text:
    A13A1490.
    ARMSTRONG v. THE STATE.
    (752 SE2d 120)
   Ray, Judge.

After a jury trial, Dexter Otis Armstrong was convicted of seven counts of aggravated assault (OCGA § 16-5-21 (a) (l)). He appeals from those convictions and from the denial of his motion for new trial, arguing that the trial court erred in failing to give requested jury instructions, in allowing a witness to give improper character evidence, and in failing to replace a sleeping juror with an alternate juror. He also challenges the sufficiency of the evidence and contends that his trial counsel rendered ineffective assistance. Armstrong further argues that he should be acquitted because he was not tried within two terms of court despite his demand for a speedy trial. Finding no reversible error, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict.” (Citation and punctuation omitted.) Moore v. State, 319 Ga. App. 696 (738 SE2d 140) (2013). See also Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the evidence shows that on October 19, 2008, an armed man, later identified as Gary Mathis, entered the Thai Video store in Riverdale where Steven Ratsamy, Kelly Babb, Bounmy Kong, Mose Brown, Maceo Hill, and another man, known as Anthony, were playing poker and watching television. Mathis pointed his gun at the men and yelled “ATF, get on the ground.” Believing the store was being raided by the government, the customers got down on the floor. A shot was then heard throughout the store, and it was later discovered that the store’s owner had been shot.

The witnesses were lying face down during much of the incident, but they testified that they heard the voices of at least three perpetrators. Ratsamy testified that a second man, who was muscular and dark-skinned, pointed a gun at him and said “I want to shoot you.” After searching the store and stealing what they could, Ratsamy heard the men ask “Where the money at? This ain’t all of it. This ain’t enough. Where it at? You know where the money at.” Ratsamy testified that the men then stole his “car payment money” from him. Hill testified that the men stole about $600 or $700 from him.

Two of the perpetrators then took Kong, one of the store’s employees, to the back office and showed them the dead body of his father-in-law, the store’s owner. Kong was then asked “Where’s the money? Where’s the money?” Aperpetrator pointed a gun at Kong and told him “I’m going to shoot you right now.”

Mose testified that while he was hiding under a table, he heard one of the perpetrators yell out “I lost my telephone. Call Black. Call Black.” After the robbery, the perpetrators remained inside the store searching for the cell phone. One of the men stole a cell phone from a customer. The missing cell phone was eventually located when the man used the stolen phone to call the missing one. Once the phone was found, the perpetrators fled the store.

Upon responding to the scene, police officers observed the body of a deceased Asian male in the back room. He had $3,700 in his pocket and a bloody $ 100 bill in his hand. The victim died of a gunshot wound to the neck.

Teresa Anderson was Armstrong’s live-in girlfriend at the time of the incident. Anderson testified that on the day of the incident, Armstrong left their home at approximately 8:30 a.m. and took his son’s cell phone with him. At approximately 1:30 p.m., Armstrong called Anderson from his son’s cell phone and urgently asked her to meet him at a nearby gas station. At the gas station, Armstrong got into Anderson’s car and said, “I got something I need to tell you, but I don’t want to tell you.” He then told her that he and his friends, Mathis and Kilgore, had robbed a video store. He further told her that, during the robbery, the store’s owner had pointed a gun at Armstrong, and Mathis had shot the store’s owner. Armstrong then gave Anderson $650 and askedher to take it home. When she refused, Armstrong concealed it in Anderson’s car and drove away in his own car. Before they parted, he showed her an additional $600 that he had “stashed” and said that the other men were unaware of it. Anderson testified that she and Armstrong were being evicted from their apartment the following day, and that Armstrong used the robbery proceeds to pay for cell phone bills and car repairs.

The State presented evidence of cell phone records showing that, shortly before 1:00p.m. on the dayofthe robbery, a call was placed from Armstrong’s son’s cell phone to Kilgore’s (Armstrong’s co-defendant) cell phone. Cell phone records also showed that Armstrong’s son’s cell phone was used to call Anderson at 1:11 p.m. There was also evidence that Armstrong’s son’s cell phone was in close proximity to the cell phone tower closest to the Thai Video store during the time of the incident.

1. Armstrong contends that the evidence presented by the State was insufficient to authorize his convictions for aggravated assault, arguing that the evidence presented was insufficient to place him at the scene of the crime because none of the witnesses positively identified him as a perpetrator at the scene and his fingerprints were not among those recovered from the scene. He argues that the only evidence placing him at the scene is the testimony of his girlfriend, Anderson, and that such evidence, standing alone, was insufficient to convict him. We disagree.

When reviewing whether the evidence was sufficient to support the conviction,

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 crimes charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all the evidence is to be considered in the light most favorable to the prosecution.

(Punctuation and footnote omitted.) Roberts v. State, 322 Ga. App. 659, 662 (2) (a) (745 SE2d 850) (2013).

The State presented the testimony of Anderson, Armstrong’s girlfriend, that Armstrong had confessed that he was at the Thai Video store, that he had participated in the robbery, that Kilgore had saved his life when the store’s owner pointed a gun to his head, and that he had at least $650 in proceeds from the robbery. However, this was not the only evidence presented at trial. The State also presented the testimony of several of the customers that at least three men were present at the store and at least two of the men had guns. The State also presented circumstantial evidence that Armstrong was at the store at the time of the robbery based on cell phone records reflecting that a call he made from a cell phone in his possession placed him near the store and that he had called one of his co-conspirators prior to the robbery. Although there was no scientific evidence or eyewitness identification of Armstrong,

[i]t is well settled that circumstantial evidence can be sufficient to authorize a finding of guilt beyond a reasonable doubt____Questions of reasonableness are generally decided by the jury, and this Court 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 and footnote omitted.) Roberts, supra at 662-663 (2) (a) (finding evidence was sufficient to support verdict despite lack of fingerprint evidence or eyewitness testimony connecting defendant to crime when other circumstantial evidence indicated his involvement with crime). Thus, based on the totality of the circumstances, the evidence was sufficient to support the verdict, and Armstrong’s enumeration is without merit.

2. Armstrong asserts that the trial court erred in failing sua sponte to give a jury charge on confessions and admissions relating to his statement to Anderson. Although he does not specify exactly which jury charge he believes was erroneously omitted in his appellate brief, Armstrong appears to argue that the trial court erred in failing to instruct the jury, consistent with former OCGA § 24-3-53, that “[a]ll admissions shall be scanned with care, and confessions of guilt shall be received with great caution. A confession alone, uncorroborated by any other evidence, shall not justify a conviction.” However, Armstrong did not submit a written request for a jury instruction on this charge and did not object to the trial court’s failure to provide such a jury charge at trial.

This Court has held that

it is not reversible error for the trial court to fail to give a request to charge that is not submitted in writing by the complaining party. Such failure constitutes reversible error only where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.

(Footnote omitted.) Farley v. State, 314 Ga. App. 660, 666 (5) (725 SE2d 794) (2012). Accord Hunt v. State, 166 Ga. App. 524, 525 (2) (304 SE2d 576) (1983) (“[a]bsent a timely request, the trial court did not err in failing to charge on the evidentiary weight to be given admissions and confessions or in failing to charge that an uncorroborated confession is insufficient to support a conviction”) (citations omitted).

So viewed, we do not conclude that the failure to charge was reversible error. Armstrong’s statement to Anderson was strongly corroborated by other evidence, including his sudden possession of an amount of money consistent with that stolen and the fact that cell phone records placed him near the scene of the incident. Accordingly, any error in failing to give this charge was harmless. See Bowley v. State, 261 Ga. 278, 281 (5) (404 SE2d 97) (1991).

3. Armstrong next contends that his trial counsel rendered ineffective assistance by failing to provide a written request for a jury instruction on confessions and admissions.

In order to prevail on his claim of ineffective assistance, Armstrong must show both that trial counsel’s performance was deficient and that the deficient performance was prejudicial to his defense to the point that there was a reasonable probability that, but for counsel’s errors, the outcome of the trial would have been different. Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by this Court. Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). Here, Armstrong has not shown that his trial counsel’s failure to request a jury charge on confessions and admissions was prejudicial to his defense in light of the fact that his statement to Anderson was corroborated by other evidence. See Thorpe v. State, 285 Ga. 604, 611-612 (7) (678 SE2d 913) (2009).

4. Armstrong argues that the trial court erred by allowing a witness to give improper character evidence regarding his bad temper without declaring a mistrial or giving a curative instruction.

Armstrong did not testify at trial. During re-direct examination, the State questioned Anderson, Armstrong’s ex-girlfriend, about her prior statement that she was “scared” of Armstrong. Anderson responded that Armstrong “has a temper sometimes.” Counsel for Armstrong’s co-defendant immediately objected, arguing that the statement went into improper character evidence. Armstrong’s counsel also objected to the testimony without further explanation. Neither defense counsel specifically requested a curative instruction or sought a mistrial. The State voluntarily withdrew its question. The trial court did not explicitly rule upon defense counsel’s objection nor did it sua sponte provide a curative instruction. Where an objection is made, “it is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily, as it does in this case, result in a waiver.” (Citation and punctuation omitted.) Evans v. State, 288 Ga. App. 103, 107 (2) (653 SE2d 520) (2007). Under these circumstances, Armstrong has waived the alleged error. See Clark v. State, 282 Ga. App. 248, 252 (2) (638 SE2d 397) (2006).

5. Armstrong contends that the trial court erred by failing to question a sleeping juror and replace him with an alternate. We disagree.

During the presentation of the State’s case, Armstrong’s counsel expressed concern to the trial court that one of the jurors appeared to be sleeping and requested that the trial court let the juror “know that snoozing and napping might not be appropriate at this time.” In response, the trial court reminded the jurors of the importance of staying awake and instituted a “buddy system” between jurors to have them help each other stay awake. Later in the trial, Armstrong’s counsel revisited the issue and asked that the juror in question be replaced with an alternate. The State objected on the basis that there was no evidence that the juror had been sleeping. The trial court denied the request, but moved the juror in question closer to the bailiff. “As counsel made no contemporaneous request for the trial court to conduct an inquiry [or for a mistrial]... we find this issue has been waived.” (Citations omitted.) Mathis v. State, 293 Ga. 837, 838 (2) (750 SE2d 308) (2013).

However, even assuming this issue is properly before this Court, we find no error. OCGA § 15-12-172 vests a trial court with the discretion to replace a juror with an alternate at any time, whether before or after final submission of the case to the jury, so long as the trial court has a sound legal basis to do so. This Court “will not interfere with a trial court’s decision regarding removal of a juror from a panel absent an abuse of that court’s discretion.” (Citation omitted.) Mathis, supra at 839 (2). Upon observing a juror who appears to have fallen asleep during trial, counsel has a duty to bring the matter to the trial court’s attention, and the trial court has a duty to awaken the juror. Foster v. State, 255 Ga. 425, 425 (2) (339 SE2d 256) (1986). In the present case, the trial court took prompt action when the sleeping juror was brought to its attention by reminding the jurors of the importance of remaining awake and instructing them to assist each other in staying awake.

Armstrong argues that in addition to the trial court’s actions, it was required to determine whether the juror had, in fact, been sleeping or was incapacitated. We disagree. “Given that the only juror irregularity alleged in this case consisted of a relatively brief, single act of dozing, we find no abuse of discretion on the part of the trial court in concluding that its immediate remedial actions were sufficient.” (Citations omitted.) Mathis, supra at 839 (2).

6. Armstrong contends that the trial court erred in failing to provide the following jury charge regarding multiple defendants to the jury: “Though you may consider all of the evidence as a whole, conviction of one defendant does not necessarily require conviction of another (or all). You, the jury, must determine the guilt or innocence of each defendant separately.” This enumeration is without merit, however, because the trial court did, in fact, instruct the jury with that charge.

7. In a compound enumeration of error, Armstrong contends for the first time on appeal that his conviction should be reversed because he was not tried within two terms of court following the filing of his demand for speedy trial, or in the alternative, he argues that this Court should remand the case to the trial court for consideration of an ineffective assistance of counsel claim against his trial counsel for failing to take appropriate action before trial and against his appellate counsel for failing to address his trial counsel’s deficiencies regarding this issue at the hearing on the motion for new trial.

(a) We find that Armstrong has waived appellate consideration of the issue that he was not tried within two terms of court despite his demand for a speedy trial because he did not raise the issue before the trial court prior to trial or during his motion for new trial. See Weeks v. State, 316 Ga. App. 448, 450 (1) (729 SE2d 570) (2012) (where defendant fails to raise an issue before the trial court or during his motion for new trial, he has waived the issue for consideration on appeal).

Even if Armstrong had not waived his right to raise the issue on appeal by failing to raise it before the trial court, we find that his trial counsel waived his demand for a speedy trial. The State filed a supplemental brief with this Court on October 17, 2013, arguing that a supplemental record filed with this Court on March 22, 2013, showed that Armstrong’s trial counsel withdrew his demand for a speedy trial in open court on September 8,2009. In his response brief, Armstrong contends that trial counsel’s waiver of his speedy trial demand was not valid because the transcript did not indicate that Armstrong was present in court at the time his counsel withdrew his demand for speedy trial. However, this Court has held that “[although the record is unclear as to whether [Armstrong] was present when his attorney made [the] announcement [that she was withdrawing a demand for speedy trial], we know of no requirement that the client be present for the voluntary act by his counsel that results in such a waiver.” Twiggs v. State, 315 Ga. App. 191, 200 (3) (726 SE2d 680) (2012). See also Burdett v. State, 285 Ga. App. 571, 573 (2) (646 SE2d 748) (2007) (finding that defendant’s demand for a speedy trial was properly withdrawn when his counsel filed a motion to withdraw his demand for speedy trial, despite defendant’s arguments that he did not know about his counsel’s motion nor did he consent to it).

(b) Armstrong maintains in his appellate brief that his trial counsel rendered ineffective assistance for failing to take appropriate action to pursue his demand for speedy trial claim. However, this contention of ineffectiveness was not raised in Armstrong’s motions for a new trial or at the motion hearing; thus, it is waived. Marshall v. State, 324 Ga. App. 348, 349 (1) (a) (750 SE2d 418) (2013). See generally Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996) (explaining that an ineffectiveness claim must be raised “at the earliest practicable moment” and that a claim must be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising the issue at a later time).

(c) Armstrong maintains, in the same compound enumeration of error, that his first appellate counsel rendered ineffective assistance for failing to seek acquittal for the State’s failure to comply with his demand for speedy trial during the motion for new trial hearing. Pretermitting whether his claim against his first appellate counsel is barred, see Wilson v. State, 286 Ga. 141, 144 (4) (686 SE2d 104) (2009) (holding that a defendant cannot resuscitate procedurally barred claims of ineffective assistance of trial counsel simply by bootstrapping them to a claim of ineffectiveness of appellate counsel), we find this claim to be without merit.

Decided November 20, 2013.

John W. Kraus, for appellant.

Tracy Graham-Lawson, District Attorney, Frances C. Kuo, Assistant District Attorney, for appellee.

Assuming that [Armstrong’s] claim of ineffective first appellate counsel is properly raised because it is premised on a claim not procedurally barred, a remand to the trial court for an evidentiary hearing would be necessary unless we can determine from the record that the two-prong test for ineffectiveness cannot be met.

(Citation and punctuation omitted.) Lewis v. State, 291 Ga. 273, 282 (7) (731 SE2d 51) (2012). Under the two-prong test, Armstrong must show that his first appellate counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Id. at 281 (7). Here, Armstrong can show no prejudice to his defense arising from his first appellate counsel’s failure to question his trial counsel as to why she did not seek acquittal based upon the State’s failure to comply with a demand for speedy trial that had been waived.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       Armstrong was charged with other offenses under the indictment, including one count of malice murder, three counts of felony murder, seven counts of armed robbery, one count of aggravated assault with intent to murder, and one count of possession of a firearm during the commission of a crime. At the close of the State’s case, the trial court granted a directed verdict on two counts of armed robbery, and the jury acquitted him of the remaining charges.

       OCGA § 24-3-53 was repealed by Ga. L. 2011, p. 99, § 2, effective January 1, 2013. We note, however, that the provisions of former OCGA § 24-3-53 were carried forward without change into Georgia’s new Evidence Code, where it is found at OCGA § 24-8-823.

       Armstrong also filed a separate motion to remand the case to the trial court for consideration of evidence regarding his ineffective assistance claims. Based upon our analysis in this Division, that motion is denied.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A13A1575.
    A13A1812.
    MALDONADO v. THE STATE. DURON v. THE STATE.
    (752 SE2d 112)
   Boggs, Judge.

David Ada Maldonado and Carlos Humberto Duron were convicted, along with two other individuals, of trafficking in cocaine. Their amended motions for new trial were denied, and they appeal. Finding no error, we affirm.

1. Maldonado and Duron assert that the evidence was insufficient to support their convictions. When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 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.

(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that the Atlanta High Intensity Drug Trafficking Area Task Force set up a controlled buy via a confidential informant and an undercover officer, who was wearing a hidden microphone monitored by other officers. After the deal was set up at a gas station with an intermediary, Maldonado and his sister, co-defendant Meyssi Aryani Saavedra-Maldonado, who was living with Duron, arrived in a white Tahoe with a Hardy Chevrolet drive-out tag. The informant and the undercover officer followed the white Tahoe into a nearby gated apartment complex, where Maldonado parked the Tahoe near building 300 and got out, while Saavedra-Maldonado spoke with the informant. Saavedra-Maldonado then drove away in the Tahoe, while Maldonado remained talking with the informant and the undercover officer for about half an hour, after which the informant and the officer drove to a nearby convenience store to wait and Maldonado walked between building 300 and building 400. Other officers monitoring the exchange saw a black Avalanche with a Hardy Chevrolet drive-out tag drive through the complex.

The informant and officer drove back to building 300, and Saavedra-Maldonado returned in the white Tahoe, followed by a gold Expedition driven by co-defendant Francis Perdomo and owned by Maldonado. Saavedra-Maldonado walked over to the Expedition carrying a black purse, spoke briefly with Perdomo, and then opened the rear passenger door of the Tahoe and “messed around” with something on the floor. Perdomo, Saavedra-Maldonado, the undercover officer, and the informant all gathered at the rear passenger door, the officer sat in the rear seat, and a brief conversation was held in Spanish about the money for the sale. Translated transcripts of these conversations were admitted into evidence, and the speakers were identified.

Suddenly, Perdomo and Saavedra-Maldonado called the deal off. Perdomo left hurriedly and was arrested at a nearby WalMart. The undercover officer and the informant then left, while SaavedraMaldonado remained sitting in the driver’s seat of the Tahoe. She looked into the rear passenger seat, then walked “in a hurried fashion” into the breezeway between building 300 and building 400; a few minutes later, Maldonado followed her.

Shortly afterward, Maldonado walked out of building 300, opened the rear passenger door of the Tahoe, looked inside, closed the door, got into the driver’s seat, and drove away. He went to a nearby strip mall, parked, and spent 18 minutes walking up and down the storefronts. Duron then drove up in a black Avalanche with a Hardy Chevrolet drive-out tag, and pulled in behind the Tahoe. Maldonado got out of the Tahoe with the black purse, handed it to Duron, and got into the Avalanche. Duron walked to the rear passenger window of the Tahoe, looked in, then got back in the Avalanche and left with Maldonado in the passenger seat.

Duron drove a short distance, made an abrupt U-turn, encountered a surveillance officer, and fled at speeds in excess of 100 miles per hour. An aircraft was assisting with surveillance, however, and officers were able to follow Duron and Maldonado as they drove to a Waffle House 26 miles away.

An investigator arrived at the Waffle House in time to see Duron and Maldonado go inside, Maldonado carrying the black purse. After six minutes, Duron left in the Avalanche, and the investigator followed him until another officer could take up the pursuit. He then returned to the Waffle House and spoke with Maldonado, who had the same black purse on a table. Maldonado consented to a search; the purse contained two wallets belonging to Maldonado, a wallet belonging to Perdomo, and a prescription bottle with Duron’s name on it.

Maldonado claimed that a stranger gave him the purse. He had a car key in his jacket pocket, but said he had borrowed the jacket from another stranger and did not know what car the key belonged to. He told the investigator that he arrived at the Waffle House by taxi and that he was staying at a hotel, though he had no room key. Maldonado was arrested and taken to where the other officer had stopped Duron. Asked who Duron was, he shrugged his shoulders “as if he did not know.”

The investigator returned to the white Tahoe with the key he had recovered from Maldonado and unlocked the Tahoe. When he looked inside the rear passenger window, he saw a tightly wrapped package on the rear passenger floor, which he recognized from his experience as a kilogram-size package. This proved to contain a kilogram of cocaine. An apartment in building 300 contained cellular telephones, identification, a checkbook, and bank cards belonging to SaavedraMaldonado.

After Duron’s arrest, search warrants were issued for two adjoining homes in Commerce, Georgia, which he had purchased together. The homes contained documents and other personal items showing that Duron and Saavedra-Maldonado occupied both residences. An insurance bill in Duron’s name for coverage on both the white Tahoe and the black Avalanche was found in one home, along with twelve cell phones, two SIM (subscriber identity module) cards, and $106,000 in cash. Next door, officers found cocaine, cocaine packaging materials, $23,000 in cash, five more cell phones and two SIM cards, as well as Saavedra-Maldonado’s passport, which was locked in a safe in the master bedroom closet.

The State then obtained court orders to intercept Duron’s telephone calls. In August 2009, about nine months after Duron’s arrest in the offense charged here, the wiretaps revealed that Duron was involved in another sale of cocaine. He placed approximately 40 calls to set up the deal. Police listened to calls in which Duron discussed the price and quantity of the cocaine and directed various individuals in complex arrangements to move, store, and test the cocaine by transferring it to numerous vehicles and safe houses. At one point, Duron commented that he had been “doing nothing” for nine months, since he was arrested. After one of his couriers realized that the police were observing him, Duron made numerous calls making plans to evade the police and hide the cocaine. He directed the courier to wait in a shopping center while he drove there to observe the police and help the courier escape. The courier was arrested, and cocaine was found hidden in the woods nearby.

An intelligence analyst with the drug task force was qualified as an expert witness/forensic analyst of telephone data. The analyst testified that she was trained in the use of computer programs, charts, and notebooks used for compiling law enforcement data, as well as databases and other tools used to analyze telephone records obtained from cellular providers. The parties stipulated to the provision of the data from the telephone companies. The analyst described the manner in which her computer programs and equipment were able to extract contact lists, call activity, and text messages from multiple cell phones and analyze that information. The resulting reports show which individuals called other individuals at particular times, and identify “common calls” or telephones in frequent communication with one another.

The analyst testified that her research and analysis led her to conclude that a particular telephone was used by Duron. She explained her findings, memorialized in a chart, to the jury. Similarly, the analyst testified that she was able to compare six cell phones used by Duron with a cell phone used during the drug transaction, and testified that the contact lists contained numerous similarities (such as Duron’s father’s telephone number) suggesting that Duron used that cell phone as well. Moreover, that cell phone was purchased at the same time and place as a cell phone found in Duron’s possession when he was arrested, the subscriber information was the same for both telephones, and the numbers were one digit apart. Both of those cell phones were used by Duron on the day of the drug transaction, and phone records showed that he made more than 80 telephone calls with Perdomo and Saavedra-Maldonado while the transaction was in progress.

This evidence, construed in favor of the jury’s verdict, clearly supported the convictions. See, e.g., Hernandez-Garcia v. State, 322 Ga. App. 455, 461-462 (3) (745 SE2d 706) (2013), and Aguilera v. State, 320 Ga. App. 707, 713 (2) (740 SE2d 644) (2013), involving a virtually identical scheme.

Case No. A13A1575

2. In his other enumeration of error, Maldonado contends the trial court erred in failing to strike Juror No. 11 for cause. In response to a question, this juror testified that her son-in-law’s drug problem destroyed her daughter’s marriage, but that she “hoped [she] could judge these individuals fairly.” Asked if she could judge the case based upon this evidence against these defendants, she responded, “I can.” Questioned by defense counsel, she added, “I would believe I could treat it fairly. It’s more of an emotional connection than a reasoning.” Under very intensive questioning by Maldonado’s counsel, she agreed that there was “some” question or “some reluctance” whether she could “remain completely neutral and impartial because of the nature of the crime.” Maldonado’s counsel acknowledged that “she was rehabilitated to a certain extent,” but added, “I’m not opposing [the challenge for cause by a co-defendant], but I’m not pushing it, either.” The trial court denied the challenge for cause.

In Leonard v. State, 292 Ga. 214, 216-217 (3) (735 SE2d 767) (2012), a juror expressed similar reluctance because of her daughter’s involvement in drugs and the difficulties it had caused in her family.

For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. A trial court’s determination as to whether to strike a juror for cause will not be set aside absent some manifest abuse of the court’s discretion. An appellate court must pay deference to the finding of the trial court and this deference includes the trial court’s resolution of any equivocations or conflicts in the prospective juror’s responses on voir dire. The fact that at some point during voir dire, a prospective juror expressed some doubt as to her own impartiality does not demand as a matter of law that she be excused for cause. The prospective juror’s responses do not show that she would be unable to properly serve as a juror, and there was no abuse of discretion in refusing to strike her for cause.

(Citations and punctuation omitted.) Id. Since this was a criminal rather than a civil trial, OCGA § 15-12-164 (a) prescribes the specific questions that must be asked to disqualify jurors in criminal trials.

In order for a potential juror to be excused for cause, the person must be shown to hold an opinion of the guilt or innocence of the defendant that is so fixed and definite that the person will be unable to set the opinion aside and decide the case upon the evidence or the court’s charge upon the evidence.

(Citations and punctuation omitted.) Gibson v. State, 267 Ga. App. 473, 478 (4) (600 SE2d 417) (2004).

Here, as Maldonado’s counsel acknowledged, the juror’s responses were somewhat ambiguous.

Given this ambiguity, if the trial court had seen fit to excuse the prospective juror for cause, that would have been a reasonable exercise of its discretion. But that does not mean that it was unreasonable for the trial court to do otherwise. The very notion of discretion implies that reasonable people sometimes will reasonably disagree about what is to be done, and in such a case, that call belongs to the one to whose discretion the question is committed by law. This is such a case, and the discretion here belongs to the trial court.

Edenfield v. State, 293 Ga. 370, 387-388 (7) (b) (744 SE2d 738) (2013).

Even assuming that Maldonado preserved his challenge to this juror by his ambivalent response to the trial court’s inquiry, the trial court did not abuse its discretion in refusing to strike this juror for cause.

Case No. A1SA1812

3. Duron asserts ineffective assistance of counsel in two respects: that his trial counsel failed to object to a multiple-county wiretap in violation of Luangkhot v. State, 292 Ga. 423 (736 SE2d 397) (2013), and that counsel failed to file a timely speedy trial demand under OCGA § 17-7-170.

To prevail on a claim of ineffective assistance, [Duron] must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). To show that the performance of his lawyer was deficient, [Duron] must prove that he performed his duties at trial in an obj ectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. And to show that he was prejudiced by the performance of his lawyer, [Duron] must prove a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. This burden, though not impossible to carry, is a heavy one. An insufficient showing on either Strickland prong relieves the reviewing court of the need to address the other prong.

(Citations and punctuation omitted.) Maurer v. State, 320 Ga. App. 585, 590-591 (6) (740 SE2d 318) (2013).

(a) Duron was tried and convicted in July 2010, and Luangkhot was not decided until 2013. The wiretap statute, OCGA § 16-11-64, has been amended, and at the hearing on the motion for new trial, Duron’s trial counsel testified that he and others interpreted the statute, as worded at the time of trial, to authorize multiple-county wiretaps. In fact, this court itself had reached the same conclusion, taking a more expansive view of superior court authority to issue wiretap warrants, but was reversed by the Supreme Court. Luangkhot v. State, 313 Ga. App. 599 (722 SE2d 193) (2012).

“[I]n making litigation decisions, there is no general duty on the part of defense counsel to anticipate changes in the law, and ... only in a rare case would it be ineffective assistance by a trial attorney not to make an objection that would be overruled under prevailing law.” Rickman v. State, 277 Ga. 277, 280 (2) (587 SE2d 596) (2003). And

[although this Court has held that [a new decision] applies to the admission of evidence in cases pending on direct review at the time that opinion was issued, that does not alter the long-standing precedent that, when addressing a claim of ineffectiveness of counsel, the reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial. Thus, [a new decision] does not apply in a manner that would require counsel to argue beyond existing precedent and anticipate the substance of the opinion before it was issued.

(Citation omitted.) Redwine v. State, 280 Ga. 58, 62-63 (3) (c) (623 SE2d 485) (2005). “The standard for effectiveness of counsel does not require a lawyer to anticipate changes in the law.” (Citation, punctuation and footnote omitted.) Hughes v. State, 266 Ga. App. 652, 655 (3) (a) (598 SE2d 43) (2004). This claim of ineffectiveness is without merit.

(b) In a three-sentence argument, Duron contends that his trial counsel was ineffective in failing to file a timely speedy trial demand. But Duron’s speedy trial demand was in fact filed in a timely fashion. OCGA § 17-7-170 (a) requires that a statutory speedy trial demand be filed “at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter.” Terms in Gwinnett County Superior Court begin on the first Monday in March and June, the second Monday in September, and the first Monday in December. OCGA § 15-6-3 (20). Duron was indicted on January 7, 2010, during the December 2009 term. Therefore, to be effective, Duron’s speedy trial demand had to be filed during the December term or at the latest during the March 2010 term; that is, before the June term began on June 7, 2010. It was filed on April 28, 2010, within the March 2010 term, and thus was timely, and Duron was tried during the next succeeding term. See OCGA § 17-7-170 (b). This claim of ineffectiveness is also without merit.

4. Duron next complains that the trial court improperly admitted similar transaction evidence.

Before evidence of an independent offense may be admitted at trial, the State must establish: (1) that it seeks to introduce the evidence not to raise an improper inference as to the defendant’s character but for some proper purpose; (2) that there is sufficient evidence to establish that the defendant committed the independent offense; and (3) that there is a sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter.

(Citation, punctuation and footnote omitted.) Amica v. State, 307 Ga. App. 276, 282 (3) (a) (704 SE2d 831) (2010). “We accept the trial court’s findings of fact unless they are clearly erroneous and will uphold the decision to admit the similar transaction evidence unless there has been an abuse of discretion.” Jackson v. State, 291 Ga. 54, 55 (2) (727 SE2d 454) (2012). While Duron emphasizes the differences between the crimes, “a transaction does not have to mirror every detail in order to authorize its admission; rather, the proper focus is upon the similarities between the incidents and not upon the differences.” Lamb v. State, 273 Ga. 729, 731 (1) (546 SE2d 465) (2001). Moreover, under our former Evidence Code, applicable here, when a similar transaction is “offered to prove intent, bent of mind, course of conduct, and common scheme or plan[,] ... a lesser degree of similarity is required than when such evidence is introduced to prove identity.” (Citations and punctuation omitted.) Neal v. State, 290 Ga. 563, 564 (2) (722 SE2d 765) (2012).

Here, while the incidents differ in details, the similarities are almost uncanny, showing elaborate distribution schemes involving multiple locations, “safe houses,” vehicles, and couriers, the use of numerous cell phones to direct negotiations and to avoid capture, and the presence of large amounts of cash and cocaine. The trial court did not err in admitting the similar transactions.

5. Finally, Duron contends the trial court erred in qualifying the forensic analyst and allowing her to testify to matters “within the ken of the jury.” “In criminal cases, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” Former OCGA § 24-9-67. “Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. [Cits.]” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981).

It is for the trial court to determine, as a matter of law after hearing evidence, whether a witness is competent by way of qualifications to render an opinion within their area of expertise. The requirements for qualification as an expert witness are minimal; generally, nothing more is required to qualify an expert than evidence that the person has been educated in a particular trade, science, or profession. Formal education or training in an area of expertise is not necessary, provided the witness possesses the qualifications of such area of expertise through skill and experience. It is the possession of special knowledge derived either from experience, study, or both in a field of expertise that makes one an “expert.” Thus, an expert witness can express an opinion on a matter which comes within the person’s qualifications.

Decided November 20, 2013.

Brown & Gill, Angela B. Dillon, Sharon L. Hopkins, for appellants.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

In the Interest of C. W. D., 232 Ga.App. 200, 206-207 (3) (a) (501 SE2d 232) (1998) (individual trained as psychologist qualified as expert, though not licensed in Georgia). See also O’Donnell v. State, 200 Ga. App. 829, 833-834 (2) (409 SE2d 579) (1991) (criminal investigator qualified to testify on a question of “trade” under former OCGA § 24-9-67 regarding record-keeping practices of drug dealers; trial court did not abuse discretion in admitting conclusory opinion). The witness was examined extensively on her specific training as an analyst of telephone records and the specialized computer programs used in law enforcement data compilation, as well as other information she used to perform her analysis, and the trial court did not abuse its discretion in permitting her to testify as an expert regarding the computer-assisted correlation of cellular telephone data; the weight to be given her testimony was for the jury. Moreover, the correlation and analysis of large numbers of cellular telephone calls, using specialized computer programs and other tools and resources specific to forensic analysis, is a matter “beyond the ken of the average layman.” Smith, supra, 247 Ga. at 619. The trial court did not abuse its discretion in admitting this testimony.

Judgments affirmed.

Doyle, P. J., and McFadden, J., concur.

       An investigator testified on cross-examination by Maldonado’s attorney that the analyst had similarly identified a telephone used by Maldonado, but "we felt that we couldn’t 100 percent prove it for the jury, so we opted to take it out.”

       We note that for trials conducted after January 1, 2013, the new Evidence Code permits the admission of similar-transaction evidence for the purpose of proving “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” but no longer for the purpose of proving “bent of mind” or “course of conduct.” OCGA § 24-4-404 (b).

        Betancourt v. State, 322 Ga. App. 201, 206 (3), n. 15 (744 SE2d 419) (2013). This case was tried in 2010.

       Except for minor changes in wording, this Code section remains the same under the new Evidence Code. See OCGA § 24-7-707.


text:
    A13A1610.
    WEAVER v. THE STATE.
    (752 SE2d 128)
   Boggs, Judge.

Michael David Weaver, also known as Michael Carothers, pled guilty to one count of aggravated assault for spraying another man with pepper spray. Over two weeks later, Weaver filed a pro se motion to withdraw his guilty plea. The trial court denied Weaver’s motion, and he now appeals, arguing that an insufficient factual basis exists for his plea because the State’s proffer failed to show that pepper spray is either a deadly weapon or an object, device, or instrument likely to cause serious bodily injury under OCGA § 16-5-21 (a) (2). We disagree and affirm.

“[A] ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of that discretion.” (Citation and footnote omitted.) Sheffield v. State, 270 Ga. App. 576, 576-577 (1) (607 SE2d 205) (2004). Uniform Superior Court Rule (USCR) 33.9 provides: “Notwithstanding the acceptance of a plea of guilty, the judgment should not be entered upon such plea without such inquiry on the record as may satisfy the judge that there is a factual basis for the plea.” The purpose of this rule

is to protect against someone pleading guilty when that person may know what he has done but may not know that those acts do not constitute the crime with which he is charged. USCR 33.9 provides this protection by requiring a trial court to subjectively satisfy itself that there is a factual basis for the plea.

(Citations and punctuation omitted.) Phelps v. State, 293 Ga. 873, 874 (1) (750 SE2d 340) (2013). “USCR 33.9 requires nothing more than that the trial court make itself aware of the factual basis of the plea.” (Citations and punctuation omitted.) Id. “And a factual basis is sufficient if it subjectively satisfies the trial court that the defendant knows both what he has done and that those acts constitute the crime with which he is charged.” (Citations, punctuation and footnotes omitted.) Leary v. State, 291 Ga. App. 754 (1) (662 SE2d 733) (2008).

At the plea hearing, the State explained that the evidence would show that as the victim and his friend walked toward their homes, Weaver, who was sitting in his vehicle, called the victim to come up to the vehicle. When the victim approached, Weaver sprayed him “directly in the face with mace.” The victim “felt like his face was melting,” the spray burned his eyes and temporarily blinded him, so that his friend had to help him as he stumbled to his home three or four blocks away. The victim remained in a “great deal of pain” after his arrival home and throughout his return to the scene of the incident with his mother to talk to the police.

Weaver argues that the factual basis proffered by the State was insufficient to establish the foundation for the plea because “[t]he act of merely spraying pepper spray into the face of an adult from a foot away as charged here is not a means likely to cause serious bodily injury and did not in fact cause serious bodily injury in this case.” We disagree.

We begin our analysis by noting that “[Weaver] was not indicted for actually causing serious bodily injury, and since there is no allegation in the indictment that serious bodily injury in fact occurred, any argument premised on such an allegation is misplaced. [Cit.]” Massey v. State, 278 Ga. App. 303, 304 (1) (628 SE2d 706) (2006). Likewise, because Weaver was not indicted for using a deadly weapon, we need not address whether pepper spray is a deadly weapon.

As both parties correctly acknowledge, a specific definition of “serious bodily injur/’ has not been provided by statute or case law in Georgia. Instead, “[wjhether a weapon is . . . one likely to cause serious bodily injury is a question for the jury, which may consider all the circumstances surrounding the weapon and the manner in which it was used. [Cits.]” Harwell v. State, 270 Ga. 765, 767-768 (1) (512 SE2d 892) (1999). These circumstances include “the manner and means of the object’s use, as well as any wounds inflicted and other evidence of the capabilities of the instrument.” (Citation and footnote omitted.) Reese v. State, 303 Ga. App. 871, 872 (695 SE2d 326) (2010). This court has previously held that a bruise provides evidence that an instrument was likely to cause serious bodily injury. See Reynolds v. State, 294 Ga. App. 213, 217 (1) (c) (668 SE2d 846) (2008) (bruises caused by wooden plank); Hernandez v. State, 274 Ga. App. 390 (617 SE2d 630) (2005) (welt or bruise caused by branch sufficient to support finding of “likely to result in serious bodily injur/’).

In Harwell v. State, 231 Ga. App. 154 (497 SE2d 672) (1998), this court concluded:

We must give some credit to the jury for common sense, for knowing that a stun gun used in the manner it was used in this case is not an “object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” It was not used to beat him over the head, for example.

Id. at 157 (3) (f). The Supreme Court of Georgia, in reversing our decision, however, found that the use of a stun gun to administer a temporary shock presented a jury question on the issue of whether the offensive use was likely to result in serious bodily injury. 270 Ga. at 767-768 (1).

Decided November 20, 2013.

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

Julia Fessenden Slater, District Attorney, Michael E. Craig, Assistant District Attorney, for appellee.

Here, the State’s proffer showed that the victim suffered a burning sensation in his eyes and face, was in a great deal of pain, and was temporarily blinded. The trial court did not abuse its discretion by concluding that this evidence supported a guilty plea to aggravated assault based upon the use of “any object, device, or instrument which, when used offensively against a person, is likely to . .. result in serious bodily injury.” OCGA § 16-5-21 (a) (2). Cases from other jurisdictions support this conclusion. See, e.g., United States v. Mosley, 635 F3d 859, 864 (II) (6th Cir. 2011) (concluding after scientific and physiological analysis that “the use of pepper spray, a device chosen for self-defense precisely because it injures and incapacitates attackers, ‘presents a serious potential risk of physical injury to another’ when used offensively” under federal sentencing guidelines); State v. Harris, 966 S2d 773, 778-779 (La. App. 2007) (concluding that pepper spray caused “serious bodily injury,” reasoning that “[i]t was not necessary for the spray to produce permanent injuries, but simply to produce ‘extreme physical pain,’ and that degree of pain was evident by the testimony of the [victims]”).

We therefore affirm the trial court’s denial of Weaver’s motion to withdraw his guilty plea.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.


author: Phipps, Chief Judge.

text:
    A13A1636.
    FULTON COUNTY BOARD OF EDUCATION v. D. R. H.
    (752 SE2d 103)
   Phipps, Chief Judge.

This court granted the application for discretionary appeal of the Fulton County Board of Education (“Local Board”) from the superior court’s order reversing the decision of the State Board of Education (“State Board”) concerning D. R. H.’s expulsion from high school. The superior court remanded the case to the State Board “with direction to vacate the adjudication of expulsion entered against D. R. H.” On appeal, the Local Board seeks reversal of the superior court’s order, contending that the court erred by failing to confine its review to evidence in the record, failing to declare that D. R. H.’s appeal to the State Board was moot, misapplying law in its determination that D. R. H.’s detention at a youth detention center constituted a disciplinary suspension by school officials, and failing to apply the proper standard of review. For the reasons that follow, we reverse.

The undisputed evidence at a disciplinary hearing before a student disciplinary hearing officer of the Local Board, held on November 16, 2011, showed the following. Officer Christopher Mallard, a school resource officer at D. R. H.’s school, testified that on October 28, 2011, he received radio information that D. R. H. (then 15 years old) was loitering in the hallways of the school. Mallard investigated, and discovered in the second-floor gym area D. R. H. and two other male students “hanging out” in a hallway.

Mallard recognized the three students, and, standing at a distance of “maybe 100 feet” from them, instructed them to come with him. The other two students complied; D. R. H. said to Mallard, “f-k that s-t, man. I’m in gym. I ain’t going nowhere.” Mallard again ordered D. R. H. to come with him, saying, “[D. R. H.], you are coming with me.” D. R. H. replied, “no, I’m not.” Mallard began to walk toward D. R. H. As D. R. H. looked atMallard, D. R. H. was standing in a “very defiant position, defensive position”; D. R. H.’s hands were in front of him, ‘Tailed” into fists. Mallard instructed D. R. H. to enter an elevator so they could go to the first floor. D. R. H., still cursing at Mallard, entered the elevator. Mallard and D. R. H. entered the elevator, and Mallard instructed the other two youths to remain on the second floor.

While in the elevator, as Mallard attempted to explain to D. R. H. that his behavior was unacceptable and that he needed to comply with instructions given to him by a law enforcement officer, D. R. H. replied, “I don’t care what you are saying. Ain’t trying to hear all that.” D. R. H. continued to use curse words and inappropriate language toward Mallard, who at that time, decided to handcuff D. R. H. Mallard testified that when he reached to handcuff D. R. H., D. R. H. “shoved me, not with his hands but kind of like with his forearm,” making contact with Mallard’s arms. As Mallard reached for D. R. H. again, the elevator doors opened and Officer Raymond Parker (another school resource officer) entered the elevator, retrieved his handcuffs, and grabbed D. R. H. to detain him. Mallard testified that D. R. H. resisted being handcuffed by moving his arms around and “tensing up,” which made it difficult for the resource officers to put his hands behind his back. The resource officers “finally got [D. R. H.] down to the ground,” and handcuffed him. Mallard testified that “in the process,” he struck D. R. H. in the neck area. Parker took D. R. H. to the main office.

Parker testified that when, like Mallard, he had been notified that D. R. H. was “up checking the halls,” the officers had split up to look for D. R. H. Mallard took the upstairs gym area, and Parker took the downstairs gym area. Parker testified that he encountered D. R. H. and Mallard on the elevator. He testified that D. R. H. was not complying with Mallard’s request to put his hands behind his back. Parker testified that D. R. H. was “tensing up” and stood in a “defensive posture” with his hand clenched in a fist. Parker testified that he began to assist Mallard handcuff D. R. H., who was resisting arrest. Parker testified that he was holding D. R. H.’s left arm, and that he and Mallard were “trying to turn [D.R. H.] aroundjusttokeep — prevent [D. R. H.] from hitting either one of us.” In the process, Mallard was trying to grab D. R. H.’s right arm, and struck D. R. H. on the side of the head. Parker could not recall whether the strike was with a closed fist or open hand.

The assistant principal testified that when D. R. H. was brought into the main office, he was “cuffed, combative, [and] loud.” Specifically, D. R. H. was “upset and cursing.” He testified that at one point, D. R. H. commented, “n—-r think he is something because he got a badge.... I will f-k you up.” Both resource officers were in the office when D. R. H. made that statement. Parker stayed with D. R. H. until D. R. H. was transported to the ‘Metro RYD C for detention/incarceration” that night. D. R. H. remained at the youth detention center until October 31, 2011. The assistant principal testified that once D. R. H. was released from the youth detention center, he returned to school.

D. R. H. argued in closing argument that he struck Mallard in self-defense. But the disciplinary hearing officer found that when D. R. H. made contact with Mallard’s arms when they were in the elevator alone together, D. R. H. was not acting in self-defense. The hearing officer determined that D. R. H. had violated Rules 4b, 4d, 4e, and 6d of the Fulton County Board of Education Student Code of Conduct. The hearing officer found that D. R. H. had refused to obey the directive of a school resource officer to accompany the officer to the school office, shoved the officer with his hands, called the officer a derogatory name, and used profane language in the presence of and toward the officer. The hearing officer expelled D. R. H. from school through May 2012, but waived expulsion if D. R. H. chose to enroll in an alternative school.

D. R. H. appealed to the Local Board the hearing officer’s decision, claiming that the student disciplinary hearing officer had: (1) violated OCGA § 20-2-754 (b) (2) by holding the disciplinary hearing more than ten school days after his suspension began; and (2) erred by failing to “correctly apply school rule 4b because there was significant evidence showing [D. R. H.’s] actions were in self-defense.” The Local Board adopted the findings of the hearing officer, but modified the disposition and considered the assigned discipline “complete” as of the date of the Local Board’s decision (December 13,2011).

D. R. H. appealed to the State Board the Local Board’s decision, on the ground that the disciplinary hearing was not held within ten school days of his suspension. And, claiming that the Local Board did not address the merits of his appeal, and “effectively determined that the completion of the expulsion rendered the appeal moot,” D. R. H. argued to the State Board that “the issues raised are not moot because [D. R. H.] continues to suffer injury for which relief may be granted.” The injury, he claimed, was as to his future ability to gain admission to college. The relief, he claimed, was that the State Board could remove the expulsion from his academic records.

According to the State Board’s order, the Local Board’s position before the State Board was that the appeal was moot because the punishment imposed by the Local Board had ended. The State Board agreed with the Local Board, noting that the record “does not contain any evidence showing that [D. R. H.] will be adversely affected.” However, the State Board, in its decision, went on to recognize its duty to affirm the decision of the Local Board if there was any evidence to support it. Thereupon, the State Board found that D. R. H. had not been suspended from school before the disciplinary hearing had taken place, and that the evidence supported the Local Board’s decision that D. R. H. had violated the Student Code of Conduct.

D. R. H. appealed to the superior court the State Board’s decision. The superior court ruled that the State Board had erred when it “found the issues raised by D. R. H. to be moot because, as a student adjudicated at a formal administrative hearing, D. R. H. continues to suffer injury for which relief may be granted,” such as the future ability to gain admission into a college or university. The superior court further ruled that when “school employees initiated police contact based on [D. R. H.’s] behavior at the school, and because this action resulted in [D. R. H.’s] removal and loss of educational time, a suspension occurred.” Because the disciplinary hearing was not held within ten days of such “suspension,” the court found, the hearing officer “erred when she failed to grant D. R. H.’s motion to dismiss at the outset of the [evidentiary disciplinary] hearing.” Therefore, the superior court ruled, the “adjudication of expulsion entered through the formal hearing process was in error and must be VACATED.”

1. The Local Board contends that the superior court erred in not confining its review to the record before the Local Board. We agree.

OCGA § 20-2-1160 (e) pertinently states that, “the review by the state board or the superior court shall be confined to the record.” “As an appellate body, the [s]uperior [c]ourt. . . (like the State Board of Education) was not authorized to consider matters which had not been raised before the local board.”

The superior court, in ruling that the State Board erred when it “found the issues raised by D. R. H. to be moot because, as a student adjudicated at a formal administrative hearing, D. R. H. continues to suffer injury for which relief may be granted,” held that D. R. H. would not have known at the time of the evidentiary disciplinary hearing that he needed to present “evidence of future injury,” because “[t]he case only became moot . . . after the [Local Board] took the action of modifying the disposition without affecting the adjudication.” The superior court cited in its order articles from various newspapers, and also what appeared to be online college admissions applications, none of which were entered in evidence, purportedly indicating that many colleges required high schools to submit disciplinary records for prospective students and also asked prospective students to self-report infractions.

The superior court clearly failed to confine its review to the record or the issues raised before the Local Board, contrary to the requirements of OCGA § 20-2-1160 (e). Notwithstanding the trial court’s reasoning that whether the case was moot became an issue only after the Local Board modified the disposition but not the adjudication, the duty of the superior court sitting as an appellate court, reviewing the Local Board’s administrative decision, was to “determine [ ] whether there was any evidence to support the agency’s decision.” The superior court considered a matter de novo from the Local Board, and failed to confine its review to the record, as well as to the issues that had been raised before the Local Board.

2. The Local Board contends that the superior court “erred in its reversal of the State Board’s decades-long application of the mootness doctrine to student appeals where assigned discipline has already expired.” The Local Board argues that D. R. H.’s “disciplinary consequence in this matter has ceased to be live or practical so as to make the judgment not decisive or controlling of actual and contested rights, but a pronouncement having academic interest only.” We do not agree with the Local Board’s position that D. R. H.’s appeal to the State Board was moot. But we do not find that the State Board applied the “mootness doctrine” to this case; thus, this issue raised in this contention is moot.

“Our review as to conclusions of law is de novo.” “An appeal is moot when it seeks to determine an issue which, if resolved, cannot have any practical effect on the underlying controversy, or when such resolution will determine only abstract questions not arising upon existing facts or rights.” Pursuant to OCGA § 20-2-1160 (b), “[a]ny party aggrieved by a decision of the local board rendered on a contested issue after a hearing shall have the right to appeal therefrom to the State Board of Education.”

At the disciplinary hearing, in regard to the charge that D. R. H. violated Rule 4b of the Student Code of Conduct, D. R. H. argued that the school failed to show that his physical contact with Mallard was not in self-defense. In D. R. H.’s initial appeal to the Local Board, he asserted that the disciplinary hearing officer’s findings that he did not act in self-defense were not supported by the evidence. Thus, whether D. R. H. violated Rule 4b was a contested issue. And when the Local Board rejected D. R. H.’s argument on that issue, adopting the findings of the hearing officer, D. R. H. had a right to appeal that determination to the State Board.

In relying on its longstanding position that student appeals where assigned discipline has already expired are moot, the Local Board cites prior administrative decisions by the State Board that are maintained by the Georgia Department of Education, and also cites two cases that were decided by this court, Benton v. Gwinnett County Bd. of Ed., and Hightower v. Muscogee County School Dist. Both cases are distinguishable, however; in neither case was this court called to decide whether a determination of misconduct by a local school board becomes moot when the student is no longer serving suspension. In Benton, the running of a student’s suspension and his withdrawal from school caused to become moot an action he had brought for a declaratory judgment seeking to enjoin enforcement of a “no smoking” rule, to invalidate the school’s no smoking rule, and an order that he be returned to school during the pendency of the litigation. In Hightower, a school district took various disciplinary actions against a high school senior who was caught drinking alcohol at the prom, including forbidding him from participating in graduation ceremonies with other members of his class. But the student appealed only the prohibition against participating in the graduation ceremony; by the time the matter reached this court, the date of the ceremony had passed, and this court dismissed the student’s appeal as moot.

Here, D. R. H. appealed not only his expulsion, fyut also the hearing officer’s determination that he had committed misconduct. In neither Benton nor Hightower did the students claim, as did D. R. H., that they did not commit the conduct the schools found that they had committed, or that they suffered any lasting collateral consequences of the schools’ decisions. D. R. H. asserted that even though he was no longer expelled from high school, he would continue to suffer adverse consequences because he would have to report the Local Board’s determination when he sought college admission.

We agree with the Local Board that the appeal was moot to the extent that the original term of D. R. H.’s expulsion had expired. D. R. H. had served his expulsion, and therefore the term of his expulsion did not involve an existing fact or right. We do not agree, however, that the appeal was moot as to the Local Board’s determination of misconduct, and that determination remained on D. R. H.’s school record. It cannot reasonably be said that a determination of misconduct on a student’s school record carries no consequences, particularly as it concerns future school discipline or the ability of a student to obtain employment or enter an institution of higher learning later in life. Foreign jurisdictions have recognized that given the permanent nature of the record of expulsion, appeals from expulsions are not moot even if the student has since returned to school (or was assigned to another school).

The determination of misconduct was a contested issue before the Local Board, and thus, D. R. H. was allowed to appeal it; the determination of misconduct remained on D. R. H.’s school record, and thus, it was not moot. Accordingly, the superior court did not err in ruling that D. R. H.’s appeal to the State Board was not moot.

Despite its initial ruling that the appeal was moot, the State Board reviewed the Local Board’s decision on the merits. The State Board recognized its duty to affirm the decision of the Local Board if there was any evidence to support it. Thereupon, the State Board found that D. R. H. had not been suspended from school before the disciplinary hearing, and therefore, was provided a timely hearing. The State Board further found:

In this case, [D. R. H.] was charged with violating the [Local Board’s] rules prohibiting physical violence against a school employee, threatening bodily harm, using obscene language and exhibiting disrespectful behavior. The record contains more than sufficient evidence showing that [D. R. H.] cursed and repeatedly refused to follow the directions of the School Resource Officer. The record further shows that [D. R. H.] clenched his fists and shoved the School Resource Officer. Thus, [D. R. H.] was combative, loud, and used obscene language, all of which violates the [Local Board’s] rules. Thus, the decision of the [Local Board] is supported by admissible evidence.

Accordingly, the Local Board’s appeal of the superior court’s ruling as to the contention herein addressed in this Division is itself moot because the State Board ruled on the merits of D. R. H.’s appeal, in favor of the Local Board.

3. The Local Board contends that the superior court misapplied law in ruling that D. R. H.’s detention at a youth detention center constituted a disciplinary suspension by school officials. We agree with the Local Board.

Pursuant to OCGA § 20-2-753 (a), a local board of education

shall appoint a disciplinary hearing officer, panel, or tribunal of school officials to hold a disciplinary hearing following any instance of an alleged violation of the student code of conduct where the principal recommends a suspension or expulsion of longer than ten school days.

The “disciplinary officer, panel, or tribunal of school officials appointed . . . shall. . . ensure that. . . [t]he hearing is held no later than ten school days after the beginning of the suspension.”

In this case, at the disciplinary hearing, the assistant principal testified that D. R. H. was not suspended for the incident, and that he “followed up with [D. R. H.’s legal guardian] via telephone conversation and, in fact, informed her . . . that [D. R. H.] was . . . not suspended,” and that he was “eligible to return to school after he was released from his incarceration.” The parties did not dispute that after the October 28, 2011 incident, D. R. H. remained at the youth detention center until October 31, 2011. The assistant principal testified that once D. R. H. was released from the youth detention center, he did return to school. The disciplinary hearing officer denied a motion to dismiss D. R. H. had made on the ground that the hearing was not being held within the time frame provided by OCGA § 20-2-754.

The superior court ruled that when “school employees initiated police contact based on [D. R. H.’s] behavior at the school, and because this action resulted in [D. R. H.’s] removal and loss of educational time, a suspension occurred.” Because the disciplinary hearing was not held within ten days of such “suspension,” the court stated, the hearing officer “erred when she failed to grant D. R. H.’s motion to dismiss at the outset of the [evidentiary disciplinary] hearing.” Therefore, the superior court ruled, the “adjudication of expulsion entered through the formal hearing process was in error and must be VACATED.”

Neither the superior court nor D. R. H. cited authority that supports the position that when school employees initiate contact with officials authorized to determine the placement of a child alleged to have committed a delinquent act, and the child misses educational time, a suspension from school occurs. D. R. H. does point out that a student has a property interest in his or her education, as recognized by the United States Supreme Court in Goss; but that determination does not address the issue raised in this Division. This case involves two distinct entities: the juvenile justice system (which in this case includes the juvenile court and the Department of Juvenile Justice) and the local school board. And the authority of each entity to act is governed by statute, and is independent of the other, as set forth below.

Under the statutes providing for the discipline of students in elementary and secondary education, “school administration . . . may, when any alleged criminal action by a student occurs, report the incident to the appropriate law enforcement agency or officer for investigation to determine if criminal charges or delinquent proceedings should be initiated The statutes governing juvenile proceedings in the court system provide that “[a] person taking a child into custody... shall... [bjringthe child immediately before the juvenile court or promptly contact a juvenile court intake officer],] . . . [who] shall determine if the child should be released or detained.” The juvenile justice statutes further provide that a youth detention center “which is under the direction or supervision of the court or other public authority,” is one of several authorized placements for a child alleged to have committed a delinquent act; home placement is also an option. And while a juvenile court may, after a child is adjudicated delinquent and placed on probation, require the child as a condition of probation to pursue a course of study designed to lead to achieving a high school diploma or the equivalent, we have found no authority permitting either the juvenile court or the Department of Juvenile Justice, at any time, to suspend a student from school.

On the other hand, “[e]ach county of the State is by law made a school district, and the management and control of the schools of the county is confided in the county board of education.” Under the statutes providing for the discipline of students in elementary and secondary education, local boards of education are required to adopt policies that “provide for the development of age-appropriate student codes of conduct containing standards of behavior,” “provide for the distribution of [said] student codes of conduct... to each student upon enrollment,” and “provide for disciplinary action against students who violate student codes of conduct.” Such disciplinary action may include suspension or expulsion from school. We found no authority permitting local boards of education or school officials to interfere with decisions made by juvenile justice officials as to the placement of a child alleged to have committed a delinquent act.

Here, there was evidence that school officials did not suspend D. R. H. based on his conduct in this incident. The assistant principal testified that after the incident, he contacted D. R. H.’s guardian and informed her that D. R. H. was not suspended and could return to school after he was released from the youth detention center; and D. R. H. in fact returned to school after he was released from the youth detention center. School officials did nothing more than exercise their discretion under the law to report alleged criminal action by a student, and there was no evidence that school officials were involved in the decision to admit D. R. H. into the youth detention center; by law, such a decision is made by juvenile justice system officials, and any resulting absence from school is a collateral consequence. Juvenile justice officials could have placed D. R. H. in a private home; in that event, if left up to the school, it appears that D. R. H. would not have missed any days from school.

Decided November 20, 2013.

Nelson, Mullins, Riley & Scarborough, Neeru Gupta, Suzann W. Jiles, for appellant.

Stephen M. Reba, for appellee.

Harbin, Hartley & Hawkins, Phillip L. Hartley, Shelly C. Anand, amici curiae.

Accordingly, the disciplinary hearing was not untimely, as there was evidence that D. R. H. had not been suspended before the hearing, and the superior court’s determination to the contrary had no legal basis. Accordingly, the superior court erred in reversing the State Board’s decision and remanding the case to the State Board with direction to vacate the adjudication of expulsion entered against D. R. H.

4. Based on the foregoing, we need not reach the Local Board’s contention that the superior court erred in failing to apply the “any evidence” standard of review.

Judgment reversed.

Ellington, P. J., and Branch, J., concur.

       Pursuant to OCGA § 20-2-751:
      (1) “Expulsion” means expulsion of a student from a public school beyond the current school quarter or semester. (2) “Long-term suspension” means the suspension of a student from a public school for more than ten school days but not beyond the current school quarter or semester. (3) “Short-term suspension” means the suspension of a student from a public school for not more than ten school days. . . .

       Rule 4b provides: “Astudent shall not intentionally make physical contact of an insulting or provoking nature with a school employee, unless such physical contact was in self-defense as provided by OCGA § 16-3-21.” Rule 4d provides: “A student shall not threaten bodily harm, or behave in such a way as could reasonably cause physical injury to a school employee.” Rule 4e provides: “Astudent shall not use in an employee’s presence abusive words or obscene language, pictures or gestures tending to cause a breach of the peace.” Rule 6d provides:
      A student shall not exhibit disrespectful, rude or discourteous behavior or language toward an employee, student or other person while on school property, at school-sponsored events, or while using school technology resources. This can include, but is not limited to, behavior such as using profane, vulgar, or language (written or oral) or gestures towards others; possessing, displaying, or distributing profane, vulgar, pornographic, obscene, or ethnically offensive materials; knowingly and willfully making false reports or statements, whether orally or in writing; falsely accusing others of wrong actions; falsifying school records; forging signatures; failing to comply with reasonable directions or commands of authorized school personnel/designees; refusing to identify one’s self upon request of any School District employee/designee; failing to attend detention or in-school suspension; and verbal altercations with another person.
      See OCGA § 20-2-751.5 (a) (1), (2), (3).

       OCGA § 20-2-754 (b) (2) (provides pertinently thát “[a] disciplinary officer . . . shall. . . ensure that: . . . [t]he hearing is held no later than ten school days after the beginning of the suspension unless the school system and parents or guardians mutually agree to an extension!)]”).

        See Johnson v. Pulaski County Bd. of Ed., 231 Ga. App. 576, 577 (1) (499 SE2d 345) (1998) (“The superior court’s review is on the record of the proceedings”).

        Sharpley v. Hall County Bd. of Ed., 251 Ga. 54, 55 (1) (303 SE2d 9) (1983); OCGA § 20-2-1160 (e) (“Neither the state board nor the superior court shall consider any question in matters before the local board nor consider the matter de novo, and the review by the state board or the superior court shall be confined to the record.”).

        Ga. Dept. of Revenue v. Moore, 317 Ga. App. 31, 32 (730 SE2d 671) (2012); Ransum v. Chattooga County Bd. of Ed., 144 Ga. App. 783, 785 (5) (242 SE2d 374) (1978).

       See generally Owen v. Long County Bd. of Ed., 245 Ga. 647, 649 (2) (266 SE2d 461) (1980) (subsequent to a hearing at which the local board reaffirmed its decision not to renew school principal’s employment contract, his claim of bias was raised for the first time in a list of contentions submitted on appeal to the State Board of Education; “If there has been no issue heard and decided by the county board, there can be no parties and no testimony which the law authorizing an appeal contemplates. It necessarily follows that an aggrieved party’s list of contentions, submitted to the state board on appeal, must relate to contested issues at the hearing below and cannot raise new issues.”) (citations and punctuation omitted); Sharpley, supra; Ransum, supra; OCGA § 20-2-1160 (e).

       (Emphasis supplied.)

        Moore, supra.

        Pimper v. State of Ga., 274 Ga. 624, 626 (555 SE2d 459) (2001) (footnotes omitted).

       Compare D. B. v. Clarke County Bd. of Ed., 220 Ga. App. 330, 331 (469 SE2d 438) (1996) (student did not dispute the fact that she had violated school rules and state law; she contended only that the punishment administered — permanent expulsion — was unlawful and that her right to due process of law was violated because she had no notice before the incident that her conduct might result in permanent expulsion).

       OCGA § 20-2-1160 (b).

       See Balmer v. Elan Corp., 278 Ga. 227, 229-230 (2) (599 SE2d 158) (2004) (appellate courts of this state are bound by decisions of the United States Supreme Court); Carter v. Scott, 320 Ga. App. 404, 407 (1) (750 SE2d 679) (2013) (cases not decided by Georgia’s courts had no binding precedential value); Ga. Const, of 1983, Art. VI, Sec. V, Par. Ill (Supreme Court decision is binding precedent on Court of Appeals); Court of Appeals Rule 33 (a).

       168 Ga. App. 533 (309 SE2d 680) (1983).

       180 Ga. App. 635 (350 SE2d 25) (1986).

        Benton, supra at 533-534.

        Hightower, supra.

       Id. at 635-636.

       See generally Pimper, supra at 626-627.

       See OCGA § 20-2-735 (d).

       See, e.g., Goss v. Lopez, 419 U. S. 565, 567, 574-575 (II), 581, 584 (III) (95 SCt 729, 42 LE2d 725) (1975) (school authorities suspended students from school for periods of up to ten days based on charges of misconduct and at no time afforded the students a hearing; Court held that students have procedural due process rights to notice and a hearing before suspension, or soon thereafter; Court recognized that “[i]f sustained and recorded, those charges could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment”).

       See In re P.F., 849 NE2d 1220, 1221, 1224, 1227 (Ind. Ct. App. 2006) (finding that to the extent student was not permitted to complete and receive credit for schoolwork student missed during term of expulsion, and expulsion remained on student’s permanent record, school board’s appeal from the trial court’s order vacating expulsion of student from school was not moot; court recognized that although the term of student’s expulsion had ended, an expulsion still on student’s record “may make it difficult for him to be accepted to colleges and universities”); Doe v. Superintendent of Schools, 421 Mass. 117, 118, 123 (653 NE2d 1088) (1995) (in student appeal of judgment upholding her expulsion from school, court found that student had a “real and substantial stake in the outcome of her case,” and that the issue of expulsion was not moot even where student had returned to school; recognizing that under federal law, student was “subject to release of educational records, including disciplinary records, without her consent under certain circumstances”); Massengill v. Bd. of Ed., 88 FRD 181, 183, 185, n. 4 (N.D. Ill. 1980) (where student was expelled from school and, upon an order issued by a magistrate, engaged in self study offered through a university, student filed due process violation action against school board; rejecting school’s argument that appeal was moot, court stated that “where records of disciplinary action have been kept, the existence of such records stops the action from becoming moot. This is to prevent the unjust occurrence of any ‘collateral consequences’ arising from information on the records that could possibly harm the student in the future.”).

       OCGA § 20-2-1160 (b).

       See generally Goss, supra; cf. Pimper, supra.

       OCGA § 20-2-1160 (e).

       See generally Johnson, supra at 578 (3) (appeal of ruling moot where appellant “has no just cause of complaint”).

       OCGA § 20-2-754 (b) (2).

       D. R. H.’s legal guardian, although present, did not testify at the disciplinary hearing.

       Supra.

       OCGA § 20-2-730 et seq.

       OCGA § 20-2-756 (emphasis supplied).

       OCGA § 15-11-1 et seq.

       OCGA §§ 15-11-47 (a) (3); 15-11-2 (10) (“ ‘Juvenile court intake officer’ means the juvenile court judge, associate juvenile court judge, court service worker, or person employed as a juvenile probation or intake officer designated by the juvenile court judge or, where there is none, the superior court judge, which person is on duty for the purpose of determining whether any child taken into custody should be released or detained and, if detained, the appropriate place of detention.”); 15-11-24.3 (a) (1), (b) (“intake . . . services of the juvenile court of each county may be transferred to and become a part of the state-wide juvenile and intake services and fully funded through the [Department of Juvenile Justice]”).

       OCGA § 15-11-48 (a) (3).

       OCGA § 15-11-48.

       OCGA § 15-11-48 (a) (1).

       OCGA § 15-11-66 (c).

       See OCGA § 15-11-66 (providing for the disposition of a child adjudicated delinquent).

        Keever v. Bd. of Ed., 188 Ga. 299, 300 (1) (3 SE2d 886) (1939); D. B., supra at 333 (1) (“The Georgia Constitution has delegated the administration and management of local school districts to county and area boards of education.”); Oconee County v. Rowland, 107 Ga.App. 108, 110 (129 SE2d 373) (1962); Ga. Const, of 1983, Art. VIII, Sec. V, Par. I; OCGA §§ 20-2-4; 20-2-50.

       OCGA § 20-2-730 et seq.

       OCGA § 20-2-735 (a).

       OCGA § 20-2-736 (a).

       OCGA § 20-2-736 (b).

       OCGA § 20-2-751.6.

       OCGA § 20-2-756.

       OCGA § 20-2-754 (b) (2).

       See OCGA §§ 20-2-730 et seq.; 15-11-1 et seq.


text:
    A13A1651.
    JONES v. MORRIS et al.
    (752 SE2d 99)
   Phipps, Chief Judge.

This is an appeal from an interlocutory injunction granted to two residential property owners in a subdivision. The interlocutory injunction prohibited a third property owner from pumping water from a pond in the subdivision pending final adjudication of the underlying petition for declaratory judgment, injunctive relief, and damages. For the reasons that follow, we affirm.

Carla Jones owned residential property in a subdivision. James and Terri Morris (collectively, Morris) also owned residential property in the subdivision. The subdivision contained a roughly two-and-one-half-acre pond, which Jones’s lot and Morris’s lot abutted.

In June 2012, Jones installed in the pond a pump for the purpose of withdrawing water to irrigate her lawn. Jones operated the pump twice per week; the pump ran for a total of 90 minutes each time, removing water at a maximum rate of approximately 20 gallons per minute. According to Morris, the water level of the pond decreased by about one-and-one-half feet in the month following the installation of the pump, and the water level had not been that low in the 13 preceding years that James Morris had lived there.

Concerned that Jones’s withdrawal of water was causing irreparable damage to the pond, several owners of lots which abutted the pond asked Jones to remove the pump and stop pumping water from the pond. Jones did not respond to the request, and in July 2012 Morris filed the underlying action, asserting that Jones was violating the subdivision’s protective covenants by pumping water from and draining the pond.

In particular, Morris pointed to Paragraph 29 of the subdivision’s Declaration of Protective Covenants (as amended), which included the following provisions:

Special Provisions Relating to Lake Lots. A perpetual, appurtenant easement is hereby granted to the owners of each lot abutting a lake or pond in [the subdivision] over and across that portion of the lake or pond on which such lot abuts up to the usual high water mark thereof for the purpose of permitting each owner thereof and his invitees to boat, swim or fish over the entire surface area of said lake or pond.
No dock, boathouse or any other structure may be constructed on or over the surface of any such lake or pond without the prior written consent of [the subdivision developer] or its designee. No structure other than a small platform dock will be permitted.
No owner of any portion of the dam of any such lake or pond shall take any action to drain the lake or pond, or to modify the dam or other structures supporting the lake or pond without the written consent of at least a majority... of all persons owning land abutting said lake or pond.

After issuing an order temporarily restraining Jones from removing any water from the pond, the trial court conducted an evidentiary hearing and, in August 2012, entered an interlocutory order directing Jones to remove the pump and cease pumping water from the pond (until further notice from the court). In the interlocutory order, the court found that Jones’s use of the pond was “clearly inconsistent with the covenants as a whole.” The court pertinently found that Jones’s withdrawal of pond water for irrigation purposes violated the intent of the protective covenants, citing those provisions that expressly indicated that the pond would be maintained for the purposes of permitting owners of pond-abutting lots to boat, swim, or fish; that a pump was not a permitted structure on the pond, and that any structure on the pond required approval by specified parties; and that dam owners were prohibited from taking any action to drain the pond.

1. Jones contends that the trial court erred by finding that protective covenants that did not explicitly prohibit her from using the pond to irrigate her property, implicitly prohibited her from doing so. This contention presents no basis for reversal.

In our review of restrictive covenants, we are mindful that the general rule is that the owner of land has the right to use it for any lawful purpose. Restrictions upon an owner’s use of land must be clearly established and must be strictly construed. Moreover, any doubt concerning restrictions on use of land will be construed in favor of the grantee, because restrictions on private property are not favored in Georgia. As such, they will not be enlarged or extended by construction.
However, when applying this general rule of construction, the court must consider the entire document and not merely the provision in question. [] As explained by the Supreme Court, “In the construction of an instrument, the whole instrument is to be construed together so as to give effect, if possible, to the entire deed... and the construction which will uphold a deed in whole and in every part is to be preferred.”

“Restrictive covenants will be construed to carry out the intention of the parties, if that intention can be ascertained from a consideration of the whole instrument.” The rule of strict construction of restrictive covenants “does not override the rule that the entire document must be considered when determining the intention of the parties.”

The construction, interpretation and legal effect of a restrictive covenant is an issue of law to which the appellate court applies the plain legal error standard of review. Whether [Jones] violated the restrictions on the use of [her] property as contained in the restrictive covenants involved both questions of law and fact and can only be overturned in the event of manifest abuse of discretion.

The trial court concluded that Jones’s use of the subdivision pond (pumping water therefrom to irrigate her own property) was inconsistent with the protective covenants. In making its determination, the trial court properly considered the intent underlying the covenants, as reflected by the instrument as a whole.

Although Jones claims that the protective covenants permitted lot owners to pump water from the subdivision pond to irrigate their lawns, that interpretation is not reasonable; under the facts of this case, it would render meaningless other provisions (e.g., that the pond was maintained for the purpose of boating, swimming or fishing, and owners of the pond’s dam were prohibited from taking any action to drain the pond). Notably, Jones’s conduct in pumping water from the community pond to irrigate her own land was not merely a property owner’s use of her own land; it was, instead, a use of a community pond by one property owner (holding an easement to use the pond) which was incompatible with the rights of similarly-situated property owners.

This court has recognized that, historically, restrictive covenants have been used to assure uniformity of development and use of a residential area to give the owners of lots within such an area some degree of environmental stability. We note that Jones’s reliance on cases decided as a matter of riparian ownership (common law) rights, as opposed to contract law, is misplaced, given that this case involves a planned community with recorded rights to and restrictions on the use of the pond.

Thus, the trial court did not err by interpreting the protective covenants as prohibiting Jones from pumping water from the pond to irrigate her property, or abuse its discretion by concluding that such use violated the covenants. Under the circumstances, we need not reach Jones’s argument that the court erred by finding that the pump and pump-line assembly constituted an unauthorized “structure” as defined by the covenants.

2. Jones contends that the trial court erred by enjoining her from making lawful use of her property, and that Morris presented no evidence that by pumping water from the subdivision pond, Jones caused the pond’s water level to drop. However, Morris presented testimonial and photographic evidence that Jones’s act of pumping water from the pond to irrigate her lawn lowered the water level.

“An interlocutory injunction may be issued to maintain the status quo if, after balancing the relative equities of the parties, it appears the equities favor the party seeking the injunction.”

Georgia law places the granting and continuing of injunctions within the sound discretion of the judge. [] In order to hold that the trial judge abused his discretion in granting this interlocutory injunction, we would have to find that there was no evidence on which he based his ruling.

Decided November 20, 2013.

Christian G. Henry, for appellant.

Strauss & Frost, John L. Strauss, for appellees.

There being some evidence on which the trial court based its ruling, no abuse of discretion has been shown.

Judgment affirmed.

Ellington, P. J., concurs. Branch, J., concurs in judgment only.

       At the interlocutory hearing, James Morris also testified that, after the court issued the temporary restraining order and Jones stopped operating the pump, the water level returned to “about normal,” and was “about full pool.”

       Jones owned no portion of the dam.

        Charter Club on the River Home Owners Assn. v. Walker, 301 Ga. App. 898, 899 (689 SE2d 344) (2011) (punctuation and footnotes omitted).

        Shoaf v. Bland, 208 Ga. 709, 710-711 (2) (69 SE2d 258) (1952).

        Licker v. Harkleroad, 252 Ga. App. 872, 874 (2) (a) (558 SE2d 31) (2001) (citations omitted).

        Charter Club, supra at 900 (punctuation omitted); see Roberts v. Lee, 289 Ga. App. 714, 716 (1) (658 SE2d 258) (2008); Licker, supra at 875 (2) (a) (a trial court erred by strictly construing restrictive covenants without considering the entire document, recognizing that effect is to be given to the intention of the parties as shown by the language of the whole instrument, considered with the object of the parties in making the restrictions).

        Licker, supra at 874 (2).

        Roberts, supra at 714 (citations and punctuation omitted).

       Id. at 716 (1).

       See Elite Realty Services v. City of Auburn, 272 Ga. 195, 197 (528 SE2d 236) (2000) (restrictive covenant should be construed so as to give a reasonable, lawful and effective meaning to all manifestations of intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect).

        Licker, supra at 877 (2) (c).

       See Stewart v. Bridges, 249 Ga. 626-627 (292 SE2d 702) (1982) (in deciding landowner’s right to use lake waters for irrigation, the Court applied Georgia’s water rights law (common law) as opposed to contract law, because the case “[did] not involve a planned community or recreational development with recorded rights to and restrictions on the use of the lake”); Tunison v. Harper, 286 Ga. 687, 688 (1) (690 SE2d 819) (2010) (deciding parties’ riparian or common law rights to use a pond, and noting that case did not involve a planned community with recorded rights to and restrictions on the use of water; the parties’ rights in the case were not grounded in written contracts to be construed by the court).

       See Roberts, supra at 717 (2).

        Bernocchi v. Forcucci, 279 Ga. 460, 461 (1) (614 SE2d 775) (2005) (citations and punctuation omitted).

       OCGA § 9-5-8 (former Code Ann. § 55-108).

        Sea Island Bank v. First Bulloch Bank & Trust Co., 245 Ga. 715, 716 (1) (267 SE2d 12) (1980); see Bernocchi, supra; see Southland Dev. Corp. v. Battle, 272 Ga. App. 211, 213 (612 SE2d 12) (2005).

       See generally Southland Dev. Corp., supra at 214 (1).