author: BARNES, Presiding Judge.

text:
    A15A0225.
    LOPEZ v. THE STATE.
    (774 SE2d 802)
   BARNES, Presiding Judge.

Following a jury trial, Toni Antonio Lopez was convicted of armed robbery, burglary and six counts of false imprisonment. He appeals from the denial of his motion for new trial, contending that the evidence was insufficient and that his trial counsel was ineffective for failing to raise an affirmative defense. Following our review, we affirm.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility, but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). “This same standard applies to our review of the trial court’s denial of [Lopez’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

So viewed, the evidence shows that on February 2, 2007, police were dispatched at approximately 10:30 p.m. to a reported home invasion. One of the victims testified that he had heard a knock on the door, peered through the blinds, and saw two people dressed in black, one with his head covered. The victim, who was the homeowner’s co-worker, lived at the residence with the homeowner, the homeowner’s pregnant wife, her brother, and the homeowners’ two children. When the co-worker told the wife about the men, she became frightened and called the police. She also called her husband, who was on his way home from work, to tell him about the men outside their home. The men outside attempted to open the door, and the wife shut herself inside her bedroom with her seven-year-old daughter.

When the homeowner arrived home from work, two men approached him and pointed a gun at his head. They told him to give them the “money and the drugs,” and told him to unlock the door to the home or that they would kill him. The men took the homeowner into the kitchen, threw him on the floor, and again demanded money and drugs, while holding a gun at his head. The wife had heard her husband’s cell phone ring inside the home when she called him, so she opened her bedroom door and saw that two men were inside with her husband, and one of the men had a gun pointed at her husband’s head. The men took the homeowner and his co-worker into the bedroom, made them kneel on the floor, and tied their hands with shoelaces. The robbers then took the homeowner and co-worker back into the kitchen and again demanded money. The homeowner noticed that two more robbers had come into the home, and had tied up his brother-in-law and his visiting friend in another bedroom.

A short time later, the homeowner saw lights outside the home, and the robbers began to panic and said that “[t]here are people outside.” As the robbers ran and attempted to escape, the homeowner untied himself and opened the door for the police. As one of the officers entered the home, he pursued a robber running toward the back of the house, and as he gave chase, a masked man came into the hallway. The officer pushed the masked man to the ground, and continued after the fleeing robber. After a struggle, a second officer secured the masked man who had been pushed to the ground, who was later identified as Lopez.

One of the robbers escaped, but police arrested Lopez and two other men in the house, in addition to another man who was discovered nearby and suspected of driving the get-away car. The escaped robber was later identified and arrested on the same charges. Lopez told police that he was not involved in the home invasion, but that, instead, he had gone to the victims’ home to buy drugs and had been forced into the home by several masked men.

Lopez and his four co-defendants were indicted on six counts of kidnapping, two counts of aggravated assault, and one count each of armed robbery and burglary. At trial, one of the co-defendants testified that they had gone to the victims’ home to rob them of drugs and money. He also testified that Lopez was with the co-defendants at an apartment earlier when they planned the robbery, and testified that, while Lopez did not carry a gun during the home invasion, he was inside the home and involved with the criminal enterprise. The State also introduced a letter that the co-defendant had written earlier in which he said that Lopez had forced him to participate in the robbery as payment for living with him.

1. Lopez contends that the evidence establishes only his mere presence at the home and was not sufficient to sustain his convictions for the crimes charged. However, the evidence, direct and circumstantial, was sufficient to show more than Lopez’s mere presence at the crime. Although the witnesses could not identify the masked men’s faces, there were clearly four men who entered the home as part of the home invasion. One man escaped, and three, including Lopez, were arrested at the scene. Likewise, all of the male victims inside the home were tied up, but Lopez was not so constrained when he was arrested. One officer identified Lopez as one of the men he arrested inside the house and testified that Lopez was wearing a mask when the officer first saw him. A mask was discovered near Lopez when he was arrested. Further, a co-defendant testified that Lopez was with the group when they planned and carried out the crime. “ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ” (Citation omitted.) Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009).

When viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Lopez guilty beyond a reasonable doubt of the crimes for which he was convicted and sentenced under the standard of Jackson, 443 U. S. at 319.

2. Lopez also contends that his trial counsel was ineffective for failing to pursue his affirmative defense of coercion. We do not agree.

To prevail on a claim of ineffective assistance of counsel, a defendant has the burden to prove that his counsel’s actions fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different.

(Punctuation and footnotes omitted.) Columbus v. State, 270 Ga. 658, 660 (2) (a) (513 SE2d 498) (1999).

Lopez claims his attorney was ineffective for failing to put forward his affirmative defense of coercion. Pursuant to OCGA § 16-3-26:

Aperson is not guilty of a crime, except murder, if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.

Lopez did not allege that he participated in the crime out of fear of death or great bodily harm, however, but instead told police that he was merely present to buy drugs, and had not participated in the crime. See Burnette v. State, 291 Ga. App. 504, 510-511 (2) (662 SE2d 272) (2008) (“[Because] [a]n affirmative defense is one that admits the doing of the act charged but seeks to justify, excuse, or mitigate it[,] [t]he defendant must admit the crime before [he] can raise the defense.”) (footnotes omitted). “Atrial attorney’s decision to pursue a specific defense is reasonable if it is supported by the evidence in the case.” (Citation omitted.) Allen v. State, 293 Ga. 626, 628 (2) (c) (748 SE2d 881) (2013).

Decided July 6, 2015.

Debra Kay Jefferson, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Michael D. Morrison, Assistant District Attorneys, for appellee.

Here, trial counsel made an informed strategic choice not to pursue a defense that did not comport with the evidence or Lopez’s own version of events, and thus Lopez has failed to satisfy the deficiency prong of the Strickland test. See Martinez v. State, 284 Ga. 138, 141-142 (4) (663 SE2d 675) (2008) (decision not to pursue affirmative defense of insanity based upon post-traumatic stress disorder was a reasonable and strategic one, where, among other things, defendant was not prepared to admit that he committed the underlying violent act, and defense counsel believed that jury would not accept such a defense as a plausible explanation for why defendant was violent).

Accordingly, the trial court did not err in denying Lopez’s ineffective assistance claim.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       The brother-in-law and his visitor did not testify at trial.

       The trial court charged the jury that it should acquit Lopez if it finds that he was only merely present during the commission of the crimes or only merely associated with those who actually committed the crimes.


source: Caselaw Access Project

author: Barnes, Presiding Judge.

license: Public Domain

text:
    A15A0424.
    BOWMAN v. THE STATE.
    (774 SE2d 805)
   Barnes, Presiding Judge.

A jury convicted Robert Bowman on two counts of aggravated child molestation, two counts of aggravated sodomy, two counts of aggravated sexual battery, six counts of child molestation, and two counts of cruelty to children in the first degree. Following the denial of his motion for new trial, Bowman appeals. Bowman contends that the evidence was insufficient to sustain the verdict and that the trial court erred in admitting hearsay statements, in allowing a witness to comment on the victim’s veracity, and in denying his request to charge the jury regarding mandatory minimum sentences. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence showed that the victim, who was six at the time, disappeared one day. Her father, who lived nearby and joined her mother in the search, finally found her in Bowman’s apartment sitting on the floor, and her father “got onto her” because she was not supposed to go into anyone else’s house. Bowman, who was a friend and neighbor, usually kept his door open, but that day it had been closed, which was unusual. The mother recalled seeing the victim come out of Bowman’s house on a previous occasion.

About a month later, while Bowman was giving the victim and her mother a ride home from the grocery store, he asked if they would like to go to breakfast with him the next morning. The victim “just kind of snapped” and said no, she did not want to go. Her mother chastised her for being rude, but several hours after that, the victim told her mother that she did not like Bowman because he “messed with her.” The victim told her mother that he took her into his bedroom, licked her breasts, her private parts, and her bottom, and inserted his finger into her “pussy” and “it hurt real bad.”

An expert in forensic interviewing and child sexual abuse interviewed the victim, and the State played a recording of the interview at trial. In it, the victim said that she had two interactions with Bowman in the bedroom of his apartment during which he kept “messing with” her. She said that on both occasions, he licked her private area, which he told her to call her “pussy,” and licked her breasts, which he told her to call her “boobs.” He also put his hands on her breast, inserted his finger into her vagina, stuck his “wicky wacker” in “there,” and pulled down his pants and “squeezed it,” demonstrating with her hands in front of her pelvis. Then he asked, “Can I see yours?” He said he would show her what he and his girlfriend did and put her on his lap, facing him, while he bounced up and down. Bowman told the victim that she could go outside any time she wanted, but his door was locked and he would not let her leave, although both times she kept telling him to stop. He told her that the next time she came around, when her mother was not around, she would have to suck on his privates, and also told her not to tell anyone what had happened. The victim described Bowman’s bedroom, and that description was corroborated upon execution of a search warrant.

After Bowman was arrested, he waived his Miranda rights and talked to the lead investigator in the sheriff’s department. When the investigator suggested that “maybe it just happened,” Bowman replied:

If I did touch her, maybe it was an accident. ... If I did touch her the wrong way — it was an accident— If I touched her in the wrong way without my knowledge, then yeah I am sorry.... I went to pick her up several times right around her back and my hand slipped — could’ve slipped. Could she have been talking about that? ... If I touched her in the wrong way — my hand could have slipped and touched her on the chest [by] accident.

Later in the interview, Bowman repeated, “Like I told you — if I touched her any... way, or said anything bad in front of her • — ■ it was an accident.”

1. Bowman argues that the evidence was insufficient to sustain his convictions, but he does not argue that the State failed to prove specific charges against him. Rather, he argues generally that the State failed to prove -his guilt beyond a reasonable doubt. After reviewing the trial testimony in detail, Bowman observes that the victim made an outcry several months after the first act, that she made conflicting statements, and that she used different terms and descriptions depending on whom she was talking to at the time. He further notes that there are innocent explanations for some of the evidence, such as the coloring books, toys, and popsicles that the State argued he used to lure the victim into his apartment, and for the victim’s behavior that her counselor testified was consistent with a child who was sexually abused.

In support of his proposition that “the reviewing court is not bound to blindly accept any and every finding of the trier of fact” and that the court may hold that a witness’s testimony may be accorded no value in certain cases, Bowman cites Brandon v. State, 241 Ga. App. 887, 889 (2) (528 SE2d 809) (2000). In Brandon, however, we reversed a conviction based on an improper charge that “juries are not bound to believe testimony as to facts incredible, impossible or inherently improbable.” Id. at 888-889 (2). Such a charge “applies in only extraordinary cases, and only for statements which run contrary to natural law and the universal experience of mankind.” (Citation and punctuation omitted.) Id. at 889 (2). This is not such a case.

It is axiomatic that the testimony of a single witness is sufficient to prove the elements of the crime charged. See former OCGA § 24-4-8. Hammontree v. State, 283 Ga. App. 736, 737 (1) (642 SE2d 412) (2007). “This rule is often applicable to child molestation cases where, as here, the victim and the defendant are the only people present when the alleged molestation occurs.” Johnson v. State, 328 Ga. App. 808, 812 (762 SE2d 813) (2014).

In any event, it is the jury’s role to resolve conflicts in the evidence and determine the credibility of witnesses, and the presence of such conflicts does not render the evidence insufficient. When a criminal defendant challenges the sufficiency of the evidence supporting his conviction, we view the evidence in the light most favorable to the verdict. The relevant question for this court is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In answering this question, we as appellate judges do not put ourselves in the jury box and ask what verdict we would have returned had we been jurors. Rather, we uphold the jury’s verdict as long as there is some competent evidence to support each element necessary to make out the state’s case.

(Footnotes omitted.) Malone v. State, 277 Ga. App. 694, 696 (1) (627 SE2d 378) (2006).

The evidence was sufficient to authorize a rational trier of fact to conclude that appellant was guilty of the charges beyond a reasonable doubt. OCGA § 16-6-4 (a); Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); King v. State, 265 Ga. 440 (458 SE2d 98) (1995).

2. Bowman contends that the trial court erred in admitting evidence of the victim’s out-of-court statements. Former OCGA § 24-3-16 provided:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

The State has the burden of showing that the statements are reliable, and the trial court must determine whether that burden has been met. Ferreri v. State, 267 Ga. App. 811, 814 (600 SE2d 793) (2004). “Indicia of reliability must spring from the circumstances of the statement,” and we have enumerated various factors that can be considered in determining the admissibility of a victim’s out-of-court statements. Gregg v. State, 201 Ga. App. 238, 240-241 (3) (b) (411 SE2d 65) (1991). Further, evidence of reliability need not be presented solely pre-trial, but may also include evidence presented during trial. Id. at 239-240 (3) (a).

Here, the trial court considered in a pre-trial hearing the hearsay statements made to the forensic interviewer, to a counselor, in group therapy, and to the victim’s mother, father, and aunt. The court found that the statements appeared to be fairly spontaneous, without coaching, and had sufficient indicia of reliability to permit their introduction, although the court also noted that if evidence of coaching or untruthfulness arose during trial, it would reconsider. Bowman alleges that there were inconsistencies in the victim’s statements as well as indications she had been coached, but these arguments are unpersuasive, as the record contains evidence supporting the finding that the statements had sufficient indicia of reliability. Thus, we find no error in the trial court’s admission of the statements. See Adams v. State, 288 Ga. 695, 702 (5) (707 SE2d 359) (2011).

3. Bowman argues that the trial court erred in allowing testimony regarding the victim’s veracity, specifically in allowing the expert in forensic interviewing techniques to testify that the victim was “resistant to suggestibility.” Bowman contends that whether the victim was resistant to suggestibility was a credibility issue that was not beyond the ken of the average layperson and not a proper topic for an expert’s opinion.

“The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” Former OCGA § 24-9-80. An expert witness’s opinion testimony that a victim was telling the truth constitutes improper bolstering, “because that is an ultimate issue of fact and the inference to be drawn is not beyond the ken of the average juror.” Al-Attawy v. State, 289 Ga. App. 570, 572 (1) (657 SE2d 552) (2008). An expert may testify, however, about her objective observation of the victim’s behavior and whether it is generally consistent with that of someone who has been molested. Thomas v. State, 318 Ga. App. 849, 855 (4) (b) (734 SE2d 823) (2012); Brown v. State, 293 Ga. App. 633, 636 (1) (c) (667 SE2d 899) (2008).

The expert explained that a forensic interview was “an unbiased conversation that the interviewer has with a child in which it allows the child to discuss what may or may not have happened in their experience,” conducted in a child-friendly environment. According to the expert, the interviewer aspires to be free of bias and nonjudgmental when meeting with the child, and avoids learning anything about the circumstances that led to the child being interviewed. The expert also explained that a child of the victim’s age, six, was expected to tell the interviewer “who was there, what happened, and where,” although not necessarily time frames or frequencies. As further explained by the expert, the interviewer looks for age-appropriate language, inappropriate sexual knowledge, peripheral and sensory details, coaching, and consistency in the information the child imparts throughout the interview. Additionally, the expert noted, the interviewer considers whether a child is resistant to suggestibility.

If a person is “suggestible,” she has a memory that is suggested by information and misinformation, and children under ten are highly suggestible, the expert said. She further related that

to prevent suggestibility, . . . you avoid leading questions. You also look when a child clarifies or corrects the interviewer. That’s resistance to suggestibility. [Their answers are] not being suggested by information that I am providing, that I am giving to a child or someone else will give to a child— [I]f I make a mistake and the child corrects me, that is an example of resistance to suggestibility.

The expert testified that some indications that the victim was resistant to suggestibility were her asking what a “doodle” was when the expert told her she could doodle with crayons while they talked; answering “no” when asked if there was something she did not like to do instead of making something up; clarifying who the expert was talking about when the expert asked, “Who is he?”; and responding “no” when asked if she knew the name of Bowman’s girlfriend or whether she said anything when the defendant pulled down his pants and held his “wicky wacker” (a term for penis she learned from a friend).

The expert’s responses as described above were not statements about whether, in the expert’s opinion, the victim had been molested or not. See Bunn v. State, 307 Ga. App. 381, 386 (3) (e) (705 SE2d 180) (2010), aff’d, 291 Ga. 183 (728 SE2d 569) (2012) (expert testimony that victim having corrected a mistake in earlier statement was good because it indicated the victim’s resistance to suggestibility was not improper opinion that victim had been molested). Thus, the trial court did not err in overruling Bowman’s objection to the expert’s testimony in this regard.

4. Finally, Bowman argues that the trial court erred in declining to give his request to charge the jury that the offenses of aggravated sodomy, aggravated child molestation, and aggravated sexual battery each carry a mandatory minimum of 25 years in prison without the possibility of parole, followed by probation for life. During the charge conference, the trial court observed that it no longer charged the jury that sentencing was completely within the province of the court, which formerly was a proper charge, but declined to give the requested charge. Bowman renewed his objection after the trial court gave the jury charge.

Bowman argues on appeal that the Georgia Constitution decrees that “[i]n criminal cases ... the jury shall be the judges of the law and the facts,” Art. I, Sec. I, Par. XI, and absent any instruction about sentencing, the jury would naturally conclude that sentencing is a function for the court. But, he notes, when the legislature imposes mandatory minimum sentences upon conviction for certain offenses, sentencing ceases being a court function and becomes a legislative one.

Georgia has some precedent for telling the jury what will happen to a defendant if the jury reaches a particular verdict. If an accused defends against a criminal charge by pleading not guilty by reason of insanity, the trial court is required upon request to charge the jury about what will happen to the defendant if it finds him not guilty by reason of insanity, guilty but mentally ill, or guilty but mentally retarded. OCGA § 17-7-131 (b) (3). “It is clear that the purpose of OCGA § 17-7-131 (b) (3) . . . is to ensure that the jury understands that a verdict of guilty but mentally ill does not mean that the defendant will be released.” Spraggins v. State, 258 Ga. 32, 34 (3) (364 SE2d 861) (1988). “Moreover, the failure to advise the jury of the consequences of rendering either of these verdicts in accordance with [the statute] is presumptively harmful.” Foster v. State, 283 Ga. 47, 49 (2) (656 SE2d 838) (2008).

Decided July 6, 2015.

Katie Anderson, for appellant.

J. Bradley Smith, District Attorney, Samuel E. Skelton, Assistant District Attorney, for appellee.

Bowman argues:

The Georgia legislature has seen fit to take the sentencing function out of the hands of the judiciary for certain offenses, disallowing any consideration for the individual circumstances of the accused. The legislature has also increased the mandatory minimums in several of these offenses from 10 years with no parole to 25 years with no parole. Middle-aged defendants, for all intents and purposes, receive a life sentence when receiving a 25-year unparolable sentence. For a jury not to be informed of the consequences of their verdicts in cases where there are mandatory minimum sentences flies in the face of the Due Process Clause of the U. S. Constitution (Amendment 14) and the Constitution of the State of Georgia, Art. I, Sec. I, Par. XI.

As the State argues in response, however, other than OCGA § 17-7-131 (b) (3)’s “limited exception to the general rule proscribing consideration of the consequences of a guilty verdict,” State v. Patillo, 262 Ga. 259, 260 (417 SE2d 139) (1992), our Supreme Court has held that “[i]t is improper for the court to give any instruction to the jury concerning possible sentences in a felony case before the jury has determined the question of guilt or innocence.” (Citation and punctuation omitted.) Bellamy v. State, 272 Ga. 157, 159 (4) (527 SE2d 867) (2000). See also Stinski v. State, 286 Ga. 839, 848 (36) (691 SE2d 854) (2010) (“The trial court did not err by refusing to charge the jury at the beginning of the guilt/innocence phase regarding the procedures to be followed in the sentencing phase.”).

As this court is “constitutionally bound by the decisions of our own Supreme Court,” Williamson v. Ward, 192 Ga. App. 857, 858 (1) (386 SE2d 727) (1989), this enumeration cannot succeed. See Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”).

Judgment affirmed.

Ray and McMillian, JJ., concur.

       This case was tried in January 2012, so the old Evidence Code is applicable.

       Former OCGA § 24-3-16 was reenacted almost verbatim in the new Evidence Code at OCGA § 24-8-820.

       The new Evidence Code provides: “The credibility of a witness shall be a matter to be determined by the trier of fact, and if the case is being heard by a jury, the court shall give the jury proper instructions as to the credibility of a witness.” OCGA § 24-6-620.


author: DOYLE, Chief Judge.

text:
    A15A0558.
    In re ESTATE OF THOMPSON.
    (775 SE2d 158)
   DOYLE, Chief Judge.

Robyn Thompson is a developmentally disabled adult and the daughter of Ben Thompson. Janice Driggers, Ben’s mother, appeals from an order granting guardianship of Robyn to Ben. Driggers contends that the superior court erred by refusing her counsel’s request to question Robyn’s guardian ad litem (“GAL”). For the reasons that follow, we reverse and remand for a new hearing.

The record shows that Driggers filed a petition in the probate court seeking appointment as Robyn’s guardian. Ben responded with a petition seeking guardianship of Robyn. Driggers was appointed to act as emergency guardian, and Joey Marchant, an attorney, was appointed to represent Robyn. Following a hearing, the probate court entered an order granting guardianship to Ben, and Driggers appealed to the superior court. After a de novo review, including a hearing with Marchant participating as an attorney for Robyn, the superior court appointed Ben as guardian. Driggers now appeals.

1. Driggers contends that the superior court erred by denying her counsel’s request to question Marchant at the hearing on her appeal of the probate court’s order appointing Ben as guardian. This error was caused by the probate court and superior court treating March-ant as both the ward’s attorney and the GAL. During the superior court hearing, 16 witnesses testified, including Ben and Driggers. Marchant was invited to participate in the examinations, and he asked questions of three of those witnesses. When discussing the order of closing arguments, Driggers’s counsel asked if Marchant could provide the court with his findings. The court suggested that Marchant should give his recommendation after the attorneys for Ben and Driggers had presented their closing arguments. At that point, Driggers’s counsel asked if they would be able to question Marchant, and the superior court replied, “Yes. If we get to that point and you need to, certainly.” Counsel then proceeded to give their arguments, and Marchant followed with his conclusions, namely that either party would be a suitable guardian but recommending Ben because of his younger age, his training in psychology, and his work as a mental health professional. When Driggers’s counsel sought to ask Marchant a question, the superior court reconsidered its earlier decision, stating, “I don’t know that Mr. Marchant signed on for cross-examination, if you will. I don’t think that’s his function as the guardian ad litem____He’s discharged his responsibility by reporting to the [c]ourt his findings.” Following a bench conference off the record, the trial court ruled on the record that counsel would not be able to question Marchant, which ruling Driggers now challenges.

Contrary to this procedure, OCGA § 29-9-3, which governs the appointment of GALs in guardianship cases such as this one, provides:

A person who is appointed as counsel for a ward, proposed ward, or alleged incapacitated person is not eligible to be appointed as guardian ad litem for the same individual, and a person who is appointed as guardian ad litem for a ward, proposed ward, or alleged incapacitated person is not eligible to be appointed as counsel for the same individual.

Thus, the statute clarifies that the GAL’s role in a guardianship case is to serve as a resource for the court regarding the best interest of the ward, not as legal counsel for the ward, even if those roles may overlap sometimes. This framework avoids the ethical risks that arise when a ward’s counsel is required to become a fact witness. It also preserves the parties’ right to cross-examination.

Decided July 6, 2015.

Stephen N. Hollomon, for appellant.

W. Dennis Mullís, for appellee.

In light of the clear statutory language in OCGA § 29-9-3 prohibiting an attorney from acting as both an advocate and a GAL, as well as the importance of the right to cross-examination, we conclude that the trial court erred by treating Marchant as both the attorney and the GAL, thereby prohibiting Driggers from questioning the GAL in this case. Accordingly, we remand the case to the superior court for a rehearing.

2. Driggers also argues that the superior court erred by failing to permit Robyn to testify as to her wishes. During the hearing, there was testimony from Robyn’s personal physician explaining that if the judge were to speak to Robyn, her meaningful participation “would be possibly unlikely since she does not know [the judge] and this would be an unfamiliar environment to her.” At the conclusion of the hearing, Driggers’s counsel had not called Robyn as a witness but renewed his “request that the Court hear from Robyn Thompson.” The court explained that at that point of the hearing it did not “want to put Robyn through it,” and declined to call Robyn on its own. Although Driggers now challenges this ruling, we decline to address it in light of our ruling in Division 1. Driggers’s argument depends on circumstances which may or may not recur at the next hearing, making an opinion on this enumeration advisory.

Judgment reversed and case remanded.

Phipps, P. J., and Boggs, J., concur.

       Driggers’s petition was apparently prompted by alleged instability in the household of Robyn’s mother, who had custody of Robyn and who had since remarried after becoming divorced from Ben.

       It is unclear whether the probate court intended to appoint Marchant to act as Robyn’s attorney or her GAL. The original appointment of Marchant characterizes it as an “appointment of counsel” and makes no reference to a GAL; yet Marchant apparently gave opinion testimony to the probate court that Ben be appointed guardian, and the probate court’s subsequent guardianship order refers to Marchant as the GAL. Also, the superior court’s order appointing an emergency guardian refers to Marchant as the GAL.

       In the superior court proceedings, Marchant acted as Robyn’s attorney by participating in objections and cross-examination of witnesses.

       Ben testified that he has a bachelor’s degree in psychology and a master’s degree in counseling and serves as the director of day service programs at the local community mental health center. Marchant was careful not to compare Robyn’s condition to a mental health condition, but he nevertheless found Ben’s background relevant.

       See, e.g., Georgia Rules of Professional Conduct, Rule 3.7 (a) (“A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: the testimony relates to an uncontested issue; the testimony relates to the nature and value of legal services rendered in the case; or disqualification of the lawyer would work substantial hardship on the client.”) (punctuation omitted); Amwest Surety Ins. Co. v. Interstate Constr. Co., 212 Ga. App. 590, 591 (442 SE2d 772) (1994) (“An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.”), quoting Ethical Consideration 5-9 from former Canons of Ethics.

       Under OCGA § 24-6-611 (b), “[t]he right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against the party.” In the domestic relations context, addressing a similar denial of a party’s attempt to question a GAL, this Court has explained that
      [tjhis right is a substantial right, the preservation of which is essential to a proper administration of justice, and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy. Although a [GAL] technically is not a “witness called against” a party in a custody dispute,... Uniform Superior Court [Rule 24.9 (7)] also provide[s] that a guardian ad litem “shall be subject to examination by the parties and the court.”
      (Citations and punctuation omitted.) Simmons v. Williams, 290 Ga. App. 644, 647 (1) (660 SE2d 435) (2008). USCR 24.9 (7), applicable to domestic relations cases, provides:
      It is expected that the GAL shall be called as the Court’s witness at trial unless otherwise directed by the Court. The GAL shall be subject to examination by the parties and the court. . . . The GAL shall not be allowed to question witnesses or present argument, absent exceptional circumstances and upon express approval of the Court.

       See Simmons, 290 Ga. App. at 648 (1) (prohibiting examination of GAL “resulted in the denial of a substantial right and thus warrants the grant of a rehearing on the issue of custody.”).

       See Huff v. Harpagon Co., 286 Ga. 809, 811 (2) (692 SE2d 336) (2010) (“Georgia appellate courts are not authorized to render advisory opinions as to potential error.”).


author: Doyle, Chief Judge.

text:
    A15A0715.
    ON LINE, INC. v. WRIGHTSBORO WALK, LLC.
    (775 SE2d 161)
   Doyle, Chief Judge.

This appeal arises from a contract dispute over the purchase of commercial real estate. After On Line, Inc. (“On Line”), failed to complete the purchase of the property, Wrightsboro Walk, LLC (‘Wrightsboro”), filed the instant action against On Line, alleging that On Line breached the parties’ contract and acted in bad faith by failing to deposit into escrow the proper amount of earnest money and asking for attorney fees and costs. Wrightsboro moved for summary judgment, which the trial court granted. On Line appeals, arguing that the trial court erred by (1) finding that the inspection period began on August 23, 2013, rendering On Line’s termination untimely; (2) failing to find missing conditions precedent to the obligation; and (3) failing to find a question of fact existed as to whether Wrightsboro was estopped from asserting that its attempt to terminate was untimely. Because there are genuine issues of material fact as to whether On Line was able to obtain financing as a contractual condition precedent to payment of the earnest money and completion of the sale, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A defendant moving for summary judgment may put forth evidence to show that there is no issue of fact as to one or more elements of the plaintiff’s causes of action or demonstrate that the record lacks sufficient evidence to support one or more of the plaintiff’s causes of action. We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant.

On Line entered into a purchase and sale agreement (“the Agreement”) for commercial real estate from Wrightsboro for $3,600,000. The contract provided that upon execution of the Agreement, On Line would deposit into escrow $25,000 in earnest money, which On Line did. Within three days of the expiration of the due diligence period, On Line was required to deposit an additional $25,000 into escrow. This deposit never occurred, however, because On Line terminated the Agreement.

Had the sale been completed, the earnest money would have been applied to the purchase price, but in the event that On Line failed to close

the transaction for reasons other than a [Wrightsboro] default or the inability to have the Loan with Morgan Stanley Mortgage Capital Holdings, LLC,[] . . . transferred to [On Line, which occurrences would result in the return of the Earnest Money to On Line,] then the Earnest Money shall be paid to and retained by [Wrightsboro] as [Wrightsboro’s] sole remedy....

On Line was required to diligently seek from Morgan Stanley a transfer of the Loan, but the Agreement was contingent on this method of financing and would otherwise terminate.

The Agreement provided in paragraph 8.1 that On Line had the right to a 30-day Inspection Period that would begin on “the Effective Date,” which was the date upon which On Line

ha[d] received from [Wrightsboro] copies of [Wrightsboro’s] title policy for the Property including all exhibits and schedules (and including the legal description of the Land), (ii) any surveys of the Land in [Wrightsboro’s] possession; (iii) any environmental reports of the Property in [Wrightsboro’s] possession; (iv) income and expense reports for the calendar years 2010, 2011, and 2012, and monthly reports for calendar year 2013; and (v) copy of the Billboard easement....

On Line had the right to terminate the sales contract at any time during the 30-day period “by delivering written notice to [Wrightsboro] on or before the last day of the Inspection Period, in which event this Agreement shall terminate and all Earnest Money shall be immediately refunded to” On Line. The contract also provided:

Each notice or document (collectively referred to in this Section as “notice”) required or permitted to be given hereunder must comply with the requirements of this Section. Each such notice shall be in writing and shall be delivered either by personal delivery, by delivery utilizing Federal Express, UPS or other national or local courier service, or by depositing it with the United States Postal Service or any official successor thereto, certified mail, return receipt requested, with adequate postage prepaid, addressed to the appropriate party.... Such notice shall be deemed delivered at, the date of personal delivery, the date of receipt for delivery with a courier, or, if mailed, when it is received or refused, but the time period in which a response to any such notice must be given or any action taken with respect thereto shall commence to run from the date it is actually received by the addressee thereof, as evidenced by telecopy transmission confirmation, receipt for personal or courier delivery, or certified mail return receipt.

In addition, in paragraph 9.17, Wrightsboro “warranted] that it ha[d] no knowledge of any material inaccuracy in any report, data, lease, books, records, accounting or other documentation whatsoever. . . .” Finally, the contract provided that any modification of the agreement was not effective unless made in writing and executed by the parties.

It is undisputed that Wrightsboro uploaded numerous document files to the Internet-based storage website known as Dropbox and sent an e-mail with a hyperlink to access these documents to On Line’s representative, Frank Salvati, on August 23, 2013. On August 26, 2013, a representative for Wrightsboro sent an e-mail to David A. Reece, a commercial real estate agent working with On Line, which contained a “Receipt of Documents” that Wrightsboro failed to send to Salvati on August 23; the Receipt consisted of a single document listing 21 other documents and a separate boxed notation stating that the 21 documents were sent on August 23, 2013, and “[t]herefore, per Paragraph 8.1 of the [Agreement], the Inspection Period shall end [September 23, 2013].” The Wrightsboro representative asked Reece to “please have your Buyer initial and sign and send back to us at your earliest convenience.” Salvati initialed this box separately from signing the Receipt, dating the Receipt August 27, 2013. Reece returned the Receipt to Wrightsboro representatives via e-mail, stating therein “[h]ere is the signed and initialed Receipt of Documents. It is duly noted that Inspection Period started [August 23, 2013] and ends [September 23, 2013]. I will notify buyer and legal counsel of this date.”

Thereafter, the parties exchanged numerous e-mails, On Line had inspectors investigate the property, and On Line requested of Wrightsboro additional documents regarding the physical state of the property as well as the earnings and losses. Additionally, although Wrightsboro had claimed that the property was built in 2006, Reece averred that after On Line’s inspectors noticed that many of the HVAC systems were from 1989, Wrightsboro sent amended documentation listing a 1989 build date and 2006 renovation date. By September 23, 2013, Wrightsboro had provided numerous documents as requested by On Line, but some accounting statements were still under review; however, on September 24,2013, On Line forwarded to Wrightsboro a letter of termination of the Agreement. Wrightsboro brought suit thereafter.

After a hearing, a transcript for which does not appear in the record, the trial court determined that there were no issues of material fact as to when the Inspection Period began or whether all the necessary documents had been received by On Line in order to allow On Line’s termination during the Inspection Period. The trial court’s order, however, does not address the issues raised concerning lack of financing or repair issues.

“Because our review is at the summary judgment stage and the interpretation of a contract, including the existence or nonexistence of any ambiguities in the contract, usually involves a question of law for the court to resolve, our review is de novo.”

1. On Line argues that the trial court erred by failing to find material issues of fact existed as to whether Wrightsboro made material misrepresentations to On Line and whether On Line was unable to assume the loan, which issues would have allowed termination of the agreement without penalty to On Line. We agree and reverse the grant of summary judgment.

In his affidavit, Salvati contended that Wrightsboro had “unexplained discrepancies and inconsistencies in the income and expense reports . . . [, and a]s a result, On Line could not provide necessary documentation to Morgan Stanley Mortgage Capital Holdings, LLC, sufficient to allow the loan assumption contemplated by the Agreement.” Moreover, the issue of financing was not governed by the Inspection Period time limit for termination, which governed other reasons for termination, and therefore, any failure on the part of On Line to terminate on this basis prior to September 23, 2013, was inconsequential. Although the record contains a dearth of other evidence to support On Line’s argument that it was unable to assume the loan as contemplated under the agreement, Salvati’s sworn statement avers that he had personal knowledge of this matter. Such statements are sufficient to create a fact question, and therefore, the trial court erred by granting summary judgment to Wrightsboro.

On Line also contends that Wrightsboro made material misrepresentations — the fact that the property was built in 2006 rather than 1989, the lack of complete financial documentation or inaccuracies therein, and various repair issues — allowing On Line to terminate the Agreement outside the Inspection Period. Again, we agree with On Line that issues of fact exist as to whether Wrightsboro violated paragraph 9.17 of the Agreement thereby allowing for termination outside the Inspection Period. Accordingly, we reverse the trial court’s grant of summary judgment to Wrightsboro on these issues.

2. On Line also argues that the trial court erred by finding that the Inspection Period began on August 23, 2013, because Wrightsboro did not tender all the required documents at that time or deliver them in a method required by the contract. We disagree.

The contract language regarding the Inspection Period and the Notice provision is clear that the time period should not begin until Wrightsboro effected delivery of all the documents necessary under paragraph 8.1 via the accepted methods of delivery. Nevertheless, Wrightsboro provided a written receipt proposing that the Inspection Period be considered August 23 to September 23, 2013. On Line’s representative, Salvati, signed the Receipt and initialed a box on the receipt noting that the Inspection Period began on August 23, 2013, thus completing a modification of the contract. Salvati was under no obligation to sign it, initial the box, or agree with the statement. Salvati could have changed the date to reflect that he could not open the Dropbox materials until August 27 or that Wrightsboro failed to tender all required documents. Instead Salvati acknowledged the statement, thus completing a written modification of the contract to the extent that paragraph 8.1 otherwise would have required more precise compliance with the Notice and Inspection Period provisions of the Agreement.

Accordingly, the trial court did not err by finding that the termination did not occur during the Inspection Period.

3. On Line also argues that Wrightsboro is estopped from arguing that the notification of termination was untimely because it failed to provide all the necessary documents by August 23,2013. Because this Court concluded in Division 2 that the signed Receipt constituted a modification of the Inspection Period clause, and because On Line at no time attempted to further modify the clause based on the alleged failure of Wrightsboro to fully comply with the terms of paragraph 8.1, Wrightsboro was not estopped from arguing that On Line had made an untimely attempt to terminate the contract during the Inspection Period.

Decided July 6, 2015

McCorkle & Johnson, David H. Johnson, Tawny D. Mack, for appellant.

Hull Barrett, Brooks K. Hudson, David E. Hudson, for appellee.

Judgment reversed.

Phipps, P. J., and Boggs, J., concur.

       (Punctuation omitted.) Campbell v. Landings Assn., 311 Ga. App. 476, 477 (716 SE2d 543) (2011), quoting Koncul Enterprises v. Fleet Finance, 279 Ga. App. 39 (630 SE2d 567) (2006).

       The due diligence period is elsewhere referred to as the Inspection Period.

       The parties intended for On Line to assume the $2,000,000 loan between Wrightsboro and Morgan Stanley as part of the purchase price of the property.

       Thirty calendar days from August 23, 2013, actually would have been September 22, 2013, and the contract does not specify a particular method of calculation.

       (Citations and punctuation omitted.) Sheperd v. Greer, Klosic & Daugherty, 325 Ga. App. 188, 189 (750 SE2d 463) (2013).

       See, e.g., Timeless Architectural Homes v. Jones, 270 Ga. App. 406, 408 (3) (606 SE2d 635) (2004). See also OCGA § 9-11-56 (c) & (e).

       See Thomas v. Garrett, 265 Ga. 395, 396 (1) (456 SE2d 573) (1995) (“parties to a contract can, by subsequent mutual agreement, modify a written contract”).


author: McFadden, Judge.

text:
    A15A0280.
    SKELHORN v. THE STATE.
    (773 SE2d 45)
   McFadden, Judge.

After a jury trial, Andrew Skelhorn was convicted of three counts of violating OCGA § 16-12-100.2, the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007. He appeals his convictions, arguing that the state failed to prove that he used a “computer on-line service” as alleged in the obscene Internet contact counts of the indictment. We find that the evidence was sufficient to prove that Skelhorn used an on-line messaging service, which the statute expressly includes in the list of examples of computer on-line services. Skelhorn argues that Count 1 of the indictment, which charged him with using an Internet chat room to attempt to solicit, lure, and entice a child, was defective because it failed to allege the use of a computer on-line service. An Internet chat room is expressly listed as a kind of computer on-line service, so the indictment was not defective. For this reason, we reject Skelhorn’s argument that the trial court should have included the term “computer on-line service” when it instructed the jury on this count. We agree with Skelhorn that this count required proof that he took a substantial step toward committing the crime, but we find that the evidence was sufficient to allow a jury to find that he took a substantial step. Finally, Skelhorn argues that the trial court erred by denying his motion to suppress. By affirmatively stating that he had no objection to the admission of the evidence he sought to suppress, he has waived this argument. We therefore affirm the convictions.

1. Evidence.

The evidence, on appeal from a criminal conviction,

must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013) (citation omitted).

So viewed, the evidence showed that on August 12, 2010, an investigator with the Newton County Sheriff’s Office entered a Yahoo! chat room called Georgia Romance. The investigator used the screen name “aimee_13cheer@yahoo.com.” She was approached by Skelhorn, who was using the screen name “ukcru77 (Andrew Skelhorn).” Skelhorn told aimee_13 that he was feeling “a lil horney” and asked if she had any pictures of herself or a webcam. When she said she did not, Skelhorn told her that he was “hard as a rock,” that he had a webcam so she could see him if she wanted, and that he “like[d] to be seen.”

Skelhorn sent aimee_13 a link inviting her to view the feed from his webcam. Aimee_13 accepted the invitation to start the webcam. The webcam showed a naked Skelhorn masturbating. The state introduced into evidence screen shots of the webcam display. Skelhorn continued to masturbate while he and aimee_13 were engaged in their Internet communication.

Skelhorn asked aimee_13 where she lived and asked her to take a picture of herself for him using her cell phone. He asked aimee_13 her age, and she said she was 13. He then asked her a series of crude, explicit questions about her physical appearance, sexual preferences, and sexual experience, including whether her genitals were hairless, whether she liked penises, whether she engaged in fellatio, and whether she was a virgin. He asked aimee_13 what she was wearing, asked whether she ever had penetrated herself digitally and told her to “ddo iut now.” Skelhorn asked aimee_13 whether she could fit his penis in her mouth, and then explained that he would ej acúlate on her and then would perform cunnilingus on her. He asked aimee_13 to taste herself and describe the taste, explaining that he “wioll taaste mine 4 u” when he ejaculated, which was imminent.

Skelhorn then told aimee_13 that they “should meet one night.” When she asked how, he said that he would “drive down there meet you at like a wendy. drive around, suck and lick.” Skelhorn described in explicit detail the activity in which they would engage once they met. He asked aimee_13 if she wanted his telephone number, asked whether she would call him, and gave her his number. He concluded the communication by explaining that he would ejaculate “very soon” and asked “can u seee good.” He then ejaculated and licked his finger.

Skelhorn sent aimee_13 a message on August 17, but the investigator was not on-line to receive it. Skelhorn contacted aimee_13 again on January 3, 2011 using Yahoo! Messenger. They connected, aimee_13 accepted his invitation to watch his webcam feed, and again Skelhorn masturbated while displaying himself via webcam and chatting with aimee_13. The chat was sexually explicit, and Skelhorn described in detail what he would do to aimee_13. He also gave her his cell phone number again.

After these interactions, the investigator requested a copy of Skelhorn’s driver’s license from the Department of Driver Services, and the picture on the license matched the image of the man shown on the webcam. The driver’s license gave an address in Gumming, Georgia, which is where Skelhorn had told aimee_13 he lived. A Forsyth County investigator drove by the residence, where he saw two vehicles that were registered to Skelhorn. The Newton County investigator obtained a search warrant for the residence and executed it. She also obtained a recorded statement from Skelhorn, which was played for the jury.

2. Obscene Internet contact with a child.

Skelhorn argues that use of a computer on-line service is an essential element of the crime of obscene Internet contact with a child, and that although the state alleged that element in the indictment for these counts, it failed to prove the allegation. We disagree.

The indictment charged Skelhorn with violating OCGA § 16-12-100.2 (e) by having sexually explicit verbal and visual contact with a person he believed to be a child “by way of an on-line messaging service provided by a computer on-line service.” The statute in effect at the time of the offense provided:

A person commits the offense of obscene Internet contact with a child if he or she has contact with someone he or she knows to be a child or with someone he or she believes to be a child via a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, or on-line messaging service, and the contact involves any matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse that is intended to arouse or satisfy the sexual desire of either the child or the person, provided that no conviction shall be had for a violation of this subsection on the unsupported testimony of a child.

Former OCGA § 16-12-100.2 (e) (1) (emphasis supplied). (This subsection of the statute was amended effective July 1, 2013, among other things, to replace the phrase “computer on-line service” with “computer wireless service.” See Ga. L. 2013, p. 663, § 3.)

Although the statute did not expressly define the term “computer on-line service,” it gave specific examples of a computer on-line service in the following clause, providing that a computer on-line service “includes] but [is] not limited to a local bulletin board service, Internet chat room, e-mail, or on-line messaging service.” In other words, the statute defined computer on-line service by illustration. See generally Berryhill v. Ga. Community Support & Solutions, 281 Ga. 439, 442 (638 SE2d 278) (2006) (legislature’s use of phrase “includes but is not limited to” indicates an intent to broadly illustrate or enlarge). “[Statutes are to be construed in accordance with their real intent and meaning and not so strictly as to defeat the legislative purpose.” In the Interest of T.H., 258 Ga. App. 416, 420 (2) (574 SE2d 461) (2002).

With these principles in mind, we conclude that the statute lists an on-line messaging service as a specific type of computer on-line service, and that the legislature did not intend to establish both the use of a computer on-line service and the use of an on-line messaging service as essential elements that have to be separately proved in order to convict a defendant of obscene Internet contact with a child. Accordingly, the indictment charging Skelhorn with using an on-line messaging service encompassed that element of the crime. And the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Skelhorn used an on-line messaging service to contact a child with explicit verbal and visual depictions of sexual conduct. Jackson, 443 U. S. at 319 (III) (B).

3. Use of a computer to attempt to lure.

Skelhorn makes three arguments specific to Count 1 of the indictment, which alleged that he

did willfully use an Internet chat room to attempt to solicit, lure, and entice [a named law enforcement officer], posing as aimee_13cheer@yahoo.com, a person believed by [Skelhorn] to be a 13 year old child, to engage in the act of aggravated child molestation by [Skelhorn] asking to meet said person for the purpose of [Skelhorn] to perform oral sodomy on said person . . .

in violation of OCGA § 16-12-100.2 (d) (1). Skelhorn argues that the state was required but failed to prove that he used a computer on-line service; that the trial court should have included the phrase “computer on-line service” in its charge to the jury on this count; and that the state failed to prove that he took a substantial step toward committing the crime. We reject these arguments.

(a) Computer on-line service

The version of the statute in effect at the time provided:

It shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, on-line messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act described in Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; or Code Section 16-6-8, relating to the offense of public indecency or to engage in any conduct that by its nature is an unlawful sexual offense against a child.

Former OCGA § 16-12-100.2 (d) (1) (emphasis supplied). (This subsection ofthe statute was amended effective July 1,2013, among other things, to replace the phrase “computer on-line service” with “computer wireless service.” See Ga. L. 2013, p. 663, § 3.) For the reasons discussed in Division 2, the state was not required to prove that Skelhorn used both a computer on-line service and an Internet chat room in order to convict him of violating former OCGA § 16-12-100.2 (d) (1), because the statute lists an Internet chat room as a specific kind of computer on-line service. Accordingly, use of a computer on-line service as something distinct from an Internet chat room is not an essential element of the crime, and the trial court did not err by rejecting Skelhorn’s request that the jury be instructed that the state had to prove his use of a computer on-line service. See Ganaway v. State, 282 Ga. 297, 299 (2) (647 SE2d 590) (2007) (because intent to injure was not an element of the offense of aggravated assault with a deadly weapon, trial court did not err by failing to charge the jury that in order to convict, it had to find intent to injure). We observe that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Skelhorn used an Internet chat room. Jackson, 443 U. S. at 319 (III) (B).

(b) Substantial step.

Contrary to the state’s argument on appeal, we agree with Skelhorn that the state was required to prove that he took a substantial step toward committing the crime. Our Supreme Court has held that

attempt within OCGA § 16-12-100.2 (d) (1) involves two elements: intent to commit a crime (in this case, intent to solicit [, lure, and entice] a [person he believed to be a] child for an unlawful sexual offense), and the taking of a substantial step toward the commission of that crime (in this case, a substantial step toward solicitingf, luring, and enticing] a [person he believed to be a] child for that unlawful offense).

State v. Cosmo, 295 Ga. 76, 78 (757 SE2d 819) (2014). But we find that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Skelhorn took a substantial step toward soliciting, luring and enticing a person he believed to be a child for an unlawful sexual offense. Jackson, 443 U. S. at 319 (III) (B).

The statute does not define the synonymous terms “to solicit,” “to lure,” or “to entice,” and “we therefore look to [their] plain and ordinary meaning[s] as defined by dictionaries.” Mornay v. Nat. Union Fire Ins. Co. of Pittsburgh, PA, 331 Ga. App. 112, 115 (3) (769 SE2d 807) (2015) (citation omitted). See also OCGA § 1-3-1 (]b). In ordinary usage, the term “to solicit” means “[t]o seek to obtain by persuasion, entreaty, or formal application . . . [t]o commit the criminal offense of enticing or inciting (another) to commit an illegal act,” American Heritage Dictionary of the English Language, https://ahdictionary. com/word/search.html?q=solicit, or “to ask for (something, such as money or help) from people, companies.” Merriam-Webster’s Online Dictionary, http://www.merriam-webster.com/dictionary/solicit. The term “to lure” means “[t]o attract or entice, especially by wiles or temptation,” American Heritage Dictionary of the English Language, https://ahdictionary.com/word/search.html?q=lure, or “to cause or persuade (a person or an animal) to go somewhere or to do something by offering some pleasure or gain.” Merriam-Webster’s Online Dictionary, http://www.merriam-webster.com/dictionary/lure. Similarly, the term “to entice” means “[t]o attract (someone), usually to do something, by arousing hope, interest, or desire,” American Heritage Dictionary of the English Language, https://ahdictionary.com/word/ search.html?q=entice, or “to attract (someone) especially by offering or showing something that is appealing, interesting, etc.” Merriam-Webster’s Online Dictionary, http://www.merriam-webster.com/ dictionary/entice. In light of these definitions, we conclude that the state presented sufficient evidence to authorize a jury to find Skelhorn “had engaged in substantial steps to establish criminal attempt of the crime charged.” Cosmo, 295 Ga. at 80 (citations omitted).

Skelhorn flattered aimee_13, telling her that her breasts were “pwrfect,” that he “love[d] small tits,” and that it was “nice” that she was a virgin. He tried to arouse her desire, asking her to digitally penetrate herself and asking her if she was “wet.” He suggested that he drive to Covington, where aimee_13 said she lived, so they could meet one night “at like a wendy.” He described what they would do when he arrived in Covington: they would drive around, “suck and lick,” he would try to prove that he could put his entire penis in her mouth — but he would “never” hurt her, he would perform cunnilingus on her, and he promised that he would “make [her] cum.” He explained that they would engage in intercourse, and because she was a virgin, they would go slowly and she would “ride” him because “that is the easiest way. [She would] control it then.” Skelhorn gave aimee_13 his telephone number, asking her to call him.

“[T]he essence of the crime is the attempted enticement of someone the defendant believes to be a minor, not actual engagement in sexual activity with a minor.” United States v. Rothenberg, 610 F3d 621, 626 (V) (11th Cir. 2010) (construing a federal statute that is substantially similar to OCGA § 16-12-100.2 (d) (1) (see Cosmo, 295 Ga. at 78)). “[T]he very nature of the underlying offense — [soliciting, luring,] or enticing engagement in unlawful sexual activity — necessarily contemplates oral or written communications as the principal if not the exclusive means of committing the offense.” Rothenberg, 610 F3d at 627 (V). Arational trier of fact was authorized to find that Skelhorn’s chat with aimee_13 constituted an “important action[ ] leading to the commission of inducing [her] to engage in illegal sexual activity.” Id. (punctuation omitted). See Young v. State, 327 Ga. App. 852, 856(4) (a) (761 SE2d 801) (2014) (along with the requisite intent, the use of the computer constituted the actual violation of OCGA § 16-12-100.2 (d)).

We observe that although the state alleged in the indictment that one of the ways Skelhorn violated the statute was by asking to meet aimee_13, it also alleged that he violated the statute by using an Internet chat room. “Because the statute requires proof of only one act which is a substantial step toward the commission of the crime, inclusion in the indictment of more than one such act is mere surplusage, which is unnecessary to constitute the offense, need not be proved, and may be disregarded.” Ranson v. State, 198 Ga. App. 659, 661 (3) (a) (402 SE2d 740) (1991).

Decided June 16, 2015

Reconsideration denied July 7, 2015

Crawford & Boyle, Eric C. Crawford, for appellant.

Layla H. Zon, District Attorney, Melanie M. Bell, Agatha K. Romanowski, Assistant District Attorneys, for appellee.

4. Motion to suppress.

Skelhorn argues that the trial court erred by denying his motion to suppress evidence seized during the execution of a search warrant. He has not preserved this issue for appellate review. When the state sought to introduce this evidence — photographs of Skelhorn’s house and bedroom, and his laptop computer — his counsel affirmatively stated that he had no objection to its admission. Likewise, counsel stipulated to the admissibility of Skelhorn’s statement taken at the time of the execution of the warrant. “In so doing, counsel waived any objection, including those raised in his motion to suppress.” Williams v. State, 314 Ga. App. 840, 844 (4) (a) (726 SE2d 66) (2012) (citation and punctuation omitted); see also Dyer v. State, 233 Ga. App. 770, 771 (505 SE2d 71) (1998) ([‘[flailing to object at trial is not a waiver of the motion to suppress grounds, but affirmatively stating there is no objection in effect concedes the point”) (citations omitted; emphasis in original).

Judgment affirmed.

Ellington, R J., and Dillard, J., concur.

       We have quoted the communications between Skelhorn and aimee_13 exactly as they appear, including any spelling or other errors.


text:
    A15A0318.
    HARRIS v. THE STATE.
    (775 SE2d 165)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Haniyf A. Harris appeals his armed robbery conviction and contends that the evidence was insufficient to sustain his conviction, and that the trial court erred in denying his motion to suppress the photographic lineup and in admitting similar transaction evidence. Following our review and discerning no reversible error, we affirm.

1. Harris first challenges the sufficiency of the evidence supporting his armed robbery conviction. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). “We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” (Footnote omitted.) Clark v. State, 283 Ga. App. 884, 886 (1) (642 SE2d 900) (2007).

So viewed, the evidence demonstrates that on May 3, 2010, at approximately 11:30 a.m., a female caller ordered a pizza from Papa John’s to be delivered to Apartment M-ll at a particular street address located in Pendleton Homes apartment complex. When the delivery driver approached M-ll, a man wearing a red baseball cap and red sweatshirt with a hood walked up, pointed a gun at her, and demanded money. She gave the robber her money, approximately $95, and the robber then told her to leave. The driver went back to her car and called her boss and police.

Police discovered that apartment M-ll was vacant, but they were able to trace the number the call was placed from to a sister of Harris’ girlfriend. Although initially uncooperative, the sister admitted that the number belonged to a cell phone used by Harris, and that he sometimes stayed with their other sister in Pendleton Homes. When police questioned the other sister, she showed them a red sweatshirt that belonged to Harris that matched the description of the one worn by the robber. Police also interviewed Harris’ girlfriend, who said that she and Harris were at her sister’s apartment in Pendleton Homes the day of the robbery. She told police that at some point during the morning, Harris, who at the time was wearing a black shirt, left the apartment and said he needed to get some money. When he returned at approximately 3:00 p.m., Harris was wearing a red sweatshirt and had approximately $100. Three days after the robbery, the driver identified Harris from a six-photo lineup.

Although Harris challenges the sufficiency of the evidence against him, the evidence as outlined above was sufficient for a rational trier of fact to find Harris guilty of the armed robbery. See former OCGA § 24-4-8 (“[T]estimony of a single witness is generally sufficient to establish a fact.”) It was the role of the jury, not this Court, “to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Citation and punctuation omitted.) Farris v. State, 290 Ga. 323, 324 (1) (720 SE2d 604) (2012). This evidence was sufficient to sustain Harris’ conviction of armed robbery.

2. Prior to trial, Harris moved to suppress the identification of him made by the victim, arguing that the photographic lineups used by police were impermissibly suggestive. The trial court denied that motion, and on appeal Harris contends that this ruling was error. We disagree.

We review a trial court’s denial of a motion to suppress by construing the evidence most favorably to upholding the court’s findings and judgment, and we accept the court’s ruling unless clearly erroneous. Karim v. State, 244 Ga. App. 282, 283-284 (2) (535 SE2d 296) (2000).

On appeal, we will reverse a conviction based on a pretrial photo identification if the photographic lineup was so impermissibly suggestive that there exists a very substantial likelihood of irreparable misidentification. An identification procedure is impermissibly suggestive only if it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, “This is our suspect.”

(Punctuation and footnotes omitted.) Russell v. State, 288 Ga. App. 372, 373 (2) (654 SE2d 185) (2007). “The taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure.” (Citation and punctuation omitted.) Davis v. State, 286 Ga. 74, 76 (2) (a) (686 SE2d 249) (2009). We need not consider the issue of irreparable misidentification unless the array is impermissibly suggestive. Watley v. State, 281 Ga. App. 244, 245 (1) (635 SE2d 857) (2006).

In denying Harris’ motion to suppress, the trial court found that the lineup was not impermissibly suggestive and that the six individuals in the photographic lineup were men of similar age, skin tone, facial features, and hairstyles. Contrary to Harris’ assertion on appeal, the fact that three of the men in the photographic lineup had facial hair, and the victim described the robber as having no facial hair, does not make the lineup impermissibly suggestive. Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272) (1999) (lack of facial hair on most of the lineup participants did not make lineup impermissibly suggestive).

Additionally, despite Harris’ assertion that his number two position on the top row of the lineup was suggestive, “it cannot be assumed that the position of [Harris’] photograph in the array gave the picture greater prominence and therefore increased the likelihood of its selection.” Daniels v. State, 207 Ga. App. 689, 692 (4) (428 SE2d 820) (1993). His photograph was the similar size, style, and content as the other five photographs. Neither did his position lead inevitably to Harris’ identification. See Thompson v. State, 240 Ga. App. 26, 31-32 (7) (521 SE2d 876) (1999) (although the pictures of the defendant and one other individual in the lineup were slightly smaller than the other pictures, and not all of the men in the lineup had facial hair, photo array was not impermissibly suggestive). Accordingly, we find that the trial court properly admitted the pretrial identification evidence.

3. We further find that the trial court did not err in admitting similar transaction evidence of a 2004 robbery by intimidation conviction. Under Georgia law applicable at the time of Harris’ trial, evidence of a similar transaction may be admitted if the State shows that

(1) it seeks to introduce the evidence not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) there is sufficient evidence to establish that the accused committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Citation and punctuation omitted.) Matthews v. State, 294 Ga. 50, 52 (751 SE2d 78) (2013). In evaluating the trial court’s ruling, we accept its factual findings unless it was clearly erroneous and review its decision to admit the similar transaction evidence under the abuse of discretion standard. Reed v. State, 291 Ga. 10, 12-15 (3) (727 SE2d 112) (2012).

Decided July 7, 2015.

Tamika L. Fluker, for appellant.

K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.

The State filed notice of its intent to present similar transaction evidence of a 2004 robbery by intimidation guilty plea to show course of conduct, bent of mind and common scheme. At the hearing, one of the arresting officers testified that on April 4, 2004, he responded to a robbery call at a Pizza Hut. Two restaurant employees were taking trash to a dumpster located behind the restaurant when two men, one holding a gun, approached them and ordered them back into the store. The armed robber brandished the gun at the manager, ordered her to open the safe, and after she complied, the two men, who were wearing dark clothing and had bandanas partially covering their faces, took the money from the safe and fled. Using a tracking dog, police apprehended the robbers, who were hiding behind a dumpster. Bags of money from the robbery, a gun, and other items related to the robbery, including bandanas, were recovered nearby. Harris was identified as one of the men and later pled guilty to robbery by intimidation.

The trial court found that the State was admitting the similar transaction for the proper purpose of showing bent of mind and course of conduct, and also that the prior incident was sufficiently similar because in both instances Harris lay “in wait for the victims, each of whom was an employee of a pizza restaurant. Both robberies involved threats and the use of a handgun to induce pizza restaurant employees to surrender a quantity of cash.” Although Harris argues that the crimes were “vastly different” because one occurred at the restaurant and the present crime occurred off-site, when determining whether evidence of a similar transaction is admissible “ ‘the proper focus is upon the similarities between the incidents and not upon the differences.’ [Cit.]” Daniels v. State, 281 Ga. 226, 228 (1) (637 SE2d 403) (2006). See also Faniel v. State, 291 Ga. 559, 562 (2) (731 SE2d 750) (2012). We cannot say that the trial court abused its discretion in ruling that evidence of the prior robbery by intimidation conviction was admissible under the law applicable at the time of Harris’ trial.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       Harris’ trial was held in 2011, so our former Evidence Code applies.

       As noted supra in footnote 1, Georgia’s old Evidence Code applies in this appeal. Under the new Evidence Code, admissibility of this category of evidence is governedhy OCGÁ § 24-4-404 (b).

       Georgia’s new Evidence Code, effective January 1, 2013, provides:
      Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, he admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . ..
      OCGA § 24-4-404 (b).


author: PHIPPS, Presiding Judge.

text:
    A15A0488.
    MORALES v. THE STATE.
    (775 SE2d 168)
   PHIPPS, Presiding Judge.

Ricardo Morales was found guilty of trafficking methamphetamine, possession of methamphetamine with intent to distribute, possession of methamphetamine, possession of marijuana with intent to distribute, and possession of marijuana (more than one ounce), in connection with drugs found in a residence he had been visiting. Morales appeals following the denial of his motion for new trial, contending that the evidence was insufficient to sustain his convictions, and that he received ineffective assistance of counsel. Because the evidence was not sufficient, we reverse the convictions.

1. Morales asserts that the evidence was insufficient because the state failed to prove that he possessed any of the drugs. We agree.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.

So viewed, the trial evidence showed the following. Law enforcement officers testified that in January 2009, they were conducting a surveillance of two residences on a particular street. James Senft and Cynthia Smith lived in one of the residences (hereafter the Senft residence), and Morales lived in the other residence, which was across the street. After seeing a black truck for which they had been on the lookout arrive at and leave the Senft residence, officers initiated a stop of that vehicle, then searched the driver, M. T. The search revealed methamphetamine, and the driver was arrested.

On February 26, 2009, officers resumed their surveillance and conducted a controlled drug purchase at the Senft residence. One of the officers then applied for and obtained a “no-knock” warrant to search that residence.

Meanwhile, officers who had continued the surveillance saw two men arrive at the Senft residence in separate vehicles; one of the men, Morales, was in a silver or gold sport utility vehicle, and the other man, Senft, was in a white truck. Morales and Senft entered the residence and, from what the officers were able to observe from their vantage point down the street, walked down a hallway toward the rear of the Senft residence. “[A] little while” later, a third man, Jerry Craig Bradshaw, arrived, entered the residence and walked toward the rear of the residence. “[W]ithin a few minutes” — without knocking or announcing “police” — officers threw a “flashbang” device into the Senft residence as “a distraction,” and entered the front room. The officers detained Senft and Smith, the only (non-law enforcement) individuals in the residence. Morales and Bradshaw had fled through a back door of the residence “as the flashbang was going off.” Officers chased and apprehended Bradshaw as he fled, but they were unable to apprehend Morales that night.

Officers searched a bedroom at the rear of the Senft residence. The bedroom was “full of junk,” and “[j]ust cluttered with everything.” Officers found in the bedroom a Ziploc bag containing 15.68 ounces of marijuana; the bag was on a bedspread or pillow on the floor. About one foot away from the bag of marijuana was a Ziploc bag containing 108.17 grams of methamphetamine; that bag was also on the floor of the bedroom, beside “a blanket or something that was all jumbled up,” under a chair. Scales, baggies, and drug paraphernalia were found in the living room. The officers searched the home’s three occupants, and found $2,927 cash on Senft’s person, $700 cash on Smith’s person, and $1,616 cash on Bradshaw’s person.

Testifying on behalf of the state, Smith stated that on the date of the search, Morales and Senft had entered the Senft residence and walked to a bedroom in the back of the house, while she was in the front room of the residence. Bradshaw had also gone to that bedroom. Smith testified that she had not seen what the three men were doing in the bedroom, and that the bedroom door was closed; that the officers had entered the residence a few minutes after the three men entered, while she was in another bedroom; and she believed that Morales and Bradshaw had exited through the back door of the residence.

In order to prove the drug charges brought against Morales, the state was required to prove that he had possessed the methamphetamine and marijuana (in the required amounts, as specified in the indictment). Where, as here, the state provided no direct evidence that Morales had actual possession of the drugs, the state was required to prove that he had constructive possession thereof.

To prove constructive possession, the state is required to show that although not in actual possession, the defendant knowingly had both the power and the intention at a given time to exercise control over the drugs. Evidence merely showing that contraband was found in a residence occupied by the defendant is not sufficient to support a conviction, especially where other persons had equal access to the contraband and therefore an equal opportunity to commit the offense.

“Mere spatial proximity to contraband is not sufficient to prove constructive possession. Rather, the [s]tate must show that [Morales] had the power and intent to exercise control over the drugs, which requires evidence of some meaningful connection between the defendant and the drugs.”

Morales did not own or lease the Senft residence, and had merely been a visitor there. Consequently, there is no presumption that he possessed the drugs found in the Senft residence.

Although Morales was in the Senft residence just before the officers conducted the search, he had arrived only minutes earlier; and there was no evidence that he had possessed the drugs while there, or had carried the drugs into the residence. Additionally, there was no evidence that the officers found anything in the residence “that linked [Morales] to the residence such as clothing, bills, fingerprints, financial statements, photographs, records, books, or other personal belongings.” Nor was there evidence that the officers found drugs, cash or other evidence on Morales’s person linking him to the contents of the Senft residence. Indeed, several other people were present at the residence when the drugs were discovered, such that other persons had equal (or greater) access to the contraband and equal (or greater) opportunity to commit the crimes. There was no evidence that the marijuana and methamphetamine found in Ziploc bags (one bag was on top of a bedspread or pillow on the floor, and the other was “beside a blanket or something that was all jumbled up,” under a chair on the floor in the cluttered bedroom), would have been plainly visible to Morales, or that Morales had the power and intention to exercise control over the drugs while he was in the bedroom.

That Morales fled when officers — who had not identified themselves as police officers — entered without knocking and threw a “flashbang” device into the Senft residence, was not sufficient evidence to support the guilty verdict, as it is well established that neither presence at the scene nor flight, nor both together, without more, is conclusive evidence of guilt.

Finally, Morales’s convictions cannot be upheld on the ground that he was a party to the crimes, because the state failed to present evidence that he intentionally caused another to commit the crimes, aided or abetted in the commission of the crimes, or advised or encouraged another to commit the crimes. There was no evidence that Morales had participated in the criminal activity that had occurred on the property. Consequently, the state’s evidence did not show essential links between Morales’s conduct and the drug possession, trafficking and intent to distribute charges. Therefore, his convictions must be reversed.

Decided July 7, 2015.

Miller & Key, J. Scott Key, for appellant.

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

2. In light of our holding in Division 1, it is unnecessary to address Morales’s claim that he received ineffective assistance of trial counsel.

Judgment reversed.

Doyle, C. J., and Boggs, J., concur.

       The indictment included the following charges against Morales: Count 1 — trafficking methamphetamine, by possessing more than 28 grams of a mixture containing methamphetamine (OCGA § 16-13-31 (e)); Count 2 - possession of methamphetamine with intent to distribute (OCGA §§ 16-13-30 (b); 16-13-26 (3)); Count 3 - possession of methamphetamine (OCGA § 16-13-30 (a)); Count 4 — possession of marijuana with intent to distribute (OCGA § 16-13-30 (j)); and Count 5 - possession of marijuana, more than one ounce (OCGA §§ 16-13-30 (a), (j) (1); 16-13-2 (b)). At sentencing, Counts 1 and 3 merged with Count 2, and Count 5 merged with Count 4. Thus, Morales was sentenced on only Counts 2 and 4.

        Castillo v. State, 288 Ga. App. 828 (655 SE2d 695) (2007) (citations and punctuation omitted).

       Senft and Smith were indicted along with Morales on the drug charges. Morales and Senft were tried together; Smith pled guilty prior to trial.

       See note 1, supra; see also OCGA §§ 16-13-30 (a), (b), (j) (2009); 16-13-31 (e) (2009).

       See Johnson v. State, 282 Ga. App. 52, 54 (1) (637 SE2d 775) (2006).

       Id. (footnotes omitted); see Vines v. State, 296 Ga. App. 543, 545 (1) (675 SE2d 260) (2009).

        Scott v. State, 326 Ga. App. 115, 117 (1) (756 SE2d 220) (2014) (citation and punctuation omitted).

       Cf. Bailey v. State, 294 Ga. App. 437, 439-440 (1) (669 SE2d 453) (2008) (where evidence shows that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband).

        Brown v. State, 285 Ga. App. 330, 332 (646 SE2d 273) (2007).

       See id.

       See Johnson, supra.

       Id.

       See Scott, supra.

       See id.; Crenshaw v. State, 183 Ga. App. 527, 529 (1) (359 SE2d 419) (1987).

       See, e.g., Flores v. State, 308 Ga. App. 368, 373 (4) (707 SE2d 578) (2011) (defendant’s mere presence in vehicle, which he did not own or control and in which methamphetamine was found, was insufficient to sustain his conviction for trafficking methamphetamine; the state had failed to present evidence of some meaningful connection between the defendant and the drugs); Brown, supra at 332-333 (even though defendant had arranged a drug deal for a confidential informant, defendant’s presence outside the residence was insufficient to sustain his conviction for trafficking cocaine where no evidence linked the defendant to the property or to the drugs found inside); Stringer v. State, 275 Ga. App. 519, 521-522 (621 SE2d 761) (2005) (reversing conviction for possession of cocaine where no evidence linked defendant to cocaine found in hotel room other than fact that the defendant was in the room and it was registered in his name). Compare Lott v. State, 303 Ga. App. 775, 779 (1) (694 SE2d 698) (2010) (evidence supported possession for trafficking conviction even though the two defendants did not own or rent the house where the drugs were found, because there was evidence that: the defendants were in the house when it was searched; they had keys to the house, they were depicted in photographs that appeared to have been taken inside the house; one defendant ran toward the bedroom where the drugs were found; officers executing the search warrant found the defendants’ personal items inside the residence; an individual arrested for selling drugs told officers he had bought the drugs at that house from a man known as “Boogie”; and when an officer called out that name, one of the defendants answered).

       See Scott, supra at 119 (1).