FIFTH DIVISION MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
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
January 15, 2019
In the Court of Appeals of Georgia A18A1478. BELL v. THE STATE.
RICKMAN, Judge.
Following a bench trial, Fabian Bell was convicted on one count of financial
transaction card theft. He filed a motion for new trial, which the trial court denied.
Bell argues that the trial court erred in denying his motion because there was a fatal
variance between the allegation and the evidence adduced at trial, and also erred in
denying him the opportunity him to cross-examine trial counsel at the hearing on the
new trial motion. We find no error and affirm.
On appeal from a bench trial resulting in a criminal conviction, we view all evidence in the light most favorable to the trial court’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence; our role is to determine whether the evidence presented is sufficient for a rational trier of fact to find guilt beyond a reasonable doubt.
(Citation and punctuation omitted.) Bray v. State, 330 Ga. App. 768, 771 (768 SE2d
285) (2015).
So construed, the evidence adduced at the bench trial showed that on the
evening in question, the victim entered a take-out pizza restaurant holding her debit
card and car keys. After waiting in line at the counter for about two to three minutes,
she noticed that she no longer held her debit card. The victim retraced her steps
between her car and the restaurant while looking to see if she had dropped it along
the way.
Bell had been waiting near the counter when the victim arrived and exited the
restaurant immediately before the victim noticed that she was missing her debit card.
After speaking to another patron who witnessed the events, the victim confronted Bell
in the parking lot. She informed Bell that the other patron reported seeing him pick
up her dropped debit card and asked if he had done so. Bell emphatically–and
aggressively–denied having taken the card before driving out of the parking lot. The
victim recorded his license plate number and went to the police station to file a report.
2 The detective assigned to the case subsequently retrieved and reviewed the
surveillance video from the interior of the restaurant. The video, which was played
for the trial court, showed the victim enter into the restaurant and then showed Bell
bend down and retrieve something from the ground near where the victim had been
standing. Bell could then be seen exiting the restaurant and handing the item to his
wife, who was standing immediately outside the door. The detective testified that the
victim’s debit card was used at a nearby gas station shortly thereafter.
Bell testified in his own defense and admitted that he picked up a bank card
from the restaurant floor and gave it to his wife. He maintained, however, that the
card belonged to and had been dropped by his wife, a claim which she echoed.
After hearing the evidence, the trial court convicted Bell. In the motion for new
trial, Bell asserted that the evidence was insufficient to support his conviction
because the debit card at issue was not taken from the victim’s possession. He made
no claim for ineffective assistance of trial counsel. Nevertheless, at the motion for
new trial hearing, Bell’s appellate counsel called to the stand Bell’s trial counsel and
began to question him about trial strategy. After the State objected on relevance
grounds, Bell’s appellate counsel indicated that he was questioning trial counsel for
the purpose of determining whether to raise an ineffective assistance claim. The trial
3 court sustained the State’s objection and ultimately denied the motion. This appeal
follows.
1. Bell contends that the trial court erred in denying his motion for new trial
because there was a fatal variance between the allegation and the evidence adduced
at trial. Specifically, he argues that the State alleged he committed the offense of
financial transaction card theft in that he “unlawfully obtain[ed] [the debit card] . . .
issued to [the victim] . . . from whose control the card was obtained . . .,” and yet the
evidence showed only that he obtained “mislaid” property no longer in the victim’s
control. Bell’s assertion completely lacks merit.
In Georgia, a person commits the crime of financial transaction card theft when
he or she “takes, obtains, or withholds a financial transaction card from the person,
possession, custody, or control of another without the cardholder’s consent[.]” OCGA
§ 16-9-31 (a) (1). A cardholder on any given account “[has] the authority to exercise
dominion and control over [a debit] card that had been issued in his [or her] name.”
Amaechi v. State, 306 Ga. App. 333, 337 (2) (a) (702 SE2d 680) (2010). Thus,
although Bell did not take the debit card until the victim inadvertently dropped it on
the ground, he nevertheless took it from her “control,” as she was the named
cardholder. See id. (“A person who, though not in actual possession, knowingly has
4 both the power and the intention at a given time to exercise dominion or control over
a thing is then in constructive possession of it.”) (citation and punctuation omitted);
see also OCGA § 44-1-7. It follows that there was no variance between the allegation
in the accusation and the evidence presented at trial, and the trial court did not err in
denying Bell a new trial on this ground. See Amaechi, 306 Ga. App. at 337 (2) (a).
2. Bell further contends that the trial court erred in “denying [him] the ability
to cross-examine his trial counsel at the motion for new trial hearing[,] requiring a
remand as to the ineffective assistance of counsel claim.” But Bell did not identify
any error that his trial counsel may have committed, either prior to or during the
motion for new trial hearing. Rather, as he admitted during the hearing, appellate
counsel attempted to question trial counsel for the purpose of determining whether
to raise an ineffective claim, not to elicit testimony from trial counsel that could be
used in the development of an identified allegation of deficient performance. It
follows that Bell’s claim for ineffective assistance of trial counsel was waived. See
Pye v. State, 274 Ga. 839, 839-840 (1) (561 SE2d 109) (2002).
Further, although Bell’s appellate brief makes a scant reference to certain
claims he may wish he had raised in the trial court, that does not change the fact he
did not do so. Instead, Bell asks this Court to remand this case so that he may “more
5 fully develop the record below.” But “[t]he purpose of a remand in this circumstance
is to allow the trial court to consider an appellant’s claim of ineffective counsel; it is
not to allow appellate counsel to engage in a fishing expedition in the hopes of
developing a possible claim of ineffectiveness that has never been asserted.” Dubose
v. State, 298 Ga. App. 335, 336 (2) (680 SE2d 193) (2009). A remand, therefore, is
not warranted. See id.
Judgment affirmed. Markle, J., concurs and McFadden, P. J., concurs in
Free access — add to your briefcase to read the full text and ask questions with AI
FIFTH DIVISION MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
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
January 15, 2019
In the Court of Appeals of Georgia A18A1478. BELL v. THE STATE.
RICKMAN, Judge.
Following a bench trial, Fabian Bell was convicted on one count of financial
transaction card theft. He filed a motion for new trial, which the trial court denied.
Bell argues that the trial court erred in denying his motion because there was a fatal
variance between the allegation and the evidence adduced at trial, and also erred in
denying him the opportunity him to cross-examine trial counsel at the hearing on the
new trial motion. We find no error and affirm.
On appeal from a bench trial resulting in a criminal conviction, we view all evidence in the light most favorable to the trial court’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence; our role is to determine whether the evidence presented is sufficient for a rational trier of fact to find guilt beyond a reasonable doubt.
(Citation and punctuation omitted.) Bray v. State, 330 Ga. App. 768, 771 (768 SE2d
285) (2015).
So construed, the evidence adduced at the bench trial showed that on the
evening in question, the victim entered a take-out pizza restaurant holding her debit
card and car keys. After waiting in line at the counter for about two to three minutes,
she noticed that she no longer held her debit card. The victim retraced her steps
between her car and the restaurant while looking to see if she had dropped it along
the way.
Bell had been waiting near the counter when the victim arrived and exited the
restaurant immediately before the victim noticed that she was missing her debit card.
After speaking to another patron who witnessed the events, the victim confronted Bell
in the parking lot. She informed Bell that the other patron reported seeing him pick
up her dropped debit card and asked if he had done so. Bell emphatically–and
aggressively–denied having taken the card before driving out of the parking lot. The
victim recorded his license plate number and went to the police station to file a report.
2 The detective assigned to the case subsequently retrieved and reviewed the
surveillance video from the interior of the restaurant. The video, which was played
for the trial court, showed the victim enter into the restaurant and then showed Bell
bend down and retrieve something from the ground near where the victim had been
standing. Bell could then be seen exiting the restaurant and handing the item to his
wife, who was standing immediately outside the door. The detective testified that the
victim’s debit card was used at a nearby gas station shortly thereafter.
Bell testified in his own defense and admitted that he picked up a bank card
from the restaurant floor and gave it to his wife. He maintained, however, that the
card belonged to and had been dropped by his wife, a claim which she echoed.
After hearing the evidence, the trial court convicted Bell. In the motion for new
trial, Bell asserted that the evidence was insufficient to support his conviction
because the debit card at issue was not taken from the victim’s possession. He made
no claim for ineffective assistance of trial counsel. Nevertheless, at the motion for
new trial hearing, Bell’s appellate counsel called to the stand Bell’s trial counsel and
began to question him about trial strategy. After the State objected on relevance
grounds, Bell’s appellate counsel indicated that he was questioning trial counsel for
the purpose of determining whether to raise an ineffective assistance claim. The trial
3 court sustained the State’s objection and ultimately denied the motion. This appeal
follows.
1. Bell contends that the trial court erred in denying his motion for new trial
because there was a fatal variance between the allegation and the evidence adduced
at trial. Specifically, he argues that the State alleged he committed the offense of
financial transaction card theft in that he “unlawfully obtain[ed] [the debit card] . . .
issued to [the victim] . . . from whose control the card was obtained . . .,” and yet the
evidence showed only that he obtained “mislaid” property no longer in the victim’s
control. Bell’s assertion completely lacks merit.
In Georgia, a person commits the crime of financial transaction card theft when
he or she “takes, obtains, or withholds a financial transaction card from the person,
possession, custody, or control of another without the cardholder’s consent[.]” OCGA
§ 16-9-31 (a) (1). A cardholder on any given account “[has] the authority to exercise
dominion and control over [a debit] card that had been issued in his [or her] name.”
Amaechi v. State, 306 Ga. App. 333, 337 (2) (a) (702 SE2d 680) (2010). Thus,
although Bell did not take the debit card until the victim inadvertently dropped it on
the ground, he nevertheless took it from her “control,” as she was the named
cardholder. See id. (“A person who, though not in actual possession, knowingly has
4 both the power and the intention at a given time to exercise dominion or control over
a thing is then in constructive possession of it.”) (citation and punctuation omitted);
see also OCGA § 44-1-7. It follows that there was no variance between the allegation
in the accusation and the evidence presented at trial, and the trial court did not err in
denying Bell a new trial on this ground. See Amaechi, 306 Ga. App. at 337 (2) (a).
2. Bell further contends that the trial court erred in “denying [him] the ability
to cross-examine his trial counsel at the motion for new trial hearing[,] requiring a
remand as to the ineffective assistance of counsel claim.” But Bell did not identify
any error that his trial counsel may have committed, either prior to or during the
motion for new trial hearing. Rather, as he admitted during the hearing, appellate
counsel attempted to question trial counsel for the purpose of determining whether
to raise an ineffective claim, not to elicit testimony from trial counsel that could be
used in the development of an identified allegation of deficient performance. It
follows that Bell’s claim for ineffective assistance of trial counsel was waived. See
Pye v. State, 274 Ga. 839, 839-840 (1) (561 SE2d 109) (2002).
Further, although Bell’s appellate brief makes a scant reference to certain
claims he may wish he had raised in the trial court, that does not change the fact he
did not do so. Instead, Bell asks this Court to remand this case so that he may “more
5 fully develop the record below.” But “[t]he purpose of a remand in this circumstance
is to allow the trial court to consider an appellant’s claim of ineffective counsel; it is
not to allow appellate counsel to engage in a fishing expedition in the hopes of
developing a possible claim of ineffectiveness that has never been asserted.” Dubose
v. State, 298 Ga. App. 335, 336 (2) (680 SE2d 193) (2009). A remand, therefore, is
not warranted. See id.
Judgment affirmed. Markle, J., concurs and McFadden, P. J., concurs in
Division 1, and dissents in Division 2.*
*DIVISION 2 OF THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS RULE 33.2(a). In the Court of Appeals of Georgia
A18A1478. BELL v. THE STATE.
MCFADDEN, Presiding Judge, concurring in part and dissenting in part.
I concur with the majority’s conclusion in Division 1 that Bell is not entitled
to a new trial based on his fatal variance argument. But I respectfully dissent to
Division 2 of the majority opinion, because the trial court erred in prohibiting Bell’s
post-conviction counsel from questioning his trial counsel on the issue of trial
counsel’s effectiveness and the case should be remanded to allow Bell to continue
pursuing that issue.
2 At the hearing on Bell’s motion for new trial, his post-conviction counsel
sought to question Bell’s trial counsel on his trial strategy. The state objected on the
ground that this line of questioning was irrelevant to the arguments asserted in the
motion for new trial. Neither Bell’s initial nor his amended motion for new trial
asserted a claim for ineffective assistance of trial counsel. But Bell’s post-conviction
counsel, who had filed both motions on Bell’s behalf, argued in response to the state’s
objection that, under OCGA § 5-5-40, he could amend the motion for new trial to add
a claim for ineffectiveness. He stated that he had not yet done so because he did not
know whether trial counsel’s testimony would support such a claim. The trial court
sustained the state’s objection. Bell argues that this ruling was error, and I agree.
“The Georgia Code is clear that a motion for new trial may be amended any
time before the ruling thereon. OCGA § 5-5-40 (b).” Swint v. State, 279 Ga. App.
777, 778 (1) (632 SE2d 712) (2006). Such amendment can occur “in the hearing” of
a motion for new trial. Swint, supra at 779 (1). So Bell was entitled to amend his
motion for new trial at the hearing on that motion to add a claim for ineffective
assistance of counsel. And questions about trial counsel’s strategy were clearly
relevant to such a claim. The trial court erred in foreclosing this line of questioning
and implicitly rejecting Bell’s effort to amend his motion for new trial. Cf. Lee v.
3 State, 308 Ga. App. 711, 716 (3) (708 SE2d 633) (2011) (where defendant was
authorized to amend motion for new trial under OCGA § 5-5-40 (b), trial court erred
in refusing to consider claims raised in amendment).
The majority rejects Bell’s argument that the case should be remanded, on the
ground that Bell did not raise in the trial court any error that his trial counsel may
have committed. But this case presents a different posture than most. It is not a case
where a defendant failed to raise the issue of ineffective assistance of counsel until
appeal. Unlike the defendants in Pye v. State, 274 Ga. 839 (561 SE2d 109) (2002),
and Dubose v. State, 298 Ga. App. 335 (680 SE2d 193) (2009), Bell broached the
issue of ineffective assistance of trial counsel to the trial court at a time when he was
still authorized to amend his motion for new trial to include that claim. Because the
trial court did not allow his post-conviction counsel to explore the issue at that time,
the ruling on the motion for new trial should be vacated and the case should be
remanded to allow him to do so. See Lee, 308 Ga. App. at 716 (3).