his trial counsel was ineffective for failing to object to the trial court’s jury instruction on possession of a firearm during the commission of a crime. Again, we disagree.

OCGA § 16-11-106 (b) (4) provides that a person commits a felony when he possesses a firearm on or within arm’s reach of his person during the commission of certain felony drug-related crimes. The trial court instructed the jury on the definition of possession of a firearm during the commission of a crime:

A person commits the offense of possession of a firearm during the commission of a crime when the person has on or within arm’s reach of his person a firearm during the commission of or any attempt to commit a felony, which is ... any crime involving the possession, or possession with intent to distribute a controlled substance. I charge you marijuana is a controlled substance.

McNorrill argues that the trial court’s instruction, by including a reference to possession of marijuana as a potential predicate felony offense for the firearm crime, was an incorrect statement of the law under the facts of this case. He emphasizes that possession of marijuana is only a felony if the amount of marijuana possessed is greater than one ounce, OCGA § 16-13-2 (b), but the amount of marijuana found in the victim’s stolen vehicle was less than that amount. Consequently, McNorrill argues, his mere possession of marijuana in this case would not have supported a conviction of possession of a firearm during the commission of a crime, and his trial counsel was ineffective for failing to object to the jury instruction on that basis.

Even if McNorrill’s trial counsel was deficient for failing to object to the jury instruction, McNorrill has failed to show how that error was prejudicial. The jury found McNorrill guilty of possession of marijuana with intent to distribute, there was sufficient evidence to support that felony conviction as explained supra in Division 1, and it is undisputed that possession of marijuana with intent to distribute could serve as the predicate felony offense for McNorrill’s conviction of possession of a firearm during the commission of a crime under OCGA § 16-11-106 (b) (4). Hence, “there is not a reasonable probability that, if the trial court had omitted the [reference to simple possession of marijuana from the instruction] at [McNorrill’s] behest, the outcome of the trial would have been more favorable to him.” Daughtry v. State, 296 Ga. 849, 859 (2) (g) (770 SE2d 862) (2015). McNorrill therefore cannot succeed on his ineffective assistance claim. Id.

Decided August 3, 2016.

Edward H. Brumby, Jr., for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Madonna M. Little, Assistant District Attorneys, for appellee.

Judgment affirmed.

Boggs, J., concurs. Rickman, J., concurs in judgment only.

       The victim did not know Chris’ last name or where he lived.

       Chris apparently ran off separately, but the record is unclear on this point.

       In his enumerations of error, McNorrill also contends that the evidence was insufficient to convict him of hijacking a motor vehicle. However, in the argument section of his brief, McNorrill provides no argument or citations of authority addressing the sufficiency of the evidence as to the motor vehicle hijacking offense. McNorrill thus has abandoned any challenge he may have had to his motor vehicle hijacking conviction on the asserted ground. See Court of Appeals Rule 25 (a) (3), (c) (2); Jones v. State, 289 Ga. App. 219, 221 (1), n. 1 (656 SE2d 556) (2008). Nevertheless, we have reviewed the trial record and conclude that there was sufficient evidence for a rational trier of fact to find McNorrill guilty beyond a reasonable doubt of hijacking a motor vehicle.

       While McNorrill argues that the State failed to qualify the sheriff’s investigator as an expert, McNorrill failed to object on that ground at trial and therefore has waived any objection to the investigator rendering an opinion regarding the marijuana packaging. See Boring v. State, 303 Ga.App. 576, 579 (1) (694 SE2d 157) (2010). Furthermore, the State laid a foundation for the investigator’s opinion testimony by eliciting testimony about his “couple hundred” encounters with marijuana and its different forms of packaging during the course of his career.

       McNorrill also argues that because the evidence was insufficient to convict him of possession of marijuana with intent to distribute, the evidence likewise was insufficient to convict him of possession of a firearm during the commission of that drug-related crime. McNorrill’s argument is without merit, in light of our conclusion that there was sufficient evidence to convict him of possession of marijuana with intent to distribute.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A16A1239.
    HOLDAWAY v. HOLDAWAY.
    (789 SE2d 817)
   BARNES, Presiding Judge.

The father, Owen Lee Holdaway, filed a child custody modification action against the mother, Bobbi Sue Holdaway, seeking primary custody of their daughter, L. H. The maternal grandmother, Terry Jo Stewart, filed a motion to intervene in the custody modification action, seeking custody of the child or, in the alternative, visitation rights. The trial court granted the grandmother’s motion to intervene, and, after conducting a bench trial, the court awarded the grandmother custody of the child and awarded the father visitation. On appeal, the father challenges the trial court’s award of custody to the grandmother, contending that there was insufficient evidence that the child would be harmed if placed in his custody, and that the court applied the wrong legal standard under our Supreme Court’s recent decision in Stone v. Stone, 297 Ga. 451 (774 SE2d 681) (2015). For the reasons discussed below, we affirm.

Following a bench trial in a child custody case, we view the evidence in the light most favorable to the trial court’s decision. Strickland v. Strickland, 298 Ga. 630, 633-634 (1) (783 SE2d 606) (2016). So viewed, the record reflects that the mother and father were married in 2007 when they were 20 years old. Shortly after the mother and father were married, their daughter L. H. was born. L. H. was eight years old at the time of the bench trial.

L. H. has a sister who is approximately one year older than her. The older sister has the same mother but a different biological father than L. H. and was around six months old at the time of the 2007 marriage. It is undisputed that the father in this case has no legal custodial rights over the older sister.

In 2009, the mother and father divorced. Under the terms of the divorce agreement entered into by the parties and incorporated into the final judgment and decree of divorce, the mother and father shared joint legal custody of L. H., with the mother receiving primary physical custody and the father receiving visitation. The divorce agreement did not contain any provisions applicable to L. H.’s older sister.

Shortly after the divorce, the mother, L. H., and L. H.’s older sister moved into the home of the maternal grandparents. The maternal grandmother became the primary caregiver of the children and developed a strong bond with them. The maternal grandmother also became the legal guardian of L. H.’s older sister.

In the years after the divorce, the mother suffered problems with drug and alcohol addiction, was admitted into an in-patient substance abuse rehabilitation program, spent time in jail, and had two more children with different fathers. The mother lived with the maternal grandparents only sporadically, while L. H. and her older sister remained in the continuous care of the maternal grandmother. The mother provided no financial support for the children and did not see them consistently.

The father acquiesced to the maternal grandmother serving as the primary caregiver of L. H. because he believed that the grandmother provided a more stable environment for the children than the mother, and his erratic employment situation prevented him from having L. H. live with him. The father exercised visitation with L. H., but not to the full extent authorized by the divorce agreement. He also maintained contact with L. H.’s older sister, who would join L. H. when she had visitation with the father. The father did not consistently pay his child support on time or provide health insurance for L. H. as required by the divorce agreement.

In 2014, following a dispute over summer visitation, the father filed a petition to modify child custody against the mother in which he sought primary physical custody of L. H. The maternal grandparents stopped permitting the older sister to join L. H. on her weekend visits with L. H.’s father from that point forward.

The maternal grandmother filed a motion to intervene in the child custody modification action, seeking custody of L. H. or, in the alternative, visitation rights. The trial court granted the grandmother’s motion to intervene, and a two-day bench trial was conducted in 2015.

At the bench trial, several witnesses testified about the uncharacteristically close relationship between L. H. and her older sister, and about the strong bond between the maternal grandmother and the two sisters that had developed after many years of living together. One witness, a retired school teacher and friend of the maternal grandmother, testified that L. H. and her older sister were extremely close, much more so than most children their age, and that the grandmother was “the stabilizing force in those girls[’] lives.” Another friend of the maternal grandmother testified that L. H. and her sister are “Super Glued together and when they’re apart, they’re miserable.”

Additionally, the sisters’ uncle testified that the sisters are closer than most siblings and are together most of the time, that the grandmother had raised the two sisters as her own daughters, and that it would be wrong to remove L. H. from the home of her older sister and grandmother with whom “she’s got such a strong bond.” The maternal grandfather similarly testified that the sisters are like “Frick and Frack” because “they are tight, tightest sisters,” and described L. H.’s relationship with her maternal grandmother as being “like Velcro. . . . [WJherever [the grandmother] goes, [L. H.] goes.” The grandfather further testified that it would emotionally harm L. H. to be separated from the household of her sister and grandmother.

The mother testified at the bench trial as well. She described the maternal grandmother as “the rock, the foundation for those kids.” In discussing the relationship between L. H. and the older sister, the mother testified, “I cannot imagine . . . moving both or either one of them without causing some sort of emotional turmoil,” and described them as being “like two pieces in a puzzle that fit together.” The mother referred to the maternal grandparents as the sisters’ “solid foundation,” and noted that the sisters “are each other’s foundation as well,” given that “[throughout their entire li[ves], the one thing that has remained stable ... is that they were together.”

The maternal grandmother also testified at the bench trial. She testified that L. H. and her older sister are extremely close, to the extent that they sleep together in the same bed every night, that they “thrive on each other,” and that it would hurt them to be separated from one another. According to the maternal grandmother, “emotionally it’s going to kill them” if the two sisters were separated from the same household, and L. H. would suffer emotional harm if primary physical custody was granted to the father. The maternal grandmother further testified that L. H. went to a great elementary school and had good friends and indicated that those aspects of her life would be entirely disrupted if she were removed from her current home. Additionally, the grandmother testified that L. H. had become more quiet and withdrawn since this litigation began and that she was currently taking L. H. and her older sister to a counselor.

When the father testified at the bench trial, he noted that the maternal grandparents had been a source of stability for L. H. and her sister and that they provided the best home for the children after the divorce. He acknowledged the close relationship between L. H. and her older sister and testified that the older sister could visit as often as she wanted if he obtained primary custody of L. H., but he conceded that he had no legal custodial rights to the older sister. The father further testified that he had lived at five different residences and had eleven different jobs since his divorce from the mother, and that his current job was only a month old. The father also conceded that he had not consistently paid his child support on time or provided health insurance for L. H. as required by the divorce agreement, although he was now current on his child support obligations and had health insurance in place for L. H. Additionally, the father testified that after the divorce, he had begun dating a 17-year-old high school student when he was 26 years old, and that he would not disapprove of L. H. having a similar relationship with an older man and believed that his relationship with the student provided a good model for L. H.

The father also called his girlfriend and his own father, i.e., the paternal grandfather, as witnesses at the bench trial. They both testified that the father is a capable and loving parent to L. H. and that it would be in her best interest to reside with him.

At the conclusion of the bench trial, the father requested that the trial court grant primary physical custody of L. H. to him and visitation to the maternal grandmother. The mother requested that the court grant primary physical custody of L. H. to the grandmother and visitation to the mother. The grandmother requested that the court grant primary physical custody of L. H. to her and visitation to the father, but not the mother.

After hearing from the parties, the trial court ruled from the bench, finding that awarding physical custody of L. H. to the father or mother would “completely undermine the stability of the child’s current home,” would “traumatically change the continuity of the child’s life,” and “would sever, or at least dramatically change the relationship that she has with her closest sibling.” The trial court further ruled that it was unwilling to separate L. H. from her older sister because there was clear and convincing evidence that such a separation, when combined with disrupting L. H.’s other relationships and long-term living environment, would cause her emotional harm. Consequently, the trial court granted primary physical custody of L. H. to the maternal grandmother and visitation to the father, and granted joint legal custody to the grandmother and the father. The trial court granted no visitation to the mother.

Subsequently, the Supreme Court of Georgia issued its opinion in Stone, 297 Ga. 451, which reversed a trial court’s award of joint legal custody to a parent and a grandparent. The trial court in the present case then conducted a status hearing with the parties regarding the effect of Stone on the custody decision here. After the status hearing, the trial court entered a written order in which it granted primary physical custody and legal custody of L. H. to the maternal grandmother, granted visitation to the father, and declined to grant any formal visitation to the mother.

In its written custody order, the trial court found that awarding custody to the maternal grandmother rather than the father or mother was appropriate under the legal standard set forth in Clark v. Wade, 273 Ga. 587, 598-599 (IV) (544 SE2d 99) (2001). Among other things, the trial court found:

The Court finds the [maternal grandmother’s] home is the only home [L. H.] has ever known and the only fixed, certain and stable place this child has known;
Further, the Court finds the [grandmother] to be the only caregiver [ ] that this child has ever known and that the last six years during which the child has resided with the [grandmother] transpired during very important years of key development for this child;
The Court finds that its ruling today is essentially solidifying the situation that has existed in point of fact over many years of this child’s life and that removing the child from this environment and awarding custody to the [father] would completely and dramatically undermine the stability of this child’s home and this child’s life;
Further, the Court finds compelling the testimony of numerous witnesses as to the close relationship between [L. H.] and her sibling with whom she has lived her entire life. The Court is not willing to separate this child from her closest sibling nor is the Court willing to upset everything in this child’s life or undermine and sever her security and her relationships by essentially modifying the “happy arrangement” that the parents have been content to allow all of this time.
Accordingly, the Court finds by clear and convincing evidence that an award of custody to the [grandmother] is appropriate. The Court further finds by clear and convincing evidence that to make any other award, including awarding custody to the . . . [f]ather would be harmful, emotionally harmful, to the child not simply by separating her from sibling but by upsetting the child’s stable living environment, upsetting every other relationship that the child has, taking the child out of the school which she is currently attending and otherwise severing her relationship with whatever friends it is that she might have developed at school or in the neighborhood, all of which would be significantly emotionally harmful to this child. The Court makes this finding based on clear and convincing evidence.

Upon entry of the trial court’s written order, the father filed the present appeal, challenging the award of custody to the maternal grandmother. The mother did not appeal the trial court’s order and has filed a brief in the current appeal arguing for affirmance.

We begin by noting the legal framework applicable in this case. Custody disputes between a biological parent and certain third-party relatives, including grandparents, are governed by OCGA § 19-7-1 (b.1). The seminal case in construing OCGA § 19-7-1 (b.1) is our Supreme Court’s plurality decision in Clark, 273 Ga. 587. See Trotter v. Ayres, 315 Ga. App. 7, 8 (2) (726 SE2d 424) (2012). As explained in Clark and subsequent cases of the Supreme Court and this Court,

OCGA § 19-7-1 (b.l) establishes a rebuttable presumption that it is in the best interest of the child to award custody to the parent of the child. The following three presumptions are implicit in the statute: (1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child’s best interest is to be in the custody of a parent. The presumption can nonetheless be overcome by the third-party relative showing, by clear and convincing evidence, that parental custody would harm the child. Harm in this context has been defined as either physical harm or significant, long-term emotional harm, not merely social or economic disadvantages. Once the presumption has been overcome, the third-party relative must prove that an award of custody to him or her will best promote the child’s health, welfare, and happiness. Thus, in applying the legal standard set forth in OCGA § 19-7-1 (b.l), the trial court need not determine that the parent seeking custody is unfit, only that the third-party relative has established by clear and convincing evidence that awarding custody to the parent would cause either physical harm or significant, long-term emotional harm to the child. If the third-party relative meets this burden, then the relative must show that an award of custody to him or her would best promote the child’s health, welfare, and happiness.

(Citations and punctuation omitted.) Trotter, 315 Ga. App. at 8-9 (2). See Strickland, 298 Ga. at 631 (1); Clark, 273 Ga. at 598-599 (IV); Brawner v. Miller, 334 Ga. App. 214, 215-217 (1) (778 SE2d 839) (2015); Lively v. Bowen, 272 Ga. App. 479, 482-483 (1) (612 SE2d 625) (2005).

In reviewing a trial court’s findings in a custody dispute under OCGA § 19-7-1 (b.1), we are mindful that “[i]n the appellate review of a bench trial, a trial court’s factual findings must not be set aside unless they are clearly erroneous.” Strickland, 298 Ga. at 633 (1). “[D]ue deference must be given to the trial court, acknowledging that it has the opportunity to judge the credibility of the witnesses,” and the evidence must be construed in the light most favorable to the trial court’s decision. Id. at 633-634 (1). As our Supreme Court has emphasized, it is for the trial court, not appellate courts, “to resolve conflicts in the testimony” in determining whether a child will suffer physical harm or significant, long-term emotional harm if returned to the custody of the biological parent. Id. at 634 (1).

1. On appeal, the father contends that the trial court erred in finding that awarding custody to him would cause L. H. to suffer physical harm or significant, long-term emotional harm, as required by Clark and its progeny. While there was no evidence that L. H. would suffer physical harm from an award of custody to her father, we conclude that, when construed under the appropriate deferential standard of review, there was clear and convincing evidence that L. H. would suffer significant, long-term emotional harm.

As the Supreme Court of Georgia has held when contemplating the issues of harm and custody, a trial court must go beyond the parent’s biological connection or present fitness and consider a variety of factors, including: (1) who are the past and present caretakers of the child; (2) with whom has the child formed psychological bonds; (3) have the competing parties evidenced interest in, and contact with, the child over time; and (4) does the child have unique medical or psychological needs that one party is better able to meet.

(Punctuation and footnote omitted.) Brawner, 334 Ga.App. at 217 (2), quoting Clark, 273 Ga. at 598-599 (IV).

Here, it is clear from the trial court’s oral ruling at the conclusion of the bench trial and its subsequent written order that the court considered the factors set forth above and found that L. H. would suffer significant, long-term emotional harm if custody were granted to her father. As detailed above, multiple witnesses testified to the unusually strong sibling bond between L. H. and her sister and the emotional damage that would be caused if they were separated from the same household, and about the strong emotional bond between the siblings and the maternal grandmother that had developed over the many years during which they had remained in her care. Additionally, there was evidence that the father acquiesced to the grandmother serving as the day-to-day caregiver of L. H. for many years, that he had failed to exercise all of the visitation available to him under the divorce agreement, that he had repeatedly changed jobs and residences, that his current job was only one month old, and that he had engaged in a romantic relationship with a high school student that he considered to be a model relationship for L. H.

Given these particular factual circumstances, and in light of the deferential standard of review, the trial court was entitled to find that L. H. would suffer significant, long-term emotional harm if she were uprooted from virtually the only home she had ever known with her maternal grandmother and older sister and instead placed in the custody of her father. See Strickland, 298 Ga. at 634-635 (1); Brawner, 334 Ga. App. at 218-219 (2); Lively, 272 Ga. App. at 483-485 (1). Compare Bell v. Taylor, 334 Ga. App. 267, 269 (779 SE2d 42) (2015). While “some level of stress and discomfort may be warranted when the goal is reunification of the child with the parent,” Clark, 273 Ga. at 598 (IV), the trial court was authorized to find that the emotional harm to L. H. would exceed the “routine” level of stress inherent in any change of custody, particularly in light of the unusually close sibling relationship that would be if disrupted if custody were placed with the father. Consequently, we discern no basis for reversal on the asserted ground.

2. The father also contends that the trial court misconstrued the Supreme Court of Georgia’s recent decision in Stone, 297 Ga. 451, and thus applied the wrong legal standard in awarding custody of L. H. to the maternal grandmother. We disagree.

In Stone, 297 Ga. at 455, our Supreme Court held that, on the one hand, “in situations where a parent is suitable to exercise custody overachild, [OCGA § 19-7-1(b.1)] does not allow... parental custody to be limited by a joint custody arrangement with a grandparent[.]” On the other hand, where neither parent is suitable to have custody under the standard set forth in OCGA § 19-7-1 (b.1) as construed in Clark, the Supreme Court in Stone held that “a grandparent might certainly be . . . qualified to have sole custody of a minor child.” Id. at 455.

Here, as previously noted, the trial court determined that under the standard set forth in OCGA § 19-7-1 (b.1) as construed in Clark, sole custody of L. H. should be awarded to the maternal grandmother rather than the mother or father. The trial court’s determination was consistent with the holding in Stone that a grandparent may be qualified to have sole custody of the child when neither parent is considered suitable under OCGA § 19-7-1 (b.1) and the Clark decision, and therefore the trial court committed no error in the legal framework it employed. Accordingly, we affirm the trial court’s award of custody to the maternal grandmother.

Judgment affirmed.

Boggs and Rickman, JJ., concur.

Decided August 3, 2016.

James M. Adam, for appellant.

Andrew, Merritt, Reilly & Smith, Steven M. Reilly, for appellee.

       The father maintains that the maternal grandmother only moved to intervene so as to obtain visitation rights with L. H. pursuant to OCGA § 19-7-3, but the grandmother’s motion stated in the alternative that she was seeking custody of L. H., which fell under the statutory framework of OCGA § 19-7-1 (b.1), as discussed supra.

       OCGA § 19-7-1 (b.l) provides in relevant part:
      . . . [I]n any action involving the custody of a child between the parents or either parent and a third party limited to grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent, parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.

       The father relies upon Bell in arguing that reversal is required, but that case is clearly distinguishable. In Bell, the trial court, before awarding custody of the child to the grandmother rather than the mother, “remarked that he could decide the case either way and would sleep well at night because he felt that both parties would take good care of [the child].” 334 Ga. App. at 269. The trial court in the present case never suggested that he “could decide the case either way” and consistently found that placement of L. H. with the father rather than the maternal grandmother would harm L. H. and not be in her best interest.


author: PHIPPS, Presiding Judge.

text:
    A16A0849.
    In the Interest of K. H., a child.
    (790 SE2d 279)
   PHIPPS, Presiding Judge.

The state filed a delinquency petition against 15-year-old K. H., charging her with possession of less than one ounce of marijuana and giving false statements. The juvenile court thereafter denied K. H.’s motion to suppress incriminating statements she had made to police. We granted K. H.’s petition for interlocutory review to consider whether the court erred in denying her motion. Because the juvenile court did not properly determine whether K. H.’s statements were made voluntarily, we remand the case for further proceedings consistent with this opinion.

As an initial matter, we note that the juvenile court failed to transmit a transcript of the hearing on the motion to suppress, although, in her notice of appeal, K. H. requested that nothing be omitted from the record. The court reporter was apparently unable to transcribe the hearing due to an equipment malfunction. Instead, the juvenile court, with the consent of the parties, transmitted an audio recording. The sound quality of the audio recording, however, is so poor as to be unintelligible, and we have not considered it here.

“On appeal from a ruling on a motion to suppress, we defer to the trial court’s factual findings and credibility determinations, but review de novo the court’s application of the law to the undisputed facts.” And, to the extent that the controlling facts are “plainly discernable” from a recording, we review those facts de novo.

The limited record before us, which includes the video recording of the encounter between K. H. and the police, shows the following. On the early morning of June 7, 2015, a Newnan police officer saw a car parked in a commercial area. The officer approached the parked car and knocked on the window, and the 19-year-old driver opened the door. K. H. was in the passenger seat. The officer smelled a strong odor of marijuana, and the driver handed the officer an object that appeared to be a marijuana cigarette.

The driver identified himself, and the officer extracted the driver from the vehicle. The driver admitted that they had been smoking marijuana and consented to a search of the vehicle. A second officer then patted down the driver.

K. H. exited the vehicle. An officer asked her for identification, and she replied that she had none. In response to police questioning, K. H. gave her full name and a date of birth that would have made her 18 years old. The officer then searched the car, while K. H. and the driver stood with two other officers.

After the search, the officer who had initiated the encounter asked K. H. and the driver which one of them wanted to “own up to the marijuana.” The driver motioned toward K. H., and K. H. pointed to herself and said that she had purchased the marijuana. The driver was handcuffed, told that he would be charged with misdemeanor possession of marijuana, and placed in a patrol car. K. H. was also placed in a patrol car. After running K. H.’s name through the system, the officers realized that she was, in fact, only 15 years old.

K. H. filed a motion to suppress her statements claiming ownership of the marijuana, arguing that the statements were not voluntary because she was unlawfully questioned without first being given Miranda warnings and, thus, her statements were obtained in violation of her Fifth Amendment right against self-incrimination. Following a Jackson-Denno hearing, the juvenile court denied the motion.

On appeal, K. H. contends that the juvenile court failed to properly consider her motion to suppress and should have excluded her statements to police because she was in custody and had not yet been advised of her Miranda rights, and the officer’s question was intended to invoke an incriminating response.

“The state bears the burden of demonstrating the voluntariness of a custodial statement by a preponderance of the evidence.”

Miranda warnings must be administered to an accused when the accused is in custody and subjected to interrogation or its functional equivalent, i.e., any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Whether a person is “in custody” for Miranda purposes depends “upon the objective circumstances attending the particular interrogation at issue, and not upon the subjective views of either the person being interrogated or the interrogating officer.” “[Ajlthough officers may make initial on-the-scene inquiries without Miranda warnings to ascertain the nature of the situation at hand, the questioning must not be aimed at obtaining information to establish a suspect’s guilt.”

We agree with K. H. that the juvenile court failed to properly consider her motion to suppress. However, we are unable to review K. H.’s substantive claim of error at this time because “there is in this case no actual ruling or finding in the record showing that the trial judge determined the voluntariness of the confession.” The juvenile court’s order made no findings regarding the voluntariness of K. H.’s statements or whether she was in custody Rather, the juvenile court addressed only whether police had probable cause to approach the vehicle and request permission to search.

Because the juvenile court did not rule on the voluntariness of K. H.’s statements, the case must be remanded. Upon remand, the juvenile court is directed to enter its findings, after further hearing if necessary, as to whether K. H. was in custody and whether her statements were made voluntarily.

Decided August 8, 2016.

Kristen H. Abramowicz, for appellant.

Sandra N. Wisenbaker, Solicitor-General, Amy B. Godfrey, Natalie A. Ayers, Assistant Solicitors-General, for appellee.

Case remanded with direction.

Dillard and Peterson, JJ., concur.

       See OCGA § 16-13-30 (j).

       See OCGA § 16-10-20.

       See Court of Appeals Rule 17 (it is the duty of the clerk of the trial court to transmit to this court the original transcript and copies of all records).

       See OCGA § 5-6-41 (g) and (i) (authorizing the parties to file a substitute transcript or a “stipulation of the case showing how the questions arose and were decided in the trial court” in lieu of a transcript).

        State v. Depol, 336 Ga. App. 191 (784 SE2d 51) (2016).

       See id. See also Mack v. State, 296 Ga. 239, 241 (765 SE2d 896) (2014) (de novo review of videotaped interview to determine if the defendant waived his Fifth Amendment rights and, thus, whether the trial court erred in denying his motion to suppress).

       See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

        Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       See generally Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976) (setting forth nine factors that trial courts must consider in deciding whether to exclude a juvenile’s confession because it was not made voluntarily).

        Amador v. State, 310 Ga. App. 280, 282 (2) (713 SE2d 423) (2011) (footnote omitted).

        Dailey v. State, 313 Ga. App. 809, 815-816 (1) (723 SE2d 43) (2012).

        Thompson v. State, 313 Ga. App. 844, 846-847 (1) (723 SE2d 85) (2012) (punctuation and footnote omitted).

       Id. at 847-848 (1) (punctuation and footnote omitted; emphasis in original) (holding that “after producing drug paraphernalia, admitting to owning same, and admitting to recently buying and using drugs, a reasonable person would certainly perceive himself to be in police custody”).

        Hicks v. State, 255 Ga. 503, 504 (1) (340 SE2d 604) (1986) (holding that where the trial court implicitly denied the defendant’s motion to suppress, but neither expressly denied the motion nor explained its ruling, claim of error could not be reviewed).

       See id. See also Livingston v. State, 267 Ga. App. 875, 876 (2) (600 SE2d 817) (2004) (where there was evidence which could authorize the exclusion of the defendant’s statements, and the trial court failed to make specific findings, remand was necessary for the trial court to enter findings on whether the defendant understood and knowingly waived his Miranda rights). Compare Nelson v. State, 208 Ga. App. 686, 687 (1) (431 SE2d 464) (1993) (“where there is no evidence which would authorize the trial court to find that appellant’s statement was not voluntarily given there is no reason to remand for findings of fact as to the voluntariness of appellant’s statement”) (citation and punctuation omitted; emphasis in original).

        See Berry v. State, 254 Ga. 101, 104 (1) (326 SE2d 748) (1985). See also Reaves v. State, 284 Ga. 181, 182 (1) (664 SE2d 211) (2008) (remanding the case for the trial court to make findings of fact necessary to determine whether the defendant was in custody prior to his first Miranda warning).


text:
    A16A1105.
    COOK v. THE STATE.
    (790 SE2d 283)
   PHIPPS, Presiding Judge.

A jury found Timothy Cook guilty of rape. The trial court denied Cook’s motion for new trial, and he appeals. Cook argues that (i) the evidence was insufficient to support his rape conviction, (ii) the trial court erred in instructing the jury, and (iii) he was denied effective assistance of trial counsel. Cook also claims that he was improperly sentenced asa recidivist. F or the reasons that follow, we hold that the evidence was sufficient, the trial court did not err in instructing the jury, and Cook was not denied effective assistance. However, the court erred in sentencing Cook as a recidivist. Thus, we affirm the conviction, vacate Cook’s sentence, and remand for resentencing.

1. Cook argues that he was entitled to a new trial because the evidence was insufficient to support his conviction for rape.

When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

The evidence, viewed in the light most favorable to the verdict, showed the following. On May 6, 2012, C. M. attended a family party with her sister and Cook, the boyfriend of C. M.’s sister. After the party, Cook and C. M.’s sister went to C. M.’s home in Grovetown. The three began drinking, and Cook poured C. M. some shots of alcohol. Suddenly, C. M. became nauseated and short of breath.

C. M. went to the bathroom and vomited uncontrollably before passing out on the floor. When she woke up, she was unable to move until her husband came into the bathroom and helped her get up and into their bed. Later, C. M. awoke briefly when she heard Cook enter her bedroom, then she lost consciousness again. Cook pulled the covers off C. M.’s bed and took her pants off. C. M. was in and out of consciousness and dizzy, and she could not talk. Cook had sexual intercourse with C. M., then he pulled the covers back over her and left the room.

After Cook left the room, C. M. was very dizzy and could not keep her balance, but she was able to get up and get dressed. She was hysterical, screaming and crying, and she told her husband to get Cook out of their house because he had raped her. C. M.’s husband ordered Cook out of the house, and Cook and C. M.’s sister left.

The police were called, and C. M. was taken to the emergency room, where a doctor performed a sexual assault examination, including taking cervical swabs. Cook’s DNA was found in cervical swabs taken from C. M.’s vagina.

The following day, C. M. noticed white residue on the shot glass from which she had been drinking. After Cook was arrested, C. M.’s sister called the police to report that she had found a pill, Clonaze-pam, on the floor of Cook’s apartment along with a pill crusher. She also told police that the effects of Clonazepam, when mixed with alcohol, were similar to the symptoms C. M. had experienced. Police then obtained a search warrant for Cook’s residence and found several bottles of drugs prescribed to Cook, including Clonazepam.

At least 13 hours after the police first responded, C. M. gave a blood sample. The subsequent test of C. M.’s blood did not reveal the presence of any benzodiazepine drugs, which would include Clonaze-pam, but did find an anti-depressant, Paxil, which can cause dizziness and drowsiness. No other drugs were found in C. M.’s blood.

The state also presented evidence from two other women. J. D. testified that in August 2010, Cook, who was her husband’s friend, grabbed her breasts and tried to kiss her. I. M. testified that in November 2010, she and her boyfriend joined Cook at a bar for drinks. After sharing drinks with her boyfriend and Cook, I. M. felt sick and vomited in the bathroom of the bar. Cook was waiting for her outside the bathroom, and the next thing she remembered was waking up in Cook’s truck. When she awoke, Cook was digitally penetrating her vagina. At trial, Cook testified that he and C. M. had consensual sex.

On appeal, Cook argues that the evidence was insufficient to support his conviction because C. M. consented and, if she had been drugged, there would have been evidence of such. However, C. M. testified that she was in and out of consciousness and could not talk. “It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” Despite the lack of physical evidence that C. M. had been drugged and Cook’s claim that the sexual intercourse was consensual, the evidence was sufficient for the jury to find lack of consent based on C. M.’s testimony that Cook had sexual intercourse with her while she was incapacitated.

Cook also asserts that there was insufficient evidence of force.

When the victim is physically or mentally unable to give consent to the act, as when she is intoxicated, drugged, or mentally incompetent, the requirement of force is found in the constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.

Under these circumstances, C. M.’s testimony that she was in and out of consciousness when Cook had sexual intercourse with her was sufficient to establish constructive force.

2. Cook contends that the trial court’s instructions to the jury were erroneous because the charge did not require the jury to find that he had the criminal intent to commit the offense against C. M.’s will and did not require the jury to find lack of consent beyond a reasonable doubt. Cook has failed to show error.

Although he objected at the charge conference, Cook made no objections to the charge as given. Because an objection at the charge conference does not preserve an objection to the charge as subsequently given, the failure to object to the charge as given precludes appellate review unless “the jury charge constitutes plain error which affects substantial rights of the parties.” In order to constitute plain error, four prongs must be satisfied.

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

Cook contends that the constructive force instruction allowed the jury to convict him without finding that he intended to commit rape. The court instructed the jury:

[W]hen the [sjtate has proven beyond a reasonable doubt that the victim is physically or mentally unable to give consent to the act as when she is intoxicated, drugged, or mentally incompetent the requirement of force is found in constructive force. That is, in the use of such force as is necessary to effect the penetration made by the defendant.

The trial court’s charge on constructive force sets forth a correct statement of law. Therefore, Cook cannot establish that a plain or obvious legal error occurred, as required by the first two prongs of the plain error test.

Cook also takes exception to the following instruction:

[A]gainst her will is synonymous with without her consent. Sexual intercourse with a woman whose will is temporarily lost from intoxication or unconsciousness arising from the use of drugs or other cause or sleep is rape.

This instruction, however, also sets forth a correct statement of law. The trial court also instructed the jury that the state had to prove each element of rape, including lack of consent, beyond a reasonable doubt. Accordingly, the jury charge did not constitute error, much less any plain error pursuant to OCGA § 17-8-58 (b).

3. Cook also asserts that he received ineffective assistance of counsel. To prevail on this claim, Cook must show that trial counsel’s performance was deficient and that, but for the deficiency, “there is a reasonable probability that the outcome of the trial would have been more favorable to him.” Cook must overcome the strong presumption that counsel’s performance fell within the wide range of reasonable professional conduct. He has failed to do so here.

(a) Cook argues that his trial counsel rendered ineffective assistance when he failed to request a contemporaneous limiting instruction prior to I. M.’s testimony At trial, prior to J. D.’s testimony, the court instructed the jury that other acts evidence could only be considered for the limited purpose of showing knowledge and intent, identity of the perpetrator, or motive and opportunity, and that the evidence could not be considered for any other purpose. After J. D. testified, another witness testified. Then, the state called “another similar transaction witness,” I. M., and the trial court instructed the jury that the same limiting instruction given previously applied. At the close of trial, the court also re-instructed the jury that evidence admitted for the limited purpose of showing, if it does, course of conduct, motive, scheme or lustful disposition could not be considered for any other purpose.

As an initial matter, pursuant to OCGA § 24-4-413 (a), “In a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.” Accordingly, I. M.’s testimony that Cook sexually assaulted her was admissible, not just as other acts evidence, but also for its bearing on any matter to which it was relevant.

Because the evidence was admissible for its bearing on any matter to which it was relevant, an objection requesting a limiting instruction would have been meritless. Counsel’s failure to make a meritless objection cannot constitute deficient performance. Moreover, Cook cannot show that there is a reasonable probability that, but for this alleged failure on the part of counsel, the trial result would have been different, where the jury was instructed to consider the evidence for a limited purpose.

(b) Cook contends that his trial counsel was also ineffective in failing to object to the introduction of the forensic toxicologist’s testimony as to the half-life of certain drugs and in failing to obtain and present the testimony of a defense expert at trial. Specifically, Cook argues that his trial counsel rendered deficient performance when he failed to object to the testimony of the forensic toxicologist because the testimony was irrelevant and prejudicial, the state failed to provide any relevant discovery, and the toxicologist was not an expert in pharmacology.

The state called a forensic toxicologist from the GBI crime lab; Cook stipulated that she was an expert. The toxicologist testified that GHB (gamma-hydroxybutyric acid) and Rohypnol can cause dizziness, drowsiness, nausea and confusion and that Clonazepam can also cause these symptoms when mixed with alcohol. The toxicologist also testified that a small dose of Clonazepam could be out of a person’s system within nine hours, and that neither GHB nor Rohyp-nol would still be in a person’s bloodstream thirteen hours after dosage. On cross-examination, trial counsel elicited from the toxicologist that every tested sample from the victim was negative for these drugs and that testing the samples was “about all” the toxicologist could do.

At the hearing on Cook’s motion for new trial, an expert in pharmacology and toxicology testified that Clonazepam remains in the bloodstream for two to five days and would be revealed, if present, in a test of blood drawn thirteen hours after dosage, as would Rohypnol, although GHB would not be. At the hearing, trial counsel also testified that his strategy had been to attack C. M.’s credibility and show that she had consented to the sexual encounter. Trial counsel had not believed that he needed an expert witness in order to attack C. M.’s credibility

“Not objecting to testimony but instead subjecting it to cross-examination may be part of a reasonable trial strategy,” and here, on cross-examination, trial counsel reinforced that C. M.’s blood samples were negative for any drugs (other than Paxil) and cast doubt as to the toxicologist’s ability to reach any further conclusions. Furthermore, Cook has failed to show prejudice. C. M. testified that she became ill and passed out and that Cook raped her while she was incapacitated, and her claims were supported by an immediate outcry, as well as physical evidence. I. M. also testified that Cook sexually assaulted her while she was unconscious. In light of this strong evidence of guilt, there is no reasonable probability that the outcome of the trial would have been more favorable to Cook if trial counsel had objected to or further countered the toxicologist’s testimony.

(c) Cook contends that trial counsel was ineffective in failing to request the removal of a juror after the juror revealed that he knew one of the witnesses. During deliberations, a juror sent the court a note stating that he knew C. M.’s husband from his business as a mechanic and had “seen him to be a respectable person and citizen.” In response, the trial court asked the juror if he could be fair and impartial, and the juror indicated that he could do so. Trial counsel did not ask that the juror be excused. At the hearing on the motion for new trial, trial counsel testified that he had conferred with Cook and they decided to leave the juror on the panel because, choosing between this juror and the first alternate juror, this juror was a man and they preferred a male-dominated jury.

Decisions regarding which jurors to accept “are the exclusive province of the lawyer after consultation with the client.” Trial counsel testified that his failure to request the removal of this juror was strategic, and Cook has not overcome the strong presumption that trial counsel’s actions constituted reasonable professional assistance.

4. Finally, Cook argues, and the state concedes, that the trial court erred by sentencing Cook as a recidivist under OCGA § 17-10-7 (a) (2012) because he had not been convicted of a felony prior to the commission of the instant offense. We agree, and therefore vacate Cook’s sentence and remand for resentencing.

“The interpretation of a statute is a question of law, which this court reviews de novo.”

On April 9, 2012, approximately one month prior to C. M.’s rape, Cook entered an Alford plea to one count of false imprisonment of I. M. Cook was sentenced as a first offender. The rape of C. M. occurred on May 6, 2012. Several days later, on May 10, 2012, Cook’s first offender status was revoked based on a misdemeanor traffic offense, and Cook was sentenced to ten years’ imprisonment for the false imprisonment of I. M. On June 5,2013, the trial court sentenced Cook as a recidivist to life in prison for the rape of C. M., consecutive to the ten-year term for false imprisonment.

“A crime must be construed and punished according to the provisions of the law existing at the time of its commission.” On May 6, 2012, at the time of the commission of the offense against C. M., OCGA § 17-10-7 (a) (2012) provided that “any person convicted of a felony offense in this state . . . who shall afterwards commit a felony” shall be sentenced to the maximum possible punishment for the subsequent offense.

Decided August 8, 2016.

“A first offender’s guilty plea does not constitute a ‘conviction’ as that term is defined in the Criminal Code of Georgia.” Rather, under the first offender statute, “until an adjudication of guilt is entered, there is no conviction.” “[T]he case has, in effect, been suspended during the period of probation” until “eventually the probation is either revoked or it is discharged; unless it is revoked, there is no conviction.”

Cook’s first offender status was revoked and an adjudication of guilt was entered — and he was thus convicted of a felony — on May 10, 2012, after the rape of C. M. Because Cook’s first offender status had not yet been revoked, Cook was not a convicted felon at the time he raped C. M., and he could not be sentenced as a recidivist for that crime.

Although Cook was a convicted felon at the time he was convicted of the rape of C. M., the recidivist sentencing statute is clear that the commission of the subsequent felony must occur after the prior conviction. Moreover, even if there was some ambiguity in either the first offender statute or the recidivist sentencing statute, it must be construed in favor of Cook.

[Pjenal statutes are always construed strictly against the [sjtate and liberally in favor of human liberty Thus, even if the statute increasing a penalty were capable of two constructions, it should be construed so as to operate in favor of life and liberty.

We therefore vacate Cook’s sentence as to his rape conviction and remand this case to the trial court for resentencing.

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

Dillard and Peterson, JJ., concur.

Bruce S. Harvey, Jennifer S. Hanson, Kimberly H. Cornwell, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

       OCGA § 16-6-1.

        Pye v. State, 322 Ga. App. 125, 126 (1) (742 SE2d 770) (2013) (footnote omitted). See also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Pye, supra at 127 (1) (punctuation and footnote omitted).

       See id. (victim’s testimony that the defendant forced her to submit to sexual intercourse against her will was sufficient to establish lack of consent, despite the lack of physical trauma and the defendant’s claim that sex was consensual).

        Demetrios v. State, 246 Ga. App. 506, 507 (1) (a) (541 SE2d 83) (2000) (footnote omitted). See also Baise v. State, 232 Ga. App. 556, 558 (1) (502 SE2d 492) (1998) (where a victim is incapable of consent due to an intellectual disability, “the lack of actual force necessary to overcome a resistant victim in other cases is supplied constructively by the rule that no more force need be used than that necessary to effect the penetration”).

       See Demetrios, supra (victim’s testimony that she could not move due to drugs and hypnosis when defendant had sexual intercourse with her was sufficient to establish constructive force).

        White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012) (punctuation omitted) (quoting OCGA § 17-8-58 (b)).

        Pye, supra at 128 (2) (footnote omitted).

        Demetrios, supra; Baise, supra. See also Melton v. State, 282 Ga. App. 685, 691 (2) (c) (639 SE2d 411) (2006) (“Evidence of a victim’s inability to give consent can be used to impute the element of force in certain sexual abuse cases involving a victim who is intoxicated, drugged, or mentally incompetent.”).

       See Pye, supra at 131-132 (3).

       See Johnson v. State, 186 Ga. App. 891, 892 (3) (369 SE2d 48) (1988) (sexual intercourse with a woman who cannot consent is rape). See also Paul v. State, 144 Ga. App. 106 (2) (240 SE2d 600) (1977) (same).

        Benson v. State, 294 Ga. 618, 622 (3) (754 SE2d 23) (2014) (citation omitted).

       See Leon v. State, 237 Ga. App. 99, 105 (4) (513 SE2d 227) (1999).

        See Marlow v. State, 337 Ga. App. 1, 3 (1) (b) (785 SE2d 583) (2016).

        Wesley v. State, 286 Ga. 355, 356 (3) (a) (689 SE2d 280) (2010).

       See Sims v. State, 317 Ga. App. 420, 422 (1) (731 SE2d 105) (2012) (even if failure to request a contemporaneous limiting instruction was deficient performance, defendant could not show prejudice because trial court gave a limiting instruction at the close of evidence).

        Al-Attawy v. State, 289 Ga. App. 570, 573 (1) (657 SE2d 552) (2008) (footnote omitted).

        See Kirkland v. State, 334 Ga. App. 26, 36 (5) (c) (778 SE2d 42) (2015) (defendant could not show prejudice from counsel’s failure to call an expert witness to testify to flaws in a forensic interview where there was an outcry before the interview occurred and similar transaction evidence, as well as incriminating statements by the defendant).

        Martin v. State, 267 Ga. App. 28, 30 (1) (598 SE2d 828) (2004).

       See Higginbotham v. State, 287 Ga. 187, 190 (5) (a) (695 SE2d 210) (2010) (trial counsel did not render ineffective assistance when he failed to request removal of juror who was “pretty sure” he knew the father of murder victim where juror did not meet the qualification for dismissal for cause); Stephens v. State, 224 Ga.App. 184, 186 (3) (480 SE2d 235) (1997) (counsel did not render ineffective assistance where, as a matter of strategy, counsel declined to strike juror who knew defendant).

        Hobbs v. State, 334 Ga. App. 241, 245 (3) (779 SE2d 15) (2015) (footnote omitted).

        Riley v. State, 243 Ga. App. 697, 698 (534 SE2d 437) (2000) (citation omitted).

       Effective July 1, 2012, OCGA § 17-10-7 (a) was amended to provide “any person who, after having been convicted of a felony offense in this state . . . commits a felony” shall be sentenced to the maximum possible sentence. Ga. L. 2012, pp. 926, 949, §§ 4-4, 9-1 (a).

        Davis v. State, 273 Ga. 14, 15 (537 SE2d 663) (2000) (citations and punctuation omitted).

       Id.

       Id. (citations and punctuation omitted). See also OCGA § 42-8-60 (a), (b).

       See Davis, supra (where offender’s 1991 first offender probation had not been revoked, it had not become a conviction). See also Robbins v. State, 326 Ga. App. 812, 813 (757 SE2d 452) (2014) (“[U]nder the first offender statute, until an adjudication of guilt is entered, there is no conviction.”) (citation omitted).

       See Davis, supra (where offender’s 1991 first offender probation had not been revoked prior to his 1997 felony conviction, he could not be sentenced as a recidivist under OCGA § 17-10-7 (b) (2)).

       OCGA § 17-10-7 (a) (2012).

        Hobbs, supra at 246 (3) (a) (punctuation and footnotes omitted).


text:
    A16A1409.
    HANH v. THE STATE.
    (790 SE2d 282)
   PHIPPS, Presiding Judge.

Jamie P Hanh appeals from the amended sentence entered after the trial court granted his motion to vacate void sentence. Hanh contends that the trial court erred in refusing to consider his motion to withdraw his guilty plea after finding his original sentence to be void. Because Hanh had a statutory right to withdraw his guilty plea, we reverse.

Hanh pled guilty to child molestation and was sentenced to 20 years’ imprisonment. Hanh subsequently filed a “Motion to Vacate Void Sentence,” arguing that OCGA § 17-10-6.2 required the trial court to impose a split sentence that included at least one year of probation. Hanh further contended that he was denied effective assistance of counsel and alleged prosecutorial and judicial misconduct with regard to the void sentence. Hanh concluded with a request to withdraw his guilty plea.

At a hearing on Hanh’s motion, the court declared that the sentence was void and announced a sentence of 20 years, of which Hanh would serve 19 years in prison and the balance on probation. Hanh then reminded the trial court that he “ha[d] another matter,” but the trial court cut him off, concluded the hearing, and entered the amended sentence.

Hanh appeals, complaining that the trial court did not allow him to pursue at the hearing his claim that he was entitled to withdraw his guilty plea.

As noted above, Hanh’s “Motion to Vacate Void Sentence” included a request to withdraw his guilty plea. This issue is controlled by our decision in Kaiser v. State, in which we approved a line of cases holding that “[w]here a void sentence has been entered, it is as if no sentence has been entered at all, and the defendant stands in the same position as if he had pled guilty and not yet been sentenced. And pursuant to OCGA § 17-7-93 (b), the defendant may withdraw his plea as of right prior to sentencing,” even if the motion was filed outside the term of court in which the original sentence was imposed. Because the original sentence was a nullity and Hanh filed a motion seeking to withdraw his guilty plea prior to resentencing, the trial court erred by not allowing Hanh to withdraw his plea of guilty prior to resentencing.

Decided August 8, 2016.

Jamie P. Hanh, pro se.

Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellee.

Judgment reversed.

Dillard and Peterson, JJ., concur.

       Although the pleadings and appellate brief indicate that Appellant’s name is spelled “Hahn,” his name is spelled “Hanh” on the amended sentence. The records in his two prior appeals (Case Nos. A15A2339 and A15A2340, dismissed for failure to file a timely brief) are also inconsistent in this regard.

       See Thompson v. State, 274 Ga. 818 (559 SE2d 730) (2002).

       285 Ga. App. 63 (646 SE2d 84) (2007).

       See, e.g., Mullins v. State, 134 Ga. App. 243 (2) (214 SE2d 1) (1975).

         Kaiser, supra at 66 (1). See also State v. Lewis, 298 Ga. 126, 130 (3), n. 6 (779 SE2d 643) (2015) (“The defendant is statutorily entitled to withdraw his or her guilty plea ‘at any time before sentence is pronounced.’ ”) (punctuation omitted) (citing OCGA § 17-7-93 (b)). But see Simmons v. State, 315 Ga. App. 82, 84-85 (2) (726 SE2d 573) (2012) (holding that Kaiser did not apply where the defendant had availed himself of the First Offender Act, OCGA § 42-8-60, and thereby had not retained the right to withdraw his guilty plea); but see also OCGA § 17-10-6.2 (b) (first offender sentencing not available as punishment for child molestation unless OCGA § 16-6-4 (b) (2) applies and the victim is at least 14 but less than 16 years of age and the defendant is 18 years of age or younger and no more than four years older than the victim). The record in this case indicates that Hanh was not sentenced under the First Offender Act.

        Kaiser, supra at 68-69 (1).

       See Spargo v. State, 332 Ga. App. 410 (773 SE2d 35) (2015) (vacating a void sentence where the trial court failed to enter a split sentence for child molestation).

        Kaiser, supra. See also Franks v. State, 323 Ga. App. 813, 814 (748 SE2d 291) (2013) (reversing the trial court’s denial of a defendant’s motion to withdraw a guilty plea where the original sentence was void and the motion was made prior to resentencing).