author: PHIPPS, Presiding Judge.

text:
    A12A1180.
    PALENCIA-BARRON v. THE STATE.
    (733 SE2d 824)
   PHIPPS, Presiding Judge.

Alexander Palencia-Barron appeals his conviction for trafficking in methamphetamine. He contends that the trial court erred in denying his motion for a directed verdict of acquittal, admitting improper evidence, and refusing to give a particular charge to the jury. For the following reasons, we affirm.

1. We first address Palencia-Barron’s contention that the trial court erred in denying his motion for a directed verdict of acquittal because there was no evidence that he possessed the drugs found in the truck in which he was a passenger.

The standard for reviewing a denial of a motion for a directed verdict of acquittal is the same test to be used when the sufficiency of the evidence is challenged, i.e., under the rule of Jackson v. Virginia,[] whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.

We view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence.

[M] oreo ver, an appellate court does not weigh the evidence or determine the credibility of witnesses____As long as there is some competent evidence, even though contradicted, on each element necessary to prove the [s]tate’s case, the jury’s verdict will be upheld.

Viewed in the appropriate light, the evidence showed that on November 9, 2010, a sheriff’s deputy working with a county multiagency narcotics squad used a confidential informant to arrange the purchase of methamphetamine. The confidential informant was instructed to set up the purchase in the parking lot of a particular location. The deputy instructed the confidential informant to remove his hat when he saw the drugs. Agents were on the lookout for a white Dodge pickup truck with two men of a particular race inside.

After waiting a “couple hours,” a white Dodge pickup truck with occupants matching that description entered the parking lot of the designated location. The truck pulled up alongside the confidential informant’s vehicle. The confidential informant exited his vehicle, walked to the passenger side of the truck, and spoke with the two occupants. Less than 30 seconds later, the confidential informant removed his hat. Law enforcement officers surrounded the truck, took both occupants out of the truck, and handcuffed them. No one else was inside the truck. Palencia-Barron was the passenger.

The officers searched the truck and found two cups on the passenger side floorboard; inside each cup was a bag of suspected methamphetamine; and loose suspected methamphetamine was found in one cup. An officer testified that the substances had a strong chemical odor. A forensic chemist with the Georgia Bureau of Investigation testified that the substances tested positive for methamphetamine and had a net weight of 335.71 grams.

The truck driver was charged, and prior to Palencia-Barron’s trial, pled guilty to trafficking in methamphetamine for his involvement in the incident. At trial, he testified that Palencia-Barron was with him when a man known to him only as “El Burro” approached him, gave him two cups, and told him that he would pay him $100 to deliver one of the cups to a particular location. The driver testified that he asked Palencia-Barron to accompany him on the delivery and Palencia-Barron agreed. The driver testified that he placed the cups on the floorboard underneath Palencia-Barron’s seat, and that, at his direction, Palencia-Barron grabbed a bag of suspected drugs and showed it to an unknown individual who approached the truck in the parking lot.

At trial, the driver testified that Palencia-Barron “didn’t know anything about this.” The prosecutor then asked the driver whether he had given an out-of-court statement to a law enforcement officer that Palencia-Barron knew they were delivering drugs. The driver replied: “I don’t remember.” The prosecutor asked the driver whether he had given a statement days earlier, during his guilty plea hearing, that both he and Palencia-Barron knew they were delivering drugs. The driver replied: “Yeah.” The driver further acknowledged that during his guilty plea hearing, he had testified that El Burro was going to give him $100 and that he was going to give some of that money to Palencia-Barron. An officer testified that the driver had told him in an interview on the date of the arrest that both he and Palencia-Barron knew what they were doing, and both knew that the substance being delivered was drugs.

Palencia-Barron argues that the evidence presented to show that he possessed the methamphetamine was not credible. He points out that the officers who discovered the drugs failed to “memorializ[e] the discovery of these important items,” and that the driver’s testimony that he held the drugs was elicited “on leading direct-examination.” He also asserts that because the driver pled guilty before the trial in this case and “attempted to take full responsibility” for the drugs, he (Palencia-Barron) should have been exonerated. But it is not within our province to weigh the evidence or determine the credibility of witnesses.

In his appellate brief, Palencia-Barron appears to also argue that his mere spatial proximity to contraband was insufficient to support the conviction. But the state’s case was not based on PalenciaBarron’s mere spatial proximity to the drugs. There was testimony from the driver that Palencia-Barron knew that they were going to deliver drugs, held one of the bags of methamphetamine, and showed the bag of methamphetamine to the confidential informant.

The driver’s testimony was corroborated, in part, by an officer’s testimony that the smell of methamphetamine in the truck was strong; and that immediately after taking the occupants out of the truck, drugs were located on the passenger-side floorboard of the vehicle, which was where Palencia-Barron’s feet had been situated. “As a general rule, when drugs are found in the immediate presence of the defendant, the jury is authorized to find they are in constructive possession of the accused.” Indeed, the presence of drugs near a vehicle where a defendant was a passenger is sufficient to corroborate an accomplice’s testimony that the defendant possessed the drugs. Accordingly, the trial court did not err in denying Palencia-Barron’s motion for a directed verdict based on his claim that the state failed to prove he possessed the drugs.

2. Palencia-Barron contends that the trial court erred by admitting testimony, from a law enforcement officer and from the driver, that he knowingly possessed drugs because the officer who testified as to the driver’s out-of-court statements had interviewed the driver through the use of an interpreter, who could not recall the interview, had no recording of the interview, and had no notes of the interview; and the driver was not asked at trial about the basis of his knowledge.

(a) “In order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed.” And an objection on a specific ground at trial waives any objection to that evidence on other grounds on appeal. At trial, the only objection offered by the defense as to the officer’s testimony about the driver’s statement was that it was hearsay. Accordingly, as the objections which Palencia-Barron now asserts were not made before the trial court, they are waived.

In any event,

[u]nder the so-called “language conduit” rule, absent a motive to mislead, distort or some other indication of inaccuracy, when persons speaking different languages rely upon a translator as a conduit for their communication, the statements of the translator should be regarded as the statements of the persons themselves without creating an additional layer of hearsay.

Palencia-Barron has shown no indication of inaccuracy in the translation or motive of the interpreter to mislead or distort the translation. Accordingly, the court was authorized to treat the statements of the translator as though they were made directly to the officer by the driver.

(b) Palencia-Barron complains that the driver was not asked at trial about the basis of his knowledge that Palencia-Barron knowingly possessed methamphetamine.

“A witness may testify to facts about which he has personal knowledge.” “Where a witness testifies to a fact, the presumption is, in the absence of anything to the contrary, that he is testifying from his own knowledge.”

The driver testified that Palencia-Barron was with him when a man approached him (the driver) and asked him to deliver a cup; that Palencia-Barron agreed to ride with the driver to deliver the cup; that the driver planned to give Palencia-Barron some money to ride with him to make the delivery; that Palencia-Barron rode with him to make the delivery; that the cup was located on Palencia-Barron’s side of the vehicle; and that, at the delivery location, Palencia-Barron showed, to an unknown individual who had approached the vehicle, a bag that was inside the cup.

An officer testified that he had arranged, with a confidential informant, a drug buy at the location of the arrest; that the vehicle described by the confidential informant appeared at the designated location; that he received a prearranged signal from the confidential informant that drugs were present; that the two occupants of the vehicle were arrested; that Palencia-Barron was the passenger; and that methamphetamine was located on the floorboard of the passenger side of the vehicle.

Thus, the driver showed he had personal knowledge, and PalenciaBarron points to no evidence to rebut the presumption that the driver was testifying from his own personal knowledge.

3. Palencia-Barron contends that his sole defense was “mere presence as a passenger,” and that the trial court erred by failing to charge the jury sua sponte that a rebuttable presumption arises that all items found inside a vehicle belong to the owner or driver of the vehicle. Again, we find no error.

“The trial court’s duty in delivering charges to the jury is to tailor those charges not only to the indictment but also adjust them to the evidence at trial. Any instructions should stand upon a base founded in evidence or lack thereof.”

[A] presumption arises from proof of ownership and control of an automobile or other property that the owner or driver is in possession of contraband found therein; however, this presumption does not apply when there is evidence that... others had access to the vehicle. There is no reverse presumption with regard to a passenger’s presence in an automobile in which contraband is found.

Decided October 31, 2012.

Larry L. Duttweiler, for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

Put another way, “no presumption of possession arises from simply being a passenger in a vehicle.” The evidence showed that PalenciaBarron was a passenger — not the owner or driver — in a vehicle in which methamphetamine was found. Accordingly, no presumption arose that Palencia-Barron possessed the methamphetamine.

Palencia-Barron’s contention that the trial court should have sua sponte given the charge is based on his mistaken premise that the state did not present proper evidence to corroborate the driver’s testimony that he (Palencia-Barron) knowingly possessed the methamphetamine. The trial court instructed the jury on sole and joint possession, actual and constructive possession, mere presence at the scene of the commission of a crime and mere association with persons involved in the commission of a crime, thus fairly instructing the jury regarding Palencia-Barron’s defense. The trial court correctly ruled that the charge was not authorized by the evidence in the case. Therefore, the trial court’s failure to give the jury charge was not erroneous.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Dorsey v. State, 279 Ga. 534, 542 (3) (615 SE2d 512) (2005) (citations omitted); see Hash v. State, 248 Ga. App. 456, 457 (1) (546 SE2d 833) (2001).

        Hammond v. State, 303 Ga. App. 176, 181 (3) (692 SE2d 760) (2010).

        Jarrett v. State, 299 Ga. App. 525, 527 (2) (683 SE2d 116) (2009).

       Id. at 527-528 (2) (footnote omitted).

       OCGA § 16-13-31 (e) pertinently provides: “Any person who knowingly sells, delivers... or has possession of 28 grams or more of methamphetamine ... in violation of this article commits the felony offense of trafficking in methamphetamine.. . .”

        Green v. State, 298 Ga. App. 17, 21 (1) (679 SE2d 348) (2009) (if a reluctant witness testifies that he does not remember whether he made a prior statement, the state is then entitled to introduce the prior statement as inconsistent with the in-court testimony of the witness).

        Jarrett, supra.

        Goldsby v. State, 273 Ga. App. 523, 530 (7) (615 SE2d 592) (2005) (a defendant may not be convicted solely on the testimony of an accomplice; the accomplice’s testimony must be supported by some independent corroborating evidence); Millsap v. State, 275 Ga. App. 732, 734 (1) (621 SE2d 837) (2005) (the sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to the crime, even if it is circumstantial, it is legally sufficient; the corroboration need not be sufficient to warrant a guilty verdict or prove every material element of the crime; it need only tend to connect and identify the defendant with the crime charged).

       See Green, supra (co-defendant’s statements were sufficiently corroborated by the testimony of the case agent as to the location of contraband).

        Dunn v. State, 277 Ga. App. 209 (1) (626 SE2d 174) (2006) (punctuation and footnote omitted).

        Carr v. State, 282 Ga. App. 199, 200 (1) (638 SE2d 348) (2006); Dunn, supra at 210 (1).

        Doughty v. State, 175 Ga. App. 317, 321 (5) (333 SE2d 402) (1985) (citation and punctuation omitted).

        Ross v. State, 231 Ga. App. 793, 801 (14) (499 SE2d 642) (1998).

       Id.

        Lopez v. State, 281 Ga. App. 623, 625 (1) (636 SE2d 770) (2006) (citations omitted).

       Id.

        John Crane, Inc. v. Wommack, 227 Ga. App. 538, 542 (3) (489 SE2d 527) (1997) (citation and punctuation omitted).

        Jester v. State, 193 Ga. 202, 209 (1) (17 SE2d 736) (1941) (citation and punctuation omitted); Shaw v. Jones, Newton & Co., 133 Ga. 446 (66 SE 240) (1909) (where nothing appeared to indicate that the witness was not testifying from his own knowledge, an objection on the ground that the witness should testify from his own knowledge, was not good).

        See Jester, supra; Shaw, supra; Wiggins v. State, 74 Ga.App. 231, 231-232 (39 SE2d 450) (1946).

        Davis v. State, 181 Ga. App. 28, 29 (2) (351 SE2d 458) (1986) (citations omitted).

        Bell v. State, 198 Ga. App. 874, 874-875 (1) (403 SE2d 864) (1991) (citation omitted).

        Green, supra at 20 (1), n. 3 (citation omitted).

       See id.; Lipsey v. State, 287 Ga.App. 835, 838 (2) (652 SE2d 870) (2007); Williams v. State, 210 Ga.App. 437, 438 (2) (436 SE2d 550) (1993).

       See Division 1, supra.

       See Lipsey, supra (no charge on presumption of possession necessary where defendant was not the driver of the vehicle nor proven to be the owner, and a witness testified that he saw the defendant holding contraband); Williams, supra at 439 (2).

        Green, supra; Lipsey, supra; Williams, supra; Bell, supra; Davis, supra.


source: Caselaw Access Project

license: Public Domain

text:
    A12A1298.
    GOODSON v. POINTER et al.
    (733 SE2d 829)
   PHIPPS, Presiding Judge.

Debra Pointer and Michael Pointer sued William Goodson, alleging that he owed them monies for failing to timely pay rent on residential property they owned. Summary judgment was granted to the Pointers. For reasons that follow, we reverse the judgment and remand for proceedings not inconsistent with this opinion.

Summary judgment is proper “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.” “In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.”

In their complaint, the Pointers alleged that Goodson owed them $16,400 for “unpaid rents and late fees.” On motion for summary judgment, the Pointers claimed that they and Goodson had executed a lease with respect to certain property they owned, that the lease required Goodson to pay them $1,900 per month, that Goodson lived on the property during the lease term and continued to occupy the property after the lease expired, that no new lease was signed, and that “[Goodson] did not pay rent as agreed.” For evidentiary support that the parties had signed a lease, that the lease had obligated Goodson to pay $1,900 per month, and that Goodson had not made all of his rental payments, the Pointers referred the trial court to Goodson’s answers to interrogatories, as well as to an “Affidavit of Damages filed concurrently herewith [the summary judgment motion].” The Pointers attached to their summary judgment motion a “Lease for Residential Property,” and they cited the principle that: one who is a tenant at will by virtue of his holding over after the expiration of the term of his lease holds the premises subject to the general terms and conditions specified in the lease, except so far as modified by mutual agreement, and which “general terms and conditions” would include the provisions for rent. The Pointers maintained in their motion entitlement to $16,400 in damages.

In his answer, Goodson denied the Pointers’ complaint allegation concerning “agreed upon rental payments” in the amount of $1,900, as well as their complaint allegation concerning late fees. In opposing the Pointers’ motion, Goodson presented no evidence, but submitted a brief. He took the position that the record showed that he and the Pointers had entered a written lease in 2006 and that the lease had expired in 2008; that no other written lease had been signed by the parties; and that the parties had never reached an agreement regarding the amount of rent to be paid without a written lease. However, Goodson asserted that the “Lease for Residential Property” attached as an exhibit to the Pointers’ summary judgment motion had not been authenticated so as to be relevant for purposes of their summary judgment motion, and he claimed that no “Affidavit of Damages” had been included with the summary judgment motion served upon him. Goodson therefore contended that the Pointers had failed to demonstrate entitlement to summary judgment because genuine issues of material fact remained regarding: (i) the existence of any obligation upon him to pay the Pointers any money after February 2008; and (ii) the amount of damages, if any.

Without holding a hearing and without making express findings of fact, the trial court entered summary judgment in favor of the Pointers, awarding them $16,400 as damages.

On appeal, Goodson maintains that the grant of summary judgment lacked the requisite evidentiary basis. “Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.”

The scant record before us does not show that the Pointers were entitled to the grant of their summary judgment motion. Their suit alleged that Goodson owed them an amount certain for his failure to pay rent and late fees. While it is undisputed that Goodson occupied the Pointers’ property for some amount of time, the record does not establish whether or to what extent he did so without paying rent as obligated. Certainly, there is nothing in the record supporting a damages calculation in the amount of $16,400 — or in any other sum. As evidentiary support for their summary judgment motion, the Pointers relied extensively on various documents — including an “Affidavit of Damages,” Goodson’s answers to their interrogatories, and a “Lease for Residential Property.” But the affidavit and answers are not in the appellate record, and the lease stands unauthenticated. Notably, the Pointers have filed in this court neither a brief nor a motion either to supplement the record or to remand the case for completion of the record. Given the foregoing, we are constrained to reverse the judgment and remand the case for proceedings not inconsistent with this opinion.

Decided October 31, 2012.

Fears, Lawrence & Turner, William H. Turner, Jr., for appellant.

Delisa A. Williams, for appellees.

Judgment reversed and case remanded.

Ellington, C. J., and Dillard, J., concur.

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted).

       See, e.g., Radha Krishna, Inc. v. Desai, 301 Ga. App. 638, 640 (1) (689 SE2d 78) (2009).

       See generally Keane v. Annice Heygood Trevitt Support Trust, 285 Ga. App. 155, 156-157 (645 SE2d 641) (2007) (explaining that, on a plaintiff’s motion for summary judgment, the burden shifts to the defendant to present competent evidence establishing a possible defense “[ojnce a plaintiff sets forth a prima facie case showing entitlement to summary judgment”); Northside Bldg. Supply Co. v. Foures, 201 Ga.App. 259 (411 SE2d 87) (1991) (explaining that, in opposing a plaintiff’s motion for summary judgment, it was not necessary for the defendant to submit affirmative evidence in order to create a genuine issue of fact, because the evidence submitted by the plaintiff did not establish a prima facie case entitling plaintiff to summary judgment).

       See White v. City of Atlanta, 248 Ga. App. 75, 76, n. 3 (545 SE2d 625) (2001) (determining that unauthenticated attachments to summary judgment brief were not competent evidence for purposes of summary judgment) (citing OCGA § 9-11-56 (c)); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988) (“Unsworn allegations in pleadings that have not been admitted by the opposing party are not evidence for purposes of summary judgment resolution.”) (citation omitted).

        Cowart, supra at 624 (1) (a) (citation omitted).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (citation omitted).

       See Norton v. Budget Rent A Car System, 307 Ga. App. 501, 502 (705 SE2d 305) (2010) (“The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken”) (punctuation and footnote omitted).

       See Court of Appeals Rule 25 (b) (1) (instructing that appellee’s brief “shall point out any material inaccuracy or incompleteness of appellant’s statement of facts and any additional statement of facts deemed necessary, plus such additional parts of the record or transcript deemed material”). This case was docketed in this court on March 1, 2012, and Goodson filed his brief on March 19, 2012. After the Pointers failed to file a brief when it became due under Court of Appeals Rule 23 (b), this court issued an order on July 31, 2012 for the Pointers to file a brief within 10 days of that order.

       “[I]t is the primary responsibility of the appropriate parties and not this court to ensure that all documents relevant to the disposition of an appeal be duly filed with the clerk of this court prior to the issuance of our appellate decision.” Roberts v. Nessim, 297 Ga. App. 278, 286 (676 SE2d 734) (2009) (on motion for reconsideration) (punctuation and footnote omitted). Goodson’s notice of appeal requested the trial court clerk to “omit nothing from the record on appeal.” Moreover, the trial court clerk has certified that the pages transmitted to this court comprise “a true and complete copy of those portions of the record” designated by Goodson. The record contains no appellee designation of the appellate record as permitted under OCGA § 5-6-42 (providing for the appellee to “file a designation of record designating that all or part of the omitted matters be included in the record on appeal”).

        See Dental One Assocs. v. JKR Realty Assocs., Ltd., 269 Ga. 616, 617 (1) (501 SE2d 497) (1998) (stating that the movant does not show entitlement to judgment as a matter of law unless, construing the evidence most favorably for the non-moving party, a prima facie case is shown; explaining that it is the evidence of record which determines the validity or invalidity ofthegrantofsummaryjudgment); Moore v. Wachovia Mtg. Co., 138 Ga.App. 646, 647 (1) (226 SE2d 812) (1976) (noting where bank offered no evidence by way of stipulation, deposition, or admission to establish variable interest rate(s) based on bank’s prime rate during life of note, summary judgment was improper in the face of debtor’s denial of interest due).


author: BARNES, Presiding Judge.

text:
    A12A1980.
    ROLLINS v. THE STATE.
    (733 SE2d 841)
   BARNES, Presiding Judge.

A jury found Marquis Rollins guilty of child molestation and enticing a child for indecent purposes. The trial court denied his motion for a new trial. Rollins appeals, contending that the evidence was insufficient to support his convictions. We disagree and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and [Rollins] no longer enjoys the presumption of innocence. We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain that the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

(Citation omitted.) Vaughn v. State, 301 Ga. App. 391 (687 SE2d 651) (2009).

Viewed in the light most favorable to the jury’s verdict, the evidence showed that on May 27,2006, the ten-year-old female victim encountered Rollins on the stairwell outside of her grandmother’s apartment. As she walked up the stairs, Rollins came up behind her, grabbed her by the arms, and pulled her into an empty apartment. The victim kicked her legs and told Rollins to stop, but he forced her into a back bedroom. Rollins pushed the victim onto the floor, removed her clothing, and had vaginal intercourse with her even though she told him to stop.

Rollins was arrested and indicted on charges of child molestation and enticing a child for indecent purposes. At trial, the victim testified about her encounter with Rollins as set out above. Rollins took the stand and denied attacking the victim. After hearing the conflicting testimony, the jury convicted Rollins. He moved for a new trial, the trial court denied the motion, and this appeal followed.

Aperson is guilty of child molestation when he “does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (2006). In the present case, the “immoral or indecent act” alleged in the indictment was that Rollins placed his penis in the victim’s vagina.

Aperson is guilty of enticing a child for indecent purposes when he “solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16-6-5 (a) (2006). Asportation is an element of the offense and is established through evidence of movement of the child victim. See Heard v. State, 317 Ga. App. 663 (731 SE2d 124) (2012). In the present case, the alleged movement was of the victim to the empty apartment where she was molested.

As previously noted, the victim testified at trial that she was ten years old at the time of her encounter with Rollins and that he grabbed her arms, forcefully moved her from the stairwell into the empty apartment, and forced her to have vaginal intercourse with him. Nevertheless, Rollins challenges the sufficiency of the evidence, contending that the State failed to prove the offense of child molestation because the victim “was not honest in her testimony.” He further contends that the State, by relying solely on the testimony of the victim, failed to prove the element of asportation to support his conviction for enticing a child for indecent purposes. His contentions are without merit.

It was the role of the jury, not this Court, to assess the victim’s credibility and to resolve any conflicts in the testimony of the witnesses. See Lamb v. State, 315 Ga. App. 807, 808 (728 SE2d 327) (2012). In other words, the jury was solely responsible for ascertaining which version of events was true — the victim’s or Rollins’s. See Wheeler v. State, 281 Ga. App. 158, 160 (2) (635 SE2d 415) (2006). Furthermore, the testimony of the victim, standing alone, was sufficient to support the convictions. See OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”); Henderson v. State, 313 Ga. App. 303, 304 (721 SE2d 216) (2011) (noting that the victim’s testimony alone was sufficient to convict the defendant of child molestation and enticing a child for indecent purposes).

Decided October 31, 2012.

Sara E. Meyers, for appellant.

R. Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Accordingly, viewed in the light most favorable to the verdict, the testimony of the victim summarized above was sufficient to authorize a rational jury to have found the essential elements of the charged offenses beyond a reasonable doubt, including the element of asportation supporting Rollins’s conviction of enticing a child for indecent purposes. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We therefore affirm Rollins’s convictions and the trial court’s denial of his motion for a new trial.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Rollins also was indicted on charges of rape and kidnapping but was acquitted of those offenses.


author: Boggs, Judge.

text:
    A12A1258.
    STONE-CROSBY v. MICKENS-COOK.
    (733 SE2d 842)
   Boggs, Judge.

Katherine Stone-Crosby brought this action in Fulton County Superior Court seeking custody of her niece and nephew, orphaned by the murder-suicide of their parents. Twelve days after the action was filed, Odessa Mickens-Cook, the paternal grandmother, moved to intervene and filed an answer to the petition. On the same day, she also filed a deprivation petition in Fulton County Juvenile Court and moved to dismiss the superior court action for lack of jurisdiction. The superior court denied the motion to dismiss but granted MickensCook’s motion to intervene.

After an investigation by social services and a hearing at which the parties testified, the trial court awarded custody to MickensCook. Stone-Crosby filed a motion for reconsideration, a motion to set aside, and a motion for new trial. After a hearing, the trial court denied all three motions in a well-reasoned, comprehensive order, and Stone-Crosby appeals. Finding no error, we affirm.

1. In her first enumeration of error, Stone-Crosby contends that the superior court lacked jurisdiction to hear this custody matter. We disagree.

Stone-Crosby asserts that no statute expressly provides for jurisdiction of the superior court over custody when both parents are deceased. But in so doing, she overlooks the controlling provision of the Georgia Constitution: “The superior courts shall have jurisdiction in all cases, except as otherwise provided in this Constitution.” (Emphasis supplied.) Ga. Const, of 1983, Art. VI, Sec. IV, Par. I. “The superior court ha[s] original jurisdiction over contests for permanent child custody in the nature of a habeas corpus between parents, parents and third parties, or between parties who are not parents. See In re J. R. T., 233 Ga. 204, 205 (210 SE2d 684) (1974); In the Interest of K. R. S., 253 Ga. App. 678, 679 [(1)] (560 SE2d 292) (2002).” Dunbar v. Ertter, 312 Ga. App. 440, 441 (718 SE2d 350) (2011).

It is true that the superior court’s jurisdiction to hear custody matters is concurrent in certain circumstances with that of the juvenile court, but that occurs only “when the issue is transferred by proper order of the superior court.” OCGA § 15-11-28 (c) (1). The juvenile court has exclusive jurisdiction when a child is alleged to be deprived, OCGA § 15-11-28 (a) (1) (C), or when termination of parental rights is sought, except in connection with adoption proceedings, in which the superior court also has concurrent jurisdiction. OCGA § 15-11-28 (a) (2) (C). But even when a termination petition is brought in the juvenile court, if it is merely a “disguised custody matter” it is not within the court’s jurisdiction. In the Interest of C. L. C., 299 Ga. App. 729, 733 (1) (683 SE2d 690) (2009). See also Wiepert v. Stover, 298 Ga. App. 683, 685 (3) (680 SE2d 707) (2009) (complaint for permanent custody not a deprivation petition and did not allege that child was deprived; jurisdiction properly in superior court).

Moreover, in Segars v. State of Ga., 309 Ga. App. 732 (710 SE2d 916) (2011), this court observed: “In determining the issue of competing jurisdictions, we have repeatedly applied the principle that where common law courts have concurrent jurisdiction, the first court taking jurisdiction will retain it.” (Citations and punctuation omitted.) Id. at 735. On that basis, we held that “the superior court lacked jurisdiction . . . because the juvenile court had already exercised its concurrent jurisdiction.” Id. at 736. See also In the Interest of J. C. W., 315 Ga. App. 566, 571-572 (1) (727 SE2d 127) (2012). Here, in contrast, the custody action in superior court was filed before the deprivation action in juvenile court.

Relying on Zinkhan v. Bruce, 305 Ga. App. 510 (699 SE2d 833) (2010), Stone-Crosby also argues that jurisdiction was properly in the probate court because of its statutory authority to order a guardian for the children. But in Zinkhan, the deceased parents’ wills nominated a testamentary guardian under OCGA § 29-2-4 (b), the guardian had filed a request for letters of testamentary guardianship, and the probate court had issued letters to the guardian. Only then did the opposing parties file a petition for custody in the superior court. We held that this “collateral attack” on the guardianship was improper when the probate court properly had jurisdiction and the opposing parties could have moved to revoke or suspend the letters of testamentary guardianship. Id. at 514 (1).

Here, in contrast, both parents died without a will, and the petition in probate court by the maternal grandparents was not filed until after the superior court custody action was pending. And as with juvenile court, even “[w]here a probate court (formerly a court of ordinary) and a superior court have concurrent jurisdiction over an action, the general rule is that the court first taking jurisdiction will retain it unless some good reason is shown for equitable interference.” (Citations and footnote omitted.) Morris v. Mullis, 264 Ga. App. 428, 434 (5) (590 SE2d 823) (2003).

The trial court therefore correctly held that, in the absence of an earlier-filed action in juvenile court or probate court, it was the first court to take jurisdiction and it properly retained it. The trial court did not err in denying Stone-Crosby’s motion to dismiss for lack of jurisdiction.

2. In her second enumeration of error, Stone-Crosby argues that the trial court erred in denying her motion for new trial when no evidence supported the trial court’s finding that her marital status affected the children’s welfare. She complains that the trial court relied exclusively on her separation from her husband, weighed that factor “heavily” against her as a “bright-line test,” and failed to articulate how it would affect the welfare of the children. In support of this argument, Stone-Crosby relies on Todd v. Todd, 287 Ga. 250, 253 (2) (703 SE2d 597) (2010). We are not persuaded that the trial court abused its discretion, nor that it employed a “rigid policy” or “bright-line test” as forbidden by Todd.

At the hearing on the motion for new trial, the trial court observed that it was “not persuaded that its final decision is contrary to the law, [c]ontrary to the evidence!,] strongly against the weight of the evidence!,] nor that it was'the result of the court’s rushing the parties into a final decision.”

A trial court may grant a motion for new trial if, in the exercise of its discretion, it finds that a jury’s verdict was against the weight of the evidence. However, when a trial court denies such a motion, the appellate court does not have the discretion to grant a new trial on that ground. We can only review the evidence to determine if there is any evidence to support the verdict. The standard of appellate review of the denial of a motion for new trial on the general grounds is essentially the same as that applicable to the denial of a motion for directed verdict or judgment n. o. v. The appellate courts can only set a verdict aside, on evidentiary grounds, as being contrary to law in that it lacks any evidence by which it could be supported.

(Citations and punctuation omitted.) Cook v. Huff, 274 Ga. 186 (1) (552 SE2d 83) (2001).

The Supreme Court of Georgia’s decision in Todd v. Todd, supra, is not applicable here. In that case, the trial court “did not evaluate or make any determinations as to the best interests of the child, and instead simply followed its own rigid policy that a parent living with a non-relative can never be awarded custody. [Cit.]” Id. at 254. Here, in contrast, the trial court expressly considered the children’s best interest, and some evidence supported its custody decision. In its ruling from the bench, the trial court noted a distinction between “being a divorced single parent” and actually being in the process of “going through a divorce,” and that it had “to consider whether or not it’s in the best interest of the children to be in a situation where those issues are not yet resolved.” Evidence also was presented that Stone-Crosby’s financial situation was precarious, affecting her ability to support two children in addition to her own child. She held only a part-time job on commission in addition to some freelance work, with variable income, and her husband was not providing any financial support during the separation and had stopped paying his share of the mortgage. As a result, she had to borrow a substantial amount of money from her parents to cover expenses.

Decided November 1, 2012.

Dana C. Ashford, for appellant.

Mann & Moran, Teresa A. Mann, Tracey A. Moran, David R. Tannen, for appellee.

Moreover, the trial court also noted its concern regarding “certain decisions and judgment” that “were not, in the court’s mind, appropriate or necessarily in the children’s best interest.” Evidence was presented that Stone-Crosby made representations to the children that they would be living with her permanently, despite knowing that the custody issue was unresolved.

Since some evidence supports the trial court’s decision, we cannot say that denial of the motion for new trial was erroneous.

Judgment affirmed.

Doyle, P. J., and Andrews, J., concur.

       Mickens-Cook argues that the motion for new trial did not address issues appropriate for such a motion, and it therefore was invalid and did not extend the time for filing a notice of appeal. “Amotion for a new trial is a proper means of seeking a retrial or reexamination, in the same court, of an issue of fact, or of some part or portion thereof, after decision by a jury or a decision by the court thereon.” (Citation and punctuation omitted.) Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 591 (2) (690 SE2d 397) (2010). The trial court held ahearing on the motion for new trial, at which Stone-Crosby sought to revisit issues of fact. The matters addressed were proper for consideration on a motion for new trial. Moreover, even a void motion for new trial, unless untimely filed, extends the time for filing a notice of appeal. Craig v. Holsey, 264 Ga. App. 344, 344-345 (1) (590 SE2d 742) (2003).

       In Dunbar, we held that despite this original jurisdiction, the superior court erred in exercising its jurisdiction because a juvenile court’s long-term custody order pursuant to an earlier deprivation action remained in effect. Id. at 441. No such order exists here.

       Stone-Crosby complained below that the trial court failed to enter sufficient findings of fact. But, as the trial court correctly observed, it need only do so upon the request of any party “on or before the close of evidence in a contested hearing,” OCGA § 19-9-3 (a) (8), and no such request was made.

       That factor takes on some additional significance in light of the fact that the murder-suicide that orphaned the children occurred during an unresolved pending divorce and custody dispute.


author: Andrews, Judge.

text:
    A12A1362.
    ACCOR NORTH AMERICA, INC. et al. v. TODD et al.
    (733 SE2d 846)
   Andrews, Judge.

Accor North America, Motel 6, Carolyn Pugh, and Lyndon Johnson (collectively “Accor”) appeal from the trial court’s order granting Jeffrey Todd’s and Teresa Trapp’s motion for partial summary judgment. Todd and Trapp filed this premises liability action after their son Jeffrey Todd was shot while staying at a Motel 6 in Albany, Georgia. Accor filed a “Notice of Fault of Non-Parties Pursuant to OCGA § 51-12-33” in which it identified three people responsible for the shooting death of Todd: Lyndon Johnson, Jimmy Teemer, and Patrick Jackson. Accor stated that it intended to present evidence of fault of the nonparties, with the degree of fault to be assessed by the factfinder.

Todd filed a motion for partial summary judgment, contending that Accor’s Notice of Fault of Non-Parties was not applicable and seeking to have OCGA § 51-12-33 held unconstitutional. The trial court granted the motion. For the reasons set forth in Couch v. Red Roof Inns, 291 Ga. 359 (729 SE2d 378) (2012), we reverse.

The parties have stipulated to the underlying facts. Todd was staying at the Motel 6 while on a business trip, and Teemer and Johnson were at the motel to see Jackson, who also had a room there. They spoke to Todd briefly before he went into his room and later decided to go back to Todd’s room and rob him. Teemer and Johnson left Jackson’s room with a gun supplied by Jackson. Todd opened the door in response to Johnson’s knock, and Teemer rushed in holding the gun. Todd also had a gun, and fired six times at Teemer, eventually killing him. Teemer fired once at Todd, who died immediately. Johnson and Jackson were tried and found guilty of Todd’s murder. When Todd’s parents filed suit, they named Johnson a defendant along with Accor, Motel 6 and Carolyn Pugh, the manager of Motel 6, but did not name Teemer and Jackson.

The statute at issue, OCGA § 51-12-33, provides in pertinent part:

(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.

OCGA § 51-12-33 (a), (b) and (c).

In ruling on the motion for partial summary judgment, the trial court held that this statute did not apply, concluding that “apportioning fault to the assailant as a contributing non-party in these circumstances would be an incompatible result under Georgia law.” Specifically, the trial court concluded that a premises liability action was similar to claims of vicarious or derivative liability and relied on this Court’s holding in PN Express v. Zegel, 304 Ga. App. 672 (697 SE2d 226) (2010), affirming a trial court’s refusal to charge on apportionment in a respondeat superior context.

In Couch v. Red Roof Inns, supra at 359, the Supreme Court answered two certified questions from the United States District Court for the Northern District of Georgia as follows:

(1) In a premises liability case in which the jury determines a defendant property owner negligently failed to prevent a foreseeable criminal attack, is the jury allowed to consider the “fault” of the criminal assailant and apportion its award of damages among the property owner and the criminal assailant, pursuant to OCGA § 51-12-33?
(2) In a premises liability case in which the jury determines a defendant property owner negligently failed to prevent a foreseeable criminal attack, would jury instructions or a special verdict form requiring the jury to apportion its award of damages among the property owner and the criminal assailant, pursuant to OCGA § 51-12-33, result in a violation of the plaintiff’s constitutional rights to a jury trial, due process or equal protection?
For the reasons set forth below, we find that (1) the jury is allowed to apportion damages among the property owner and the criminal assailant and (2) instructions or a special verdict form requiring such apportionment would not violate the plaintiff’s constitutional rights.

Decided November 1, 2012.

Thompson & Knight, David R. Noteware, Nelson, Mullins, Riley & Scarborough, Holly A. Hempel, for appellants.

Hinton & Powell, Douglas R. Powell, Deitch & Rogers, Gilbert H. Deitch, Andrew T. Rogers, for appellees.

The rules of statutory construction, including reliance on ordinary word meanings, dictate that an assailant who evades hotel security to intentionally abduct, rob, and assault a hotel guest is, at the very least, partially at “fault” for the brutal injuries inflicted by the assailant on that guest. As a party at fault, such an assailant must be included with others who may be at fault, e.g., the property owner in a premises liability action, for purposes of apportioning damages among all wrongdoing parties. This is the clear directive of OCGA § 51-12-33, the intent of which is easily discernible from the straightforward text of the statute.

Id.

Further, the Supreme Court specifically addressed the trial court’s primary basis for its holding in this case:

[T]he plaintiff argues that the negligence of a property owner is derivative of a criminal assailant’s conduct, and, as a result, the property owner must be held fully responsible, just as a principal is held responsible for the acts of an agent. This analogy, however, is misplaced, as the actions of a criminal assailant are wholly separate from any action or inaction of a property owner and there is no respondeat superior.

Couch v. Red Roof Inns, supra at 366. Accordingly, the trial court’s holding that the apportionment statute, OCGA § 51-12-33, did not apply in this case was error.

Judgment reversed.

Doyle, P. J., and Boggs, J., concur.

       The plaintiff in Couch “suffered a violent attack by unknown criminal assailants while staying in a hotel and subsequently brought suit against the owner of the hotel for failing to keep the premises safe.” Id.


text:
    A12A1584.
    HUBERT PROPERTIES, LLP v. COBB COUNTY. HUBERT PROPERTIES, LLP v. BISHOP.
    A12A1922.
    (733 SE2d 373)
   Andrews, Judge.

Hubert Properties (Hubert) appeals from the trial court’s grant of summary judgment to Cobb County and E. Neil Bishop on Hubert’s complaint for declaratory judgment. Hubert claimed that, as the original owner of property condemned by Cobb County, it should have been allowed to re-purchase the unused portion of the condemned tract. After the property in question was sold to Bishop, a neighboring landowner, Hubert sought to have the conveyance to Bishop set aside and a declaratory judgment entered allowing Hubert to re-purchase the remnant. The trial court held that the sales of the remnants to Bishop and another adjoining landowner were legal. We agree and affirm.

The record shows that Cobb County condemned land belonging to Hubert for purposes of a public road. Several years later, the County offered Hubert the option to buy back a 0.202-acre remnant parcel of the original tract of land. Hubert agreed to buy back the remnant, but the sale was never finalized.

At some point, the county board of commissioners approved an amendment to the Official Code of Cobb County which permitted the County to sell land that was incapable of being used independently to the adjoining property owners. As a result, a 0.103-acre portion of the remnant tract was sold to Bishop for $17,000, and another portion was sold to Richard Myers, who was also an adjoining property owner. This tract included the remaining 0.099-acre portion of the original 0.202-acre tract first offered to Hubert, plus an additional 0.139-acre tract. Myers paid the county $50,000 for this portion. Myers later sold this 0.238-acre tract to Bishop.

When Hubert learned that the property had been sold to the adjoining landowners, it filed suit against both the County and Bishop, seeking a declaratory judgment that the original 0.202-acre tract should be reconveyed to Hubert Properties, or, alternatively, damages should be awarded based on the fair market value of the tract and Hubert’s entitlement to the benefit of its bargain.

Both the County and Bishop filed summary judgment motions. Cobb County argued that the conveyances to Bishop and Myers were lawful and Hubert never had an enforceable contract with the County to buy back the property.

The trial court granted the motions, holding that Hubert did not have a binding contract with the County to re-purchase the land because the County never executed the contract. The trial court determined that OCGA § 36-9-3 (h) applied to the sale of the land to Bishop and Myers and therefore the Cobb County Department of Transportation properly recommended that the board of commissioners approve the sale of the remnant to Bishop and Myers because the property was incapable of being used independently as zoned. This appeal followed.

1. Hubert contends that the trial court erred by holding that the County properly disposed of the remnant tract of land under OCGA § 36-9-3 (h) instead of under OCGA § 32-7-3 and OCGA § 32-7-4.

OCGA § 36-9-3 (h) provides:

Notwithstanding any provision of this Code section or of any other law, ordinance, or resolution to the contrary, a county governing authority is authorized to sell and convey parcels of small or narrow strips of land, so shaped or so small as to be incapable of being used independently as zoned or under applicable subdivision or other development ordinances or land use plans, or as streets, whether owned in fee or used by easement, to abutting property owners where such sales and conveyances facilitate the enjoyment of the highest and best use of the abutting owner’s property without first submitting the sale or conveyance to the process of an auction or the solicitation of sealed bids; provided, however, that each abutting property owner shall be notified of the availability of the property and shall have the opportunity to purchase said property under such terms and conditions as set out by ordinance.

OCGA § 32-7-3 provides:

Whenever any property has been acquired in any manner by the department, a county, or a municipality for public road purposes and thereafter the department, county, or municipality determines that all or any part of the property or any interest therein is no longer needed for such purposes because of changed conditions, the department or the county or municipality is authorized to dispose of such property or such interest therein in accordance with Code Section 32-7-4____

OCGA § 32-7-4 states:

In disposing of property, as authorized under Code Section 32-7-3, the department, a county, or a municipality shall notify the owner of such property at the time of its acquisition or, if the tract from which the department, a county, or a municipality acquired its property has been subsequently sold, shall notify the owner of abutting land holding title through the owner from whom the department, a county, or a municipality acquired its property. The notice shall be in writing delivered to the appropriate owner or by publication if his or her address is unknown; and he or she shall have the right to acquire, as provided in this subsection, the property with respect to which the notice is given. . . .

OCGA § 32-7-4 (a) (1).

There is no conflict between OCGA §§ 32-7-3,32-7-4 andOCGA § 36-9-3 (h). OCGA § 32-7-3 authorizes the County to dispose of property in accordance with OCGA § 32-7-4 but does not require that it he disposed of in that manner. Further, OCGA § 36-9-3 (h) states that it applies, “[notwithstanding any provision of this Code section or of any other law, ordinance, or resolution to the contrary.” Also, OCGA § 36-9-3 is the most specific of the statutes, providing for the disposal of property that is “incapable of being used independently.” It is well settled that “a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent, to resolve any inconsistency between them.” Cobb County v. City of Smyrna, 270 Ga. App. 471, 475 (1) (606 SE2d 667) (2004).

The Official Code of Cobb County, Section 2-3 tracks the language of OCGA § 36-9-3 (h), and Section 2-4 sets forth the required procedure for the sale of the property to abutting property owners. Cobb County showed that the procedures were followed, and Hubert does not contend otherwise.

The trial court also correctly held that Hubert’s agreement to buy back the tract of land was not binding on Cobb County because it was never executed, and the agreement for purchase and sale was never presented to the board of commissioners for approval and recording. See West v. Fulton County, 267 Ga. 456, 457 (479 SE2d 722) (1997) (“where there is no resolution on the minutes by a county board of commissioners authorizing the conveyance of county-owned property or a subsequent ratification of the deed, in the absence of such county action, the purported conveyance did not pass title to the land therein described”).

2. Hubert also contends that the trial court erred in failing to determine that Cobb County’s acts in passing Sections 2-3 and 2-4, in reconfiguring the parcels of land, and in selling the property to Bishop were a misuse of its legislative power and a conflict of interest because these acts unjustly favored a citizen related by marriage to the county attorney.

Decided October 17, 2012

Reconsideration denied November 2, 2012

Chamberlain, Hrdlicka, White, Williams & Martin, Nicholas S. Papleacos, Richard N. Hubert, for appellant.

Freeman, Mathis & Gary, T. Bart Gary, Taylor, Feil, Harper, Lumsden & Hess, Otto F. Feil HI, Edwards, Friedewald & Grayson, Christopher M. Bethel, for appellees.

The trial court did not rule on these allegations in its written orders. But the court stated, when granting summary judgment after the hearing, that the issue of “appearances” was not before the court, nor was the court being asked “to do equity in this case.”

Likewise, on appeal, there is nothing before us in the record, by way of deposition testimony, affidavits, or any other evidence to support Hubert’s allegations of impropriety or illegality. As discussed in Division 1, the County’s actions were authorized by statute, were done in accordance with the County Code, and therefore were not, as Hubert alleges, illegal or ultra vires. Accordingly, there is no merit to this enumeration.

Judgment affirmed.

Ray and Branch, JJ., concur.


author: DOYLE, Presiding Judge.

text:
    A12A0995.
    In re ESTATE OF JOHNSTON.
    (733 SE2d 856)
   DOYLE, Presiding Judge.

Markel Hutchins, a purported creditor of the Estate of Kathryn Sanford Johnston (“the Estate”), appeals the probate court’s denial of his motion to set aside the discharge of the Estate administrator and motion for an accounting and return of Estate funds. For the reasons that follow, we vacate the probate court’s order discharging the administrator and remand for proceedings consistent with this opinion.

The record shows that on November 21,2006, Kathryn Johnston was shot and killed in her home by undercover Atlanta Police Department (“APD”) officers serving a no-knock warrant. Johnston’s niece, Sarah Charles Dozier, was appointed as the administrator of Johnston’s estate in October 2007. In such capacity, Dozier filed suit in Fulton County State Court in November 2007 against the City of Atlanta (“the City”), the police chief, and several officers seeking damages for, inter alia, Johnston’s wrongful death and pain and suffering. In August 2010, following mediation, Dozier and the City ultimately settled the case for $4.9 million. The City resolution authorizing the settlement stated that the settlement checks, made in two installments, were to be “made payable to Sarah C. Dozier and the firm of Cochran[,] Cherry[,] Givens[,] Smith[,] Sistrunk[,] and Sams. Such payment shall be in full consideration of the dismissal of all claims against the City of Atlanta. . . .”

On September 29, 2010, Dozier filed a petition to determine heirs, seeking a final order establishing Johnston’s “next of kin” under OCGA § 51-4-5 to receive the wrongful death proceeds from the settlement. At the subsequent hearing, Dozier’s counsel advised the probate court that the settlement proceeds from the City were allocated and distributed pursuant to the wrongful death claim to the heirs-to-be, as determined by the court, and that no funds therefrom were passing through the Estate. On December 21,2010, the probate court entered an order on the petition, naming Dozier and three other individuals — two of Johnston’s grand nieces and a grand nephew —■ as heirs of the Estate.

On April 20,2011, Reverend Markel Hutchins, a nonlawyer, sent a letter to Dozier and her attorney, detailing “consulting and other professional services,” which he alleged he provided to the Estate, “that made the significant settlement in [the case against the City] possible”; Hutchins included an invoice addressed to the Estate, seeking either $490,000 (ten percent of the settlement amount) or amounts ranging from $333,000 to $382,500 for the value of his services, plus $75,000 in out-of-pocket expenses.

On May 20, 2011, Dozier filed in the probate court an inventory, a final return, and a petition for discharge as personal representative, stating in the petition: Dozier listed no unpaid claims of the estate in the petition. She published notice of the petition for discharge in The Fulton County Daily Report, and individual purported heirs acknowledged services of the petition; Dozier did not serve Hutchins with notice of the petition.

The estate of the decedent was established for the purpose of having an Administrator to pursue both wrongful death claims under [OCGA § 51-4-5] and any claims which may have belonged to the estate. The proceeds of the settlement of all claims allocated $0 to the estate [ ] and all proceeds to the wrongful death claim. The Administrator reports that there are no probate assets.

On August 11, 2011, Hutchins filed a claim against the Estate, claiming that he provided “consulting and other expert services... to, for[,] and on behalf of the family and the [e]state of Kathryn Johnston.” On August 18, 2011, the probate court issued a final order discharging Dozier as administrator of the Estate “from office and all liability.”

On August 23,2011, Hutchins filed a petition for injunctive relief and damages in Fulton County Superior Court against the Estate, Dozier, individually and as administrator, and Cochran, Cherry, Givens, Smith & Sistrunk, RC. (collectively, “the defendants”), the firm that represented Dozier in the suit against the City, alleging that he represented the defendants in his professional capacity in pursuit of the litigation against the City and was entitled to payment for his services pursuant to an express oral agreement that he receive ten percent of any recovery of damages obtained for Johnston’s death or, in the alternative, the reasonable value of his services. On August 26,2011, Hutchins filed in probate court a motion to set aside Dozier’s discharge “based on fraud” pursuant to OCGA § 53-7-53, andhe filed a petition for accounting and return of estate funds on September 22, 2011, as well as a motion for an emergency hearing on the motions.

On October 24, 2011, the probate court entered separate orders denying all three motions, including Hutchins’s request for a hearing. In the order denying the motion to set aside the discharge order, the probate court rejected Hutchins’s argument that Dozier’s petition for discharge contained false statements by failing to list Hutchins as an unpaid creditor because Dozier, as personal representative of the Estate, “had the authority to evaluate the validity of claims made against the estate,” and although Hutchins had provided copies of examples of his fees, he “fail[ed] to provide any evidence of an agreement between himself and [Dozier] as personal representative of the [E] state.” The court also found meritless Hutchins’s claim that settlement proceeds for Johnston’s wrongful death belonged to the Estate; the court specifically noted that the recovery “was for the benefit of [Johnston’s] next-of-kin[,] and such recovery did not become an asset of the [E]state and is not subject to the statutes governing estate administration,” and that based on Dozier’s assertion that Johnston died instantly, there was no valid claim for actual pain and suffering nor any recovery for such by the Estate. In the order denying Hutchins’s motion for an accounting and to return funds, the probate court concluded that Hutchins had failed to establish that he was a legitimate creditor of the Estate, and he lacked standing to seek an accounting.

Hutchins appeals, arguing that the probate court erred by finding that Dozier’s petition for discharge did not contain any false statements and that he was not a legitimate creditor.

With regard to an administrator’s obligation to provide notice to creditors, Georgia law provides in relevant part:

... Every personal representative shall, within 60 days from the date of qualification, publish a notice directed generally to all of the creditors of the estate to render an account of their demands. The notice shall be published once a week for four weeks in the official newspaper of the county in which the personal representative qualified. Creditors who fail to give notice of claims within three months from the date of publication of the personal representative’s last notice shall lose all rights to an equal participation with creditors of equal priority to whom distribution is made before notice of such claims is brought to the personal representative, and they may not hold the personal representative liable for a misappropriation of the funds. If, however, there are assets in the hands of the personal representative sufficient to pay such debts and if no claims of greater priority are unpaid, the assets shall be thus appropriated notwithstanding failure to give notice.

Pursuant to OCGA § 53-7-50 (a),

[a] personal representative who has fully performed all duties ... may petition the probate court for discharge from the office and from all liability. The petition shall state that the personal representative has fully administered the estate of the decedent and shall set forth the names and addresses of all known heirs. . . . The petition shall state that the personal representative has paid all claims against the estate or shall enumerate which claims of the estate have not been paid and the reason for such nonpayment. . . ,

Here, Dozier listed no unpaid claims against the Estate. OCGA § 53-7-50 (b) (1) provides that

upon the filing of a petition for discharge, citation shall issue to all heirs or beneficiaries, as provided in Chapter 11 of this title, requiring them to file any objections to the discharge, except that in all cases a citation shall be published one time in the newspaper in which sheriffs advertisements are published in the county in which the petition is filed at least ten days prior to the date on or before which any objection is required to be filed. Any creditors whose claims are disputed or who have not been paid in full due to insolvency of the estate shall be served in accordance with Chapter 11 of this title.

The Code section further provides that

[i]f any party in interest files objection to the discharge, a hearing shall be held. If as a result of the hearing, the probate court is satisfied that the personal representative has faithfully and honestly discharged the office, an order shall be entered releasing and discharging the personal representative from all liability.

Finally, the Code provides that “[a] discharge obtained by the personal representative by means of any fraud is void and may be set aside on motion and proof of fraud.”

The Code clearly contemplates that a party in interest can file an objection to a petition for discharge and is entitled to a hearing thereon. Here, Dozier neither listed Hutchins as a creditor with a disputed claim, nor did she serve Hutchins with notice of her petition for discharge, despite her receipt of his letter alleging a claim against the Estate. Thus, Hutchins did not file an objection to her petition for discharge. He did, however, file a notice of his purported claim before the probate court granted Dozier’s petition, and he specifically-sought a hearing.

Decided November 2, 2012.

Lacrecia G. Cade, for appellant.

Ashe, Rafuse & Hill, William B. Hill, Jr., Lawanda L. Nowlin, Roger A. Kirschenbaum, for appellee.

Here, based upon the language of the statute, Dozier’s failure to comply with the notice provision therein, and the probate court’s failure to hold a hearing before concluding that Hutchins was not a creditor of the Estate and discharging Dozier as the administrator, we vacate the court’s orders denying Hutchins’s motions to set aside the discharge order and for an accounting and return of Estate funds and direct the court to hold a hearing on such motions.

Judgment vacated and case remanded.

Andrews and Boggs, JJ., concur.

       The complaint was styled “Sarah C. Dozier, as Administrator of The Estate of Kathryn Johnston v. City of Atlanta, Gregg Junnier, Jason R. Smith, Arthur Tesler, W. T. Stallings, S. Gibbs, and Richard Pennington.” The case was later removed to federal court.

       The first installment in the amount of $3 million was to be paid “immediately following approval,” and the second deferred payment of $1.9 million was “to be paid in fiscal year 2012, not later than August 15, 2011.”

       On May 20, 2011, the probate court ordered that “any purported creditors whose claims have not been paid who did not acknowledge service be served.”

       The case, Superior Court of Fulton County CivilAction No. 2001CV204805, is styled “Rev. Markel Hutchins v. Sarah C. Dozier, Individually and as Administrator of the Estate of Kathryn Johnston; The Estate of Kathryn Johnston; and Cochran, Cherry, Givens, Smith & Sistrunk, P.C.”

       OCGA § 53-7-53 provides that “[a] discharge obtained by the personal representative by means of any fraud is void and may be set aside on motion and proof of fraud.”

       The superior court previously denied Hutchins’s motion for a temporary restraining order on August 31, 2011.

       OCGA § 53-7-41.

       (Emphasis supplied.)

       (Emphasis supplied.)

       (Emphasis supplied.) OCGA § 53-7-50 (c).

       OCGA § 53-7-53. This Court has previously held that when a decedent’s creditor filed suit against an estate administrator, the administrator’s subsequent application for discharge alleging that she had paid all of the debts of the decedent was “sufficient to show fraud in procuring the judgment.” Mullis v. Bank of Chauncey, 40 Ga. App. 582 (3) (150 SE 471) (1929). We note that the case was affirmed, however, because the creditor failed to allege the fraud with particularity in its petition to set aside the discharge of the administrator. See id. at 583 (4).

       On appeal, Dozier acknowledges that Hutchins sent the letter alleging a claim against the Estate, but states that Dozier’s counsel “informed [Hutchins] that any ‘claim’ for service was meritless against any person involved in the mitigation.” Dozier’s counsel’s assertion that the claim was without merit does not, however, relieve her of her statutory duty to list Hutchins as a creditor with a disputed claim and provide him with notice of her petition for discharge.


author: Adams, Judge.

text:
    A12A1465.
    HOWARD v. THE STATE.
    (733 SE2d 859)
   Adams, Judge.

Following a jury trial, James Howard was found guilty of four counts of aggravated assault (family violence), one count of cruelty to children in the first degree, two counts of possession of a weapon during the commission of a crime, two counts of attempted murder and two counts of aggravated battery (family violence). He filed a motion for new trial, which the trial court denied, and then the present appeal. He now argues that the trial court erred by admitting evidence of similar transactions and that the trial court should have granted a mistrial because of prosecutorial misconduct. Having carefully considered his claims of error, we now affirm.

Although Howard does not challenge the sufficiency of the evidence to support his convictions, we will briefly summarize that evidence here. As the State aptly puts it, Howard and Tasha Taylor had been involved in a “tumultuous relationship,” and there had been incidents of physical confrontations between them in the past. Howard and Taylor had lived together at one point, but Howard eventually moved out. Taylor’s children, including her 12-year-old daughter A. H., also lived in the home. A. H. had interceded on previous occasions when Howard and Taylor would argue, and Howard had previously threatened both A. H. and Taylor.

On the day of the incident, Howard was at Taylor’s house and they were talking about getting back together. Taylor testified she repeatedly told Howard that she just wanted to be friends and was tired of arguing and being accused of having affairs. After Howard had been there for several hours, A. H. returned home from school, and she and Howard walked to a nearby store. During that walk, Howard asked her if he was the right man for her mother, and she told him no.

When they returned, A. H. went upstairs to her room, and Taylor and Howard continued to talk, with Taylor insisting their relationship was over and telling Howard he should leave, and Howard trying to talk her into continuing their relationship. Howard and Taylor were yelling at each other, and A. H. came back downstairs and asked Howard to leave and told him to come back later to talk to her mother. At some point Howard asked Taylor if her final answer was that she did not want to take him back, and when she said yes, he grabbed a knife and started stabbing her. A. H. realized what was happening and told him to stop, and he turned around and began stabbing A. H., inflicting wounds to her arm, back, leg and side. A. H. fell to the ground, and Taylor was able to put Howard in a “bear hug” while his back was to her. She yelled at A. H. to run, and A. H. ran out the front door, where she started screaming for someone to call 911. Aneighbor responded to A. H.’s screams and found her lying on her lawn, her jeans soaked in blood from her waist to almost her knees. The neighbor also testified that A. H. told her that her mother’s boyfriend had stabbed her, and when police arrived A. H. also told them that her mother’s boyfriend had stabbed her and her mother.

After A. H. ran out the door, Howard and Taylor continued to struggle, and Howard broke free from Taylor and said “Bitch, you going to die tonight [ ]” and then proceeded to stab her multiple times before finally stopping, grabbing his jacket and running out the door. Although Taylor was going in and out of consciousness by the time the police arrived and found her in the apartment, she also was able to tell them that Howard had stabbed her. Additionally, Howard’s jacket and a knife were recovered from an apartment he visited after he left Taylor’s apartment, and subsequent DNA testing revealed blood on the knife and jacket that matched A. H.’s DNA profile.

The State also introduced, over Howard’s objection and following a hearing, evidence of two instances of similar crimes of domestic violence which occurred in 2003 and 2006. At trial the State sought to prove these prior crimes by admitting certified copies of Howard’s convictions from both the 2003 and 2006 offenses and by introducing the testimony of the officer who initially responded to the scene of the 2003 incident and the testimony of the detective who investigated the 2006 incident.

Howard also testified and denied that he stabbed either victim; rather, according to Howard, he and Taylor were arguing, she had a knife, which she was swinging at him, and she stabbed her daughter when A. H. stepped between them. Further, he said Taylor was not stabbed, but was cut on glass from a table that broke during the altercation.

Notwithstanding this testimony, which the jury obviously found not credible, we find the evidence, as outlined above as well as other evidence presented at trial, amply supported Howard’s convictions.

1. We now turn to Howard’s first enumeration of error, in which he challenges the introduction of the 2003 and 2006 similar transactions. Howard does not challenge the trial court’s finding that the prior offenses were sufficiently similar, or that the prior offenses were admissible to show bent of mind and course of conduct, but argues instead that proof of the crimes was insufficient because the victims themselves did not testify at trial.

As our Supreme Court has explained:

[Although a certified copy of a prior conviction generally is not sufficient, by itself, to prove the similarity of another crime, it is relevant evidence of that crime when taken together with testimony or other evidence regarding that crime. See, e.g., Rose v. State, 275 Ga. 214, 216 (563 SE2d 865) (2002); Burgess v. State, 264 Ga. 777, 784 (450 SE2d 680) (1994); Nelson v. State, 242 Ga. App. 63, 65 (528 SE2d 844) (2000). As demonstrated by the repeated approval of the use of certified convictions in proving similar transactions, such evidence is probative and is not per se unduly prejudicial. See United States v. Walker, 428 F3d 1165, 1170 (8th Cir. 2005) (rejecting contention that using a certified conviction to prove a similar transaction is unduly prejudicial because it “ ‘gives a court’s imprimatur upon the defendant’s past criminality,’ ” explaining that “(a) certified conviction is the best evidence of what occurred, . . . and it can be less prejudicial to a defendant than other forms of proof since it recites only the ‘bare bones’ fact of conviction rather than giving any details of the crime.”).

(Emphasis supplied.) Bell v. State, 287 Ga. 670, 674 (2) (697 SE2d 793) (2010).

Further, our Supreme Court has found essentially the same type of evidence that was presented here to be sufficient to establish a similar transaction. Rose, 275 Ga. at 216 (2) (prior crime sufficiently established by testimony of responding officer and certified copy of conviction). And although Howard also argues that the police officers’ testimony was inadmissible hearsay and thus without probative value, the transcript shows that the officers confined their testimony to their observations of the victims’ injuries and statements Howard made to them following the crimes; indeed the trial court specifically cautioned at one point that the prosecuting attorney needed to make clear to the witness to confine her testimony to what Howard said to her. Compare Terry v. State, 262 Ga. App. 654 (586 SE2d 357) (2003) (deputy sheriff’s testimony about facts told to him by other officers was inadmissible hearsay).

Howard also states in his brief on appeal that he was deprived of the right to confront his accusers. However, this one sentence appears to be the sum total of a Confrontation Clause “argument,” and we decline to elucidate Howard’s argument on his behalf. Thus, based on the foregoing, we find this enumeration of error to be without merit.

2. Howard next contends that the trial court erred by failing to intervene as required by OCGA § 17-8-75 when the State sought to impeach him based upon attorney-client communications.

OCGA § 17-8-75 provides as follows:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

As pertinent here, the transcript shows that the trial court called for a break during the prosecutor’s cross-examination of Howard. When the proceedings resumed, the prosecuting attorney first asked Howard if he had a chance to speak with his lawyer during the break, and Howard responded that he had a brief moment with him. The prosecuting attorney then said ‘Yeah, you were able to get your story together, weren’t you?” and defense counsel objected, calling the question “outrageous.” The trial court overruled the objection and the following exchange took place:

Prosecuting Attorney: You were getting your story together, weren’t you?
Howard: No. I don’t know what you’re talking about, I’m just having a consult with my lawyer, I don’t know what you mean by getting your story together.
Prosecuting Attorney: Well, what did y’all talk about?
Howard: That ain’t got nothing to do with you, that’s between me and my lawyer.
Prosecuting Attorney: So you won’t tell us?
Howard: You ain’t got nothing—that’s between [me] and my lawyer.
Prosecuting Attorney: All right.

Defense counsel then offered to answer the question, and the Court admonished both counsel that they were not to testify in the presence of the jury. And the court also “remind[ed] the jury that nothing the lawyers have to say is evidence in this case.” The prosecuting attorney then moved on to another line of questioning.

We have little hesitancy in concluding that it was improper for the prosecuting attorney to ask Howard what he and his attorney talked about and to raise the implication that Howard and his attorney were fabricating a defense, and to imply Howard’s failure to reveal his confidential conversation with his attorney meant he had something to hide. Further, we agree with Howard that the trial judge had an obligation to rebuke counsel, give curative instructions or grant a mistrial after a proper objection was made under the plain terms of OCGA § 17-8-75.

Decided November 2, 2012.

Thomas S. Robinson III, for appellant.

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

In any event, however, reversal is not required, because it is highly probable that any error did not contribute to the verdict. See O’Neal [v. State, 288 Ga. 219, 223 (702 SE2d 288) (2010)] (explaining that harmless error analysis applies to alleged violation of OCGA § 17-8-75); Walker v. State, 281 Ga. 521, 524 (640 SE2d 274) (2007) (same).

Dolphy v. State, 288 Ga. 705, 708 (2) (b) (707 SE2d 56) (2011). Here, the trial court “reminded” the jury “that nothing the lawyers have to say is evidence in this case,” and then instructed the jury in its final charge that the lawyers’ questions were not evidence. Further, the evidence here was very strong, if not in fact overwhelming. “All things considered, including the strength of the State’s evidence in this case, we conclude that it is highly probable that the trial court’s (alleged) error in failing to comply with OCGA § 17-8-75 did not contribute to the verdicts.” (Citation and punctuation omitted.) Id. at 708 (2) (b).

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       The trial court merged several of the counts for sentencing.

       Howard’s convictions were based on guilty pleas in both prior cases.

       The officer who responded to the 2003 crime scene testified that Howard made a spontaneous statement to him that he and the victim were like “Bonnie and Clyde” and that he had to beat her up because she was drunk, and the detective who investigated the 2006 incident testified that Howard made an in-custody statement admitting that he hit the victim after she became physically aggressive toward him.


author: Branch, Judge.

text:
    A12A1540.
    BROWN v. THE STATE.
    (733 SE2d 863)
   Branch, Judge.

On appeal from his conviction for child molestation, statutory rape, and enticing a child for indecent purposes, Rozell Brown argues that the evidence was insufficient as to the statutory rape count and that the trial court erred when it excluded evidence that could have impeached the victim’s aunt, when it failed to include the definition of enticing a child in the jury charge, and when it refused to charge on the lesser included offense of sexual battery. We find no reversible error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that on or about March 28,2009, and accompanied by her cousin and aunt, the 14-year-old victim attended a cookout hosted by Brown and his wife. During or soon after the cookout, Brown asked the victim and her cousin whether they wanted to go to a motel. Thinking that Brown was inviting them to a party, the girls agreed. When Brown texted the girls at their aunt’s house later that night to ask whether they were “ready to go” to the motel, they replied “no” because the aunt was still awake. When the aunt fell asleep, however, the girls left the house through a window. Brown picked them up as they walked down a road nearby and also picked up the cousin’s 15- or 16-year-old boyfriend. Brown drove all three teenagers to a motel, checking in alone while the others waited at a room in the rear. Once in the room, the cousin and her boyfriend saw Brown kissing the victim on the neck and trying to remove her belt. Brown asked the cousin and her boyfriend to go into the bathroom, which they did. According to the victim’s testimony at trial, Brown undressed her and penetrated her vagina with his penis. As the sex continued, the cousin heard the bed moving back and forth against the wall, and the boyfriend heard a girl moaning. When the boyfriend left the bathroom, he saw Brown naked. A few days later, Brown entered a theater where the victim and three other girls were watching a movie. Brown sat down beside the victim and put his hand down her pants. When the aunt entered the theater, Brown left.

When another cousin told the victim’s mother and aunt about the night at the motel, the victim reported Brown’s attacks to the Coweta County sheriff’s office. Brown was charged with molestation, statutory rape, and enticing a child for indecent purposes in connection with the incidents at the motel. After a jury found Brown guilty, he was convicted and sentenced to 30 years to serve. His motion for new trial was denied.

1. Brown first contends that because OCGA § 16-6-3 requires more than a victim’s unsupported testimony to prove the offense of statutory rape, the evidence here was insufficient to sustain his conviction for that crime. We disagree.

Under OCGA § 16-6-3 (a), “[a] person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.” However,

the quantum of corroboration needed is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration and ultimately the question of corroboration is one for the jury.

(Citation, punctuation and footnote omitted.) Weldon v. State, 270 Ga. App. 262, 264 (2) (606 SE2d 329) (2004).

In this case, there was sufficient corroboration. First, the record shows that the victim made a statement to police consistent with her testimony at trial. As this Court has held, “[a] child-victim’s prior consistent statements, as recounted by third parties to whom such statements were made, can constitute sufficient substantive evidence of corroboration in a statutory rape case.” (Citation and punctuation omitted.) Lee v. State, 232 Ga. App. 300, 302 (2) (501 SE2d 844) (1998). Second, the cousin and her boyfriend provided circumstantial evidence as to Brown’s access to and contact with the victim. See McClendon v. State, 187 Ga. App. 666, 667 (371 SE2d 139) (1988). Either of these items of evidence provides the “slight circumstances” sufficient to corroborate the victim’s account. Lee, supra at 302 (2) (affirming conviction for statutory rape when victim’s testimony was corroborated by her mother and police); Jackson, supra.

2. Brown argues that the trial court abused its discretion when it barred cross-examination of the aunt concerning a false accusation of rape she made against her own boyfriend. We disagree.

The record shows that before trial, Brown asked to cross-examine the aunt about a false statements charge, later dismissed, arising from her accusation that her boyfriend had raped her. The trial court made a preliminary determination that the aunt’s accusation against her boyfriend and the victim’s accusation against Brown had no connection. At trial, the trial court conducted voir dire as to the aunt and then confirmed its earlier ruling and denied Brown’s motion because, among other things, the false statements charge against the aunt had been dismissed and because there was no evidence that the State obtained her testimony in this case by means of the dismissal of the earlier case.

This Court has held that in order to obtain the admission of a previous false allegation of sexual abuse, a defendant must establish outside the presence of the jury that “a reasonable probability of falsity exists” as to that allegation. Clements v. State, 279 Ga. App. 773, 774 (2) (632 SE2d 702) (2006). “The defendant has the burden of coming forward with evidence at the hearing to establish a reasonable probability that the victim had made a prior false accusation of sexual misconduct.” Id. As the Supreme Court of Georgia has held, moreover, when a defendant “ ‘cannot show evidence of a deal or any hope of a deal between the witness and the State, [a] trial court does not err in prohibiting the defendant from impeaching the witness with impermissible character evidence.’ ” Colzie v. State, 289 Ga. 120, 124(3) (710 SE2d 115) (2011), quoting Sapp v. State, 263 Ga. App. 122, 123-124 (587 SE2d 267) (2003). Even if the false statements charge had still been pending against the aunt at the time of Brown’s trial, “there was still no evidence of any deal or potential deal” between the aunt and the State in exchange for her testimony against Brown. Colzie, supra at 124 (3). It follows that the trial court did not err when it barred any examination of the aunt on the subject. Id.

Moreover, although there was evidence that the aunt confronted Brown about his suspicious appearance at the movie theater and accompanied the girls to the sheriff’s office, there was no evidence that the aunt reported the actual attack at the motel to authorities. See Lane v. State, 223 Ga. App. 740, 743 (5) (479 SE2d 350) (1996) (trial court did not abuse its discretion when it limited examination regarding a victim’s relative’s prior false accusation when the relative was not the person to report the crime charged in the case-in-chief); compare Wand v. State, 230 Ga. App. 460, 466 (496 SE2d 771) (1998) (physical precedent only) (Smith, J., concurring specially) (where victim’s mother reported a sexual attack to the police, evidence of “prior similar false allegations could impact on her credibility and propensity for making such allegations”). For this reason also, the trial court did not abuse its discretion when it limited examination of the aunt concerning her prior allegations against her boyfriend.

3. Brown also argues that he was harmed by the trial court’s failure to include a definition of the crime of enticing a child for indecent purposes in its charge to the jury. We disagree.

OCGA § 16-6-5 provides that “[a] person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” The record shows that near the beginning of its charge to the jury, the trial court read the indictment against Brown that Brown “did unlawfully solicit, entice, and take [the victim], a child under the age of 16 years, to [a motel] for the purpose of child molestation and indecent acts, contrary to the laws of the State of Georgia.” The trial court also told the jury that “[t]he indictment and the plea form the issue that you are to decide.” The indictment alleged every material element of enticing a child for indecent purposes pursuant to the statute even as it added names and locations unique to this case. The trial court later charged the jury on the definition of child molestation as well as the asportation and intent elements of the crime of enticing a child, but it did not repeat the indictment’s tracking of OCGA § 16-6-5 in the portion of the charge specifically pertaining to the enticement count. Brown did not object to this or any other portion of the charge. Brown raised the trial court’s failure to charge the jury on the definition of enticing a child in his motion for new trial, however.

A failure to object to a charge at trial typically precludes appellate review except as to “plain error which affects substantial rights of the parties.” OCGA § 17-8-58 (b). Under State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011), we are bound to consider whether the trial court committed plain error as to a charge by considering four factors:

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.”

(Punctuation and emphasis omitted.) Id. at 33 (2) (a), quoting Puckett v. United States, 556 U. S. 129 (II) (129 SC 1423, 173 LE2d 266) (2009). More succinctly, “ ‘the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.’ ” (Punctuation omitted.) Kelly, supra at 33 (2) (a), quoting Wagner v. State, 311 Ga. App. 589, 594 (716 SE2d 633) (2011) (Blackwell, J., concurring specially).

Even after its decision in Kelly, the Supreme Court of Georgia has reaffirmed that “[j]ury instructions are read and considered as a whole in determining whether there is error.” (Punctuation omitted.) Sapp v. State, 290 Ga. 247, 251 (2) (719 SE2d 434) (2011), quoting White v. State, 281 Ga. 276, 280 (4) (637 SE2d 645) (2006). Pretermitting whether Brown affirmatively waived his assertion of error by failing to object to the charge, we cannot say that the trial court committed a “clear or obvious” error here when, even though it omitted the exact statutory definition of the crime of enticing a child for indecent purposes, it read an indictment including virtually the same definition to the jury. See Coleman v. State, 317 Ga. App. 409, 410 (1) (731 SE2d 94) (2012) (when a trial court’s charge that the State had to provide “reasonable assurance” of the identity of the drugs sold with those tendered into evidence did not change the burden of proof as to chain of custody, a defendant could not show “clear or obvious” error). Nor do we find it likely that the trial court’s omission affected the outcome of the proceedings. See Kelly, supra at 33 (2) (a).

Decided November 2, 2012.

Jennifer A. Trieshmann, for appellant.

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

4. Finally, Brown argues that the trial court erred when it refused his request to charge the jury on sexual battery as a lesser included offense of both child molestation and statutory rape. See OCGA § 16-6-22.1 (b) (defining sexual battery as intentional physical contact with “the intimate parts of the body of another person without the consent of that person”). But Brown has pointed to no evidence suggesting that he merely touched rather than penetrated the victim and that this touching occurred “without the requisite intent” to commit child molestation. Smith v. State, 310 Ga. App. 392, 396 (3) (713 SE2d 452) (2011). As a result, and because the evidence showed that Brown committed either child molestation or statutory rape “ ‘or no crime at all,’ ” id., quoting Linto v. State, 292 Ga. App. 482, 487 (4) (664 SE2d 856) (2008), he was not entitled to a jury charge on the lesser crime of sexual battery. Smith, supra at 396 (3).

Judgment affirmed.

Miller, P. J., and Ray, J., concur.