author: McFadden, Judge.

text:
    A12A1176.
    STOWERS v. BRANCH BANKING & TRUST COMPANY.
    (731 SE2d 367)
   McFadden, Judge.

William Gray Stowers appeals the grant of summary judgment to Branch Banking & Trust Company (“the bank”) in his suit for breach of contract. Stowers argues that the bank’s rescission of a foreclosure sale at which he was the high bidder does not come within the “safe harbor” provision of OCGA § 9-13-172.1. Under that statute, in certain circumstances, when a foreclosing lender rescinds a foreclosure sale, the high bidder’s damages are limited. Although we agree with Stowers that under the law as it currently exists the bank’s reason for rescinding the sale was unsound, we decline to apply that law retroactively and conclude that the rescission falls within the safe harbor provision. We therefore affirm the bank’s summary judgment.

The bank foreclosed on a property securing a note. Stowers was the high bidder at the nonjudicial foreclosure sale. Stowers tendered a cashier’s check for the bid amount, and the bank gave him a memorandum of sale. Before the bank had executed a deed under power in favor of Stowers, the debtor’s attorney contacted the bank, asserting that the bank’s notice to the debtor of the foreclosure sale was defective in that it did not comply with the requirement at O CGA § 44-14-162.2 that it identify “the individual [with] full authority to negotiate, amend, and modify all terms of the mortgage.” The bank agreed with the debtor that the notice was defective and renegotiated the terms of the debt with the debtor.

The bank notified Stowers that it was rescinding the foreclosure sale under the safe harbor provision at OCGA § 9-13-172.1. Under that statute, in certain circumstances, “the damages that may be awarded to the purchaser in any civil action are limited solely to the amount of the bid funds tendered at the sale plus interest on the funds at the rate of 18 percent annually, calculated daily.” OCGA § 9-13-172.1 (d). One of those circumstances is failure to comply with the statutory requirements for the sale. Id.

The bank rescinded the sale under the belief that its notice to the debtor did not comply with OCGA § 44-14-162.2. The notice listed the bank’s attorney as the person having “full authority to negotiate, amend, and modify all terms of the mortgage,” but the attorney would have had to consult with his client about any modification. The bank tendered a check to Stowers for the bid funds plus interest at 18 percent.

Stowers filed this action, seeking damages for the bank’s breach of contract and bad faith attorney fees. Stowers appeals the grant of the bank’s motion for summary judgment.

1. Stowers argues that the bank’s notice to the debtor was not defective under OCGA § 44-14-162.2 (a), and therefore the bank could not avail itself of the safe harbor provision of OCGA § 9-13-172.1 (d) (1). Stowers argues that under its plain terms, as well as under the holding in TKW Partners v. Archer Capital Fund, 302 Ga. App. 443 (691 SE2d 300) (2010), the notice complied with the statute. We do not agree. The notice did not fully comply with the plain terms of the statute: the holding of TKW is that substantial compliance is sufficient. We conclude that for purposes of this case TKW should not be applied retroactively.

OCGA § 44-14-162.2 (a) sets out the notice requirement.

Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract . . . shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. . . .

The notice at issue was sent by the bank’s law firm to the debtor and identified the lender as Branch Banking & Trust Company. It stated:

Please note that the following person has full authority to negotiate, amend, and modify all terms of the mortgage with you and can be contacted as follows:
Martin G. Quirk
[address]
[telephone number]
If you want to discuss any aspect of this matter, please contact us immediately. Any communication shouldbe directed to this Law Firm and not directly to the Lender.

The plain terms of the statute require that the notice “include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor.” The undisputed evidence is that Martin Quirk did not have full authority to modify the terms of the debtor’s loan obligation. Rather, Quirk was authorized to receive communications from the debtor, to convey them to the bank, to make recommendations, and to convey the bank’s position to the debtor. Although Quirk may have had apparent authority to act on the bank’s behalf, the plain terms of OCGA § 44-14-162.2 (a) require the notice to “include the name, address, and telephone number of the individual or entity who [has] full authority” to modify the loan terms. (Emphasis supplied.)

Nevertheless, Stowers is correct that under our holding in TKW, 302 Ga. App. at 443, the notice the bank sent to the debtor complies with the statute. Like the notice at issue here, the notice in TKW included the name, address and telephone number of the lender’s attorney. Id. at 446 (1). We rejected the argument that — because the attorney did not have full authority to negotiate, amend and modify the loan, and the notice listed no entity or individual with such authority — the notice failed to comply with OCGA § 44-14-162.2. Id. We concluded that the statute “does not require the individual or entity be expressly identified as having ‘full authority to negotiate, amend, and modify all terms of the mortgage.’ ” Id. Rather, substantial compliance with the notice provision of OCGA § 44-14-162.2 is sufficient. Id. But see Reese v. Provident Funding Assoc., 317 Ga. App. 353, 359 (730 SE2d 551) (2012) (rejecting trial court’s ruling that substantial compliance was sufficient and finding that notice of foreclosure violated OCGA § 44-14-162.2 because it identified loan servicer instead of the secured creditor with the authority to foreclose). Consequently, under TKW, the bank’s notice in this case was not defective, and it was not obligated to rescind the foreclosure sale on that basis.

But at the time the bank rescinded the sale, the notice provision, which became effective May 13,2008, Ga. L. 2008, p. 624, § 2, had not been interpreted. We decided TKW three weeks after the rescission. The question, then, is whether the holding of TKW applies retroactively to this case.

The general rule is that judicial decisions apply retroactively. Findley v. Findley, 280 Ga. 454, 459 (1) (629 SE2d 222) (2006). We apply that general rule

unless the decision itself expressly makes it a matter of pure or selective prospectivity or, after examining whether retroactive application would adversely affect operation of the new rule and weighing the inequity imposed by retroactive application, we subsequently conclude application of the new rule would cause unjust results to those who justifiably relied on the former state of the law. In so doing, the criteria set out in Chevron Oil [v. Huson, 404 U. S. 97 (92 SC 349, 30 LE2d 296) (1971)], may be employed.

Findley, 280 Ga. at 460 (1). As restated in Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (3) (300 SE2d 673) (1983), the criteria of Chevron Oil require a court to:

(1) Consider whether the decision to be applied nonretroactively established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. (2) Balance . . . the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation would further or retard its operation. (3) Weigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity.

Following these criteria, we conclude that TKW does not apply retroactively to this case.

(1) As we noted above, TKW decided an issue of first impression and established a new principle of law: that substantial compliance with the contact information requirement of OCGA § 44-14-162.2 (a) is sufficient. TKW is silent as to any retroactive application.

(2) Applying this new principle of law to the instant case would neither further nor retard the operation of the principle. On the other hand, declining to apply the principle here would be consistent with the legislature’s intent in enacting OCGA § 44-14-162.2, which, among other things, was to make “transparent... the identity (and contact information) of the party with authority to agree to a loan modification.” (Citation omitted.) Reese, 317 Ga. App. at 357 (1). The bank rescinded the sale because of the notice’s failure to give the contact information of the party with authority to agree to a modification.

Decided August 23, 2012

Reconsideration denied October 12, 2012

Maddox, Nix, Bowman & Zoeckler, Robert W. Maddox, John A. Nix, Robert L. Zoeckler, for appellant.

Declining to apply the principle here would also further the legislature’s intent in enacting OCGA § 9-13-172.1, which was “to create a mechanism to give homeowners every opportunity to cure a default and avoid the harmful and disturbing effects of foreclosure.” JIG Real Estate v. Countrywide Home Loans, 289 Ga. 488, 492 (2) (b) (712 SE2d 820) (2011). The bank’s conclusion that its notice did not comply with the statute, and therefore that it was obligated to rescind the foreclosure, gave the debtor another opportunity to cure the default and to avoid foreclosure. And the debtor availed herself of that opportunity.

(3) As the trial court found, the equities weigh strongly in the bank’s favor against retroactive application. The bank’s interpretation of the statute was reasonable. It furthered the intent of the legislature’s enactment of the notice and safe harbor provisions. And within a month of the sale, the bank returned to Stowers the bid funds plus interest at 18 percent. The equities are important; Georgia courts

have . . . declined to give retroactive effect to a judicial decision when the particular equities of a subsequent case establish that selective prospectivity (i.e., the new rule is applied to the case in which it is announced and the former rule is applied to other litigants in similar situations whose cases arise on facts that pre-date the pronouncement of the new rule) is more just.

Findley, 280 Ga. at 459-460 (1). This is such a case.

2. Stowers argues that he is entitled to damages for the bank’s breach of the memorandum of sale. Pretermitting whether the memorandum of sale is an enforceable contract, the recession provisions of OCGA § 9-13-172.1 by their terms allow a foreclosing lender to rescind a foreclosure sale. The memorandum of sale simply memorialized certain aspects of the foreclosure sale; rescinding the foreclosure sale also rescinded the memorandum of sale.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

Quirk & Quirk, Kevin E. Quirk, for appellee.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A12A1334.
    POSTELL v. BOARD OF COMMISSIONERS OF HOUSTON COUNTY.
    (732 SE2d 303)
   Andrews, Judge.

Crandall Postell’s great-grandfather died intestate in 1949. No administrator was ever appointed for his estate, which includes 101.26 acres in Houston County. On May 25, 2011, the Houston County Board of Commissioners, which sought to build a road using a small parcel of the property, filed a petition for condemnation and a declaration of taking and deposited the targeted property’s fair market value into the court registry. On July 25, the County dismissed this first petition; two days later, it filed a second condemnation petition and declaration of taking. On August 9, the court issued an order condemning the property in favor of the Board. On August 22, Postell’s mother executed a quitclaim deed concerning the property in her son’s favor. On August 23, Postell responded to the condemnation petition and filed a motion to set aside the condemnation on grounds including that he was an heir to the property, that the Board had not followed the procedures laid out in OCGA § 32-3-1 et seq., and that the Board had discriminated against him on the basis of his race and class. After a hearing, the trial court dismissed Postell’s objections on the ground that at the time title to the property passed to the Board, he had no interest in it and thus no standing to object.

On appeal, Postell argues pro se that the trial court erred when it dismissed his claims and that the condemnation proceedings violated the Georgia and United States Constitutions. We disagree.

1. OCGA § 32-3-4 (a) provides that a state agency, county or municipality may initiate “a proceeding in rem in the superior court of the county having jurisdiction condemning the property or interests to the use of the petitioner upon payment of just and adequate compensation therefor to the person or persons entitled to such payment.” OCGA §§ 32-3-5 and 32-3-6 detail the contents of a proper condemnation petition, including a declaration of taking and an estimate of just compensation. And OCGA § 32-3-7 (a) provides:

Upon the filing of the declaration of taking and the deposit into court, which deposit shall be made at the time the declaration of taking is filed to the use of the persons entitled thereto, of the sum of money estimated in the declaration by the condemning authority to be just compensation, title to the property in fee simple absolute or such lesser interest as is specified in the declaration shall vest in the condemnor; the land shall be deemed to be condemned and taken for the use of the condemnor; and the right to just compensation for the same shall vest in the persons entitled thereto.

(Emphasis supplied.) Thus, as the Supreme Court of Georgia has held, a petition for condemnation “is not a mere pleading but an instrument which passes title when filed and just and adequate compensation is paid into court[.]” Dorsey v. Dept. of Transp., 248 Ga. 34, 36 (279 SE2d 707) (1981). Our Supreme Court has also held that the condemnation statute “does not offend the due process guarantees of either the state or federal constitutions” as long as the statute’s requirements are “strictly conformed to by the condemning body.” Id. at 36-37, citing Coffee v. Atkinson County, 236 Ga. 248 (223 SE2d 648) (1976).

As the trial court held, and as OCGA § 32-3-7 (a) provides, title to the land at issue here passed to the County when it filed its petition accompanied by a declaration of taking and a deposit of funds estimated to be just compensation — that is, on July 27, 2011. Postell has made no evidentiary showing that he had any legally cognizable right in the property, whether as heir, remainderman, or otherwise, before the transfer of title on that date. See OCGA § 22-2-131 (a) (4) (requiring petition to set out “[a] description of any unknown persons or classes of unknown persons whose rights in the property or interest are to be affected”); see also Anderson v. Lynch, 188 Ga. 154, 163 (3) (3 SE2d 85) (1939) (where covenantees were “not the owners of any interest in the real estate about to be used by the county, they could not enjoin the establishment of the road merely because of a claim for incidental or consequential damages”). Postell’s mother’s execution of a quitclaim deed some weeks after the transfer of title to the County could have no effect on this result.

2. As the County has noted, the trial court disposed of Postell’s defenses and countersuit on the ground that Postell had no standing, and never ruled on his constitutional arguments. Because the trial court’s ruling was correct, we have no other issue to review on appeal. See Airasian v. Shaak, 289 Ga. App. 540, 542 (1) (657 SE2d 600) (2008) (failure to obtain an express ruling on a constitutional question waives its consideration on appeal).

For these reasons, the trial court did not err when it dismissed Postell’s motion to set aside the condemnation.

Judgment affirmed.

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

Decided September 19, 2012

Reconsideration denied October 12, 2012

Crandall Postell, pro se.

O’Neal, Long, Hall & Gurd, Michael J. Long, for appellee.


author: Dillard, Judge.

text:
    A12A0862.
    McALISTER v. ABAM-SAMSON et al.
    (733 SE2d 58)
   Dillard, Judge.

David McAlister appeals the trial court’s dismissal of his appeal related to an order to pay an attorney’s lien to John C. Dabney, Jr., for his representation of McAlister in a personal-injury action against Edith Abam-Samson. McAlister argues that the trial court (1) lacked statutory authority to dismiss the appeal for a delay in transmitting the record appendix and (2) erred in dismissing the appeal when the delay was not unreasonable, inexcusable, or caused by him. For the reasons set forth infra, we affirm.

The record reflects that McAlister filed a notice of appeal in the underlying case on February 17, 2011, which directed that a “[t]ran-script of evidence and proceedings will be filed for inclusion in the record on appeal, and the parties will undertake the responsibility of filing their own record.” On August 5, 2011, Dabney—as an intervenor in the McAlister/Abam-Samson case—filed a motion to dismiss McAlister’s appeal due to a failure to file the record appendix.

At a hearing on the matter, McAlister’s counsel testified that he spoke to the clerk’s office in the State Court of Forsyth County; that the clerk advised that the office would “send everything to the Court of Appeals”; that he thereafter received and made payment on a bill from the clerk’s office “for preparing [the] transcript and everything”; and that he was then “under the assumption that when [the clerk] said we’ll send everything over to the Court of Appeals, that everything had been sent to the Court of Appeals____” McAlister’s attorney thus attributed the delay in sending the record appendix to a miscommunication with the clerk’s office, which had left him “under the impression that everything had been sent when, in reality, only the transcript had been sent.”

Thereafter, the trial court granted Dabney’s motion to dismiss under OCGA § 5-6-48 (c), finding that the delay of 55 days was unreasonable, caused by McAlister, and inexcusable. This appeal by McAlister follows.

At the outset, we note that a trial court’s ruling on whether an appeal is subject to dismissal will be reversed only for an abuse of discretion. And OCGA § 5-6-48 (c) requires the trial court to “determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable before exercising its discretion in deciding whether to dismiss the appeal.” With these guiding principles in mind, we turn now to McAlister’s enumerations of error.

1. McAlister first argues that the trial court lacked authority under OCGA § 5-6-48 (c) to dismiss the appeal for failure to transmit the record appendix. We disagree.

Prior to December 17, 2011, this Court accepted for consideration “any record or substitute therefor which the Supreme Court of Georgia accepts under its rules.” And Rule 67 of the Supreme Court of Georgia provides for the submission of a record appendix by the parties to an appeal, which is to be transmitted “within 5 days after the date of filing of the transcript of evidence and proceedings by the appellant or appellee” or, when no transcript of evidence and proceedings is sent, the record appendix must be transmitted “within 30 days after the date of filing of the notice of appeal.” Although it does not reference the record appendix, which is a creation of our Supreme Court and not that of the General Assembly, OCGA § 5-6-48 (c) provides that after notice and opportunity for hearing, a trial court may

order that the appeal be dismissed [when] there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party. In like manner, the trial court may order the appeal dismissed [when] there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence . . . .

McAlister argues that the trial court erred in applying OCGA § 5-6-48 (c) to dismiss his appeal because that Code section does not contemplate a failure to transmit the record appendix and because he paid costs as billed by the clerk of court. We find this argument unavailing.

The record appendix is a judicially sanctioned (at the highest level) method of transmitting the documents relevant and necessary to an appeal. Our Supreme Court adopted this alternative means of submitting the appellate record on June 2, 2010, by amending Supreme Court of Georgia Rules 67 and 69; and, as noted supra, this Court—prior to December 17, 2011—accepted for consideration “any record or substitute therefor which the Supreme Court of Georgia accepts under its rules.” The question at the heart of this appeal, then, is whether the Supreme Court’s rules authorizing the record appendix, and the Court of Appeals rule incorporating same, can be reconciled with the dictates of OCGA § 5-6-48 (c). We conclude that they can be.

While it is certainly true that OCGA §§ 5-6-43 and 5-6-48 (c) make no mention of a record appendix, and that there is nothing in the text of these statutory subsections evincing an intent by the General Assembly to authorize litigants to transmit some or all of the documents relevant or necessary to an appeal, this does not necessarily end our inquiry. This is because the prior version of Court of Appeals Rule 17 in place at the time McAlister filed his notice of appeal explicitly authorized him—by way of incorporating Supreme Court Rules 67 and 69—to file a record appendix as an alternative means of transmitting the appellate record; and appellate court rules have the force of law unless they are in conflict with federal or state law. Andhere, we see no conflict whatsoever between the statutorily prescribed method of transmitting the appellate record and the alternative means authorized by our Supreme Court. Indeed, the General Assembly makes clear in OCGA § 5-6-30 that “[i]t is the intention of this article to provide a procedure for taking cases to the Supreme Court and the Court of Appeals . . .”—not the exclusive procedure, but a procedure for bringing an appeal before this Court and our Supreme Court.

But even if we were to assume arguendo that there was indeed a conflict between OCGA §§ 5-6-43, 5-6-48 (c), and Supreme Court Rules 67 and 69 (and thus the prior version of Court of Appeals Rule 17), this Court—as the intermediate appellate court in Georgia—is entirely lacking in authority to pass judgment on either the legality or constitutionality of our Supreme Court’s rules. Suffice it to say, as an inferior appellate court we properly assume that our Supreme Court’s rules are both legal and constitutional.

In sum, we conclude that the trial court did not err in reading the rules of our Court—and thus, by incorporation, Supreme Court of Georgia Rules 67 and 69—in pari materia with OCGA § 5-6-48 (c), and applying that particular Code section to a situation involving the judicially sanctioned record appendix, which is merely an alternative method by which the parties were permitted to transmit the documents relevant and necessary to the appeal.

It is true that ordinarily, once the notice of appeal has been filed, “the obligation for the preparation of the record rests with the clerk” and the appellant has the responsibility of timely paying costs and “filing the requisite transcript or portions thereof within 30 days.” But here, McAlister took upon himself the duty otherwise delegated to the clerk of court (i.e., transmission of the record), and he therefore cannot now complain about his appeal being dismissed pursuant to OCGA § 5-6-48 (c) when he expressly elected to file a record appendix in his notice of appeal. Thus, while the Appellate Practice Act is to “be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein,” this forgiving canon of statutory construction has its limits. Indeed, were we to hold that OCGA § 5-6-48 (c) does not encompass a party’s decision to take on the responsibility of transmitting a record appendix, an appeal for a delay in filing same could never be dismissed—a result which is patently absurd. Thus, we conclude that the trial court did not err in applying OCGA § 5-6-48 (c) to resolve this issue.

2. McAlister also argues that even if OCGA § 5-6-48 (c) applies to a delay in transmitting the record appendix, the delay here was not unreasonable, was not inexcusable, and was not caused by McAlister. Once again, we disagree.

As explained supra, OCGA § 5-6-48 (c) requires the trial court to “determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable before exercising its discretion in deciding whether to dismiss the appeal.” And the trial court in the case sub judice found that the delay in this case equaled 55 days, was caused by McAlister, and was inexcusable.

We have previously held that “[a] delay of more than 30 days in filing a transcript... is prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.” Here, the notice of appeal was filed February 17,2011; the clerk of court transmitted the transcript on June 2, 2011; and the motion to dismiss was filed August 5, 2011, at which point no record appendix had been transmitted because McAlister was “under the assumption” that the clerk of court had transmitted the record. Thus, at that point, transmission of the record appendix had been delayed by approximately two months.

McAlister argues that this delay was not unreasonable because the delay did not prevent the case from being docketed for the September term of this Court. A delay is unreasonable when it may affect an appeal by (1) prejudicing a party through a change in conditions or other inequity or (2) “causing the appeal to be stale, such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.” This Court’s docket for the January, April, and September terms closes “at noon on the 15th day of December, April and August, respectively.” Thus, had McAlister transmitted the record appendix between August 5 and August 15, 2011, the case would have been docketed in the same term of court—the September term—as would have occurred had the transmission been timely. Nevertheless, McAlister has asserted that he was not even aware that the clerk of court had not transmitted the record until the motion to dismiss was filed, and the court did not hear argument on the motion to dismiss until October 10, 2011, well after the closing of the docket for our September term. It is conjecture, then, to speculate that either (1) the clerk of court would have transmitted the record to this Court between August 5 and August 15 or that (2) McAlister’s error would have been discovered in this period without the motion to dismiss. Thus, McAlister has “failed to come forward with evidence to rebut the presumption that the delay was unreasonable.”

McAlister has also failed to show that the delay was not inexcusable or that it was not his fault, attributing it to a “miscommunication” with the clerk of court. But the record reflects that McAlister elected to take responsibility for transmitting the record by stating in the notice of appeal that he would file a record appendix (and never amending his notice of appeal to provide that the clerk would be responsible for transmission of the record), but he failed in that responsibility by relying solely on an assumption that the clerk of court would transmit the record with the transcript after a vague conversation, and McAlister never made an effort to confirm same. Thus, the trial court did not abuse its discretion by dismissing the appeal.

Decided October 12, 2012

Cook, Hall & Lampros, Peter A. Lampros, Jane N. Wilkes, Patrick J. Hannon, for appellant.

Miles, Patterson, Hansord & Tallant, Dana B. Miles, Downey & Cleveland, Russell B. Davis, Stephen W. Adkins, Jr., for appellees.

Accordingly, for all the foregoing reasons, we affirm the trial court’s dismissal of McAlister’s appeal.

Judgment affirmed.

Ellington, C. J., and Phipps, P. J., concur.

       The underlying facts are irrelevant to the issues before us, and therefore are not recounted in this opinion.

        See Grant v. Kooby, 310 Ga. App. 483, 485 (713 SE2d 685) (2011).

        Id. (emphasis and punctuation omitted).

       Ga. Ct. Order 12-0007, “Termination of Record Appendix Rule in the Court of Appeals of Georgia” (effective Dec. 17, 2011) (amending Court of Appeals Rule 17 so as to no longer permit the filing of a record appendix with the Court of Appeals).

       Ct. App. R. 17 (prior to Dec. 17, 2011).

       Sup. Ct. R. 67 (2). See generally Christopher J. McFadden, Georgia Appellate Practice with Forms § 18:4 (2011) (discussing the adoption and requirements of the Georgia appellate courts’ record appendix rule and instructing that “appellants should be at pains to exercise a high level of diligence” in complying with the rules).

       Sup. Ct. R. 67 (4).

       OCGA § 5-6-48 (c).

       Ga. Ct. Order 10-0009, “Amendment to Rules of the Supreme Court of Georgia” (effective June 2, 2010).

       Ct. App. R. 17 (prior to Dec. 17, 2011).

        See OCGA § 15-1-5 (“The rules of the respective courts, legally adopted and not in conflict with the Constitution of the United States or of this state, or the laws thereof, are binding and must be observed.”); see also OCGA § 15-1-3 (6) (“Every court has power . . . [t]o amend and control its processes and orders, so as to make them conformable to law and justice...” (emphasis supplied)).

       (Emphasis supplied).

       We reject any applicability, in this context, of the negative-implication canon of construction—expressio unius est exclusio alterius, “the expression of one thing implies the exclusion of the other.” See Couch v. Red Roof Inns, Inc., 291 Ga. 359, 363 (729 SE2d 378) (2012) (describing the nature of the negative-implication canon). As Justice Antonin Scalia and Bryan Garner emphasize in their magisterial hook, Reading Law: The Interpretation of Legal Texts, the negative-implication canon “must he applied with great caution, since its application depends so much on context.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012). And in the case sub judice, there is nothing about the relevant statutory context remotely suggesting that the appellate courts of this state are without authority to prescribe alternative methods of transmitting the appellate record. Indeed, when OCGA § 5-6-43 is construed in pari materia with other statutory and constitutional provisions, such an interpretation becomes entirely untenable. See, e.g., Ga. Const., art. 6, § 1, ¶ 1 (“The judicial power of the state shall be vested exclusivelyin the following classes of courts:... Court of Appeals, and Supreme Court.”); Ga. Const., art. 6, § 1, ¶ 4 (“Each court may exercise such powers as necessary in aid of its jurisdiction or to protect or effectuate its judgments . . . .”); OCGA § 15-1-3 (6) (“Every court has power... [t]o amend and control its processes and orders, so as to make them conformable to law and justice....” (emphasis supplied)); see also Johnson v. State, 177 Ga. 881, 881 (1) (a) (171 SE 699) (1933) (holding that every court possesses inherent powers not specifically granted that are necessary to the court’s proper functioning).

        Cf. Clark v. Hunstein, 291 Ga. 646, 649 (2) (733 SE2d 259) (2012) (notingthe “universally accepted principle... that in hierarchical judicial systems, lower courts have no jurisdiction to issue orders to higher courts or to their members in their official capacities, whether by mandamus or otherwise”).

        See Spectera, Inc. v. Wilson, 317 Ga. App. 64, 67-68 (1) (730 SE2d 699) (2012) (“[A]ll statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.”); see also Ex parte State ex rel. Daw, 786 S2d 1134, 1136 (Ala. 2000) (“[Rjules and statutes relating to the same subject matter must be read in pari materia, thus allowing for legal harmony [when] possible”). See generally Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 51:3 (7th ed.) (“Statutes are in pari materia—pertain to the same subject matter—when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object.” (footnote omitted)).

        See Sup. Ct. R. 67 (2); Ct. App. R. 17 (prior to Dec. 17, 2011).

        Holy Fellowship Church of God in Christ v. First Cmty. Bank of Henry County, 242 Ga. App. 400, 402 (530 SE2d 24) (2000) (punctuation omitted); see also Hill Aircraft & Leasing Corp. v. Planes, Inc., 169 Ga. App. 161, 165 (1) (312 SE2d 119) (1983) (“[W]hen the record or transcript does not fully disclose the case for consideration, it is the duty of the appellant to have the record completed in the trial court for consideration of same by the appellate court.”).

        See Holy Fellowship Church of God in Christ, 242 Ga. App. at 402; Ct. App. R. 17 (“The clerk of the trial court shall certify and transmit to the Clerk of this Court... copies of all records as required within the time prescribed by statute... . Transmittal shall he made by the clerk or deputy clerk personally or by first class United States mail, express mail, or commercial courier or delivery service, charges prepaid.”).

       OCGA § 5-6-30; see also Holy Fellowship Church of God in Christ, 242 Ga. App. at 402 (“As a general rule, this state’s appellate courts should reach the merits of appeals whenever possible. The policy is to avoid the dismissal of an appeal and to reach the merits of a case whenever it is reasonable to do so.” (citations omitted)).

        State v. Mussman, 289 Ga. 586, 589 (1) (713 SE2d 822) (2011) (holding that courts “may construe statutes [and the like] to avoid absurd results” (punctuation omitted)).

        Grant, 310 Ga. App. at 485.

        Pistacchio v. Frasso, 314 Ga. App. 119, 121 (723 SE2d 322) (2012) (punctuation omitted).

       Nothing in the record before us indicates exactly when McAlister filed the transcript of evidence and proceedings, but it is undisputed by the parties that the clerk of court sent the Appeal Index on June 2, 2011.

        See Sup. Ct. R. 67 (providing that record appendix is to be transmitted “within 5 days after the date of filing of the transcript of evidence and proceedings by the appellant or appellee”).

        Pistacchio, 314 Ga. App. at 121-22 (punctuation omitted).

       Ct. App. R. 12.

        See id.

        See id.

        See Pistacchio, 314 Ga. App. at 122 (“The appellants ... conclude that with or without the delay, the case would have been docketed in the September term. But this conclusion is speculative. [Appellee] filed a motion to dismiss requiring resolution by the trial court prior to appellants’ filing of the transcript. So whether the trial court clerk could have transmitted the record, transcript and notice of appeal to this court within three days is conjecture.”).

       Id.

        See id. at 123 (“[A]ppellants are not accountable for delays caused by clerks of court or court reporters after the transcript has been ordered properly; appellants are held accountable only for delays that they cause.” (punctuation omitted)).

        See Langdale Co. v. Langdale, 295 Ga.App. 372, 374-75 (671 SE2d 863) (2008) (dismissal upheld when delay attributed to a miscommunication but attorney did not confirm that costs had been paid within the time allowed by statute); Park Regency Partners, L.P. v. Gruber, 271 Ga. App. 66, 70-71 (1) (608 SE2d 667) (2004) (dismissal upheld when delay attributed to malfunctioning mail system at law firm); Leonard v. Ognio, 201 Ga. App. 260, 261-62 (410 SE2d 814) (1991) (reversing trial court’s denial of dismissal when delay attributed to interoffice miscommunication); McDonald v. Garden Servs., Inc., 163 Ga. App. 851, 851-53 (295 SE2d 551) (1982) (dismissal upheld when delay attributed to law firm’s clerical error); see also PJ Servs., Inc. v. Equity Techs. Assocs., Inc., 295 Ga. App. 214, 216 (671 SE2d 264) (2008) (“Because the record supports the trial court’s conclusion that the delay was unreasonable, inexcusable, and caused by [the appellant], we find no abuse of discretion in the trial court’s dismissal of the appeal.”).


author: DOYLE, Presiding Judge.

text:
    A12A0969.
    GASKINS v. THE STATE.
    (733 SE2d 338)
   DOYLE, Presiding Judge.

Following a jury trial, Demetria Gaskins appeals her conviction of financial identity fraud and violation of oath of office, contending that the evidence was insufficient to support the verdict. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are 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, we must uphold the jury’s verdict.

So viewed, the record shows that Gaskins, a police officer, went to an Alltel Wireless retail store to open a new personal cell phone account. The Alltel representative ran a credit check and determined that Gaskins would be required to pay a deposit before opening the new lines. Instead of paying the deposit, Gaskins told the representative that she would return later with a tax identification number from her personal business so that she could open the account in the business’s name. Thereafter, Gaskins returned to the store with a number written on a piece of paper, which she handed to the Alltel agent, explaining that it was her business’s tax identification number. The Alltel agent was able to open the account without a deposit using the new number, and Gaskins received four new phone lines on the account.

Gaskins’s new account eventually incurred more than $5,000 in charges, which Gaskins never paid. The number she gave to the Alltel agent was later discovered to be the social security number for a woman in Pennsylvania, who had never been to Georgia, had never met Gaskins, and had never given Gaskins permission to use her social security number in any way. The Pennsylvania woman notified Alltel and police in Georgia that her number had been used without her permission, and after an investigation, police confirmed that Gaskins had used the number.

Based on Gaskins’s unauthorized use of the number, she was charged with theft of services (five counts), financial identity fraud (five counts), and violation of oath of office (one count). Following a jury trial, Gaskins was acquitted of the theft of services counts, but she was convicted on the remaining counts. Gaskins moved for a new trial, which motion the trial court denied, and this appeal followed.

1. Gaskins contends that the evidence was insufficient to support the verdict as to identity fraud because the State failed to prove the offense as defined by the statute and as alleged in the indictment. At the time in question, OCGA § 16-9-121 (1) defined the offense as follows, in relevant part:

A person commits the offense of identity fraud when without the authorization or permission of a person with the intent unlawfully to appropriate resources of . . . that person ... to his or her own use ... he or she: . . . Obtains or records identifying information of a person which would assist in accessing the resources of that person or any other person. . . .

Consistent with this, the indictment alleged that Gaskins “did obtain the social security number” of another person and used it to open the account without permission.

(a) On appeal, Gaskins contends that the evidence failed to show “whether or how Gaskins ‘obtained’ the Pennsylvanian woman’s social security number.” Nevertheless, there was evidence that Gaskins, as a police officer, had access to a nationwide database that included people’s personal information such as social security numbers. Further, there is uncontroverted evidence that Gaskins provided the written number to Alltel, so despite Gaskins’s denial that she used the police database, she could not have provided it to Alltel without first obtaining it. The jury, as the finder of fact, was entitled to weigh the evidence and make credibility determinations as to any conflicts or inconsistencies. When an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Based on the record before us, and viewed under the proper light, we find no basis for reversal.

(b) Gaskins also argues that the evidence failed to exclude the reasonable alternative hypothesis that she provided what she thought was a taxpayer identification number for her business. She points to the circumstantial nature of the evidence as to precisely how she obtained the number, and argues that the evidence did not rule out the possibility that she lawfully obtained a number assigned to her business which happened to be identical to the Pennsylvania woman’s social security number. She cites Locklear v. State, which articulates the rule as follows:

In a case entirely dependent on circumstantial evidence,... the State’s evidence must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. ... In making a determination of whether any other reasonable hypothesis exists, the defendant’s explanation must be taken into consideration insofar as it is consistent with the circumstantial evidence properly admitted. Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury. However, where there appears a hypothesis from the evidence, or from the lack of evidence and the defendant’s statement, pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, this Court may declare it so as a matter of law.

Here, Gaskins ignores the fact that the evidence of her guilt was not entirely dependent on circumstantial evidence. There was direct, uncontroverted evidence that she supplied a social security number assigned to another person and represented it to be assigned to her business. By contrast, documents in evidence showed that each of her businesses were registered with the State under federal identification numbers that did not match the disputed social security number. When requested by her employer, Gaskins was unable to produce any corroborating documentation linking the disputed number to her businesses. Based on this record, the jury was authorized to disbelieve Gaskins’s explanation and to conclude that she obtained the social security number fraudulently.

2. Gaskins also contends that the evidence was insufficient to support her conviction for violating her oath of office because there was no connection between the offense and her public duties as a police officer. Her oath included the following language:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the State of Georgia, and I will faithfully perform and discharge the duties of my position, conscientiously and without malice or partiality, to the best of my ability;
I further swear (or affirm) to obey, to adhere to, to uphold and to enforce the laws of the United States of America and of the State of Georgia at all times;
I further swear (or affirm) that I will bear true faith and allegiance to the Governor of the State of Georgia, the Chief of Police of the Albany Police Department, and the officers appointed over me according to law; so help me God.

OCGA § 16-10-1 provides as follows: “Any public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.” Gaskins relies on State v. Tallis, in which this Court reversed an officer’s conviction for violating his oath of office by shoplifting a candy bar while on duty. This Court rejected the State’s argument that “commission of a misdemeanor while on duty constitutes a violation of [the officer’s] oath of office, because he implicitly swore to uphold the laws of the State of Georgia.” In so holding, the Court pointed out that “a police officer could be subject to a felony prosecution for failure to obey a traffic signal... or catching nine rainbow trout, one more than the creel limit.” Consistent with this, our cases addressing convictions under OCGA § 16-10-1 involve scenarios such as an on-duty officer threatening to arrest a 16-year-old girl in order to coerce sex acts, a correctional officer blackmailing an inmate, or a correctional officer bringing a controlled substance into prison.

Here, the unlawful conduct was not done as part of Gaskins’s official duties. But the jury was authorized to find that she obtained the social security number without authorization by using a police database with personal information in it. This misuse of her access to sensitive information was an abuse of her position and is sufficient to support a finding that Gaskins violated her oath of office. Furthermore, “[a] crime involving dishonesty[, such as fraud,] is considered to be one involving moral turpitude.” Thus, by committing identity fraud, Gaskins committed a felony demonstrating an inherent moral baseness, which a jury could conclude to be a violation of her oath to adhere to the laws she helped enforce. Accordingly, based on the facts in this case, this enumeration presents no basis for reversal.

Decided October 12, 2012

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, for appellee.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

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

       (Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       The Code section was amended in 2007, which amendment applies to offenses occurring on or after May 24, 2007. See Ga. L. 2007, p. 450, § 7. The offenses in this case took place in March 2005, so we apply the version of the statute in effect at that time.

       (Emphasis supplied.) OCGA § 16-9-121 (2006).

       (Emphasis supplied.)

       (Citation omitted; emphasis in original.) Jackson, 443 U. S. at 319 (III) (B).

       (Punctuation omitted.) Locklear v. State, 249 Ga. App. 104, 105-106 (1) (547 SE2d 764) (2001) (reversing theft conviction of couple who, along with others, were near stolen checks but were never otherwise linked to the checks, which were never recovered).

       See Walker v. State, 281 Ga. App. 94, 97 (635 SE2d 577) (2006) (“Questions of reasonableness are generally decided by the jury, and this [Cjourt will not disturb the jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt unless the verdict is unsupportable as a matter of law.”) (punctuation omitted); Miller v. State, 273 Ga. App. 761, 763 (1) (615 SE2d 843) (2005) (jury entitled to disbelieve defendant’s testimony).

       213 Ga. App. 581, 582 (445 SE2d 282) (1994).

       Id. at 582.

       (Citations omitted.) Id.

       See Wiggins v. State, 272 Ga. App. 414, 418 (2) (612 SE2d 598) (2005), rev’d in part on other grounds, Wiggins v. State, 280 Ga. 268 (626 SE2d 118) (2006).

       See Beard v. State, 300 Ga. App. 146, 149 (2) (684 SE2d 306) (2009).

       See Bradley v. State, 292 Ga. App. 737, 741 (2) (665 SE2d 428) (2008).

        Urrutia v. Jewell, 257 Ga. App. 869, 873 (1) (572 SE2d 405) (2002).

       See OCGA § 16-9-126 (a) (2006).


text:
    A12A1103.
    CANTY v. THE STATE.
    (733 SE2d 64)
   DOYLE, Presiding Judge.

After a jury trial, Martin Canty was convicted of child molestation and aggravated sexual battery. Following the denial of his motion for new trial, Canty appeals, arguing that (1) the trial court erred by allowing testimony and prosecutorial comment on evidence of child abuse accommodation syndrome, which constituted impermissible opinion evidence; and (2) the trial court erred by allowing bolstering testimony as to the ultimate issue of guilt. For the reasons that follow, we affirm.

Viewing the evidence in the light most favorable to the verdict, the record shows that T. M. was four years old when she stayed with her maternal grandmother and her grandmother’s husband, Canty. The grandmother left the house to pick up T. M.’s cousin, leaving T. M. alone with Canty, who gave the girl a bath. After the bath, Canty took T. M. to a bedroom, applied lotion to her, and digitally penetrated her vagina.

Heidi Reese-Anderson, a forensic interview specialist, testified regarding T. M.’s disclosure to her that her “pop-pop” touched her inappropriately on more than one occasion. Anique Whitmore, who was a forensic interviewer for the Fulton County District Attorney’s Office, testified regarding her interview of T. M. after the child’s outcry and about the description of the abuse given by T. M. during that interview, namely that after “papa” gave T. M. a bath, he put his finger in her vagina and it hurt.

1. Canty argues that the trial court erred by admitting the testimony of Whitmore that T. M.’s inability to testify at trial was based on her suffering from child abuse accommodation syndrome and that such testimony improperly invaded the province of the jury by concluding that T. M. had been abused by Canty. We disagree.

In addition to her testimony concerning her specific forensic interview of T. M., Whitmore testified about forensic interviews generally of children alleging abuse, the procedures used, and her general experience with children during the process of disclosing abuse and the normal behavior of those children. The State also questioned Whitmore about child abuse accommodation syndrome and to explain the syndrome to the jury. Canty objected to the question, and the prosecutor responded, “Based on what happened in open court yesterday [when T. M. was unable to testify because she was upset], we believe that this area is particularly important for the jury to understand what may have been the cause of some of [T. M.’s] response.” Canty argued that such a statement by the prosecutor before the jury along with Whitmore’s testimony regarding the general features of child abuse accommodation syndrome amounted to an opinion statement that T. M. was in fact abused by Canty, which invaded the province of the jury.

We agree that

[i]t is well established that an expert may not testify as to his opinion as to the existence vel non of a fact (in this case, whether the child had been abused sexually) unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — ... unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves.

In practice, this rule has resulted in the following recognized dichotomy between

expert testimony that the victim’s psychological exam was consistent with sexual abuse, and expert testimony that in [the expert’s] opinion, the victim was sexually abused. In the first situation, the expert leaves the ultimate issue for the jury to decide; in the second, the expert makes a factual conclusion [that] invades the province of the jury by providing a direct answer to the ultimate issue: was the victim sexually abused?

In this case, however, Whitmore provided only general testimony concerning child abuse accommodation syndrome and the behaviors abused children often exhibit as a result of having been abused. Whitmore did not testify that in her opinion T. M. had been abused or that T. M.’s inability to take the stand to testify against Canty was a result of having been abused by Canty. Moreover, even when taken together with the prosecutor’s argument to the trial court that such testimony was relevant in light of T. M.’s behavior during trial the previous day, it was not erroneous to allow the testimony. The jury witnessed T. M.’s demeanor in the courtroom, and Whitmore did not testify that in her opinion this behavior was consistent with child abuse accommodation syndrome. Rather, Whitmore testified about the features of the syndrome, her general experience with abused children and their demeanors (testimony which established nothing more than that all children react differently), and her interview with T. M. “[T]he question of whether, notwithstanding her behavior, [T. M.] was or was not molested . . . remained] exclusively for jury resolution. The testimony [simply was] available for the jury to accept or reject for consideration in its determination of the ultimate issue.”

Accordingly, the trial court did not err by denying the motion for mistrial or motion for new trial based on this testimony, and this enumeration is, therefore, without merit.

2. Canty also argues that the trial court erred by allowing testimony of Reese-Anderson that amounted to an improper opinion regarding T. M.’s truthfulness. We disagree.

Canty takes issue with the following testimony by Reese-Anderson regarding her forensic interview of T. M. On redirect examination, the prosecutor asked Reese-Anderson to explain the phenomenon of “suggestion” as it related to forensic interviews of children and whether Reese-Anderson had observed any indication that T. M. had been subj ect to any type of suggestion prior to or during the interview.

Decided October 12, 2012.

Mary Erickson, for appellant.

PaulL. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

It is true that in Georgia, the credibility of a witness is to be determined by the jury, and the credibility of a victim may not be bolstered by the testimony of another witness. Thus, a witness may not give an opinion as to whether the victim is telling the truth. Furthermore, Georgia law generally precludes a witness from testifying as to his or her opinion regarding an ultimate issue in the case because to do so would invade the province of the jury.

This Court, however, has repeatedly held admissible testimony by an expert witness that such witness did not observe any evidence of coaching, deception, or other phenomenon during forensic interviews. Here, Reese-Anderson did not directly comment on T. M.’s credibility “and did not impermissibly address the ultimate issue” of whether Canty improperly touched T. M.

Accordingly, this enumeration is without merit.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       OCGA § 16-6-4 (a) (1).

       OCGA § 16-6-22.2 (b).

       See Roberts v. State, 313 Ga. App. 849, 850 (1) (723 SE2d 73) (2012).

       T. M. used the term “poo-poo,” but indicated that this term described her vagina.

       (Punctuation omitted.) Bunn v. State, 307 Ga. App. 381, 386 (3) (e) (705 SE2d 180) (2010), quoting Allison v. State, 256 Ga. 851, 853 (5) (353 SE2d 805) (1987).

       (Punctuation and footnote omitted.) Pointer v. State, 299 Ga. App. 249, 251 (1) (682 SE2d 362) (2009) (reviewing the issue for ineffective assistance of counsel).

       Compare with Pointer, 299 Ga. App. at 251 (1) (reversing conviction based on expert’s testimony that his evaluation of the victim “strongly suggested] that [the victim] had been sexually abused as alleged”). See also Allison, 256 Ga. at 853 (5); Hafez v. State, 290 Ga. App. 800, 801 (2) (660 SE2d 787) (2008).

       (Punctuation omitted.) Knight v. State, 207 Ga. App. 846, 847 (1) (429 SE2d 326) (1993).

       (Citation and punctuation omitted.) Towry v. State, 304 Ga. App. 139, 143 (2) (a) (695 SE2d 683) (2010).

       See id. at 143-144 (2) (a) (collecting cases); Anthony v. State, 282 Ga. App. 457, 459 (2) (638 SE2d 877) (2006) (holding statements admissible because “ ‘the inquiry was simply whether the [witness] noticed any particular actions or statements that indicated deception, not whether she found the (victim) believable or credible’ ”).

        Vaughn v. State, 307 Ga. App. 754, 759 (4) (706 SE2d 137) (2011).


text:
    A12A1146.
    CLEMENS v. THE STATE.
    (733 SE2d 67)
   DOYLE, Presiding Judge.

Following a jury trial, Trent D. Clemens was convicted of child molestation. Clemens appeals, arguing that the trial court erred by denying his demurrer, in charging the jury, and by excluding the testimony of his father. Clemens also challenges the sufficiency of the evidence. We affirm, for the reasons that follow.

On appeal from [Clemens’s] criminal convictions, we view the evidence in the light most favorable to the jury’s verdict, and [Clemens] no longer enjoys a presumption of innocence. We neither weigh the evidence nor assess witness credibility, which are tasks that fall within the exclusive province of the jury.

So viewed, the record shows that on October 15, 2005, Clemens, his daughter, and his girlfriend, Meshea Webb, went to Thomaston, Georgia to stay with Webb’s family. That night, Webb awoke to go to the bathroom and noticed light coming from beneath the closed door in the room where Clemens’s daughter and Webb’s six-year-old niece, I. M., were sleeping. Webb went into the room to turn off the light, and she saw Clemens, who was naked, on his knees on one of the beds, facing the wall. Webb asked Clemens what he was doing and startled him. When he moved, Webb realized that Clemens had been straddling I. M., who was lying on her stomach, with her shirt pulled up to her shoulder blades and what appeared to be oil on her body.

Clemens told Webb that he was not doing anything and told her to go back to sleep, but Webb insisted that he put on his clothes and go outside with her. On the front porch, Webb again asked Clemens what he was doing, and he told her that “he had a sexual addiction and a number of other things.” Webb asked him, ‘Why my niece?” and he replied, “Well, she’s not mine.” Webb went back inside and confirmed that the girls were still asleep, and she asked her mother to call the police. Webb also put I. M.’s underwear back on the child and wiped the oil off of her body.

Sergeant Stephen O’Linger arrived at the home and spoke to Webb, who relayed her observations to him. Clemens told O’Linger that he decided to masturbate during the night and “felt like the best spot for him to do that was to go into the room where the girls were sleeping.” Clemens told another officer, Investigator Tim Ledbetter, that he decided to masturbate in the bedroom where the girls were sleeping because he could not find another place to do so. When asked about the oil found on I. M.’s buttocks, Clemens responded that he must have used too much oil while masturbating. Clemens was arrested and charged with child molestation.

At trial, the State introduced the testimony of Clemens’s 13-year-old daughter, A. C., who testified that on April 29, 2006, Clemens penetrated her anus with his penis. Clemens also testified, explaining that he decided to masturbate in I. M.’s bed because he could not find another private place to do so. He conceded that it was a “[p]oor choice,” but noted that both girls were asleep at the time.

Clemens was convicted of child molestation and sentenced to serve 20 years. This out-of-time appeal of Clemens’s conviction and the denial of his motion for new trial followed.

1. Clemens argues that the trial court erred by denying his motion to quash the indictment on the basis that it did not sufficiently advise him of what he needed to defend against. We disagree.

In the indictment, the State alleged that Clemens

did an immoral and indecent act, to-wit: said accused did straddle over the person of [I. M.] while said accused was naked[,] and said accused did masturbate while straddling over [I. M.], a child under 16 years of age, with intent to arouse and satisfy the sexual desires of said accused, contrary to the laws of said State, the good order, peace [,] and dignity thereof.

OCGA § 16-6-4 (a) (1) provides: “Aperson commits the offense of child molestation when such person... [d]oes 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.”

The two requirements of an indictment are that it definitively inform the accused of the charges against him, so that he may present his defense and avoid surprises at trial, and that it protect the accused against another prosecution for the same offense. To that end, each count set forth in an indictment must be wholly complete within itself, and plainly, fully, and distinctly set out the crime charged in that count.
[W]hen determining whether an indictment is sufficient to withstand a special demurrer, the applicable standard is not whether [the indictment] could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

Clemens argues that the indictment failed to specify whether the State charged that Clemens performed an immoral or indecent act to, with, or in the presence of I. M. and that he therefore did not know what allegations he was required to defend against. This argument is without merit. The indictment charged that Clemens masturbated while straddling I. M., which “apprised [Clemens] of the charge against him, and when and how it was committed. Accordingly, the indictment was sufficient to withstand a special demurrer.”

2. Clemens also alleges that the trial court erred by charging the jury that it could convict him of child molestation if it determined that he committed an indecent act merely in the presence of a child under 16, instead of instructing the jury that it had to prove the material allegation that he masturbated while straddling I. M. This enumeration provides no basis for reversal.

The trial court charged the jury that “[a] person commits the offense of child molestation when that person does an immoral and indecent act in the presence of a child less than 16 years of age with the intent to arouse and satisfy the sexual desires of the person.” Clemens argues this charge was error because it omitted any reference to the allegation that he masturbated while straddling I. M.

It is axiomatic that, in criminal prosecutions, the court’s instructions must be tailored to fit the charge in the indictment and the evidence adduced at trial. This is particularly true when the offense charged may be committed in one of several ways, but the indictment charges one specific method. Averments in an indictment as to the specific manner in which a crime was committed are not mere surplusage. Such averments must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant’s right to due process of law. Accordingly, the trial court’s instructions must sufficiently limit the jury’s consideration to the allegations and elements of the offense as charged in the indictment.

Jury instructions, however, “must be considered as a whole in determining whether the charge contained error.”

Here, the trial court read the indictment to the jury at the beginning of the charge, sent the indictment out with the jury, and instructed that the State bore the burden of proving every material allegation of the indictment beyond a reasonable doubt.

[Tjaking the charge as a whole, we conclude that a jury of average intelligence would not have been confused by the charge, and that the trial court’s charge properly set forth the basis on which the jury was authorized to convict [Clemens] on the count of. . . child molestation.

3. Clemens contends that the State failed to prove that he masturbated in I. M.’s presence because she was asleep during the entire incident, and therefore, the evidence was insufficient to support his conviction for child molestation. This argument is without merit.

This Court has previously held that “the mere exposure of sexual organs to a child is sufficient evidence of child molestation, and neither physical contact with the child nor the child’s actual sight of the sexual organs is required.” Clemens’s reliance on authority in other jurisdictions is unpersuasive in light of this clear language.

Here, Webb testified that she saw Clemens naked and kneeling over I. M., who was not wearing underwear and had oil on her body, and that the light was on in the room. And Clemens admitted that he was masturbating in the same twin bed in which I. M. was lying on her stomach. This evidence is sufficient to support his conviction for child molestation. The fact that I. M. apparently did not awaken during this incident does not render his conduct any less culpable under Georgia law.

4. Next, Clemens argues that the trial court abused its discretion by excluding the testimony of his father pursuant to OCGA § 17-16-8. This argument is unpersuasive.

OCGA § 17-16-8 (a) provides:

The prosecuting attorney, not later than ten days before trial, and the defendant’s attorney, within ten days after compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, shall furnish to the opposing counsel as an officer of the court, in confidence, the names, current locations, dates of birth, and telephone numbers of that party’s witnesses, unless for good cause the judge allows an exception to this requirement, in which event the counsel shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.

On August 15, 2006, the State identified several similar transaction witnesses who would testify about unindicted child molestations by Clemens against his daughter, A. C.; one incident occurred in Clayton County in 2005, and the other involved the 2006 anal sodomy in Walton County. Clemens filed a motion in limine to exclude A. C.’s testimony on the basis that the State failed to timely identify her as a witness as required by OCGA § 17-16-1 etseq. The trial court heard Clemens’s motion the same day. The trial court excluded evidence regarding the alleged 2005 child molestation incident on the basis that it was not timely disclosed by the State, but the court permitted A. C.’s testimony regarding the 2006 child molestation incident.

On August 28, 2006, the day before trial began, defense counsel provided the State with written notice that it intended to call Clemens’s father as a witness. The State objected on the grounds that the witness was not timely identified by the defense. Defense counsel explained that he did not realize until August 28 that the April 29 similar transaction incident against A. C. occurred in Clemens’s father’s house. When the trial court inquired as to the significance of the father’s testimony, defense counsel replied, “I think it establishes what the demeanor of [A. C.] was the next day around the dad.” The trial court then ruled that Clemens’s father’s testimony would be excluded based on the untimely notice.

On appeal, Clemens argues that the trial court abused its discretion by excluding the testimony of his father. Clemens did not, however, make a proffer of the father’s testimony, and therefore, we do not know how he would have testified about the child’s demeanor. In the absence of a proffer, we are unable to discern whether the exclusion of the father’s testimony was harmful to Clemens. “To prevail on appeal, an appellant must show harm as well as error in the exclusion of evidence.” Thus, pretermitting whether the trial court abused its discretion by excluding the testimony of the witness, in light of Clemens’s failure to establish harm and the overwhelming evidence, including Clemens’s admission that he masturbated in the same bed as the victim, this enumeration presents no basis for reversal.

5. Finally, Clemens argues that the trial court erred by denying his request to charge the jury on criminal attempt to commit child molestation as a lesser included offense.

Decided October 12, 2012.

Jimmonique R. S. Rodgers, James C. Bonner, Jr., for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

“Where, as here, the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.”

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       (Punctuation and footnotes omitted.) DeLong v. State, 310 Ga. App. 518, 519-520 (714 SE2d 98) (2011).

       Clemens’s motion was styled “MOTION TO QUASH, AND GENERAL DEMURRER AND SPECIAL DEMURRER.” At the pretrial hearing, the trial court characterized the motion as a motion to quash, denying said motion.

       (Punctuation and footnote omitted.) State v. Corhen, 306 Ga. App. 495, 496 (700 SE2d 912) (2010).

       (Punctuation omitted.) Id. at 497.

        Raybon v. State, 309 Ga. App. 365, 367 (710 SE2d 579) (2011).

       (Citation and punctuation omitted.) Boatright v. State, 308 Ga. App. 266, 272-273 (1) (e) (707 SE2d 158) (2011).

       (Punctuation omitted.) James v. State, 268 Ga. App. 851, 853 (1) (602 SE2d 854) (2004).

       Id., citing Thomas v. State, 264 Ga. App. 389, 392 (3) (590 SE2d 778) (2003). See also Boatright, 308 Ga. App. at 273 (1) (e); McClain v. State, 220 Ga. App. 474, 475 (2) (469 SE2d 756) (1996).

        DeLong, 310 Ga. App. at 520 (1), citing Rainey v. State, 261 Ga. App. 888, 889-890 (1) (584 SE2d 13) (2003) (holding that “exposing sexual organs even though the child does not actually see them” is sufficient to support a child molestation conviction).

       Specifically, Clemens cites State v. Interiano, 868 S2d 9, 16 (La. 2004) (“[I]n this case, in furtherance of the legislative purpose of the statute, and taking the language at issue in the context of the statute as a whole, this court holds that in the absence of a physical touching upon the person of the child [Louisiana’s statute prohibiting indecent behavior with juveniles] requires the knowing commission of a sexual act such that the child sees or senses that a sexual act is taking place, even if the child is not able to articulate or even comprehend what the offender is doing, for a violation to occur.”) (citation omitted); State v. Werner, 609 S2d 585, 587 (Fla. 1992) (“Applying the legal as well as the common-sense meaning of the word ‘presence’ to [Florida’s child molestation statute], leads us to the conclusion that, while the child need not be able to articulate or even comprehend what the offender is doing, the child must see or sense that a lewd or lascivious act is taking place for a violation to occur.”). Clemens also relies on a case from the United States Navy-Marine Corps Court of Military Review. See United States v. Brown, 39 M. J. 688, 691 (NMCMR 1993) (The offense of committing indecent acts with another requires “some minimal observation or actual participation by another person for the offense of committing indecent acts with another to lie. Asleeping victim does not suffice.”). These cases do not persuade us to overrule the Georgia cases cited herein.

       See DeLong, 310 Ga. App. at 520 (1); Rainey, 261 Ga. App. at 889-890 (1).

        See Klausen v. State, 294 Ga. App. 463, 464-465 (1) (669 SE2d460) (2008) (“Similarly, the evidence supported a finding that [the defendant] was masturbating while the child was on the sofa with him, and his actions are no less culpable because the child may not have been fully aware of what was occurring.”); Arnold v. State, 249 Ga. App. 156, 158 (1) (a) (545 SE2d 312) (2001) (“Although the evidence showed that [the defendant] was unsuccessful in his attempt to coax [the child victim] to look at his exposed penis, his conduct is rendered no less culpable by the victim’s good judgment in turning her head away.”).

       The investigator for the Walton County case testified that he became aware of A. C.’s allegations regarding the 2005 incident in November 2005. The prosecutor advised the trial court that he was not aware of the incident until August 15,2006, and that he notified defense counsel the same day.

        Henry v. Cherokee County, 290 Ga. App. 355, 360 (5) (659 SE2d 393) (2008).

       See, e.g., Smith v. State, 237 Ga. App. 582, 585 (3) (516 SE2d 92) (1999).

        Peebles v. State, 260 Ga. 430, 433 (4) (396 SE2d 229) (1990).


text:
    A12A1406.
    THOMPSON v. REICHERT et al.
    (733 SE2d 342)
   Dillard, Judge.

Prison inmate Charles Thompson sought to file a pro se civil action in the Superior Court of Bibb County against Robert Reichert, the mayor of the City of Macon, and officers with the city’s police department to recover damages for an alleged false arrest, false imprisonment, and violation of his civil rights. The trial court found that Thompson’s pleading failed to allege a cause of action and denied his request to proceed in forma pauperis. Thompson appeals, and for the reasons set forth infra, we reverse the trial court’s order and remand this case with direction to the superior-court clerk to file the complaint.

The record shows that on October 25, 2011, Thompson, who was incarcerated in the Central State Prison, filed a pro se “Inmate Form for Civil Action,” alleging false arrest, false imprisonment, and a violation of his civil rights. It appears that Thompson specifically alleged that he was arrested without probable cause by a City of Macon police officer, who did so at the behest of Thompson’s employer in order to create a reason to terminate his employment, and that he was then wrongfully incarcerated in the Bibb County detention center for several days as a result of that arrest.

Less than one week later, the trial court denied the filing and Thompson’s request to proceed in forma pauperis, pursuant to OCGA § 9-15-2 (d), stating “no cause of action alleged.” Thereafter, Thompson filed an application for discretionary appeal, which we granted. This appeal follows.

Thompson contends that the trial court erred in denying the filing of his complaint on the ground that he failed to allege a cause of action. We agree.

OCGA § 9-15-2 (d) provides in part that a trial judge may deny the filing of a complaint by an indigent pro se litigant “if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading.” Importantly, the pleadings of an inmate proceeding pro se are to be treated with “considerable indulgence, and a complaint should not be dismissed without filing unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to some relief.” Put simply, the court can deny filing “only if the pleading is completely devoid of any justiciable issue of law or fact.” And on appeal from an order denying filing, we construe the complaint in the light most favorable to the losing party, and pro se complaints “are not held to the stringent standards of formal pleadings.”

Here, although deciphering Thompson’s handwriting is unquestionably an arduous task and his complaint is somewhat difficult to follow, it is still possible to discern his allegations. And as previously noted, Thompson essentially claims that he was arrested and incarcerated by City of Macon authorities based on false pretenses. As such, we cannot say with assurance that under the allegations of Thompson’s pro se complaint, which we are required to hold to less stringent standards than formal pleadings drafted by lawyers, that “it appears beyond doubt that [Thompson] can prove no set of facts in support of his claims against the law enforcement officers and their governmental employers which would entitle him to relief.”

Indeed, forgivingly construing Thompson’s complaint in the light most favorable to him, Thompson has stated justiciable claims for false arrest, false imprisonment, and violation of his civil rights under 42 USC § 1983. Thus, while we express no opinion as to the merits of Thompson’s allegations, we do conclude that the trial court erred in refusing to file his complaint.

And although the record is silent as to the trial court’s reasons for concluding that Thompson failed to state a justiciable cause of action, the most charitable interpretation of the court’s order is that it was based on the difficulty of discerning the allegations contained in Thompson’s handwritten complaint. Suffice it to say, we sympathize with the dilemma faced by trial courts across Georgia in processing and adjudicating countless pro se lawsuits with limited resources and ever-shrinking budgets. Nevertheless, a trial court must exercise great caution before refusing to file a pro se complaint, pursuant to OCGA § 9-15-2 (d), and such a refusal cannot be based on the court’s inability to read or difficulty in reading the pleading. In such circumstances, the trial court has the inherent power to “require the plaintiff to amend his complaint and provide a more definite statement of his claims”; and this, rather than a refusal to file, is the appropriate course of action for a trial court to take when presented with a complaint that is indecipherable.

Decided October 12, 2012.

Charles E. Thompson, pro se.

Wayne G. Tillis, District Attorney, Robert A. B. Reichert, Douglas S. Morelli, for appellee.

In its responsive brief, the City argues that the trial court’s order should nevertheless be affirmed because Thompson failed to serve the complaint on any of the defendants. But this argument is entirely misplaced. Given that the trial court did not permit Thompson to file his complaint, the lawsuit has not begun, and the defendants are not yet parties. In sum, the trial court halted the lawsuit before it started, “and nothing obligated [Thompson] to serve the complaints on the defendants.”

Accordingly, for all of the foregoing reasons, we reverse the trial court’s order and direct that on remand, Thompson shall be permitted to file his complaint.

Judgment reversed and case remanded.

Ellington, C. J., and Phipps, P. J., concur.

       Thompson is currently incarcerated and serving a sentence for an offense unrelated to the arrest that prompted his civil action.

       It appears from the record that Thompson did not file his motion to proceed in forma pauperis until December 1,2011, which was one month after the trial court’s order denying his civil action. But it is unclear from the record whether Thompson was aware of the trial court’s order at the time he filed his motion. Nevertheless, because the trial court based its denial of the filing on OCGA § 9-15-2 (d), this discrepancy in the record has no bearing on our analysis.

       Although OCGA § 9-15-2 (d) provides that “[a]n order denying filing shall be appealable in the same manner as an order dismissing an action,” because Thompson is incarcerated, he is subject to the terms of the Prison Litigation Reform Act of 1996 and, therefore, was required to file an application for discretionary appeal. See OCGA § 42-12-8.

       OCGA § 9-15-2 (d).

        Nasa v. Brown, 311 Ga. App. 809, 809 (1) (717 SE2d 310) (2011) (punctuation omitted); see Romano v. Ga. Dept. of Corrections, 303 Ga. App. 347, 348 (693 SE2d 521) (2010).

        Gamble v. Ware County Bd. of Ed., 253 Ga. App. 819, 819 (561 SE2d 837) (2002) (punctuation omitted).

        Nasa, 311 Ga. App. at 809 (1) (punctuation omitted).

        Evans v. City of Atlanta, 189 Ga. App. 566, 567 (377 SE2d 31) (1988) (punctuation omitted).

        Nasa, 311 Ga. App. at 810 (1) (punctuation omitted).

        See McKissick v. S.O.A., Inc., 299 Ga.App. 772, 777 (2) (684 SE2d 24) (2009) (“An arrest under process of law, without probable cause, when made maliciously, shall give a right of action to the party arrested.” (punctuation omitted)); OCGA § 51-7-1.

        See Davis v. Wallace, 310 Ga.App. 340, 347 (4) (713 SE2d 446) (2011) (“An action for false imprisonment will lie where a person is unlawfully detained under a void process, or under no process at all. . .” (punctuation omitted)); OCGA § 51-7-20.

        See King v. Pioneer RESA, 301 Ga.App. 547, 552 (1) (688 SE2d 7) (2009) (In order to state a claim under 42 USC § 1983, “a plaintiff must show a deprivation of a federal right by a person acting under color of state law.” (punctuation omitted)).

        See Nasa, 311 Ga. App. at 810 (1).

        Cf. Bush v. Bank of New York Mellon, 313 Ga. App. 84, 89 (720 SE2d 370) (2011) (“Before any court can undertake to decide, however, whether a complaint states a claim upon which relief can he granted, the court must he able to understand the nature of the claims that the complaint asserts”).

        Id.

       The inherent power of the trial court to sua sponte require a plaintiff to more definitely state his claims applies not only when the complaint is difficult to read but also when the court is unable to “understand the nature of the claims that the complaint asserts.” Bush, 313 Ga. App. at 89.

        Gamble, 253 Ga. App. at 820 (1).

        See id. at 825 (3).