author: RAY, Judge.

text:
    A14A0527.
    THE STATE v. CRISWELL.
    (759 SE2d 255)
   RAY, Judge.

Cristopher Criswell was charged with driving under the influence of alcohol, less safe (OCGA § 40-6-391 (a) (1)). He moved to suppress the evidence regarding statements he made to police officers and evidence related to the administration or refusal of any field sobriety tests or State-administered chemical breath tests. After a hearing, the trial court granted his motion in part. The trial court found that the testimony of an officer, as to his observation of certain signs of impairment while he was standing 12 to 15 feet away from Criswell, was not credible. The trial court additionally found that observations the officer made while in closer contact with Criswell had to be suppressed because the officer’s entry onto Criswell’s driveway amounted to an illegal second-tier encounter for which the officer lacked reasonable, articulable suspicion. Finally, the trial court found that the officer lacked probable cause to arrest Criswell. The State filed this appeal arguing, inter alia, that the officer’s entry onto Criswell’s property was legal and that the trial court’s other determinations resulting from that initial error must be overturned. We agree.

In reviewing the grant or denial of a motion to suppress, we construe the evidence in a light most favorable to upholding the trial court’s findings and judgment. When the trial court’s findings are based upon conflicting evidence, we will not disturb the lower court’s ruling if there is any evidence to support its findings, and we accept that court’s credibility assessments unless clearly erroneous.

(Footnote omitted.) McCormack v. State, 325 Ga. App. 183, 184 (1) (751 SE2d 904) (2013). However, “[w]here, as here, [an] issue turns on the question of whether a trial court committed an error of law in granting a motion to suppress, we apply a de novo standard of review. The appellate court owes no deference to the trial court’s conclusions of law.” (Punctuation and footnotes omitted.) State v. Gauthier, 326 Ga. App. 473, 474 (756 SE2d 705) (2014).

The evidence, which included a police video of the incident that was played for the trial court, shows that at about 1:43 a.m. on January 26, 2013, Officer Stephen Cohen of the Holly Springs Police Department was dispatched to a residential address after a person there called police to say that a vehicle was blocking her driveway. Police found Matthew Jenkins passed out behind the wheel. After rousing Jenkins, officers began questioning him. Officers could smell alcohol, and Jenkins appeared inebriated and admitted he had been drinking. Jenkins stated that he was staying with someone in the house next to the residence whose driveway he was blocking.

While officers were questioning Jenkins, another vehicle came down the street and parked in the driveway of the home where Jenkins told officers he was staying. Another officer who was accompanying Cohen, Sergeant Cullen LaFrance of the Holly Springs Police Department, walked over to talk with the driver of the other vehicle. That driver was Criswell.

LaFrance testified that he wanted to talk to Criswell to determine whether Jenkins actually belonged in the neighborhood and to verify Jenkins’ story as to why he was there. LaFrance made his initial contact with Criswell when he was standing 12 to 15 feet away from him. Their initial contact was consensual. LaFrance then walked up the driveway toward Criswell. LaFrance testified that “[a]s I was walking up his driveway, he was exiting his vehicle and I could tell he was unsteady on his feet as he got out of the car and had to use the door for balance as he closed it.... He walked to the back bumper of his car.” LaFrance stated that at this point, he was standing “maybe 15 feet in [Criswell’s] driveway[,]” (emphasis supplied), and that he then walked to the rear bumper of Criswell’s car, where the two engaged in conversation. The undisputed testimony shows that Criswell walked toward the officer, not away from him. LaFrance observed that Criswell’s “speech was slurred. He had red, bloodshot, watery eyes and he had the strong odor of alcoholic beverage on his breath and person.” LaFrance testified that he and Criswell then

walked ... to the end of the driveway ... so [Criswell] could identify Mr. Jenkins [.] ... So from the time that I observed where he was, he gets out of the car. I made observations; he walks to the rear of his bumper. I asked if he knew [Jenkins]. He asked who it was. I asked if he recognized the truck. We had a conversation about that for a minute.

On the police video, LaFrance can be heard asking Criswell how much alcohol he has had to drink. Criswell denied drinking. Although the police video provides an audible record of the conversation between LaFrance and Criswell, they are not visible on most of the video because Jenkins’ truck blocks the camera’s view of them.

1. The State argues that the trial court erred in determining that LaFrance’s warrantless entry onto Criswell’s property was an illegal second-tier encounter. Finding error, we agree.

In its order, the trial court wrote that, “[t]he decision to grant this motion is based largely upon the credibility of Sgt. LaFrance’s testimony in this case.” It is clear from the context of the trial court’s order that this statement relates to the trial court’s disbelief that LaFrance could have smelled alcohol and observed Criswell’s bloodshot eyes from 12 to 15 feet away. The trial court specifically noted LaFrance’s observations of Criswell’s

eye manifestations of impairment, balance issues, slurred speech, and the odor of alcohol. Although this [c]ourt acknowledges that typically all of these manifestations would be sufficient probable cause to arrest for DUI, in this particular case they cannot be properly considered. There is no way that Sgt. LaFrance could possibly have seen the eye manifestations during any consensual part of the encounter. The consensual part of the encounter occurred when there was a distance of twelve to fifteen feet between the Defendant and the officer. At that distance with the poor lighting conditions, there is no way that Sgt. LaFrance could have seen the eye manifestations of impairment. There is also no way that Sgt. LaFrance could have smelled an odor of alcoholic beverage on the Defendant’s breath at that distance. Both the eye manifestations and the odor knowledge must have been gained by the Officer at a short distance away from the Defendant.

(Emphasis supplied.) The trial court found, inter alia, that “[t]he only time that Sgt. LaFrance was close enough to the Defendant to notice these things was . . . when Sgt. LaFrance stepped onto the Defendant’s property[.]” The trial court then reasoned that this entry onto Criswell’s property was an illegal second-tier encounter for which the officer lacked reasonable articulable suspicion because the only manifestations that the officer legally observed occurred when he was 12 to 15 feet away •— that is, the balance issues, slurred speech, and confusion — and that these were insufficient to create reasonable, articulable suspicion.

The undisputed facts show that the officer’s initial encounter with Criswell took place from 12 to 15 feet away, when he was standing in Criswell’s yard. The trial court found this contact to be consensual, and this issue is not before us on appeal. The undisputed testimony shows that LaFrance then walked onto Criswell’s driveway, and it is this entry onto the property that the trial court found to be an illegal second-tier encounter. This decision is error.

We need not make any decision regarding the trial court’s determination as to LaFrance’s credibility as it relates to his observations from his initial contact when he was standing 12 to 15 feet away from Criswell. Indeed, the credibility of witnesses and the weight to be accorded their testimony lies solely with the trier of fact. Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994). We address only the legality of LaFrance’s entry onto Criswell’s driveway.

Under the Fourth Amendment, police officers are prohibited from entering a person’s home or its curtilage without a warrant absent consent or a showing of exigent circumstances. This broad rule is subject to the exception that any visitor, including a police officer, may enter the curtilage of a house when that visitor takes the same route as would any guest, deliveryman, postal employee, or other caller.

(Punctuation and footnotes omitted.) State v. Gravitt, 289 Ga. App. 868, 870 (2) (a) (658 SE2d 424) (2008). The United States Supreme Court has defined four factors to be used in analyzing the extent of a home’s curtilage:

the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

(Citations omitted.) United States v. Dunn, 480 U. S. 294, 301 (II) (107 SCt 1134, 94 LE2d 326) (1987). A determination of whether evidence is discovered in the protected curtilage of a home is a mixed question of law andfact. Gravitt, supra at 871 (2) (a). As neither party disputes that the officer was standing in the driveway, our review of the application of the law to the facts is de novo, and we will not disturb the trial court’s factual findings if there is any evidence to support them. Id. at 868.

Here, the video shows that Criswell’s driveway was open to the street, and had no gates, fences, or bushes blocking a visitor’s access or visibility. The driveway in the instant case is clearly the same route that would be used by “any guest, deliveryman, postal employee, or other caller.” (Punctuation and footnote omitted.) Gravitt, supra at 870 (2) (a). Our Supreme Court has recognized that the “Fourth Amendment does not cover police observations from places where visitors are expected, such as walkways, driveways, and porches.” (Citation omitted; emphasis supplied.) Espinoza v. State, 265 Ga. 171, 173 (2) (454 SE2d 765) (1995). When LaFrance walked up Criswell’s driveway, he was in an area that our appellate courts have determined is not within the protected curtilage of the home and is not protected by the Fourth Amendment. The officer’s actions in this encounter fell within the realm of a first-tier police-citizen encounter and did not amount to a stop. See Brittian v. State, 257 Ga. App. 729, 731 (572 SE2d 76) (2002). Thus, this contact was not subject to a reasonable articulable suspicion standard. See Durrance v. State, 319 Ga. App. 866, 868-869 (1) (b) (738 SE2d 692) (2013) (officer did not need reasonable suspicion to approach defendant’s stopped vehicle).

2. The State next argues that the trial court erred in determining that LaFrance’s testimony was not credible as it related to his ability to see Criswell’s bloodshot eyes and to smell alcohol on his breath and person. The trial court made this credibility determination on the basis that the only time Criswell could have legally made these observations was when he was standing 12 to 15 feet away — too far, given the lighting conditions, for him actually to have noted these potential indicia of drunkenness. The trial court made no credibility determinations as to any police testimony related to what the officer observed while he was in Criswell’s driveway.

Of course, the “[credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.” (Citation omitted.) Tate, supra at 56 (3). Here, however, we need not examine the trial court’s credibility determinations as they relate to LaFrance’s observations of Criswell from 12 to 15 feet away. The trial court clearly found that

[b]oth the eye manifestations and the odor knowledge must have been gained by the [offficer at a short distance away from the Defendant. The only time that Sgt. LaFrance was close enough to the Defendant to notice these things was either when Sgt. LaFrance stepped onto the Defendant’s property or after he ordered him into the roadway.

(Emphasis supplied.) Because we found in Division 1 that the officer was legally on Criswell’s driveway, to the extent that the officer made these observations from the driveway, where his undisputed testimony shows he and Criswell moved toward each other and met at Criswell’s bumper, the trial court made a legal error in suppressing the evidence gleaned from these observations. See Peeler v. State, 286 Ga. App. 400, 405 (2) (c) (649 SE2d 775) (2007) (officer’s observations of defendant’s car and tag number, while officer stood in driveway, did not violate Fourth Amendment because officer “had taken the same route as would any guest, deliveryman, postal employee or other caller”) (citation and punctuation omitted). See also State v. Silva, 263 Ga. App. 371, 373 (587 SE2d 762) (2003), affirmed by Silva v. State, 278 Ga. 506 (604 SE2d 171) (2004) (no Fourth Amendment violation where officer detected “plain smell” of marijuana from place where he was lawfully present).

3. The State also argues that the trial court erred in finding that LaFrance lacked a reasonable, articulable suspicion to demand that Criswell come to the street so that the officer could determine whether he was under the influence of alcohol, and that the trial court erred in finding that LaFrance lacked probable cause to arrest Criswell for driving under the influence of alcohol.

On the video, the officer can be heard asking Criswell if he knows who is in the other vehicle. Criswell did not initially answer these questions in any intelligible way. He acknowledged knowing Jenkins only after the officer told him Jenkins’ name. He first stated that Jenkins did not live with him and later stated that Jenkins was staying with him. A few seconds after this conversation, LaFrance can be heard telling Criswell to “[c]ome out here[.]” LaFrance almost immediately went on to say, “I am going to ask you one more time to come out here, one more time, or I will lock you up. You with me?” LaFrance then told Criswell that he needed to come to the street

because you have been drinking. You just drove in. Therefore, it is a DUI if you have been drinking to the legal limit. That make sense? Now we can play this, and you can be an ass, or you can walk out here with me, you understand? We can play ball either way.

After arguing that he is at home and in his own driveway, and claiming that he walked home, Criswell finally complied with the officer and came to the street, where he refused testing related to his consumption of alcohol. He was arrested for driving under the influence. While one of the officers read him the implied consent warning, Criswell can be heard speaking over the officer, moaning, and saying, “Blah, blah, blah, blah . . . .”

The trial court found that

[a]t the point that Sgt. LaFrance ordered the Defendant into the roadway, he changed the nature of the encounter from Tier 2 to a Tier 3 encounter. The Defendant’s decision to enter the roadway and to engage in further conversation with Sgt. LaFrance cannot be considered a voluntary action because he did so only after being threatened with a physical arrest. Clearly, Sgt. LaFrance lacked probable cause at that time to arrest the Defendant for anything. . . . Since Sgt. LaFrance could only have gained knowledge of eye manifestations and the odor during the non-voluntarily[sic]/illegal portions of the encounter, this [c] ourt can only consider the information the officer gained during the Tier 1 portion of the encounter.

The trial court’s ruling as to whether the officer had probable cause to arrest Criswell is, again, based on its erroneous legal determination that LaFrance made an illegal second-tier entry onto Criswell’s driveway. As we determined in Division 1, this is not the case.

At least three types of police-citizen encounters exist: verbal communications involving no coercion or detention; brief “stops” or “seizures” that require reasonable suspicion; and “arrests,” which can only be supported by probable cause. A first-tier encounter never intrudes upon any constitutionally protected interest, since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. On the other hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without an articulable suspicion. Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity. Moreover, a “seizure” within the meaning of the Fourth Amendment only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.

(Citations omitted.) Brittian, supra at 731. Here, as Criswell was getting out of his car as the officer approached him in his driveway and began speaking to him, there was no stop, only a first-tier encounter. “Once [LaFrance] was close to [Criswell], he noticed the odor of alcohol and bloodshot eyes and, at that point, had the required articulable suspicion to continue his inquiry.” Id. See Daniels v. State, 321 Ga. App. 748, 750 (2) (743 SE2d 440) (2013) (once officer noticed odor of alcohol and defendant’s bloodshot eyes, he had reasonable, articulable suspicion to continue investigating); Whitmore v. State, 289 Ga. App. 107, 109 (657 SE2d 1) (2008) (alcohol smell alone gave police sufficiently reasonable and articulable suspicion to administer field sobriety tests). Thus, the trial court erred in finding that LaFrance lacked reasonable, articulable suspicion for this encounter.

The officer next ordered Criswell to come to the street or face being locked up.

The facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial; the test merely requires a probability — less than a certainty but more than a mere suspicion or possibility. Sufficient probable cause to conduct a DUI arrest only requires that an officer have knowledge that a suspect was actually in physical control of a moving vehicle while under the influence of alcohol to a degree which renders him incapable of driving safely.

(Citation and punctuation omitted.) Brown v. State, 302 Ga. App. 272, 274 (1) (690 SE2d 907) (2010). OCGA § 40-6-391 (a) (1) provides that a person shall not drive or be in physical control of a moving vehicle while “[u]nder the influence of alcohol to the extent that it is less safe for the person to drive[.]”

LaFrance saw Criswell drive down the street and into his driveway. He did not see Criswell drive in an unsafe manner. However, a driver need not actually commit an unsafe act in order to be under the influence to the extent it is less safe to drive. Brown, supra at 273 (1). Here, the officer observed Criswell driving his vehicle immediately before he observed Criswell’s bloodshot eyes, alcoholic odor, unsteadiness, confusion, and slurred speech. Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996) (even absent field sobriety tests, officer’s observations that defendant had bloodshot, watery eyes and smelled of alcohol provided sufficient probable cause to arrest). See also Castaneda v. State, 292 Ga. App. 390, 393-394 (1) (664 SE2d 803) (2008) (defendant’s stumbling, slurred speech, confusion, and balance difficulties provided probable cause for DUI arrest, even when some of these symptoms could have been caused by an immediately preceding accident).

Accordingly, the trial court erred in its grant of Criswell’s motion to suppress. See Gauthier, supra (grant of defendant’s motion to suppress reversed where trial court committed legal error in finding that officers lacked reasonable articulable suspicion to stop defendant, and lacked probable cause to arrest and require a chemical test).

Judgment reversed.

Andrews, P. J., and McFadden, J., concur.

Decided May 29, 2014

Jessica K. Moss, Solicitor-General, Barry W. Hixson, Jansen T. Jones, Assistant Solicitors-General, for appellant.

James R. Hamilton, for appellee.

       Criswell’s trial counsel stipulated to the admission of the entire video into evidence, and we have reviewed the appropriate segment.


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A14A0591.
    WILBOURN v. LUMPKIN.
    (759 SE2d 262)
   Phipps, Chief Judge.

Phillip Wade Wilbourn appeals from the trial court’s denial of his motion to legitimate his biological son. Wilbourn contends that because he developed his opportunity interest in a relationship with the child, the trial court’s ruling was in error. Because, among other reasons set forth below, Wilbourn waited more than four years after the child’s birth to seek a relationship with the child, to provide or offer support for the child, and to file a petition to legitimate the child, we disagree and affirm.

The record shows that Wilbourn and Lumpkin are the biological parents of the child. When the child was born in 2008, Wilbourn was married to another woman, with whom he had a daughter. Lumpkin married another man in 2011. She contacted Wilbourn in May 2012 and asked him to sign a release of his parental rights so that her husband, the child’s stepfather, could adopt the child. Wilbourn, who had been aware of the mother’s pregnancy and of the birth of the child approximately four years earlier, asked for a DNA test, which subsequently confirmed that Wilbourn was the child’s father. Wilbourn declined to sign the release and informed Lumpkin that he wanted to start a relationship with the child.

Lumpkin agreed that Wilbourn could meet with his son. In July 2012, on or around the child’s fourth birthday, Wilbourn, Lumpkin, and the child met at an elementary school park for approximately thirty or forty-five minutes. According to Lumpkin, the visit “went well.” In early September 2012, Wilbourn was present at another meeting where the child was introduced to Wilbourn’s daughter, the child’s half-sister. Wilbourn’s daughter and the child also attended the same school. The following Monday, and during the remainder of the month, Lumpkin waited on Wilbourn’s wife and daughter to arrive at school because the child wanted to walk into school with his sister.

Also in September 2012, Wilbourn sent two checks to Lumpkin in the amount of $100 each, which she cashed. Wilbourn filed his petition to legitimate the child in October 2012. Wilbourn thereafter mailed, but Lumpkin refused to accept, additional child support payments. No further meetings occurred between Wilbourn and the child. The stepfather later filed a petition to adopt the child. A joint evidentiary hearing was then held on the adoption petition and Wilbourn’s petition to legitimate the child.

The trial court, upon finding that Wilbourn had been afforded an opportunity to develop a relationship with the child, but was inactive during pregnancy and birth, lacked contact with the child, and waited years to pursue legitimation, denied Wilbourn’s petition. Following our grant of his application for discretionary appeal, Wilbourn contends that the trial court erred in denying his petition to legitimate the child and in denying his motion for a new trial because he had developed his opportunity interest with the child. He also argues that the trial court erred in failing to take into consideration that Lump-kin encouraged and allowed a relationship between Wilbourn and the child, but refused to accept child support payments and further contact with the child once Wilbourn filed the legitimation petition.

In considering a petition to legitimate, the trial court must first determine whether the father abandoned his opportunity interest to develop a relationship with the child. In that respect,

a biological father is afforded an opportunity to develop a relationship with his offspring. If the father grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. Unwed fathers gain from their biological connection with a child an opportunity interest to develop a relationship with their children which is constitutionally protected. This opportunity interest begins at conception and endures probably throughout the minority of the child. But it is not indestructible. It may be lost. It is an interest which can be abandoned by the unwed father if not timely pursued.

“We review a trial court’s ruling on a legitimation petition for abuse of discretion.”

Factors supporting a finding of abandonment of a father’s opportunity interest “include, without limitation, a biological father’s inaction during pregnancy and at birth, a delay in filing a legitimation petition, and a lack of contact with the child.” The trial court found, and the evidence shows, that all of these factors were present here and that, in effect, Wilbourn had abandoned his opportunity interest to develop a relationship with the child. Wilbourn knew about Lumpkin’s pregnancy, but he did not provide or offer her any assistance with medical costs for the birth of the child, or pay any subsequent costs associated with the care of the child until after the child’s fourth birthday. Following the child’s birth, Wilbourn maintained telephone contact with Lumpkin and even inquired about the child, but according to Lumpkin, Wilbourn “never initiated or wanted to initiate a meeting” with the child. Lumpkin further testified that she did not prevent Wilbourn from having contact with the child, but “left the choice to” Wilbourn. Wilbourn acknowledged that before Lumpkin asked him to sign a parental release he made no effort to be part of the child’s life. Rather, he waited over four years before seeking to legitimate his son. Given the evidence, the trial court’s denial of the legitimation petition is supported by ample authority.

Decided May 29, 2014.

Silvis, Ambrose & Lindquist, Chris E. Ambrose, for appellant.

Jesse G. Bowles III, for appellee.

Wilbourn argues that he nevertheless “should get a second chance” given that, once the DNA test confirmed paternity, he took steps to establish a relationship with the child with Lumpkin’s encouragement. However, Wilbourn was not required to wait for the scientific certainty afforded by a DNA test to pursue a legitimation petition. Nor can we say that one visit between Wilbourn and the child, and his attendance at the meeting between the child and his half-sister, along with $200 in child support, following four years of Wilbourn’s knowing failure to pursue any contact with the child, precluded the trial court’s finding of abandonment. Nor does Wilbourn show any authority for the proposition that Lumpkin’s failure to accept additional child support payments or allow visitation after Wilbourn filed the legitimation petition would require the trial court to ignore the years of inactivity preceding the filing of the petition. Accordingly, we find that the trial court did not abuse its discretion in denying Wilbourn’s petition to legitimate the child.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

        Morris v. Morris, 309 Ga. App. 387, 388-389 (2) (710 SE2d 601) (2011).

        Neill v. Brannon, 320 Ga. App. 820, 821 (1) (738 SE2d 724) (2013) (citation and punctuation omitted).

        Binns v. Fairnot, 292 Ga. App. 336, 337 (665 SE2d 36) (2008) (footnote omitted).

        Morris, 309 Ga. App. at 389 (2) (punctuation and footnotes omitted). Accord Caldwell v. Meadows, 312 Ga. App. 70, 71 (1) (717 SE2d 668) (2011).

       Although the trial court did not use the word “abandon,” given its express reliance on the factors associated with abandonment of a father’s opportunity interest, and its “rigorous inquiry into that subject,” the trial court’s failure to use specific terminology is not critical. See Smith v. Soligon, 254 Ga. App. 172, 174 (2), n. 1 (561 SE2d 850) (2002).

       Wilbourn also testified that after the child was bom he was “not sober” and that he and Lumpkin agreed that it would not be beneficial for Wilbourn to become part of the child’s life, although "[w] e both left the door open for when he’s ready, I’m ready. We’ll form a relationship.” On cross-examination, Wilbourn agreed that he had been sober since February 2010, but made no effort to establish a relationship with the child until May 2012.

       See Neill, 320 Ga. App. at 824-825 (1) (the evidence established that the biological father abandoned his opportunity interest to form a relationship with his daughter when he waited more than four years after learning that the child was his biological daughter before deciding he would like to have a parent-child relationship); Matthews v. Dukes, 314 Ga. App. 782, 786 (1) (726 SE2d 95) (2012) (where child was conceived in an extramarital affair between the biological father and the child’s mother, and the biological father waited five years before filing a legitimation petition, the evidence supported the trial court’s conclusion that the biological father had abandoned his opportunity interest), overruled on other grounds, Brine v. Shipp, 291 Ga. 376, 380 (3) (729 SE2d 393) (2012); In the Interest of J. S., 302 Ga. App. 342, 344 (1) (691 SE2d 250) (2010) (where the biological father had lived with and supported his child and the child’s mother for the first year after the child was born, but had no significant contact with the child and failed to pay child support for the next four years while he was incarcerated, the evidence supported the juvenile court’s finding that the biological father had abandoned his opportunity interest); Smith, 254 Ga. App. at 173-174 (2) (affirming finding that the biological father had abandoned his opportunity interest where the father lived with the child and the child’s mother until the child was four years old but had failed to provide any significant emotional or monetary support for the child, and for the next two years had only a few contacts with the child and did not provide any child support, hut waited to file a legitimation petition until after the mother married and her husband filed an adoption petition); In the Interest of D. S. P., 233 Ga. App. 346, 347-349 (2) (504 SE2d 211) (1998) (where biological father did nothing to protect his parental interests until the adoption agency filed a petition for termination of his parental rights, but “chose to disregard his opportunity to assume responsibility for the child during the pregnancy and for a time after the birth of the child,” the evidence supported the trial court’s finding that the father had abandoned his opportunity interest). Compare Caldwell, 312 Ga. App. at 71-73 (where biological father developed and maintained a relationship with his son until the mother blocked access to the child, trial court did not abuse its discretion in determining the father had not abandoned his opportunity interest to legitimate his child).

       See Neill, 320 Ga. App. at 825 (1) (biological father was aware during the pregnancy that he could be the father of the child, and he could have filed a legitimation petition after the child’s birth and sought court-ordered genetic testing); In the Interest ofJ. L. E., 281 Ga. App. 805, 806 (637 SE2d 446) (2006) (noting that obtaining the results of genetic testing is not a prerequisite to filing a legitimation petition).

       Compare Binns, 292 Ga. App. at 338 (concluding that, even if the biological father could have done more, the father’s constant payment of child support, coupled with his avowed interest in establishing and maintaining a relationship with the child, was nevertheless not so little as to constitute abandonment of his opportunity interest).

       See generally Neill, 320 Ga. App. at 824-825 (1) (noting that by the time the biological father sent cards and letters to his child, the mother had already challenged his petition to legitimate the child).


author: Boggs, Judge.

text:
    A14A0084.
    PRITCHETT v. THE STATE.
    (759 SE2d 300)
   Boggs, Judge.

A jury found Matthew Ted Pritchett guilty on two counts of cruelty to children in the first degree and two counts of family violence battery. Following the denial of his motion for new trial, Pritchett appeals, challenging only the sufficiency of the evidence on the cruelty to children counts. We find the evidence sufficient and affirm.

When we review the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that Pritchett married the mother of six-year-old C. M. and seven-year-old T. W, and that they all lived in the same home along with Ricky Flanagan, a family friend. C. M. testified that Pritchett and Flanagan would punish him “for doing bad things” by shooting him with “BB guns.” The guns C. M. referred to were airsoft guns which are spring-loaded and propel a plastic pellet and included two pistols and a rifle. C. M. explained that “[e] very time I got in trouble, they had to shoot me.” He stated further that Pritchett and Flanagan would shoot him in the stomach, on the back on his neck, and that Pritchett had shot him in “[his] private spot.” He explained that when he was shot with the pellets, it hurt and he would cry, and that he would try to hide behind a television to avoid the shots. The State presented a drawing made by C. M. that depicted him crying as Pritchett shot him with the airsoft gun. The drawing appears to depict airsoft pellets or marks all over C. M.’s body. When asked how many times Pritchett and Flanagan shot him with an airsoft gun, C. M. replied, “Everyday they shoot me with them guns.”

Seven-year-old T. W. testified that Pritchett and Flanagan would shoot her and her brother for “stuff like spilling food at the dinner table.” She explained that it would hurt and she would cry. When asked how many times they shot her with the airsoft guns, T. W. replied, “[t]oo many .... Like a lot of days.” T. W.’s teacher testified that her class was “having a memory day,” and that when T. W. was asked about something she would always remember, T. W. stood up and told her class that “she would always remember being shot with the BB gun because she wasn’t behaving.” C. M.’s teacher testified that C. M. told her he had been shot with the airsoft gun because he did not pull weeds fast enough, and that she noticed a mark on the back of his neck. Both teachers reported the incidents to the school counselor.

A DFACS investigator testified that she received a report concerning the two children, and that when she arrived at the school, she observed marks on both children. T. W. had three marks, and C. M. “had ten or eleven, just small, about the size of a pencil eraser, red, a little bit raised, some of them. [C. M.] had a couple that were a little more broken. Like the skin was a little bit more broken.” The DFACS investigator testified further that both C. M. and T. W. told her that Pritchett and Flanagan shot them with airsoft guns on several occasions.

An investigator with the sheriff’s office testified that he also observed the marks on C. M. and T. W, and that some of the welts were “so severe that it broke the skin.” He explained that the children repeated to him what they had told the teachers and the DFACS investigator. In an interview with police, Pritchett admitted to shooting the children with the airsoft guns and explained that “it is the only thing that will get their attention,” that most of the time the gun was not loaded, and that he used it to get their attention “once or twice a week.” Pritchett stated to police that C. M. had mistreated the dog and that he used the airsoft gun “to show [C. M.] what pain was.”

Pritchett and Flanagan presented as a witness a pawn shop owner familiar with airsoft guns. He explained that guns like the ones used by Pritchett are spring-loaded guns used for entertainment, often by children. On cross-examination, however, this witness testified that he would not use an airsoft gun as a form of discipline for a child. Pritchett presented several other witnesses who used airsoft guns when they were children as a form of recreation and entertainment. Some of these witnesses testified that they had used airsoft guns as teenagers and preteens, and described “getting hit with one of the[ ] little plastic BB’s[ ]” as “a hard pinch” or like a bug bite that would leave a “little red spot.” Pritchett also presented several character witnesses including his wife, the children’s mother, who described him as a good father and good with children.

On appeal, Pritchett argues that his use of the airsoft gun, while not a preferable form of discipline, was not unreasonable, and that the State failed to present sufficient evidence that the children suffered cruel and excessive physical or mental pain. OCGA § 16-5-70 (b) provides that “[a]ny person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” And we have held that

[t]he determination of what is cruel or excessive physical or mental pain is to be made by the jury. “Cruel” and “excessive” are adjectives which inherently require a consideration of degree; the law does not set a bright line but leaves to the trier of fact, taking into account societal norms generally accepted, whether certain behavior inflicts “cruel” or “excessive” pain .... There will be a gray area where some would say it is and some would say it is not, and neither is wrong as a matter of law. There will be other areas on each end of the scale. We must determine only whether the circumstances here, taking into account the evidence in favor of the finding and all reasonable inferences from that evidence, would prohibit the finding made by the jury.

(Citations and punctuation omitted.) Bunn v. State, 307 Ga. App. 381, 382-383 (1) (a) (705 SE2d 180) (2010).

Here, taking into account the evidence in favor of the jury’s finding, the record showed that Pritchett repeatedly and frequently shot the children with airsoft pistols and an airsoft rifle, shooting C. M. in his groin. The pellets left welts on the children and some of pellets caused broken skin. Both children testified that the pellets caused them pain and made them cry. There was also evidence from which the jury could conclude that the children suffered mental pain. C. M. created drawings showing that he was sad and crying as Pritchett shot him, and he testified that he would hide to avoid being hit by the pellets. T. W. told her classmates and teacher that she would always have a memory of being shot with an airsoft gun for misbehaving. This evidence was sufficient for the jury to conclude that the pain suffered by the children was cruel and excessive. See Keller v. State, 221 Ga. App. 846, 847 (1) (473 SE2d 194) (1996) (evidence sufficient to show cruel or excessive physical and mental pain where defendant and victim were inside bathroom, mother heard several blows and crying from inside bathroom and entered to observe defendant with belt in his hand about to swing it at the victim, and victim had bruises caused by a large flexible object that curved around the inside of his legs); Keith v. State, 219 Ga. App. 903, 904 (467 SE2d 222) (1996) (evidence sufficient of child cruelty where child was hit in the face with plastic cord because he left it in yard after being told by defendant to pick it up); see also Bunn, supra, 307 Ga. App. at 383 (1) (a) (evidence that after the defendant touched them inappropriately, one victim’s grades dropped and she became more aggressive toward her sibling, and that another victim felt sad, was sufficient to support jury’s finding that defendant’s acts caused cruel and excessive mental pain); Keith v. State, 279 Ga. App. 819, 822 (3) (632 SE2d 669) (2006) (evidence sufficient to support finding of cruel and excessive mental pain where victim became upset each time she recounted defendant’s attempt to have sex with her).

Decided May 30, 2014.

William D. Hoffer, for appellant.

LeeDarragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellee.

While Pritchett is correct that implicit in the definition of cruel or excessive is an element of unreasonableness, see Allen v. State, 174 Ga. App. 206, 208 (3) (329 SE2d 586) (1985), there was evidence from which the jury could conclude that the use of the airsoft gun to discipline the children was unreasonable discipline. Indeed, one of Pritchett’s own witnesses testified that he would not use such a method to discipline children.

The evidence presented at trial was sufficient for a rational trier of fact to conclude that Pritchett maliciously caused the children cruel and excessive physical or mental pain by shooting them with an airsoft gun.

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.


author: BARNES, Presiding Judge.

text:
    A14A0099.
    FABIAN et al. v. PONTIKAKIS et al.
    (759 SE2d 295)
   BARNES, Presiding Judge.

In this case involving a dispute over the purchase price of certain real property conveyed by warranty deed, Christopher and Georgia Pontikakis (“the sellers”) sued Clarence Fabian, David Childers, Gernie Furman, and Sukill Miller (collectively “the purchasers”) for specific performance, rescission, fraud, implied trust, and intentional infliction of emotional distress. The purchasers moved for summary judgment, contending that the sellers were precluded from introducing evidence of a purchase price different from what was set forth in the parties’ sales contract and addendum to the sales contract. The trial court denied the motion, concluding that the sellers could introduce parol evidence of the purchase price because “parol or written evidence is admissible to show true consideration for a deed.” We granted the purchasers’ application for interlocutory review of the trial court’s summary judgment ruling, and, as explained below, we reverse in part, vacate in part, and remand for further proceedings consistent with this opinion.

Summary judgment is proper where the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “Contract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court.” (Citation and punctuation omitted.) Grot v. Capital One Bank (USA), N.A., 317 Ga. App. 786, 793 (6) (732 SE2d 305) (2012). Following a trial court’s denial of summary judgment, we “conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party.” Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012). Guided by these principles, we turn to the record in this case.

The record reflects that the sellers owned two tracts of land comprised of approximately 76 acres in Long County, Georgia (the “property”). In the summer of 2008, the sellers were having trouble paying their debts on the property. As a result of the sellers’ financial problems, foreclosure proceedings were initiated against one of the tracts of land, and a foreclosure sale was advertised for August 5, 2008.

The sellers were anxious to sell their property before the foreclosure sale occurred. Jonathan Boney and the other four purchasers were interested in buying land on which they could hunt and keep horses, and on July 19, 2008, several of them visited the property and met with one of the sellers, Georgia Pontikakis. Georgia Pontikakis told them that the asking price for the property was $323,000. The purchasers left to discuss the purchase price among themselves. Later that day, Boney returned to the property and spoke again with Georgia Pontikakis. According to the sellers, Boney offered $320,000 for the property on behalf of himself and the other four purchasers, and the sellers accepted the offer. The sellers claim that the agreement was memorialized in a handwritten offer of $320,000 dated July 19, 2008, signed by both Boney and Georgia Pontikakis.

The purchasers deny that an agreement was ever reached for them to purchase the property for $320,000 and deny that Boney was ever authorized to enter into an agreement in that amount on their behalf. While Boney agrees that he made an initial offer of $320,000, he claims that the sellers rejected that offer upon learning that a deal in that amount could not be finalized before the foreclosure sale.

Regardless of whether the parties reached an agreement on July 19, 2008, it is undisputed that on July 28, 2008, all of the parties executed a sales contract under which Boney and the other four purchasers agreed to purchase the two tracts of property from the sellers for $218,000, the amount believed to be required to pay off the mortgage debt on the property (the “Sales Contract”). The Sales Contract included a provision stating in part that “[t]his contract constitutes the entire agreement between the parties, and shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto” (the “Entire Agreement Clause”). The Sales Contract also provided that “time is of the essence of this contract,” and the closing date for the sale was scheduled for August 1, 2008, a few days before the scheduled foreclosure sale.

According to Boney, the sellers agreed to a discounted purchase price of $218,000 because they wanted to expedite the sale of the property in light of the impending foreclosure sale. Boney testified that the sellers knew that if they asked for more than that amount, the purchasers would need a certified appraisal for their bank loan that could not be completed before the scheduled foreclosure. Boney further testified that the sellers were willing to have the purchasers simply pay off the debt on the land in return for an expedited closing that avoided the foreclosure.

In contrast, while the sellers conceded that they had executed the Sales Contract, they claimed that the contract was incomplete and that the parties had an oral understanding that Boney and the other purchasers would pay the additional amount of approximately $100,000 after closing once they secured a second loan for that amount. According to the sellers, Boney and the purchasers verbally agreed that after the closing, they would sign a promissory note for the additional $102,000 that would be paid upon them securing the additional loan.

The closing on the sale of the property occurred on August 1, 2008. It is undisputed that at the closing, all of the parties signed an addendum to the Sales Contract revising the purchase price to $221,321, which the parties had learned was the actual balance of the liens on the property (the “Addendum”). That amount was paid to the sellers at closing, and warranty deeds for the two tracts of land were tendered to Boney and the other purchasers. The warranty deeds did not set out the specific purchase price for the property; instead, the deeds merely recited that the property had been sold “for and in consideration of the sum of Ten and 00/100 Dollars ($10.00), and other good and valuable consideration, cash in hand paid, at and before the sealing and delivery of these presents, the receipt and sufficiency whereof is hereby expressly acknowledged.” Additionally, a HUD-1 settlement statement was issued to the parties at closing reflecting that the entire purchase price for the property was $221,321, and the sellers signed a certification that the settlement statement was true and accurate.

Alleging that an agreement had been reached to purchase the property for $320,000, the sellers subsequently brought this action against Boney and the other four purchasers for specific performance, rescission, fraud, implied trust, and intentional infliction of emotional distress. The purchasers answered and later moved for summary judgment, contending, among other things, that it was undisputed that the parties had signed the Sales Contract and Addendum prior to closing that reflected that the purchase price was $221,321, and that the sellers were precluded from introducing extrinsic evidence of a different purchase price. The trial court denied the purchasers’ motion for summary judgment, resulting in this appeal.

1. In the count of their verified complaint seeking specific performance, the sellers alleged that the purchasers had breached their contract to purchase the property for $320,000 and requested that the purchasers be required to tender the remaining balance of approximately $100,000 to them. In denying the purchasers’ motion for summary judgment, the trial court concluded that “parol or written evidence is admissible to show true consideration for a deed... [and] [t]he facts concerning whether true consideration was paid are disputed.” Thus, the trial court concluded that the sellers could introduce evidence of a purchase price different from what was set out in the Sales Contract and Addendum to support their contract claim. The purchasers contend that the trial court’s conclusion was erroneous, and we agree.

It is true that “ [p] arol evidence is admissible to show that the true consideration of the deed is in fact different from the one stated merely by way of recital.” (Citation and punctuation omitted.) Brown v. Southwest Ga. Production Credit Assn., 182 Ga. App. 665, 666 (356 SE2d 727) (1987). See Brosseau v. Jacobs Pharmacy Co., 147 Ga. 185, 189 (93 SE 293) (1917); Knight v. Munday, 152 Ga. App. 406, 407-408 (1) (263 SE2d 188) (1979). But that does not end the matter under the circumstances of the present case. Here, the undisputed evidence shows that all of the parties executed the Sales Contract containing the Entire Agreement Clause and the Addendum reflecting a purchase price of $221,321.

Under well-established Georgia law, “[p]rior and contemporaneous statements and agreements cannot be shown to vary, contradict or change the terms of a valid written contract purporting on its face to contain all the terms of an agreement between parties.” Taylor Freezer Sales Co. v. Hydrick, 138 Ga. App. 738, 741 (4) (227 SE2d 494) (1976). See also Zaglin v. Atlanta Army Navy Store, 275 Ga. App. 855 (622 SE2d 73) (2005) (handwritten note constituted inadmissible parol evidence because when a written contract “is complete on its face,” evidence that “contradicts the terms of the written instrument” is inadmissible). “Thus, the parol evidence rule bars any attempt to contradict, vary or supplement the consideration stated in an integrated contract.” (Citation and punctuation omitted.) Abrams v. Massell, 262 Ga. App. 761, 767 (5) (586 SE2d 435) (2003).

Furthermore, when a contract includes an entire agreement clause, the clause “operates as a disclaimer, establishing that the written agreement completely and comprehensively represents all the parties’ agreement.” (Footnote omitted.) Reininger v. O’Neill, 316 Ga. App. 477, 482-483 (2) (a) (729 SE2d 587) (2012). See Han v. Han, 295 Ga. App. 1, 3 (1) (b) (670 SE2d 842) (2008). Hence, if a contract contains an entire agreement clause, “a party cannot argue they relied upon representations other than those contained in the contract.” (Citation and punctuation omitted.) Han, 295 Ga. App. at 3 (1) (b).

Based on these principles of contract law, the sellers were precluded from introducing evidence of a purchase price inconsistent with what was set out in the Sales Contract and Addendum to support their contract claim, and the fact that the warranty deeds ultimately tendered to the purchasers contained a recital of nominal consideration does not alter this conclusion. See Great American Builders v. Howard, 207 Ga. App. 236, 239, 240 (2) (427 SE2d 588) (1993) (reversing trial court’s denial of summary judgment to the defendant on the plaintiffs’ breach-of-contract claim in light of the entire agreement clause contained in the sales contract that was executed prior to the conveyance of the property by warranty deed, even though the trial court had concluded that “parol evidence is admissible to show the true consideration for a deed”). See also Gaudet v. Starr, 215 Ga. App. 451, 452-453 (2) (451 SE2d 476) (1994) (affirming grant of summary judgment to seller on purchasers’ breach of contract claim in case where “a deed to the property was executed to close the sale,” in light of the entire agreement clause contained in the sales contract executed before the closing).

In reaching this conclusion, we point out that the present case is distinguishable from Knight, 152 Ga. App. at 407-408 (1). In Knight, the seller contended that the parties had orally agreed that the purchase price for the real property at issue would be $6,500, while the buyer relied upon the warranty deed and certain other certificates and receipts in contending that the purchase price was only $5,000. Id. at 407 (1). In concluding that the seller’s breach-of-contract claim was properly submitted to the jury, we reasoned that the warranty deed stated the consideration merely by way of recital, and thus that the seller could submit parol evidence as to the true consideration agreed to by the parties. Id. at 407-408 (1). Notably, however, there is nothing in Knight to indicate that the parties ever executed a written sales contract prior to closing, much less one containing an entire agreement clause.

For these reasons, we conclude that the sellers were precluded from introducing evidence of any prior or contemporaneous statements or agreements reflecting a purchase price of $320,000 for the property, and thus could not succeed on their contract claim. It follows that the trial court erred in denying summary judgment to the purchasers on this claim, and the court’s ruling therefore must be reversed.

Decided May 30, 2014.

John E. Pirkle, for appellants.

Phillips & Kitchings, Joseph C. Kitchings, for appellees.

2. The purchasers also moved for summary judgment on the sellers’ remaining claims for rescission, fraud, implied trust, and emotional distress on various grounds. It does not appear that the trial court reached the merits of the purchasers’ summary judgment motion regarding these other claims, instead focusing exclusively on whether the sellers could introduce parol evidence of the purchase price to support their contract claim. And, as made clear in Division 1, the trial court’s legal conclusion regarding the issue of parol evidence was erroneous. Under these circumstances, we vacate the trial court’s denial of summary judgment to the purchasers on these remaining counts of the sellers’ complaint and remand the case to the trial court for its consideration of the purchasers’ motion on the merits. See Harris Ventures, Inc. v. Mallory & Evans, Inc., 291 Ga. App. 843, 845 (2) (662 SE2d 874) (2008). See also City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002).

Judgment reversed in part and vacated in part, and case remanded with instruction.

Boggs and Branch, JJ., concur.

       The sellers also sued Jonathan Boney, another one of the purchasers of the property. Boney filed a separate motion for summary judgment that was denied by the trial court. Boney has not appealed that summary judgment ruling, and he is not a party to the present appeal.

       The purchasers initially filed their application for interlocutory review in the Supreme Court of Georgia, but the Supreme Court transferred the application to this Court because the issues raised in the case did not invoke the Supreme Court’s subject matter jurisdiction over questions involving title to land.

       Even under this general rule, “one of the parties to a deed cannot, under the guise of inquiring into its consideration, engraft upon the instrument a new condition or covenant which imposes an additional affirmative obligation upon the other party.” (Citations and punctuation omitted.) Brown, 182 Ga. App. at 666.

       We note that the sellers do not argue that the Sales Contract and Addendum merged into the warranty deeds, see generally Tallahassee State Bank v. Macon, 317 Ga. App. 128, 132-133 (1) (730 SE2d 646) (2012) (discussing merger doctrine), and we need not address legal arguments that were neither raised in the court below by the party opposing summary judgment nor ruled upon by the trial court, see Safe Shield Workwear, LLC v. Shubee, Inc., 296 Ga. App. 498, 500-501 (2) (675 SE2d 249) (2009). In any event, when a deed contains a recital of nominal consideration, the provisions of a sales contract that are relevant to the actual monetary consideration paid by the buyer ordinarily do not merge with the deed. See generally 77 AmJur2d Vendor and Purchaser § 253 (database updated February 2014).


text:
    A14A0186.
    COST MANAGEMENT GROUP, INC. et al. v. BOMMER.
    (759 SE2d 285)
   RAY, Judge.

This case, like its predecessor, Cost Mgmt. Group v. Bommer, 327 Ga. App. 164 (755 SE2d 537) (2014) (hereinafter CMG I), involves competing lawsuits between former business associates over disputes that include contract issues and restrictive covenants. The first suit was litigated in federal court. The other suit remains pending in the Superior Court of Fulton County. In the federal suit, Daniel Bommer sued his former business partners, Steven Gareleck and George Remington Reynolds, in their individual capacities. In the superior court action, companies controlled by Gareleck and Reynolds —■ Cost Management Group, Inc., Partnertel, Inc., and Telcentrex, LLC (collectively “CMG”) — sued Bommer.

The latest iteration of this case is before us on appeal from the superior court’s sua sponte grant of summary judgment to Bommer. CMG argues in three enumerations that the trial court erred in finding that its amended claims in the superior court suit were barred as unasserted compulsory counterclaims in the prior federal action. For the reasons that follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Footnote omitted.) Coffee Iron Works v. QORE, Inc., 322 Ga. App. 137, 137 (744 SE2d 114) (2013). See generally McClendon v. 1152 Spring St. Assocs.-Ga., Ltd. III, 225 Ga. App. 333, 334 (484 SE2d 40) (1997) (a trial court may sua sponte grant summary judgment on issues not raised by parties).

The facts as outlined in our earlier opinion also apply to the instant case, and we adopt them here as necessary. See CMG I. In CMG I, we reversed the trial court’s grant of partial summary judgment to Bommer and determined that CMG was not collaterally estopped by the federal action from pursuing, in the superior court action, claims relating to Bommer’s operation of a company called Enhanced Billing Services (EBS). Id. at 168 (1). We also determined that the claims asserted in superior court that related to EBS were not compulsory counterclaims in the federal action. Id. at 172 (2).

However, in that grant of partial summary judgment to Bommer, the trial court also ordered CMG to file a brief addressing why “this entire case should not be dismissed with prejudice.” Following the parties’ submission of briefs, the trial court entered a final order granting summary judgment to Bommer on CMG’s remaining claims that were unrelated to Bommer’s operation of EBS, including, inter alia, claims for breach of fiduciary duty, fraud, and breach of restrictive covenants. CMG appeals that ruling in the instant action.

1. CMG argues that the trial court erred in finding that its claims that are unrelated to Bommer’s operation of EBS are barred in the superior court action as unasserted compulsory counterclaims. Specifically, CMG contends that its claims are not barred because, as a nonparty to the federal action, it does not qualify as a “pleader” under federal law for purposes of establishing a compulsory counterclaim. We agree.

As we noted in CMG I, the federal court in the earlier action in which Bommer sued Gareleck and Reynolds exercised diversity jurisdiction. See Bommer v. Reynolds, 465 Fed. Appx. 876 (11th Cir. 2012). A federal court sitting in diversity must apply state substantive law and federal procedural law. Esfeld v. Costa Crociere, S. P. A., 289 F3d 1300, 1306 (II) (A) (11th Cir. 2002). A state court’s determination of whether an issue is substantive or procedural, for choice-of-law purposes, is binding on a federal court. Shaps v. Provident Life & Accident Ins. Co., 244 F3d 876, 883 (II) (11th Cir. 2001). This Court has determined that “OCGA § 9-11-13 (a), which governs compulsory counterclaims in Georgia, sets forth the method for bringing such claim[s] and thus is procedural in nature.” Harper v. Harper, 267 Ga. App. 553, 555 (1) (600 SE2d 659) (2004). As a result, in determining whether the claims at issue here were compulsory counterclaims, we must look to federal procedural law.

Fed. R. Civ. P. 13 (a) (1) provides as to compulsory counterclaims that

[a] pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim-, and (B) does not require adding another party over whom the court cannot acquire jurisdiction.

(Emphasis supplied.)

It is undisputed that CMG was not a party to the federal action. See generally CMG I, supra at 172 (2). Further, the trial court’s opinion acknowledged this in its discussion of Montgomery Ward Dev. Corp. v. Juster, 932 F2d 1378 (11th Cir. 1991). In Montgomery Ward, the Eleventh Circuit determined that

a potential defendant who was not joined in the prior action... does not qualify as a pleader for purposes of the compulsory counterclaim bar. We do not find that appellant. .. who .. . was not joined as a defendant in the [initial] suit, can be barred for the very reason that [plaintiff-appellee] did not join him. Since [appellant] did not join in any pleading and had no obligation to join the [initial] suit, he cannot be barred now by a failure to have done so.

Id. at 1383 (B). The trial court wrote that although CMG “correctly cite[s] Montgomery, that case is distinguishable from the case at bar” because the nonparty in Montgomery

had no apparent connection to, or authority to act for, the company who had been the original defendant. . . . Here, unlike in Montgomery, Gareleck and Reynolds have a very direct connection with, and authority to act on behalf of [CMG] ... as 95% shareholders, directors, and officers of CMG.

The trial court cites no law supporting its determination that, as a nonparty to the federal suit, CMG qualified as a “pleader” under Fed. R. Civ. P. 13 (a) on the basis that the actual parties — Gareleck and Reynolds — had a “direct connection” with and “authority to act” on behalf of CMG. We find no law from this jurisdiction indicating that either a “direct connection” with or “authority to act” on behalf of a party turns a nonparty into a pleader under Fed. R. Civ. P. 13 (a). Nor did CMG have any obligation to intervene in the federal suit. See Mann v. City of Albany, Ga., 883 F2d 999, 1005 (III), n. 2 (11th Cir. 1989); Barham v. City of Atlanta, 292 Ga. 375, 377 (1) (b) (738 SE2d 52) (2013). As a result, we find Montgomery Ward, where our Eleventh Circuit determined that a successor-in-interest pendente lite who was not a party to the prior suit did not qualify as a pleader for purposes of the compulsory counterclaim bar, to be controlling in the instant action. Montgomery Ward, supra at 1383 (B).

Decided May 30, 2014

Raley & Sandifer, G. Brian Raley, Michael A. Sierra, for appellants.

Thompson Hine, Gary S. Freed, Fisher Broyles, Milo S. Cogan, for appellee.

2. As a result of our determination in Division 1, we need not reach CMG’s remaining enumerations of error.

Judgment reversed.

Barnes, P. J., and Miller, J., concur.

        Bommer v. Reynolds, 465 Fed. Appx. 876 (11th Cir. 2012).

       As part of its argument in this enumeration, CMG also contends that the trial court erred in confusing the collateral estoppel standard regarding parties and their privies with the standard that applies to pleaders under Fed. R. Civ. P. 13 (a). Bommer argues that CMG’s enumeration must fail because CMG did not raise this issue below. However, both CMG’s enumeration and the trial court’s ruling are broader than this one issue. We note that Bommer himself raised the issue of privity in his responsive brief, below. Further, CMG could not have predicted the trial court’s precise rationale on this issue until after its summary judgment ruling. See generally Sherman v. Dickey, 322 Ga. App. 228, 233 (2), n. 20 (744 SE2d 408) (2013).

       Despite the parties’ arguments in their appellate briefs, the trial court neither mentions nor overtly analyzes privity in this order. The trial court determined in the prior partial summary judgment order that was the basis for CMG I that CMG and Gareleck and Reynolds were in privity “for purposes of collateral estoppel[,]” but the court did not address the issue of privity in the compulsory counterclaim analysis section of that order.

       Although foreign jurisdictions have in certain instances found that entities in privity with parties to the litigation could be treated as pleaders for purposes of Fed. R. Civ. P. 13 (a), this is merely persuasive authority and, pretermitting other relevant distinctions, we decline to follow that persuasive authority here. See, e.g., Transamerica Occidental Life Ins. Co. v. Aviation Office of America, 292 F3d 384, 386, 391-393 (II), (III) (3d Cir. 2002); Fox v. Moulding, 112 F3d 453, 459 (2) (10th Cir. 1997).

       We note that Fed. R. Civ. P. 13 (a) is nearly identical in substance to OCGA § 9-11-13 (a). See generally Earthlink, Inc. v. Eaves, 293 Ga. App. 75, 78 (3) (666 SE2d 420) (2008) (“counterclaims are compulsory only for opposing parties”) (footnote omitted).


text:
    A14A0365.
    PRADO v. THE STATE.
    (759 SE2d 287)
   BARNES, Presiding Judge.

This is the second appearance of this criminal case before this Court. Raul Prado was charged with trafficking in marijuana, and in Prado v. State, 306 Ga. App. 240 (701 SE2d 871) (2010) (“Prado F), we affirmed on interlocutory appeal the trial court’s denial of his motion to suppress the contraband seized from a residence and a recreational trailer. After our decision, Prado was tried before a jury and convicted of the charged offense. On appeal from the denial of his motion for new trial, Prado contends that the trial court erred in denying his motion in limine to exclude evidence of the surveillance and search of the residence; in denying his motion for mistrial based on a comment about his arrest made by the prosecutor during opening statements; and in declining to give his request to charge on the knowledge element of trafficking in marijuana. Discerning no error, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). Guided by this standard, we turn to the evidence in this case, which we summarized in Prado T.

Interstate police cooperation led Gwinnett County police to conduct surveillance of 2851 Creekwood Drive in Snell-ville, a suspected marijuana “grow house.” Certain observations during surveillance on March 1, 2007, caused officers to apply for a search warrant. While awaiting the warrant, police observed a Dodge Ram pickup truck towing a large recreational trailer emerge from the back yard, followed by a white Chevrolet Tahoe. Officers stopped the vehicles. Alfredo Hernandez was driving the Ram, Raul Prado was driving the Tahoe, and Blanca Cruz-Prado was his passenger.
After the officers stopped the vehicles, they observed two men walk around from the back of the house, enter the garage, close the door, and then flee into the woods. Officers chased and arrested the men[.] They were later identified as Carlos Luis Perez and his father, Carlos Perez Martinez.
Meanwhile, a K-9 officer was summoned to the scene of the vehicular stop, and the officer’s drug detection dog alerted to the vehicles. Officers detained Hernandez and the Prados while awaiting the arrival of the search warrant for the residence. Upon executing that warrant, officers discovered a marijuana growing operation in the basement [and in one of the bedrooms]. Perez, Martinez, Hernandez, and the Prados were arrestedf.]
The Dodge Ram and the Tahoe were impounded, and the police obtained and executed search warrants for the vehicles. Although officers did not find any contraband in the Prados’ Tahoe, they discovered 900 pounds of marijuana and over $99,000 in cash hidden in [a specially constructed compartment underneath the floorboards of] the trailer attached to the Dodge Ram.

Prado I, 306 Ga. App. at 240-241.

Raul Prado initially was arrested and indicted on charges relating to the marijuana found both in the Creekwood Drive residence and the recreational trailer attached to the Dodge Ram. Subsequently, the State dismissed the counts of the indictment relating to the residence and proceeded to trial only on Count 3, which charged Prado with trafficking in marijuana based on the drugs hidden in the trailer. The State alleged that Prado owned the trailer and the Dodge Ram that towed it, and that he knowingly participated with Hernandez and his wife, Blanca, in the transport of the marijuana.

Because the State was dismissing the charges against Prado pertaining to the Creekwood Drive residence, Prado filed a motion in limine seeking to exclude any evidence relating to the reason why the police had the residence under surveillance, the details of the arrests of other suspects at the residence, and the search of the residence. The trial court held two pretrial hearings addressing Prado’s motion in limine, where the State conceded that the marijuana that was seized from the trailer, which was already packaged, did not appear to be of the same type of marijuana that was hydroponically grown in the residence. However, the State argued that evidence relating to the surveillance and search of the residence was relevant and admissible as part of the res gestae of the charged crime because it was part of the circumstances of Prado’s arrest. The trial court agreed with the State and denied the motion in limine.

At the ensuing trial, the State introduced, through the testimony of several law enforcement officers, evidence regarding why undercover officers had been outside the Creekwood Drive residence at the time in question; the flight of the two men from the garage of the residence into the woods; how the Dodge Ram towing the trailer had been parked outside the residence; the close proximity of the Tahoe driven by Prado to the Dodge Ram towing the trailer; and the reason the Dodge Ram and Tahoe were stopped that day. The State also introduced officer testimony and photographs showing the marijuana growing operation that had been set up in the bedroom and basement of the residence that was uncovered when the search warrant was executed there.

In addition to evidence relating to the Creekwood Drive residence, the State introduced officer testimony and photographs pertaining to the search of the trailer attached to the Dodge Ram and the discovery of the marijuana and cash in the hidden compartment underneath the trailer’s floor. The State also introduced motor vehicle records reflecting that Prado owned the Dodge Ram and that the license tag on the trailer was registered to him.

To link Prado to the vehicles, the State also introduced photographs showing the letters “YHWH” displayed on the front grill and front roof area of the Tahoe, the back windshield of the Dodge Ram, and the side door, inside, and back of the trailer, the significance of which was explained by Prado’s then ex-wife, Blanca, who testified for the State through an interpreter. Blanca testified that “YHWH” was a symbol for the name of God and that Prado displayed it on all of his vehicles, at the entrance to his ranch in Texas, and inside their former house.

Although she denied knowing about any of the marijuana, Blanca testified about Prado’s connection to the trailer and about her trip with Prado and Hernandez that ended in their arrest. Blanca testified that the trailer belonged to Prado and had been parked at their ranch for approximately two years before they were arrested. According to Blanca, she and Prado had taken approximately 12-13 trips in the trailer. Through Blanca, the State admitted a photograph taken before their arrest that showed Prado standing in front of the trailer.

Blanca testified that she rode with Prado in the Tahoe to Georgia from their ranch in Texas, while Hernandez drove the Dodge Ram towing the trailer. Prado and Hernandez would communicate by radio as they drove. According to Blanca, Prado told her that they were headed to Miami but would not be staying there for very long. Blanca further testified that during their trip, they decided to visit some of Hernandez’s friends who lived in Georgia. When they arrived at the Creekwood Road residence on the night before they were arrested, she heard Prado instruct Hernandez “not to move the trailer from where it was parked because it was at night and it would call attention to the matter.”

Blanca and Prado left and stayed in a hotel room overnight while Hernandez stayed at the residence. Blanca testified that the following day, they returned to the residence, and Prado “was upset because he saw that the trailer was on the side of the house and not in the place where it had been left before [,] and then [they] went into the house.” According to Blanca, she stayed in the living room watching television while Prado, Hernandez, and Hernandez’s friends talked in another room. Blanca also testified that when the officers stopped them in the Tahoe after they exited the residence, Prado told her that “what was in the truck and the trailer wasn’t his” and “just to follow along.” Additionally, Blanca testified that after they were released on bail, she overheard Prado “making fun” of the police for taking so long to find the marijuana and cash in the trailer because it had been “very well hidden.”

After the State rested, Prado called Hernandez as a defense witness, and he testified through an interpreter. Despite the fact that Hernandez had pled guilty to trafficking in marijuana based on the drugs discovered in the trailer, he denied knowing of the marijuana hidden there. Hernandez testified that the trailer belonged to a third party who lived in Texas, that he was holding the trailer as collateral for money owed to him by that third party, and that he had been in the process of driving the trailer from Texas back to his home in Miami at the time of his arrest outside the Creekwood Drive residence. Hernandez further testified that Prado and Blanca had met up with him in Georgia and were traveling with him simply to help him with driving directions because he was unable to read road maps in English. According to Hernandez, they had stopped at the Creekwood Drive residence so that he could visit his friends and pick up some “special” dog collars that they had for him because he bred bulldogs.

Prado also chose to testify in his own defense through an interpreter. Prado testified that he owned three ranches in Texas, that he operated a towing business, and that Hernandez previously worked for him and they were longtime friends. He corroborated Hernandez’s version of events, denied owning the trailer, and denied knowing of the marijuana and cash discovered in the trailer or of the marijuana growing operation at the Creekwood Drive residence. Prado admitted that he owned the Dodge Ram, that the license tag on the trailer was registered to him, and that he placed the letters “YHWH” in lots of places because of their significance to him.

After hearing the conflicting evidence, the jury found Prado guilty of trafficking in marijuana based on the drugs found in the trailer. Prado filed a motion for new trial, which the trial court denied. This appeal followed.

1. Prado first contends that the trial court erred in denying his motion in limine to exclude evidence of the surveillance and search of the Creekwood Drive residence. According to Prado, the evidence pertaining to the marijuana growing operation uncovered at the residence was irrelevant, improperly placed his character in issue, and was unduly prejudicial because he was not tried for the marijuana found there and any connection between his arrest and the residence was tenuous. We are unpersuaded.

“The [S]tate is entitled to present evidence of the entire res gestae of the crime.” (Citation and punctuation omitted.) Dryden v. State, 316 Ga. App. 70, 76 (4) (728 SE2d 245) (2012). Thus,

[wjhen transactions involving other crimes and the alleged bad character of appellant are so connected in time and event as to be part of the same transaction as that for which the accused is being tried, they are admissible as a clear exception to the general rule of inadmissibility of other transactions. The allegedly separate events are admissible in evidence when they are part of a continuous course of conduct, closely connected in time, place and manner of commission.

(Citation and punctuation omitted.) Cargile v. State, 261 Ga. App. 319, 322 (3) (582 SE2d 473) (2003). Furthermore, all circumstances surrounding a defendant’s arrest, if relevant to the crime charged, are admissible as part of the res gestae of the crime, even if the evidence incidentally places the defendant’s character in issue. See Adkins v. State, 280 Ga. 761, 763 (3) (632 SE2d 650) (2006); Scott v. State, 277 Ga. App. 126, 127 (1) (625 SE2d 526) (2006). The trial court’s decision to admit such evidence is reviewed only for an abuse of discretion. See Conyers v. State, 234 Ga. App. 830, 832 (1) (507 SE2d 842) (1998).

The trial court did not abuse its discretion in this case. The evidence adduced at trial, when construed in favor of the State, reflected that Prado, Blanca, and Hernandez stopped at the Creek-wood Drive residence on their way from Texas to Miami, where they planned to deliver a large amount of marijuana and cash to unknown parties. On the day of his arrest, undercover narcotics officers observed Prado exiting the Creekwood Drive residence with Blanca and entering the Tahoe. The Tahoe then began to drive off in tandem with the Dodge Ram towing the trailer. The parties were detained and later placed under arrest because the Creekwood Drive residence contained an active marijuana growing operation and a drug sniffing dog had alerted to their vehicles. The subsequent search of the vehicles revealed the marijuana and cash hidden in the trailer.

Under these circumstances, the trial court was authorized to find that Prado’s stop at the marijuana “grow house” was part of a continuous course of conduct, closely connected in time, place, and manner to his trafficking of the marijuana found in the trailer. Moreover, the surveillance and search of the marijuana “grow house” were part of the circumstances surrounding Prado’s arrest. And because Prado denied knowing about the marijuana found hidden in the trailer, evidence that he was observed visiting a large, active marijuana growing operation moments before driving away in tandem with the trailer was relevant to show that he knowingly possessed the drugs inside the trailer.

For these combined reasons, the trial court acted within its discretion in admitting evidence of the surveillance and search of the Creekwood Drive residence as part of the res gestae of the crime. See Kohler v. State, 300 Ga. App. 692, 694-695 (1) (686 SE2d 328) (2009) (in case where the defendant was tried for trafficking in cocaine after he delivered certain boxes to a residence under police surveillance, evidence of the large amount of marijuana found in the residence where the defendant was arrested was admissible as part of the res gestae because “the presence of the marijuana was relevant to the issue of [the defendant’s] knowledge” of the cocaine in the boxes he delivered); Mines v. State, 167 Ga. App. 766, 767-768 (2) (307 SE2d 291) (1983) (in case where defendant was tried for drug possession, evidence of the defendant’s activities at establishment “immediately prior to the arrest” was admissible “for the purpose of showing that he did in fact possess the drugs with criminal motive and intent”). Cf. Scott, 277 Ga. App. at 127-128 (1) (defendant’s admission at time of his arrest of his “connection to a higher level drug dealer” was admissible as part of the circumstances of his arrest for trafficking in cocaine).

2. Prado next contends that the trial court erred in denying his motion for mistrial based on a comment about his arrest made by the prosecutor during opening statements. We disagree in light of the curative instruction given by the trial court.

During his opening statement, the prosecutor mentioned that one of the narcotics officers had gone before a magistrate judge and sworn out arrest warrants against Prado and his co-defendants for the offense of manufacturing marijuana at the Creekwood Drive residence. Prado objected and moved for a mistrial on the ground that the jury should not have been informed that he had initially been arrested for manufacturing marijuana at the residence because that charge ultimately had been dismissed by the State. According to Prado, evidence that a warrant was issued for his arrest for the manufacture of the marijuana was highly prejudicial and irrelevant, and the prosecutor should have simply said that the defendants had been arrested without further elaboration.

The trial court denied Prado’s motion for mistrial but gave the following lengthy curative instruction to the jury:

All right. Welcome back, ladies and gentlemen. I’m going to give some instructions at this particular point in time. First of all, I’m going to instruct you to disregard [the prosecutor’s] remarks concerning any initial warrants procured in this case. It’s irrelevant. It doesn’t have anything to do with this case. Bear in mind, I am relying on the fact that you as jurors raised your hand and took an oath that you would follow the law as I give you. And relying upon that, I’m going to move forward accordingly.
I’m furthermore going to instruct you that anything the lawyers say, in fact, anything I say, during the case is not evidence. Evidence I’ll define for you. I’ve given you a definition before, and I’ll give you a definition at the end of the trial. But what the lawyers say and what I say is not evidence. We have a rare exception if there’s a stipulation when we announce that, but that will be clear on the record. So you shouldn’t consider that. Right now it’s where' the evidence is — or expects to be. And bear in mind, it’s no more than that. And I’m going to carve out what is proper for your consideration and what is not.
I’m going to remind counsel for the State and instruct you accordingly that Mr. Prado is on trial for the possession of the marijuana as defined in the indictment connected with the motor vehicle and/or trailer. That’s it. He is not on trial for any marijuana connected with the Creekwood residence, for any item of property in that evidence. I am merely at this stage allowing you to gather the facts of the circumstances connected with the arrest. So it’s not just done — or contemporaneous with that, so that you are able to put that in context.
I’m relying on the fact that as under your oath, that you’ll follow the instructions. You’ll go solely by the indictment. Because that’s solely what he’s charged with. That’s it. The fact that some other judge in some other court may have done something or not done something concerning this defendant is totally irrelevant. It doesn’t amount to anything in this case. And you will disregard it accordingly.
So I’m going to give you that as a curative instruction and instruct you to disregard. And it’s always, well, if I hear something, how can I disregard it? Well, you’re jurors. You raised your hand. You swore to follow the law. That’s what the law is. And you’re going to base your decision solely on the evidence that I admit during this trial, and I don’t admit that at all.
So struck. So disregarded.

After the trial court gave this curative instruction, Prado renewed his motion for mistrial, which the trial court denied.

We conclude that the trial court’s instruction to the jury adequately cured the impact of the prosecutor’s allegedly improper statement about Prado’s arrest.

When prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial. It is up to the trial court to decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the [statement] from the consideration of the jury under proper instructions. Considering the nature of the statement, the other evidence in the case, and the action taken by the court . . . concerning the impropriety, we find no abuse of discretion in the denial of [Prado]’s motion for mistrial.

(Citations and punctuation omitted.) Harding v. State, 311 Ga. App. 724, 726 (719 SE2d 499) (2011). See Ramirez v. State, 279 Ga. 569, 576 (9) (619 SE2d 668) (2005).

3. Lastly, Prado contends that the trial court erred in declining to give his request to charge on the knowledge element of trafficking in marijuana. In his request to charge, Prado requested that the trial court instruct the jury that the State was required to prove beyond a reasonable doubt that the defendant knew what he possessed was marijuana, and that he knew that the weight of the marijuana was greater than ten pounds. Prado argues that under OCGA § 16-13-31 (c) (2007), the State was required to prove that he knew that the weight of the marijuana was greater than ten pounds, and that the trial court should have specifically instructed the jury on this point by giving his requested charge. Pretermitting whether Prado’s request to charge was an accurate statement of the law, we conclude that the refusal of the trial court to give the instruction that Prado requested was not reversible error.

In reviewing a trial court’s refusal to give a requested jury instruction, we look to the jury charge as a whole to determine if the court committed reversible error. Harrison v. State, 309 Ga. App. 454, 457 (2) (a) (711 SE2d 35) (2011). “[I]f the jury charge as a whole accurately and fully apprised the jury of the law to be applied in its deliberations, then the refusal to give an additional instruction, even if that additional instruction were accurate, does not amount to error.” Id.

Applying these principles, we conclude that the trial court committed no error in refusing to give Prado’s request to charge for the same reasons articulated in Harrison, 309 Ga. App. at 456-459 (2). In that case, the defendant was convicted of trafficking in cocaine in violation of OCGA § 16-13-31 (a) (1). Harrison, 309 Ga. App. at 454. On appeal, the defendant asserted that the trial court committed reversible error in refusing to specifically instruct the jury that the State had to prove beyond a reasonable doubt that the defendant knew that the cocaine in his possession had a weight of 28 grams or more. Id. at 456-457 (2).

In concluding that the trial court in Harrison did not err in refusing to give the defendant’s requested charge, we reasoned that even if the State was required to prove that the defendant knew the weight of the cocaine, the trial court’s charge as a whole adequately apprised the jury of that requirement. Harrison, 309 Ga. App. at 457-458 (2) (a). We concluded:

The trial court may not have used the precise words that [the defendant] preferred, but even if [the defendant] is right about the plain meaning of OCGA § 16-13-31 (a) (1), the charge accurately and fully apprised the jury of the applicable law, and the failure of the trial court to give the requested instruction is not error.

Harrison, 309 Ga. App. at 458 (2) (a). Additionally, we concluded that any error in failing to give the defendant’s requested charge was harmless under the circumstances of the case. Id. at 458-459 (2) (b).

In the present case, the trial court read Count 3 of the indictment as part of its jury charge, instructing that Count 3 alleged that Prado did “knowingly possess more than 10 pounds of marijuana.” The trial court further instructed the jury:

Any person who knowingly has possession of a quantity of marijuana exceeding 10 pounds commits the offense of trafficking in marijuana. . . . Knowledge on the part of the defendant that the crime of trafficking in marijuana as alleged in the indictment was being committed and that the defendant knowingly and intentionally participated in or helped in the commission of such crime must be proved by the State beyond a reasonable doubt. If you find from the evidence in this case that the defendant had no knowledge that the crime was being committed or that the defendant did not knowingly and intentionally commit, participate, or help in the commission of the alleged offense, then it would be your duty to acquit the defendant. On the other hand, should you find beyond a reasonable doubt that the defendant had knowledge that the crime of trafficking in marijuana alleged in the indictment was being committed and that the defendant knowingly and intentionally participated or helped in the commission of it, then you would be authorized to convict the defendant.

Decided May 30, 2014

Bruce S. Harvey, Jennifer S. Hanson, Kimberly H. Cornwell, Thompson & Associates, Curt B. Thompson II, for appellant.

Daniel J. Porter, District Attorney, Michael D. Morrison, Jon W. Setzer, Assistant District Attorneys, for appellee.

These charges on the knowledge element of the crime are substantially similar to the charges given by the trial court in Harrison. Furthermore, as in Harrison, “[t]he trial court did not charge the jury that the State was not required to prove knowledge of the weight.” (Emphasis in original.) Harrison, 309 Ga. App. at 458 (2) (a). Accordingly, under the reasoning of Harrison,

[t]he trial court may not have used the precise words that [Prado] preferred, but even if [Prado] is right about the plain meaning of OCGA § 16-13-31 [(c)], the charge accurately and fully apprised the jury of the applicable law, and the failure of the trial court to give the requested instruction is not error.

Harrison, 309 Ga. App. at 458 (2) (a). We therefore discern no basis for reversal.

Judgment affirmed.

Branch, J., concurs. Boggs, J., concurs in judgment only.

       Some of the specific facts detailed in Prado I that were introduced at the motion to suppress hearing were not introduced at trial, and those facts have been omitted from our factual recitation here.

       Blanca and Prado divorced between the time of their initial arrest and the trial in this case. Drug-related charges remained pending against Blanca at the time of Prado’s trial.

       Because this case was tried in May 2012, Georgia’s new rules of evidence do not apply. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).

       OCGA § 16-13-31 (o) (2007), in effect at the time of the drug crime in this case, provided in pertinent part: “Any person who knowingly sells, manufactures, grows, delivers, brings into this state, or has possession of a quantity of marijuana exceeding 10 pounds commits the offense of trafficking in marijuanaf.]” The General Assembly amended OCGA § 16-13-31, effective July 1,2013, to omit the word “knowingly” from the statute. See Ga. L. 2013, p. 222, § 4/HB 349. See also id. § 21 (“This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense.”).

       Prado does not enumerate as error that the State failed to prove that he knew that the weight of the marijuana was greater than ten pounds; rather, his enumeration of error pertains solely to the trial court’s refusal to give his requested jury charge on the knowledge element.

       In the context of the similarly worded trafficking in cocaine statute, OCGA § 16-13-31 (a) (1), our Supreme Court recently overruled several of this Court’s cases and held that the statute requires proof that the defendant had knowledge of the weight of the cocaine. See Scott v. State, 295 Ga. 39 (3) (757 SE2d 106) (2014), overruling Cleveland v. State, 218 Ga. App. 661, 662-663 (1) (463 SE2d 36) (1995) and its progeny.

       As noted supra in footnote 6, our Supreme Court recently resolved the knowledge question with regard to the trafficking in cocaine statute. See Scott, 295 Ga. at 42 (3).