second prong test in Georgia

2018Smith , supra at 783, 325 S.E.2d 362 . " 'We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.' [Cit.]" Robinson v. State , 277 Ga. 75 , 76, 586 S.E.2d 313 (2003).

2018Smith , supra at 783, 325 S.E.2d 362 . " 'We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.' [Cit.]" Robinson v. State , 277 Ga. 75 , 76, 586 S.E.2d 313 (2003).

2021In its order denying Woods’ motion for new trial, the trial court pretermitted the question of whether counsel were constitutionally deficient, instead concluding only that Woods had failed to demonstrate prejudice and thus had failed to establish the second prong of the test under Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

2021In its order denying Woods’ motion for new trial, the trial court pretermitted the question of whether counsel were constitutionally deficient, instead concluding only that Woods had failed to demonstrate prejudice and thus had failed to establish the second prong of the test under Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

2015See Bradshaw, 296 Ga. at 656-57 (3) (analyzing only issues of intent and motive where 9 (b) In addressing the second prong of the test, we apply the balancing test under OCGA § 24-4-403, which provides that “[r]elevant evidence may be excluded if its 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.” The Eleventh Circuit previously has determined that “Rule 403 is an extraordinary remedy which should be used only spari

2015Because Silvey’s actions in committing the Janes burglary and pawning the Class Ring involved the same mental state as burglarizing a house to obtain gold jewelry to sell for cash, the evidence from the Janes burglary was relevant to establish intent. 8 See Bradshaw, 296 Ga. at 657 (3). *388 (b) In addressing the second prong of the test, we apply the balancing test under OCGA § 24-4-403, which provides that “[Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by consideratio

2013A court should evaluate the second prong of the test objectively; an individual is in custody if a reasonable person in the place of the defendant would feel so restrained as to equate to a formal arrest.” (Citations and punctuation omitted.) Tolliver v. State, 273 Ga. 785, 786 ( 546 SE2d 525 ) (2001). 7 “When an appellate court reviews a trial court’s grant or denial of a motion to suppress, the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review.” State v. Nash, 279 G

2013A court should evaluate the second prong of the test objectively; an individual is in custody if a reasonable person in the place of the defendant would feel so restrained as to equate to a formal arrest.” (Citations and punctuation omitted.) Tolliver v. State, 273 Ga. 785, 786 ( 546 SE2d 525 ) (2001). 7 “When an appellate court reviews a trial court’s grant or denial of a motion to suppress, the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review.” State v. Nash, 279 G

2026Under the Confrontation Clause of the Sixth Amendment to the United States Constitution, “[i]n all criminal prosecutions, the 55 accused shall enjoy the right … to be confronted with the witnesses against him.” The Confrontation Clause “bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had … a prior opportunity for cross-examination.” Davis v. Washington, 547 US 813, 821 (2006) (quotation marks omitted).

2026Under the Confrontation Clause of the Sixth Amendment to the United States Constitution, “[i]n all criminal prosecutions, the 55 accused shall enjoy the right … to be confronted with the witnesses against him.” The Confrontation Clause “bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had … a prior opportunity for cross-examination.” Davis v. Washington, 547 US 813, 821 (2006) (quotation marks omitted).

2024See, e.g., City of Erie, 529 U.S. at 289 (considering “the governmental purpose in enacting the regulation”); Goldrush II, 267 Ga. at 692 (considering “the stated purpose of the ordinance amendment”).36 2.

2024See, e.g., City of Erie, 529 U.S. at 289 (considering “the governmental purpose in enacting the regulation”); Goldrush II, 267 Ga. at 692 (considering “the stated purpose of the ordinance amendment”).36 2.

2024See, e.g., City of Erie, 529 U.S. at 289 (considering “the governmental purpose in enacting the regulation”); Goldrush II, 267 Ga. at 692 (considering “the stated purpose of the ordinance amendment”).36 2.

2024See, e.g., City of Erie, 529 U.S. at 289 (considering “the governmental purpose in enacting the regulation”); Goldrush II, 267 Ga. at 692 (considering “the stated purpose of the ordinance amendment”).36 2.

2018And, this determination is within the discretion of the trial court after “a common sense assessment of all the circumstances surrounding the extrinsic offense.” Bradshaw v. State, 296 Ga. 650, 657 (3) ( 769 SE2d 892 ) (2015), quoting United States v. Perez, 443 F3d 772, 780 (11th Cir. 2006).

2018And, this determination is within the discretion of the trial court after “a common sense assessment of all the circumstances surrounding the extrinsic offense.” Bradshaw v. State, 296 Ga. 650, 657 (3) ( 769 SE2d 892 ) (2015), quoting United States v. Perez, 443 F3d 772, 780 (11th Cir. 2006).

2018See Upton v. Hardeman , 291 Ga. 720 , 721, n. 4, 732 S.E.2d 425 (2012) (explaining that the second prong of the test supported asportation because the crimes occurred before and after the movement of the victim, but not during her movement); Williams v. State , 291 Ga. 501 , 503-504 (1) (b), 732 S.E.2d 47 (2012) ("The evidence, however, shows a demarcation between the aggravated battery offense ... and the movement of the victim.

2018See Upton v. Hardeman , 291 Ga. 720 , 721, n. 4, 732 S.E.2d 425 (2012) (explaining that the second prong of the test supported asportation because the crimes occurred before and after the movement of the victim, but not during her movement); Williams v. State , 291 Ga. 501 , 503-504 (1) (b), 732 S.E.2d 47 (2012) ("The evidence, however, shows a demarcation between the aggravated battery offense ... and the movement of the victim.

2015See Bradshaw, 296 Ga. at 656-57 (3) (analyzing only issues of intent and motive where 9 (b) In addressing the second prong of the test, we apply the balancing test under OCGA § 24-4-403, which provides that “[r]elevant evidence may be excluded if its 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.” The Eleventh Circuit previously has determined that “Rule 403 is an extraordinary remedy which should be used only spari

2015Because Silvey’s actions in committing the Janes burglary and pawning the Class Ring involved the same mental state as burglarizing a house to obtain gold jewelry to sell for cash, the evidence from the Janes burglary was relevant to establish intent. 8 See Bradshaw, 296 Ga. at 657 (3). *388 (b) In addressing the second prong of the test, we apply the balancing test under OCGA § 24-4-403, which provides that “[Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by consideratio

2013Wadley v. State, 258 Ga. 465, 466-467 (3) ( 369 SE2d 734 ) (1988).

2013Wadley v. State, 258 Ga. 465, 466-467 (3) ( 369 SE2d 734 ) (1988).

2013“The court need not consider the second prong of the test if the party seeking to withdraw admissions fails to establish the first prong, which is not perfunctorily satisfied.” (Citation and punctuation omitted.) Fox Run Properties v. Murray, 288 Ga. App. 568, 570 (1) ( 654 SE2d 676 ) (2007).

2013“The court need not consider the second prong of the test if the party seeking to withdraw admissions fails to establish the first prong, which is not perfunctorily satisfied.” (Citation and punctuation omitted.) Fox Run Properties v. Murray, 288 Ga. App. 568, 570 (1) ( 654 SE2d 676 ) (2007).

2011See also Paxton, 307 Ga. App. at 120 (2). (c) Our final step in the application of the three-part test is to “determine whether the exercise of jurisdiction by a Georgia court... in this case comports with ‘traditional notions of fairness and substantial justice.’ Aero Toy Store, [LLC v. Grieves, 279 Ga. App. 515, 518 (1) ( 631 SE2d 734 ) (2006)].” Paxton, 307 Ga. App. at 120 (3).

2011See also Paxton, 307 Ga. App. at 120 (2). (c) Our final step in the application of the three-part test is to “determine whether the exercise of jurisdiction by a Georgia court... in this case comports with ‘traditional notions of fairness and substantial justice.’ Aero Toy Store, [LLC v. Grieves, 279 Ga. App. 515, 518 (1) ( 631 SE2d 734 ) (2006)].” Paxton, 307 Ga. App. at 120 (3).

1994The second prong of this test considers: “(1) the opportunity of the victims to view the perpetrator at the time of the crime; (2) the victims’ degree of attention; (3) the accuracy of their prior descriptions of the perpetrator; (4) the level of certainty of their identifications; and (5) the length of time between the crime and the confrontation.” Banks v. State, 203 Ga. App. 355, 356 ( 416 SE2d 866 ) (1992).

1994The second prong of this test considers: “(1) the opportunity of the victims to view the perpetrator at the time of the crime; (2) the victims’ degree of attention; (3) the accuracy of their prior descriptions of the perpetrator; (4) the level of certainty of their identifications; and (5) the length of time between the crime and the confrontation.” Banks v. State, 203 Ga. App. 355, 356 ( 416 SE2d 866 ) (1992).

1993Applying the factors set forth in Neil v. Biggers, 409 U. S. 188, 199-200 (93 SC 375, 34 LE2d 401) (1972), we find that the showup took place within hours of the crimes, and that the witnesses’ opportunity, degree of attention, accuracy of description, and certainty were excellent.

1992Only if the identification procedure was suggestive need the trial court address the second prong of the test set out in Neil v. Biggers, 409 U. S. 188, 196, 201 (93 SC 375, 34 LE2d 401), that is, whether there was a substantial likelihood of irreparable misidentification.

2018See Upton v. Hardeman , 291 Ga. 720 , 721, n. 4, 732 S.E.2d 425 (2012) (explaining that the second prong of the test supported asportation because the crimes occurred before and after the movement of the victim, but not during her movement); Williams v. State , 291 Ga. 501 , 503-504 (1) (b), 732 S.E.2d 47 (2012) ("The evidence, however, shows a demarcation between the aggravated battery offense ... and the movement of the victim.

2018See Upton v. Hardeman , 291 Ga. 720 , 721, n. 4, 732 S.E.2d 425 (2012) (explaining that the second prong of the test supported asportation because the crimes occurred before and after the movement of the victim, but not during her movement); Williams v. State , 291 Ga. 501 , 503-504 (1) (b), 732 S.E.2d 47 (2012) ("The evidence, however, shows a demarcation between the aggravated battery offense ... and the movement of the victim.

2026Mariner Health Care, 306 Ga. App. at 875 (1). (a) With respect to the second prong of the test — that the parties intended to provide for damages rather than a penalty — the record reveals no genuine issue that the parties intended the 36-month formula in Paragraph 12.E. to serve as damages for premature termination of the 20-year license and not a penalty.

2025See generally Dora-Clayton Agency v. Forjay Broadcasting Corp., 193 Ga. App. 340, 341-342 (2) ( 387 SE2d 617 ) (1989) (Under the second prong of the test, the cause of action must arise from the transaction of business in this state). (b) TRS also relies on OCGA § 9-10-91 (3), which provides that a Georgia court may exercise personal jurisdiction over any nonresident as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner 9 as if he or she were a resident of this state, if in person or through an agent,

2025See generally Dora-Clayton Agency v. Forjay Broadcasting Corp., 193 Ga. App. 340, 341-342 (2) ( 387 SE2d 617 ) (1989) (Under the second prong of the test, the cause of action must arise from the transaction of business in this state). (b) TRS also relies on OCGA § 9-10-91 (3), which provides that a Georgia court may exercise personal jurisdiction over any nonresident as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner 9 as if he or she were a resident of this state, if in person or through an agent,

2024To meet the second prong of the test in the guilty plea context, [Appellant] must demonstrate that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. 3 (Citations and punctuation omitted.) Nelson v. Wilkey, 309 Ga. 203, 207-208 (2) ( 845 SE2d 566 ) (2020).

2024To meet the second prong of the test in the guilty plea context, [Appellant] must demonstrate that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. 3 (Citations and punctuation omitted.) Nelson v. Wilkey, 309 Ga. 203, 207-208 (2) ( 845 SE2d 566 ) (2020).

2022“This Court accepts a trial court’s factual findings and credibility determinations on an ineffectiveness claim unless they are clearly erroneous, but we apply legal principles to the facts de novo.” Powell v. State, 309 Ga. 523, 526-527 (2) (847 SE2d 338) (2020).

2022“This Court accepts a trial court’s factual findings and credibility determinations on an ineffectiveness claim unless they are clearly erroneous, but we apply legal principles to the facts de novo.” Powell v. State, 309 Ga. 523, 526-527 (2) (847 SE2d 338) (2020).

2020Berni v. Cousins Properties, Inc., 316 Ga. App. 502, 504-505 ( 729 SE2d 617 ) (2012) (citations, punctuation, and footnotes omitted).

2020Berni v. Cousins Properties, Inc., 316 Ga. App. 502, 504-505 ( 729 SE2d 617 ) (2012) (citations, punctuation, and footnotes omitted).

2020“Because a plaintiff cannot recover in a premises liability suit unless the defendant had superior knowledge of the hazard, the defendant is entitled to summary judgment if there is no evidence that it had superior knowledge or the undisputed evidence demonstrates that the plaintiff’s knowledge of the hazard was equal to or greater than that of the defendant.” Norman v. Jones Lang Lasalle Americas, Inc., 277 Ga. App. 621, 624 ( 627 SE2d 382 ) (2006).

2020“Because a plaintiff cannot recover in a premises liability suit unless the defendant had superior knowledge of the hazard, the defendant is entitled to summary judgment if there is no evidence that it had superior knowledge or the undisputed evidence demonstrates that the plaintiff’s knowledge of the hazard was equal to or greater than that of the defendant.” Norman v. Jones Lang Lasalle Americas, Inc., 277 Ga. App. 621, 624 ( 627 SE2d 382 ) (2006).