☢ test - Í

court adopted the State's proposed order verbatim” is not “evidence that the trial court failed to exercise its discretion under OCGA §§ 5–5–20 and 5–5–21.” Nor is it a violation of due process unless process was fundamentally unfair, see note under PROCEDURE – EX PARTE COMMUNICATION, below. Accord, Conley v. State , 329 Ga.App. 96, 763 S.E.2d 881 (September 22, 2014) (“This Court will not presume the trial court committed error where that fact does not affirmatively appear.”); Leggett v. State , 331 Ga.App. 343, 771 S.E.2d 50 (March 19, 2015) (“While the order did not specifically state the standard of review, it also contained nothing to indicate the use of an incorrect standard or that the trial judge failed to exercise his discretion and weigh the evidence.”). State v. Harris, 292 Ga. 92, 734 S.E.2d 357 (November 19, 2012). Following convictions for murder and related offenses, no abuse of discretion in trial court’s grant of motion for new trial on general grounds. “It is certainly true that where, as in this case, the judge who hears the motion for a new trial is not the same judge as the one who presided over the original trial, the discretion of the successor judge is narrower in scope. Head v. CSX Transp., Inc., 271 Ga. 670, 672(2), 524 S.E.2d 215 (1999). Nevertheless, this Court is restricted to reversal of the grant of the new trial only if the successor judge abused his or her discretion. Id. at 672(3), 524 S.E.2d 215. It appears that prior to rendering the decision to grant Harris a new trial, the successor judge thoroughly reviewed the case, and presided over a full hearing in the matter. The judge made independent evaluations not only about Harris's involvement in the crimes but about the culpability of the co-defendants, and concluded, inter alia, that Harris got ‘caught up’ in the ‘neighborhood feud’ and was ‘just a peripheral figure.’” Accord, Wiggins v. State , 330 Ga.App. 205, 767 S.E.2d 798 (November 18, 2014). Nelson v. State, 317 Ga.App. 527, 731 S.E.2d 770 (August 30, 2012). In prosecution for vehicular homicide (second degree), trial court properly denied plea in bar based on double jeopardy. 1. “‘[T]he grant of a new trial by the trial court on the discretionary ground that the verdict is against the weight of the evidence is not a finding by the trial court that the evidence is legally insufficient so as to bar a second trial under the Double Jeopardy Clause of the Federal Constitution.’ (Punctuation omitted.),” quoting Ricketts v. Williams, 242 Ga. 303 (248 S.E.2d 673) (1978). 2. Evidence supported conviction for vehicular homicide where defendant, a pedestrian, attempted to cross a busy highway with her small child, at night, not at a crosswalk, resulting in the child being struck and killed by a car. Sallywhite v. State, 317 Ga.App. 415, 731 S.E.2d 98 (August 10, 2012). Simple battery conviction affirmed; Court of Appeals has no power to reverse conviction at bench trial on basis that the conviction was “against the weight of the evidence.” “The power to grant a new trial under OCGA § 5–5–21 rests with the trial court alone. See Celestin v. State, 296 Ga.App. 727(1), 675 S.E.2d 480 (2009).” Accord, Teele v. State , 319 Ga.App. 448, 738 S.E.2d 277 (December 14, 2012); Parham v. State , 320 Ga.App. 676, 739 S.E.2d 135 (March 22, 2013); Harris v. State , 322 Ga.App. 122, 744 S.E.2d 111 (June 4, 2013). Same as to Supreme Court, Smith v. State , 292 Ga. 316, 737 S.E.2d 677 (January 22, 2013); Walker v. State , 295 Ga. 688, 763 S.E.2d 704 (September 22, 2014); Slaton v. State , 296 Ga. 122, 765 S.E.2d 332 (November 3, 2014); Allen v. State , 296 Ga. 738, 770 S.E.2d 625 (March 16, 2015); Cotton v. State , 297 Ga. 257, 773 S.E.2d 242 (June 1, 2015); White v. State , 332 Ga.App. 495, 773 S.E.2d 448 (June 15, 2015). Tolbert v. State, 313 Ga.App. 46, 720 S.E.2d 244 (November 16, 2011). Armed robbery and related convictions affirmed; trial court didn’t apply incorrect standard of review on motion for new trial. “Tolbert contends that the trial court applied an improper standard of review when it denied his motion for new trial by noting in its order that ‘the credibility of the witnesses is for the jury to decide.’ [fn] However, the transcript for the motion-for-new-trial hearing shows that Tolbert argued that ‘the eye witnesses were not credible as a matter of law’ for a variety of reasons. To this argument, the trial judge responded that ‘witness credibility is a jury issue and is not gonna really be the basis for the grant of the Motion for New Trial, unless they were just way in left field,’ which the trial judge apparently did not believe was the case. Thus, contrary to Tolbert's argument, the judge's statements on the record establish that she did not apply an erroneous standard of review; she instead acknowledged that she would not usurp the jury's role as fact finder unless it was strongly against the weight of the evidence. [ fn]” Manuel v. State, 289 Ga. 383, 711 S.E.2d 676 (June 13, 2011). Defendant’s malice murder and firearms convictions reversed; trial court erred by failing to exercise its discretion on defendant’s motion for new trial challenging the weight of the evidence. “In its order denying the motion for new trial, the trial court stated that, “being constrained to the record, [it] is compelled to conclude that, based upon the evidence actually before it, the evidence presented at trial was sufficient to support the jury's verdict. Jackson v. Virginia, 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560] (1979).” However, trial courts have a discretion to grant new trials which is not granted to appellate courts. See Colzie v. State, 289 Ga. 120, 710 S.E.2d 115 (April 18, 2011). Therefore, the trial court, in its order on the motion for new trial, ‘failed to apply the proper standard in assessing the weight of the evidence as requested by [Manuel] in his motion for new trial.’