Gunn v. the State , 342 Ga. App. 615 ( 2017 )

FOURTH DIVISION
DILLARD, C. J.,
RAY, P. J., and SELF, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
August 2, 2017
In the Court of Appeals of Georgia
A17A1128. GUNN v. THE STATE.
DILLARD, Chief Judge.
Following a trial by jury, Kenneth Bernard Gunn was convicted of trafficking
cocaine, possessing cocaine with the intent to distribute, and possessing a firearm as
a convicted felon.1 Gunn appeals from these convictions, arguing that the trial court
erred by (1) admitting “other acts” evidence under Rule 404 (b); (2) denying a motion
to suppress his statement to law enforcement when he had used cocaine prior to his
interview; (3) failing to grant a mistrial after learning that the State’s witnesses
violated the rule of sequestration; and (4) failing to grant a new trial when trial
1
The trial court merged the conviction for possession with intent to distribute
with the conviction for trafficking cocaine for purposes of sentencing.
counsel rendered ineffective assistance by stating that he was on probation, thereby
putting his character at issue. For the reasons set forth infra, we affirm.
At the outset, before addressing his enumerations of error, we note that Gunn
previously filed an appeal with this Court (Case Number A17A0244), which was
dismissed for failure to timely file an appellate brief.2 The present appeal follows a
consent-order granting Gunn’s subsequent motion for out-of-time appeal in the trial
court. In the present notice of appeal, Gunn indicates that the clerk should omit
nothing from the appeal, and that a transcript of evidence and proceeding will be filed
for inclusion in the record on appeal. But the electronic record for the current appeal
is limited to filings relevant to the case after the dismissal of the prior appeal, which
contained a lengthy electronic record. And Gunn has not indicated an intention to rely
upon the record and transcript from the previously filed appeal. Nevertheless, this
Court—having noticed the existence of the electronic record in the related case
number—has reviewed the previously filed record to address Gunn’s enumerations
of error.3
2
See Case No. A17A0244 (Nov. 4, 2016).
3
The State filed a motion to supplement the record with the transcript of the
jury trial proceedings. But because the transcript was previously transmitted to this
Court in Case No. A17A0244, and because this Court noticed and reviewed same, the
2
We take this opportunity to, once again, remind appellants that the burden is
upon them to ensure that a complete record is transmitted to this Court for review in
every appeal and to notify this Court of their intent to rely upon a previously
transmitted record or transcript,4 including any audio- or video-recorded exhibits.5
State’s motion is moot. See, e.g., Cherry v. Moreton Rolleston, Jr. Living Trust, 273
Ga. App. 876, 878 n.4 (616 SE2d 157) (2005).
4
See Holman v. State, 329 Ga. App. 393, 396-97 (1) (765 SE2d 614) (2014)
(holding that it is the appellant’s burden to notify this Court if he intends to rely upon
a transcript in a previously filed appeal, and noting that “to the extent [the appellant]
wished to rely upon the transcript transmitted by the trial court in the prior appeal .
. . , he had a duty under OCGA § 5-6-37 to specify in the notice of appeal that he was
not requesting the transmission of the transcript in this appeal because one had
previously been transmitted in a prior appeal and was already on hold at the Court).
5
See COURT OF APPEALS RULE 18 (b) (“When the notice of appeal directs that
transcripts of a trial or a hearing be included in the record, copies of all video or audio
recordings that were introduced into evidence shall be transmitted to this Court along
with the trial or hearing transcript. It shall be the responsibility of the party tendering
the recordings at a trial or a hearing to ensure that a copy of the recording is included
in the trial court record; however, it is the burden of the appealing party to ensure that
a complete record is transmitted to this Court on appeal, including the transmission
of video or audio recordings. If a transcript of a trial or a hearing is designated as part
of the appellate record, the clerk of the trial court shall then include the copy of the
recording in the appellate record transmitted to this Court. If a copy of a recording
played at a trial or a hearing is not included with the transcript designated to be
transmitted in the appellate record, this Court may take whatever action is necessary
in order to ensure completion of the record, including, but not limited to, issuing a
show-cause order requiring an explanation of its absence. The appellant’s failure to
complete the record may also result in this Court declining to consider enumerations
of error related to the missing evidence.”).
3
Turning now to Gunn’s contentions on appeal, and viewed in the light most
favorable to the jury’s verdict,6 the record reflects that on February 8, 2012, the
Gwinnett County SWAT team and Narcotics Unit executed a “no knock” warrant at
a mobile home where Gunn and a co-defendant were occupants.7 In the search that
followed, officers located miscellaneous loose pills and sets of digital scales with
white powdery residue in the kitchen area; chunks of crack cocaine on the floor of the
dining area; drug paraphernalia in the living room area with cocaine residue on the
coffee table; and chunks of cocaine, baggies associated with packaging narcotics, and
a loaded handgun in one of three bedrooms. In total, officers seized 35.01 grams of
cocaine with 53.4 percent purity from the residence, worth an estimated $3,500—an
amount of drugs consistent with an intent to distribute. And in addition to the drugs
and the distribution-related paraphernalia (i.e., digital scales, large amounts of
sandwich baggies, smaller baggies) found throughout the home, in the kitchen area,
6
See, e.g., Sowell v. State, 327 Ga. App. 532, 534 (759 SE2d 602) (2014).
7
It is undisputed that the co-defendant passed away prior to trial.
4
Gunn’s name was found on a piece of mail sent to the mobile home’s address.
Elsewhere, officers located receipts that also reflected Gunn’s name.8
Following his arrest, and while still in the mobile home, Gunn gave a
videotaped statement to law enforcement, and he was photographed. The photograph
of Gunn depicts what appears to be a white powder substance in his nostrils, although
law enforcement did not conduct testing to confirm the nature of the substance.
Gunn was subsequently indicted for and convicted of the offenses set forth
supra. He filed a motion for new trial, which was denied. This appeal follows.9
8
The person to whom the property was leased testified that Gunn lived at
several different places, including the property; that the co-defendant, to her
knowledge, did not live at the property; and that Gunn would come and go from the
property.
9
We note that Gunn does not challenge the sufficiency of the evidence. See
Dixon v. State, 224 Ga. 636, 637 (1) (163 SE2d 737) (1968) (“The only question
presented by the motion for new trial, as amended, which is not specifically raised by
the enumeration of errors is the sufficiency of the evidence to support the conviction.
No argument has been made on this issue, and it will be considered as abandoned.”);
Treadwell v. State, 272 Ga. App. 508, 510 (1) n.4 (613 SE2d 3) (2005) (“[Defendant]
presents no argument as to the sufficiency of the evidence supporting his conviction
for possessing cocaine, and thus has abandoned such claim.”).
5
1. First, Gunn asserts that the trial court erred by admitting “other acts”
evidence under Rule 404 (b).10 We disagree.
The record reflects that prior to trial, the State gave Gunn notice of its intent
to present evidence of a 2001 conviction for possession of cocaine with the intent to
distribute. And in a pretrial hearing, the State proffered that an officer would testify
to stopping Gunn’s vehicle and, upon a search incident to arrest for providing a false
name, finding in Gunn’s groin area three grams of cocaine and a packet of small
plastic baggies typically used to package cocaine. Gunn objected to the admission of
this evidence on the basis that it was not similar to the facts at issue in the current
case and due to the lapse of time from 2001 until the time of the charged offenses.
But after taking the matter under advisement, the trial court ultimately ruled that it
would admit the evidence because Rule 404 (b) “is a law of inclusion rather than
10
We note that Georgia’s new Evidence Code applies to this case because
Gunn was tried in 2014. See Ga. L. 2011, pp. 99, 214, § 101 (providing that Georgia’s
new Evidence Code applies “to any motion made or hearing or trial commenced on
or after” January 1, 2013).
6
exclusion”11 and because the court found that the evidence could be appropriately
admitted to show motive, intent, and knowledge.12
At trial, the trial court maintained its earlier ruling after hearing a proffer from
the officer, who clarified that during the traffic stop, he observed Gunn take
something from “his backside” and then “stuff[ ] it into his crotch[,]” and, therefore,
upon reaching the jail, he ordered and observed a strip search of Gunn that revealed
a cellophane wrapper containing 3.5 grams of crack cocaine in his genital area.
Previously, during Gunn’s arrest, the officer located in Gunn’s pocket approximately
30 small plastic baggies. And the State subsequently presented the same testimony
by the officer to the jury before presenting a certified copy of Gunn’s conviction for
11
See, e.g., State v. Frost, 297 Ga. 296, 300 (773 SE2d 700) (2015) (explaining
that Rule 404 (b) is “an evidentiary rule of inclusion which contains a non-exhaustive
list of purposes other than bad character for which other acts evidence is deemed
relevant and may be properly offered into evidence”); State v. Jones, 297 Ga. 156,
159-60 (2) (2015) (same); see also United States v. Moody, 763 FSupp 589, 598 (IV)
(M.D. Ga. 1991) ( “In this Circuit, the rule is one of ‘inclusion’ regarding Rule 404
(b) evidence, for the balance is struck in favor of admissibility.”).
12
See OCGA § 24-4-404 (b) (“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, be admissible for other purposes, including,
but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.”).
7
the 2001 incident following a guilty plea. Prior to this testimony, the trial court
instructed the jury as follows:
[S]ometimes evidence is admitted for a limited purpose. Such evidence
may be considered by the jury for the sole issue or purpose for which the
evidence is limited and not for any other purpose.
In order to prove its case, the State must show intent, must show
knowledge, and may show motive. To do so, the State is about to offer
evidence of other crimes allegedly committed by the accused. You are
permitted to consider that evidence only insofar as it may relate to those
issues and not for any other purpose. You may not infer from such
evidence that the defendant is of a character that would commit the
crimes alleged in this case.
The court repeated this charge to the jury just prior to deliberations, and it expounded
upon same.
Gunn asserts that the trial court erred in admitting this “other acts” evidence
because the 2001 incident was factually dissimilar and because of the time span
between 2001 and the events in 2012.
Rule 404 (b) provides that
[e]vidence 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, be admissible for other purposes, including,
8
but not limited to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.13
Nevertheless, even evidence that is offered for a proper purpose under Rule 404 (b)
may be excluded under Rule 403 if the evidence’s “probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.”14
The Supreme Court of Georgia has adopted a three-part test by which we
evaluate the admissibility of so-called “other acts” evidence.15 Under that test, “(1)
13
OCGA § 24-4-404 (b); accord Smart v. State, 299 Ga. 414, 417 (2) (788
SE2d 442) (2016).
14
OCGA § 24-4-403 (b); accord Smart, 299 Ga. at 417 (2); Morris v. State,
340 Ga. App. 295, 305 (4) (797 SE2d 209) (2016). See generally Ronald L. Carlson
& Michael Scott Carlson, CARLSON ON EVIDENCE 130 (5th ed. 2016) (“Evaluating the
balance between probativity and prejudice under Rule 403 calls for a commonsense
assessment of all the circumstances surrounding the other act, including [the]
proponent’s need for the [Rule 404 (b)] evidence, the overall similarity between the
extrinsic evidence and the offense at issue, and the temporal proximity of the two.”).
15
Smart, 299 Ga. at 417 (2); Morris, 340 Ga. App. at 306 (4). See generally
Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015) (adopting the three-
part test used by the Eleventh Circuit Court of Appeals in evaluating such evidence
pursuant to the Federal Rules of Evidence, upon which Georgia’s new Evidence Code
is modeled).
9
the evidence must be relevant to an issue other than defendant’s character; (2) the
probative value must not be substantially outweighed by its undue prejudice; [and]
(3) the government must offer sufficient proof so that the jury could find that
defendant committed the act.”16 As to the first factor, relevant evidence is “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.”17 And as to the second factor, even if 404 (b) evidence is relevant, we
must decide whether “the probative value of the other acts evidence is substantially
outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of
Rule 403.”18 Of course, application of the Rule 403 balancing test is “a matter
committed principally to the discretion of the trial courts, but as we have explained
before, the exclusion of evidence under Rule 403 is an extraordinary remedy which
16
Smart, 299 Ga. at 417 (2) (punctuation omitted) (quoting United States v.
Ellisor, 522 F3d 1255, 1267 (11th Cir. 2008)); accord Morris, 340 Ga. App. at 306
(4). We note that Gunn does not challenge the third prong, and the State presented
evidence to show that Gunn was convicted of the crimes relevant to the Rule 404 (b)
evidence when he pleaded guilty to same.
17
OCGA § 24-4-401; accord Smart, 299 Ga. at 418 (2) (a); Morris, 340 Ga.
App. at 306 (4).
18
Smart, 299 Ga. at 418 (2) (b) (punctuation omitted); accord Jones, 297 Ga.
at 159; Morris, 340 Ga. App. at 306 (4).
10
should be used only sparingly.”19 Finally, on appeal, we review the admission of Rule
404 (b) evidence “for a clear abuse of discretion, a review requiring the appellate
court to make a common sense assessment of all the circumstances surrounding the
extrinsic offense, including prosecutorial need, overall similarity between the
extrinsic act and the charged offense, as well as temporal remoteness.”20
Here, Gunn has failed to establish that the trial court abused its discretion by
admitting evidence of his 2001 conviction for possessing cocaine with the intent to
distribute same when he placed his intent in issue by pleading not guilty to the
charges of trafficking in cocaine and possessing cocaine with the intent to distribute.21
19
Smart, 299 Ga. at 418 (2) (b) (punctuation omitted); accord Morris, 340 Ga.
App. at 306 (4).
20
Graham v. State, 337 Ga. App. 664, 669 (2) (788 SE2d 555) (2016)
(punctuation omitted); accord Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642)
(2016); Morris, 340 Ga. App. at 307 (4); see also United States v. Matthews, 431 F3d
1296, 1312 (V) (11th Cir. 2005) (“While this panel may have decided the issue
differently, particularly given the lack of similarity and the extended period of time
between the offenses, we cannot say that the trial court’s decision to admit the
evidence constituted such a clear error of judgment as to amount to an abuse of
discretion.”); United States v. Frazier, 387 F3d 1244, 1259 (II) (11th Cir. 2004) (en
banc) (“[W]hen employing an abuse-of-discretion standard, we must affirm unless we
find that the district court has made a clear error of judgment, or has applied the
wrong legal standard.”).
21
See Parks v. State, 300 Ga. 303, 307 (2) (794 SE2d 623) (2016) (“We have
held that intent is put at issue any time a defendant pleads not guilty and so evidence
11
Additionally, Gunn did nothing to remove intent as an issue and, indeed, as discussed
in Division 2 infra, he told law enforcement that he did not live in the house
throughout which the drugs and drug-distribution paraphernalia were found.22 And
that goes to prove intent would be relevant.”); see also United States v. Taylor, 618
Fed.Appx. 969, 972 (1) (B) (11th Cir. 2015) (holding that not-guilty plea to charge
of possession with intent to distribute made intent a material issue and that evidence
of prior conviction was highly probative of intent); United States v. Green, 40 F3d
1167, 1174 (11th Cir. 1994) (holding that district court did not abuse its discretion
by admitting evidence of prior arrest for possession of distributable amount of
cocaine when “[t]he challenged act involved the same mental state as the charged
crime because both incidents involved possession of the same illicit drug, cocaine”
and, thus, district court “properly admitted similar act evidence of the prior arrest for
possession of a distributable quantity of cocaine base to establish intent where
[defendant] pleaded not guilty, placing intent in issue, and where intent is an element
of the crime charged, in this case, possession with intent to distribute”). Cf. Parks,
300 Ga. at 307 (2) (holding that other acts evidence was not admissible to prove
intent, despite a not-guilty plea, when defendant admitted to shooting victim but
claimed that he did so in self defense, making the only factual issue the reason for the
admitted act, and noting that “[t]he fact that the defendant had committed an assault
on another person 24 years earlier had nothing to do with his reason for—his intent
in—shooting the victim” because “[a]ll that the evidence of the prior conviction of
assault could possibly show was the defendant’s propensity to commit assaults on
other persons or his general propensity to commit violent crimes” (punctuation
omitted)).
22
See Hood v. State, 299 Ga. 95, 102 (4) (786 SE2d 648) (2016)
(acknowledging that a defendant may sometimes remove intent as an issue at trial, but
declining to accept appellant’s assertion that a rejected stipulation as to intent would
eliminate the relevance of other acts evidence introduced to prove same); see also
State v. Jones, 297 Ga. 156, 161 (2) n.4 (773 SE2d 170) (2015) (“[A[ ] defendant puts
his intent in issue when he pleads not guilty unless he takes affirmative steps to
withdraw intent as an element to be proved by the State.”).
12
because Gunn’s participation in the earlier crime required the same intent as the
charged crimes, the evidence of the earlier other act was relevant.23
As for the time span between the two incidents (2001 to 2012), Gunn provides
no citation to authority to support his assertion that such a span in time is too remote
for admissibility.24 Instead, given precedent from the Eleventh Circuit Court of
Appeals (to which we may look when construing the provisions in our new Evidence
Code),25 we hold that under the facts of this case, this temporal nexus was not too
23
See Jones v. State, 299 Ga. 377, 383 (4) (788 SE2d 477) (2016) (“As
appellant’s participation in the earlier crimes required the same intent as the charged
[crime], the evidence of these other acts was relevant.”); Graham v. State, 337 Ga.
App. 664, 669 (2) (788 SE2d 555) (2016) (“Evidence of these other acts, which
involved the same sort of intent as required to prove the [charged crime] here and had
a tendency to prove such intent, was relevant and satisfied the first requirement for
admission.”).
24
See COURT OF APPEALS RULE 25 (c) (2) (“Any enumeration of error which
is not supported in the brief by citation of authority or argument may be deemed
abandoned.”).
25
See Olds v. State, 299 Ga. 65, 69 (2) (786 SE2d 633) (2016) (“Many
provisions of the new Evidence Code were borrowed from the Federal Rules of
Evidence, and when we consider the meaning of these provisions, we look to
decisions of the federal appellate courts construing and applying the Federal Rules,
especially the decisions of the United States Supreme Court and the Eleventh Circuit.
Rule 404 (b) is one such provision, and so, when we have considered the meaning of
Rule 404 (b), we consistently have looked for guidance in the decisions of the federal
appellate courts construing and applying Federal Rule of Evidence 404 (b).”
(citations omitted)).
13
remote to erode the probative value of the prior conviction.26 Accordingly, this
enumeration of error is without merit.
2. Next, Gunn argues that the trial court erred by denying a motion to suppress
his statement to law enforcement when he used cocaine prior to the interview. Again,
we disagree.
At the pretrial hearing held under Jackson v. Denno,27 the law enforcement
agent who interviewed Gunn testified that he was taken into custody at the time the
search was performed; that when the search was performed, Gunn had a white,
powdery residue in his nose that appeared to be cocaine, although this was not
26
See United States v. LeCroy, 441 F3d 914, 926 (II) (E) (11th Cir. 2006)
(holding that ten-year time period between “other acts” evidence and charged offense
was not too remote); United States v. Lampley, 68 F3d 1296, 1300 (A) (11th Cir.
1995) (holding that district court did not abuse its discretion by admitting “other acts”
evidence of drug dealings that took place 15 years before the offense in issue); see
also Taylor, 618 Fed.Appx. at 972 (1) (B) (relying upon Lampley to hold that nine-
year temporal nexus was not too remote in time to have probative value); United
States v. Jones, 550 FSupp.2d 1377, 1380 (II) (S.D. Fla. 2008) (looking to precedent
from Eleventh Circuit to determine that probative value was not eroded by
approximately eight-year temporal nexus). Cf. United States v. Sanders, 668 F3d
1298, 1315 (III) (B) (11th Cir. 2012) (declining to establish bright-line rule for when
“other acts” evidence is too old to be admissible, but holding that trial court abused
its discretion by admitting evidence of 22-year-old conviction for street-level sale of
1.4 grams of marijuana in trial on charges of international conspiracy to traffic 153
kilograms of cocaine).
27
378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
14
noticed until after Gunn was interviewed; that Gunn “seemed like he knew what was
going on” and his faculties appeared to be intact; that Gunn was advised of his
Miranda rights;28 that Gunn was not coerced or threatened; that Gunn was not offered
any hope of benefit or reward in order to speak; and that Gunn voluntarily spoke to
her after being advised of his rights.29 In the brief interview, Gunn told the law-
enforcement officer that he “didn’t stay at the house” and that she should “just take
him in.” After hearing the officer’s testimony and viewing a video recording of the
interview, the trial court denied Gunn’s motion to suppress, finding that Gunn’s
statement was freely and voluntarily given, that Gunn knowingly and intelligently
waived his Miranda rights, and that there was no fear of injury or hope of benefit.
When a trial court rules upon the admissibility of a custodial statement, the
court must determine whether, “based upon the totality of the circumstances, a
preponderance of the evidence demonstrates that the statement was made freely and
voluntarily.”30 And unless clearly erroneous, a trial court’s findings as to “factual
28
See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16LE2d 694) (1966).
29
The officer repeated these assertions in her testimony at trial.
30
Bell v. State, 284 Ga. 790, 794 (2) (671 SE2d 815) (2009) (punctuation
omitted); accord Roberts v. State, 282 Ga. 548, 548 (2) (651 SE2d 689) (2007).
15
determinations and credibility relating to the admissibility of the defendant’s
statement at a Jackson v. Denno hearing will be upheld on appeal.”31 Here, based
upon the foregoing evidence and testimony, we find the trial court was authorized to
conclude that Gunn gave a voluntary statement and made a knowing and intelligent
waiver of his Miranda rights.32 Accordingly, the trial court did not err in admitting
the custodial statement.
31
Bell, 294 Ga. at 794 (2) (punctuation omitted); accord Roberts, 282 Ga. at
548-49 (2).
32
See Wallace v. State, 296 Ga. 388, 390 (3) (768 SE2d 480) (2015) (holding
that despite the fact that defendant told detective he had used cocaine a few hours
before providing statement, in light of detective’s testimony that defendant “did not
appear to be under the influence of cocaine or any other drugs, alcohol, or medication,
that he appeared to understand his rights and waived them orally, and that he was
coherent and answered questions appropriately,” trial court did not err in admitting
statement); Garcia v. State, 267 Ga. 257, 258 (5) (477 SE2d 112) (1996) (rejecting
claim that custodial statement was inadmissible when given under the influence of
cocaine because “the evidence adduced at [the] hearing authorized the finding that
[defendant] freely and voluntarily gave the statement”); Philmore v. State, 263 Ga.
67, 68 (2) (428 SE2d 329) (1993) (holding that, based upon officers’ testimony
regarding defendant’s demeanor during interview, trial court was authorized to
conclude that statement was voluntary “even assuming [defendant] had earlier used
cocaine and was still under that drug’s effect during the interview”); see also Norton
v. State, 293 Ga. 332, 335 (2) (745 SE2d 630) (2013) (“The mere fact that [defendant]
may have been somewhat intoxicated at the time of the interview does not
automatically render evidence thereof inadmissible.”); Jones v. State, 285 Ga. 328,
329 (2) (676 SE2d 225) (2009) (“The mere fact that appellant was intoxicated at the
time of the statements does not automatically render them inadmissible.”).
16
3. In his final two enumerations of error, Gunn argues that the trial court erred
by (1) failing to grant a mistrial after learning that the State’s witnesses violated the
rule of sequestration, and (2) failing to grant a new trial when trial counsel was
ineffective by stating that he was on probation, thereby placing his character in issue.
But we do not address these contentions because Gunn has abandoned them for
appellate review.
In both enumerations of error, beyond one or two case citations to the most
basic legal authority as to the purposes of the rule of sequestration and the standard
applied to claims of ineffective assistance of counsel, Gunn provides no authority in
support of his specific contentions as to how and why the trial court committed error
in these instances. Instead, his “arguments” are reduced to single paragraphs in both
enumerations, which largely focus on the factual allegations of what occurred at trial
and omit any meaningful appellate argument beyond mere conclusory statements of
error. But as we have previously emphasized, under the rules of this Court, “an
appellant must support enumerations of error with argument and citation of
authority,”33 and “mere conclusory statements are not the type of meaningful
33
Brittain v. State, 329 Ga. App. 689, 704 (4) (a) (766 SE2d 106) (2014); see
COURT OF APPEALS RULE 25 (a) (3) (providing that part three of appellant’s brief
“shall contain the argument and citation of authorities” and “a concise statement of
17
argument contemplated by our rules.”34 Thus, Gunn has abandoned these final
enumerations of error, and we will not address them.35
Accordingly, for these reasons, we affirm the trial court’s denial of Gunn’s
motion for new trial.
Judgment affirmed. Ray, P. J. and Self, J., concur.
the applicable standard of review with supporting authority for each issue presented
in the brief”); see also COURT OF APPEALS RULE 25 (c) (2) (providing that “[a]ny
enumeration of error which is not supported in the brief by citation of authority or
argument may be deemed abandoned”).
34
Brittain, 329 Ga. App. at 704 (4) (a) (punctuation omitted); accord
Davenport v. State, 308 Ga. App. 140, 156 (2) (e) (706 SE2d 757) (2011); Towry v.
State, 304 Ga. App. 139, 148 (2) (g) n.7 (695 SE2d 683) (2010).
35
See Humphrey v. Riley, 291 Ga. 534, 544 (II) (I) (731 SE2d 740) (2012)
(deeming portions of ineffective-assistance-of-counsel argument abandoned when
several claims were “not supported by specific citation or argument” in violation of
Supreme Court Rule 22); Brittain, 329 Ga. App. at 704 (4) (a) (deeming arguments
abandoned by failure to provide citation to authority and/or meaningful argument as
contemplated by Court Rules); Patterson v. State, 327 Ga. App. 695, 698 (3) (761
SE2d 101) (2014) (deeming arguments of ineffective assistance abandoned when
alleged errors were not “supported with any further argument, citations to the record,
or legal authority”); Wynn v. State, 322 Ga. App. 66, 71 (4) (b) (744 SE2d 64) (2013)
(deeming portions of argument abandoned when they were “not supported by specific
citation or argument”); see also Stephen Louis A. Dillard, Open Chambers Revisited:
Demystifying the Inner Workings and Culture of the Georgia Court of Appeals, 68
MERCER L. REV. 1, 7 (II) (2016) (“The quickest way to sabotage your appeal is to fail
to substantiate legal arguments or key factual or procedural assertions.”).
18