                                  FIFTH DIVISION
                                 MCFADDEN, P. J.,
                              BRANCH and BETHEL, 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


                                                                       March 14, 2018




In the Court of Appeals of Georgia
 A17A1773. THE STATE v. ARLINE.

      MCFADDEN, Presiding Judge

      After a jury found Ronald Arline guilty of aggravated child molestation, rape,

and child molestation, the trial court granted his motion for new trial on the general

grounds. The state appeals, arguing that the trial court applied the wrong standard in

granting the motion and that, in granting it, the trial court showed bias against the

state. We affirm. 1

      The trial court found dispositive the alleged victim’s revelation to prosecutors

— on the seventh day of trial, after the state had rested — that, contrary to what she


      1
       We have circulated this decision among all nondisqualified judges of the Court
to consider whether this case should be passed upon by all members of the Court.
Fewer than the required number of judges, however, voted in favor of considering the
case en banc.
had said up to that moment, she had been sexually active with an adult male other

than Arline during the period of time alleged in the indictment. This revelation, the

trial court explained in a detailed and thoughtful order, presented defense counsel

with a “strategic dilemma”: if he called the victim to the stand, he would have “no

guarantee of what she might say.” The defense did not call her, and the jury never

learned of the belated disclosure.

      1. General grounds.

      The authority of trial courts to grant new trials on the general grounds was part

of the deposit of English common law upon which Georgia law was founded, Graddy

v. Hightower, 1 Ga. 252, 254 (1846), was recognized in the Judiciary Act of 1799,

Morgan v. Morgan, 15 Ga. 288, 289 (1854), and was codified in the first Georgia

Code. Code 1863, §§ 3637, 3641. The current versions of those provisions is as

follows. “In any case when the verdict of a jury is found contrary to evidence and the

principles of justice and equity, the judge presiding may grant a new trial before

another jury.” OCGA § 5-5-20. “The presiding judge may exercise a sound discretion

in granting or refusing new trials in cases where the verdict may be decidedly and

strongly against the weight of the evidence even though there may appear to be some

slight evidence in favor of the finding.” OCGA § 5-5-21.

                                          2
      Applying the general grounds here, the trial court noted that there were

substantial conflicts in the evidence, including variations among the allegations the

alleged victim had brought forward and her alleged recantations of those allegations.

But he noted also that those conflicts had been thoroughly and competently aired at

trial. Consequently, he held, the evidence was not only “legally sufficient,” see

Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), but also “not

contrary to the evidence presented at trial” and “not decidedly and strongly against

the weight of the evidence.”

      What concerned the trial court was the evidence the jury did not hear. The trial

court noted that the district attorney’s initial reaction to the alleged victim’s untimely

revelation was to “verbally contemplate[] terminating the prosecution.” And the order

explains in detail how important that testimony would have been. “Accordingly the

[trial] court exercise[d] its discretion on the sole ground of ‘principles of justice and

equity’ (OCGA § 5-5-20), [and] grant[ed] a new trial to defendant Arline.”

      The state argues that the trial court misconstrued OCGA § 5-5-20, that the

statute has two required elements. According to the state, a trial court may not grant

a new trial under that provision unless “the verdict of a jury is found contrary to

evidence and the principles of justice and equity.” In other words, the state would

                                            3
have us hold, because the trial court found the verdict not contrary to the evidence

that the jury did hear, he was without power to remedy a violation of the principles

of justice and equity. The trial court was without power, the state argues, because that

injustice and inequity was wrought by the alleged victim’s failure to timely disclose

vital evidence the jury consequently did not hear.

      We are not persuaded. The state has cited no authority for the proposition that

a trial judge considering the general grounds must disregard matters heard by the

court but not by the jury. On the contrary, as our Supreme Court has explained:

      Even when the evidence is legally sufficient to sustain a conviction, a
      trial judge may grant a new trial if the verdict of the jury is “contrary to
      the principles of justice and equity,” OCGA § 5-5-20, or if the verdict
      is “decidedly and strongly against the weight of the evidence.” OCGA
      § 5-5-21. When properly raised in a timely motion, these grounds for a
      new trial – commonly known as the “general grounds” – require the trial
      judge to exercise a “broad discretion to sit as a ‘thirteenth juror.’” In
      exercising that discretion, the trial judge must consider some of the
      things that he cannot when assessing the legal sufficiency of the
      evidence, including any conflicts in the evidence, the credibility of
      witnesses, and the weight of the evidence.

Hornbuckle v. State, 300 Ga. 750, 755 (5) (797 SE2d 113) (2017) (citation,

punctuation, and emphasis omitted). “Our sovereign, the law, has in effect said to the

trial judge: We charge you to let no verdict stand unless your conscience approves it,

although there may be some slight evidence to support it.” Walker v. State, 292 Ga.

                                           4
262, 264 (2) (737 SE2d 311) (2013) (citation and punctuation omitted). Thus,

contrary to the state’s argument, “the fact that the evidence [was] legally sufficient

to sustain [the] convictions [did] not prohibit the trial court from exercising its

discretion to grant a new trial on the general grounds [that the verdict was contrary

to the principles of justice and equity].” State v. Byrd, 341 Ga. App. 421, 424 (2) (801

SE2d 99) (2017) (citation omitted).

            Although the discretion of a trial judge to award a new trial on the
      general grounds is not boundless – it is, after all, a discretion that should
      be exercised with caution and invoked only in exceptional cases in
      which the evidence preponderates heavily against the verdict – it
      nevertheless is, generally speaking, a substantial discretion. An appellate
      court will not disturb the first grant of a new trial based on the general
      grounds unless the trial court abused its discretion in granting it and the
      law and the facts demand the verdict rendered.

State v. Hamilton, 299 Ga. 667, 670-671 (2) (791 SE2d 51) (2016) (citations and

punctuation omitted). Here, because the trial court did not abuse its discretion and the

law and facts did not demand the verdict rendered, we will not disturb the trial court’s

ruling.

      2. Judicial bias.

      In its second enumeration of error, the state contends that by granting the

motion for new trial, the state “reveal[ed] such a high degree of favoritism and


                                           5
antagonism by the trial court as to make a fair judgment impossible.” The state takes

that language from a decision of the United States Supreme Court. Liteky v. United

States, 510 U. S. 540, 555 (II), (114 SCt 1147, 127 LE2d 474) (1994). The issue in

Liteky was disqualification.

      According to the state, the trial court’s order

      exposes a hostility toward the verdict of the jury, not founded in fact, the
      evidence or the law, and subjects the victim to yet another episode
      involving the matter of this crime perpetrated upon her by the Appellee.
      Appellant suggests that this verdict is an affront to the victim’s sense of
      justice and equity, and reveals a high degree of favoritism and
      antagonism by the trial court as to make a fair judgment impossible. A
      duly appointed jury rendered a lawful verdict upon determining the facts
      in this matter based on the evidence. The law was applied and justice
      was served. To now nullify that decision without a finding of the verdict
      being contrary to the evidence or fully applying the elements of OCGA
      § 5-5-20, which the trial court cited, reflects a high degree of favoritism
      toward Appellee and antagonism toward Appellant.


      The state’s argument is without merit. As explained in the very case cited by

the state, “judicial rulings alone almost never constitute a valid basis for a bias or

partiality motion. [Cit.]” Liteky, supra. The state “has shown no actual bias . . . to

support [its] claim[.]” Barnett v. State, 300 Ga. 551, 556 (2) (796 SE2d 653) (2017)


                                           6
(citing Liteky for proposition that judicial rulings alone will almost never support a

claim of bias).

      Moreover, contrary to the state’s argument, the granting of a motion for new

trial on the general grounds is not an usurpation of the jury’s role, but is a duty

imposed upon a trial judge faced with a meritorious motion for new trial on the

general grounds. As noted above, our law charges trial judges “to let no verdict stand

unless your conscience approves it.” Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d

311) (2013). Indeed, when a record shows that a trial court has denied a motion for

new trial without discharging its duty to exercise its discretion and weigh the

evidence, that denial will be vacated on appeal. See Atkins v. State, 342 Ga. App. 849,

(805 SE2d 612) (2017).

      And even more fundamentally, a trial court’s performance of its duty to sit as

a thirteenth juror and weigh the evidence is not, as the state suggests, an “affront to

the victim’s sense of justice and equity.” Judges are required to decide difficult

questions that evoke strong feelings.

      While counsel, no less than parties and other interested persons, may be

disappointed in a ruling, our standards of professionalism mandate courtesy and

formality. In particular Court of Appeals Rule 10 provides, “Personal remarks that are

                                          7
discourteous or disparaging to any judge, opposing counsel, or any court, whether

oral or written, are strictly forbidden.” We abstain, in an exercise of our discretion,

from deciding whether the state should be sanctioned for violating that rule.

      Judgment affirmed. Bethel, J., concurs specially. Branch, J., concurs specially

and in the judgment only.*

      *THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF

APPEALS RULE 33.2.




                                          8
 A17A1773. THE STATE v. ARLINE.

      BRANCH, Judge, concurring specially.

      The Supreme Court of Georgia has recently explained that “[a]n appellate court

will not disturb the first grant of a new trial based on the general grounds,” including

OCGA § 5-5-201 (under which this trial court granted Arline a new trial), “unless the

trial court abused its discretion in granting it and the law and the facts demand the

verdict rendered.” State v. Hamilton, 299 Ga. 667, 670-671 (2) (791 SE2d 51) (2016);

see also OCGA § 5-5-50 (“The first grant of a new trial shall not be disturbed by an

appellate court unless the appellant shows that the judge abused his discretion in

granting it and that the law and facts require the verdict notwithstanding the judgment

of the presiding judge.”). Although the discretion to award a new trial on the general

grounds “is not boundless,” “should be exercised with caution,” and should be

“invoked only in exceptional cases in which the evidence preponderates heavily

against the verdict,” it is “nevertheless . . . a substantial discretion.” Hamilton, 299



      1
        OCGA § 5-5-20 provides that “[i]n any case when the verdict of a jury is
found contrary to evidence and the principles of justice and equity, the judge
presiding may grant a new trial before another jury.”
Ga. at 670-671 (2) (punctuation and citation omitted) (affirming trial court’s grant of

a new trial when the appellate court could not say that the decision was “an abuse of

the trial court’s discretion to act as the ‘thirteenth juror’ in the case”).

       In this case, the trial court explained that after its review of the trial transcript,

it concluded that the jury’s guilty verdict was “contrary to the principles of justice and

equity” and therefore exercised its discretion to grant a new trial. Having reviewed

the record, I cannot say that the trial court abused its substantial discretion to act as

the thirteenth juror when it granted a new trial. I therefore concur, but I do so only in

the judgment because although I agree with the result reached by the majority, I do

not agree with all that is said in its opinion. See Court of Appeals Rule 33.2 (a) (1)

(an opinion is “physical precedent only . . . with respect to any portion of the

published opinion in which any of the panel judges concur in the judgment only”).




                                             2
 A17A1773. THE STATE v. ARLINE.

      BETHEL, Judge, concurring specially.

      I concur in the opinion that the trial court did not abuse its broad discretion in

granting Arline’s motion for new trial on general grounds and that the grant of a new

trial was not infected with any judicial bias that calls into question the legality of the

ruling. I write separately for two reasons. First, while I find myself in agreement as

to the claim of improper bias, I am not fully aligned with the analysis of that issue.

Second, I wish to highlight a point in the general grounds analysis. I do not believe

the trial court is bound to analyze only the evidence the jury heard in performing an

analysis under OCGA § 5-5-20. Rather, I believe the trial court is empowered by

OCGA § 5-5-20 to consider all evidence available to the court in the interest of

avoiding rendering a judgment on a verdict that is inconsistent with the principles of

justice and equity.
