author: McFADDEN, Judge. Dillard, Judge,

text:
    A15A0674.
    GREEN v. WILSON et al.
    (773 S.E.2d 872)
   McFADDEN, Judge.

Pamela Green appeals from the grant of summary judgment to Robert Wilson in this personal injury action against him individually and in his capacity as executor of the estate of his wife, Audie Wilson. In the action, Green alleged that she was injured while trying to get away from the Wilsons’ dog. Because there is evidence that Mrs. Wilson knew that the dog had the propensity to do the type of act that caused Green’s injury, summary judgment is not appropriate. Accordingly, we reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.

Stennette v. Miller, 316 Ga. App. 425, 426 (729 SE2d 559) (2012) (citation omitted).

So viewed, the evidence showed that at the time of the incident Green worked for a housecleaning company that provided cleaning services to the Wilsons, who owned a border collie named Nani. Normally, after arriving at the Wilsons’ house, the housecleaners would wait outside until Mrs. Wilson locked Nani in a room. When the housecleaners were ready to clean that room, Mrs. Wilson would move Nani, sometimes physically dragging the dog to another room as the dog lunged, barked, and growled at the housecleaners. After securing Nani in the other room, Mrs. Wilson would tell the house-cleaners that they were “safe.” Although Green testified that she did not see Nani behave viciously or aggressively, the other housecleaners testified that they were afraid of Nani.

On October 11, 2011, Green and a co-worker arrived at the Wilsons’ house in a cleaning company van. Unlike other times, on this occasion Nani was outside the house in a fenced enclosure, barking. Green got out of the van. Suddenly, Green’s co-worker saw Nani leap over the fence and run toward Green. The co-worker yelled a warning to Green, who quickly jumped inside the van and shut the door as Nani barked, growled, and jumped against the van door. In Green’s effort to escape the dog, she struck her arm against the van, sustaining an injury that required surgery.

Citing “principles of common law negligence,” Green has argued that the Wilsons were liable because they knew of Nani’s propensity to “chase people, or to act aggressively toward people so as to frighten them.” (She expressly does not seek to recover under OCGA § 51-2-7, which provides for liability of the owner or keeper of a vicious or dangerous animal for injuries caused by that animal.) Our law as to negligence claims against dog owners provides that

a dog owner will be liable for damages only if the owner has knowledge that the dog has the propensity to do the particular act . . . which caused injury to the complaining party. Under this test, the plaintiff must show whether the dog had the propensity to do the act that caused the injury and, if so, whether the owner had knowledge of that propensity.

Wade v. American Nat. Ins. Co., 246 Ga. App. 458, 459 (1) (540 SE2d 671) (2000) (citations and punctuation omitted) (addressing claims made under both the dangerous animal liability statute, OCGA § 51-2-7, and the premises liability statute, OCGA § 51-3-1). See generally Stennette, 316 Ga. App. 425 (analyzing several theories through which plaintiff sought to impose liability upon defendant for dog attack).

The trial court granted summary judgment to Wilson on the ground that there was no evidence that Nani had the propensity to do the particular act that caused Green’s injury because Nani had never before chased anyone, inside or outside the house. The trial court correctly noted that “a dog’s aggressive or menacing behavior alone is not sufficient to place its owner on notice of a propensity’ to do a particular act. Wade, 246 Ga. App. at 460 (1) (citation omitted). Nevertheless, the trial court considered the evidence in this case too narrowly. While a dog owner must

have reason to know of [the animal’s] propensity to do harm of the type which it inflicts [,] this does not mean an incident involving the exact same conduct and the exact same injury must actually occur before the owner’s knowledge may be inferred, as long as there is an incident or incidents which would put a prudent man on notice to anticipate the event which occurred.

Torrance v. Brennan, 209 Ga. App. 65, 67-68 (2) (432 SE2d 658) (1993) (citations and punctuation omitted).

Green presented more than simply evidence of Nani’s aggressive or menacing behavior. She presented evidence that, on at least one occasion, a barking and growling Nani lunged at the housecleaners as Mrs. Wilson held the dog back. We find no meaningful distinction between this behavior and what happened on the day Green was injured. In both instances the dog’s acts could be construed as attempts to move toward a person in an aggressive manner. The evidence of the incident in which Nani, while restrained, lunged aggressively at a housecleaner raises a genuine issue of material fact as to whether a prudent person would anticipate that Nani would chase someone if unrestrained. Together with that evidence, Mrs. Wilson’s efforts to keep Nani away from the housecleaners also raises a fact question about her knowledge of the dog’s propensities. See Supan v. Griffin, 238 Ga. App. 404, 406 (519 SE2d 22) (1999) (evidence that, three months before dog bite, defendant told another person to “do whatever was necessary ... to keep the dogs from attacking” raised fact question as to defendant’s prior knowledge of dogs’ tendency to attack humans).

The dissent cites several cases in which we held that prior incidents, as a matter of law, did not show the defendant dog owner knew or should have known of the dog’s propensity to do the act that resulted in the plaintiff’s injury. In those cases, however, the dogs’ prior conduct was not as similar to the conduct that injured the plaintiff as is the case here. See, e.g., Kringle v. Elliott, 301 Ga. App. 1, 3 (1) (686 SE2d 665) (2009) (dog that bit plaintiff previously had attacked animals); Huff v. Dyer, 297 Ga. App. 761, 763 (1) (678 SE2d 206) (2009) (dog that bit plaintiff previously had barked when children were near it); Phiel v. Boston, 262 Ga. App. 814, 816-817 (1) (586 SE2d 718) (2003) (dog that bit plaintiff previously had charged down defendant’s driveway and growled at a person); Wade, 246 Ga. App. at 460 (1) (dog that bit plaintiff, who was familiar with it, previously had growled, chased and engaged in threatening actions toward strangers who approached its fenced enclosure); Hamilton v. Walker, 235 Ga. App. 635-636 (510 SE2d 120) (1998) (dog that bit plaintiff previously had growled, barked and appeared threatening to strangers); Durham v. Mooney, 234 Ga. App. 772, 773-774 (1) (507 SE2d 877) (1998) (dog that bit plaintiff previously had barked and growled at people); Rowlette v. Paul, 219 Ga. App. 597, 599 (466 SE2d 37) (1995) (dog that attacked and bit plaintiff, a stranger to it who had entered the defendant’s back yard, previously had bitten the defendant’s uncle when he startled the dog by banging on the porch where the dog was sleeping); Marshall v. Person, 176 Ga. App. 542, 543 (336 SE2d 380) (1985) (dog that jumped on plaintiff, a stranger to it, previously had jumped on its owners in a display of “frolicsome affection”); Banks v. Adair, 148 Ga. App. 254, 255 (251 SE2d 88) (1978) (dog bit plaintiff; decision does not describe any prior incidents but states that record was devoid of evidence to establish defendant’s “knowledge of his dog’s propensity to bite or injure humans”).

Because a fact question exists as to whether Nani had the propensity to do the act that caused Green’s injury and whether Mrs. Wilson had knowledge of that propensity, summary judgment was not appropriate. See Evans-Watson v. Reese, 188 Ga. App. 292, 293-294 (372 SE2d 675) (1988) (reversing grant of summary judgment to defendant in case involving injuries sustained when plaintiff ran from defendant’s dog, where there was evidence of defendant’s knowledge that dog previously had chased people, jumped at children, and had once “c[o]me at” a child).

Judgment reversed.

Barnes, P. J., and Phipps, P. J., concur. Ellington, P. J., concurs in judgment only. Dillard, Ray and McMillian, JJ., dissent.

Dillard, Judge,

dissenting.

Because there is no evidence in the record sufficient to infer that the owners of the dog, the Wilsons, knew or should have known of their dog’s propensity to chase people (inside or outside of the home), the trial court did not err in granting the Wilsons’ motion for summary judgment.

For Green to recover damages resulting from the injuries she sustained while running away from the Wilsons’ dog, she must prove that the Wilsons knew or should have known of their dog’s propensity to do the particular act that caused the injury at issue. The particular act that allegedly caused Green’s injury was the Wilsons’ dog chasing her. And while Green was not required to show that the Wilsons knew or should have known of the dog’s propensity to do the exact same act that caused her injury (i.e., vaulting the fence and chasing someone who had just pulled up in a vehicle), the law does require that there must be at least one incident that would cause a prudent person to anticipate the actual incident that occurred (i.e., chasing people in general). Thus, unless Green can point to a prior incident of the same type as the incident at issue, the requisite knowledge necessary to impose liability for the incident that caused her injury will not be ascribed to the Wilsons. This, Green has not done.

Here, the evidence shows that, on previous occasions, the Wilsons’ dog had (at most) barked, growled, and lunged on its leash. Indeed, Robert Wilson testified that the dog had never bitten or attempted to bite anyone; nor was he aware of any instance where the dog chased anyone inside or outside of the home. Moreover, one of Green’s own co-workers testified that, to her knowledge, the dog had never threatened her or any of her co-workers while they were cleaning the Wilsons’ house.* ***** 8Finally, Green even testified that she had never known the dog to be vicious or aggressive before the chasing incident on October 3, 2011.

Green and her co-worker attempted to temper the impact of the foregoing (and rather damaging) deposition testimony in post-deposition affidavits. But the trial court had every right to disregard Green’s contradictory testimony under the Supreme Court of Georgia’s holding in Prophecy Corp. v. Charles Rossignol, Inc. Nevertheless, even if all of the affidavits Green submitted in support of her claim are accepted at face value, it is ultimately of no consequence. In the end, Green’s evidence amounts to nothing more than incidents where the dog previously appeared threatening to Green and her co-workers, which, at best, can be characterized as aggressive or menacing behavior. And that is simply not enough to avoid summary adjudication. Indeed, we have repeatedly held that “menacing behavior alone does not establish vicious propensity,” and that prior “acts of aggressive or menacing behavior” are insufficient to put an owner on notice of an animal’s vicious tendencies. It simply strains credulity, then, to infer that because the Wilsons may have been aware that their dog previously growled, barked, and lunged on its leash, they knew or should have known that the dog had a propensity to chase people.* At most, the evidence shows that the dog uncharacteristically vaulted the fence and chased Green, prompting Green to jump back into the vehicle and hurt her arm in the process. And while I have the greatest sympathy for Green’s injuries, she is not entitled to recover damages for this unfortunate incident under our well-established precedent.

For all of the foregoing reasons, I respectfully dissent.

I am authorized to state that Judge Ray and Judge McMillian join in this dissent.

Decided July 16, 2015 —

Reconsideration denied July 30, 2015 —

Smith & Jenkins, Wilson R. Smith, for appellant.

Saveli & Williams, William E. Turnipseed, for appellee.

       For the sake of simplicity, I will refer to Robert Wilson and the estate of Audie Wilson collectively as “the Wilsons.”

       Although Green maintains that her claim for damages is based on common law principles of negligence, rather than OCGA § 51-2-7, this appears to be (as the majority recognizes) a distinction without a difference for purposes of my analysis. Indeed, as our Supreme Court recently noted, the General Assemblys amendment to OCGA § 51-2-7 in 1985 made clear — to the extent that there was any doubt — that the standard for liability under the statute is negligence, not strict liability. See Eshleman v. Key, 297 Ga. 364, 368, n. 3 (774 SE2d 96) (2015).

        See Kringle v. Elliott, 301 Ga. App. 1, 2 (686 SE2d 665) (2009); Raith v. Blanchard, 271 Ga. App. 723, 724 (1) (611 SE2d 75) (2005); Phiel v. Boston, 262 Ga. App. 814, 816 (1) (586 SE2d 718) (2003) (physical precedent only as to Division 2); Wade v. American Nat’l Ins. Co., 246 Ga. App. 458, 459 (1) (540 SE2d 671) (2000); Hamilton v. Walker, 235 Ga. App. 635, 635 (510 SE2d 120) (1998); Durham v. Mooney, 234 Ga. App. 772, 773 (1) (507 SE2d 877) (1998).

        See Durham, 234 Ga. App. at 773 (1); Torrance v. Brennan, 209 Ga. App. 65, 67 (2) (432 SE2d 658) (1993).

        See Kringle, 301 Ga. App. at 2; Durham, 234 Ga. App. at 773 (1); Torrance, 209 Ga. App. at 67-68 (2); Marshall v. Person, 176 Ga. App. 542, 543 (336 SE2d 380) (1985); Sutton v. Sutton, 145 Ga. App. 22, 25 (1) (243 SE2d 310) (1978).

        See Kringle, 301 Ga. App. at 2 (“[I]n order to infer the requisite knowledge^] there must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury.” (citation and punctuation omitted; emphasis supplied)); Durham, 234 Ga. App. at 773 (1) (same); Rowlette v. Paul, 219 Ga. App. 597, 599 (466 SE2d 37) (1995) (noting that “[i]t is not enough, however, that the possessor of the animal has reason to know that it has a propensity to do harm in one or more specific ways; it is necessary that he have reason to know of its propensity to do harm of the type which it inflicts” (citation and punctuation omitted)); Sutton, 145 Ga. App. at 25 (1) (noting that the proper test is “whether the one incident was of such nature as to cause a reasonably prudent person to believe that the animal was sufficiently dangerous as to be likely to cause an injury at a later time”).

       During the co-worker’s deposition, the following exchange took place between Green’s co-worker and the Wilsons’ attorney:
      Q. Dog ever threaten you in any manner?
      A. No ... .
      Q. And so you had never seen him act that way[,] had you?
      A. No, never.

       During Green’s deposition, the following exchange took place between Green and the Wilsons’ attorney:
      Q. So I take it that you never had any problem with the dog in those [prior] instances [¿.e., when she cleaned the Wilsons’ home], at all?
      A. No, because .. .
      Q. Would that be fair?
      A. That’s fair.
      Q. Okay.
      A. The only thing, the incident was he was outside that day ....
      Q. Well, you never had — the dog... never chased you.... It didn’t happen at any time, did it?
      A. No, it did not....
      Q. [I]t’s true, is it not, Ms. Green, that the dog never appeared vicious to you until the date of this incident? Isn’t that correct?
      A. Right, but that’s the only — that’s the only day because he was outside. Like I told you — if he was inside, that’s a different thing.
      Q. Right, but... he had never appeared aggressive to you until that date [of the chasing incident]. Isn’t that correct?
      A. Yes.

       256 Ga. 27 (343 SE2d 680) (1986); see also CSX Transp., Inc. v. Belcher, 276 Ga. 522, 523 (1) (579 SE2d 737) (2003) (“Under Prophecy, a trial court that is faced with a party’s self-contradictory sworn testimony on a material fact should disregard the portions of that testimony that favor the party when deciding a motion for summary judgment, unless the party offers a reasonable explanation for the contradiction.”).

        See Hamilton, 235 Ga. App. at 636 (“This Court has specifically declined to establish a rule that a dog’s menacing behavior should put an owner on notice of a dog’s propensity to bite.”); accord Huff v. Dyer, 297 Ga. App. 761, 763 (1) (678 SE2d 206) (2009); Raith, 271 Ga. App. at 725 (2); Phiel, 262 Ga. App. at 816-17 (1); Wade, 246 Ga. App. at 460 (1); Durham, 234 Ga. App. at 773 (1); Banks v. Adair, 148 Ga. App. 254, 255 (251 SE2d 88) (1978).

        See Phiel, 262 Ga. App. at 816-17 (1) (noting that a dog “charging] down his owner’s driveway and bark[ing] and growl[ing] at [a neighbor]” amounted only to “aggressive or menacing behavior” and is not sufficient to place the owner on notice of a “propensity to bite”); Hamilton, 235 Ga. App. at 635 (noting that “this Court has consistently held that the dog must have, on a prior occasion, done the same act which resulted in the injury comprising the tort action”); Rowlette, 219 Ga. App. at 599 (noting that “[j]umping up and biting someone on the buttocks who is dressed strangely in work clothes with a white dust mask and a hat because he startled the dog by banging on the porch was not sufficient to show a dangerous propensity for viciousness such that the [owners] were on notice that the dog would launch an unprovoked attack on a stranger coming into the yard”).

        Cf. Evans-Watson v. Reese, 188 Ga. App. 292, 293 (372 SE2d 675) (1988) (allowing a claim to go forward against a dog owner when there were “a number of instances in which the dog ran loose, sometimes in [her] presence, and... chased people and put [some of them] in fear, that it jumped at some children, and that [the owner] was aware that the dog repeatedly escaped the yard through an opening in the fence . . . .”).


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge. DILLARD, Judge,

license: Public Domain

text:
    A15A1223.
    PARKER v. STONE et al.
    (773 S.E.2d 793)
   ELLINGTON, Presiding Judge.

The Superior Court of Douglas County entered a decree of adoption of a child, eight-year-old A. S., by Richard and Anita Stone. Jerimi Parker appeals, contending that the superior court lacked jurisdiction and therefore erred in denying his motion to dismiss the Stones’ amended petition to adopt A. S. For the reasons explained below, we affirm.

The record shows that A. S. was born on July 23,2006, and placed with the Stones on July 28, 2006. On May 29, 2007, the Georgia Department of Human Resources by and through the Douglas County Department of Family and Children Services (“the Department”), filed in the Juvenile Court of Douglas County a petition to terminate the parental interests of S. S. (A. S.’s mother) and C. W. (A. S.’s biological and putative father and Parker’s half-brother). On May 22, 2008 (nunc pro tunc to September 17, 2007), the juvenile court entered an order terminating S. S.’s parental rights; the juvenile court reserved the issue of C. W.’s parental rights.

On May 27, 2008, the Stones filed in the superior court the instant petition to adopt A. S., alleging, inter alia, that on May 22, 2008, C. W. had surrendered his parental rights to Parker. On July 11, 2008, as A. S.’s “biological uncle,” Parker responded to the Stones’ petition. Parker admitted that C. W. had surrendered his parental rights to Parker on May 22, 2008. He objected to the Stones’ adoption petition, denying that the adoption was in A. S.’s best interests.* He later filed a motion to dismiss the adoption petition. After a hearing, the superior court denied Parker’s motion to dismiss the Stones’ petition, granted the petition, and entered a decree of adoption. In the decree, the superior court stated that the rights and obligations of C. W., A. S.’s “putative biological father but not legal father[,] ... are permanently terminated based upon the dismissal [on June 25, 2009,] of [the] Petition for Legitimation” C. W. had filed in the juvenile court.

1. Before considering the merits of Parker’s appeal, we will address the Stones’ motion to dismiss (filed March 19, 2015). The Stones argue that Parker was not a party to the adoption proceeding in the superior court and, therefore, he lacks standing pursuant to OCGA § 5-6-33 to file an appeal from the decree. Generally, that Code section limits the right to appeal to any “party” in a civil case. Although OCGA § 19-8-15 conferred a right on Parker “to file objections to the petition for adoption[,]” the Stones contend, filing objections did not make Parker a party with a right to appeal under OCGA § 5-6-33.

OCGA § 19-8-15 provides in pertinent part: “If [a] child sought to be adopted has no legal father or legal mother living, it shall be the privilege of any person related by blood to the child to file objections to the petition for adoption.” Thus, by its plain terms, OCGA § 19-8-15 gives blood relatives of a child the right, when the specified criteria are met, to participate in adoption proceedings to a certain extent, that is, by filing objections, and the statute inherently requires the trial court to consider all properly filed objections. A trial court’s decision to grant a petition to adopt a child over the objections of a blood relative who has a statutory right to lodge objections is necessarily an adverse decision as to that person. We conclude that a right to appellate review of such an adverse decision flows from the statutory right to participate in the proceedings in the trial court.

Moreover, even if this were not so as a general matter, we conclude that in these proceedings specifically Parker is a party and has standing to appeal. The Stones served him with a summons, and he filed a response to their petition as directed by the summons. The trial court ordered Parker to undergo a psychological examination and submit to a home evaluation. He filed pleadings, which the Stones sought to quash and which we ruled were quashed in error. Parker v. Stone, 306 Ga. App. at 637-638 (1). In the earlier appeal, we held that the record establishes that A. S. has no legal father or legal mother living and that, as a result, Parker has standing under OCGA § 19-8-15 to file objections to the Stones’ petition, provided that he is a blood relative. Id. Just as Parker had standing to appeal the superior court’s earlier decree and its ruling dismissing his objections to the adoption and his other pleadings, he has standing to appeal from the instant decree entered upon consideration of his objections to the adoption and the evidence in support of the Stones’ petition. The Stones’ motion to dismiss is hereby denied.

2. Turning to Parker’s claims on appeal, he contends that, because the juvenile court first exercised its jurisdiction to terminate the parental rights of the biological parents, the superior court did not have jurisdiction to enter an adoption decree that terminated the parental rights of the biological father. Parker contends that the trial court failed to follow the holding of In the Interest of J. C. W., 315 Ga. App. 566 (727 SE2d 127) (2012), and erred in exercising jurisdiction.

“The doctrine of priority jurisdiction provides that[,] where different tribunals have concurrent jurisdiction over a matter, the first court to exercise jurisdiction will retain it.” (Citation and footnote omitted.) Stanfield v. Alizota, 294 Ga. 813, 815 (756 SE2d 526) (2014). For example, because juvenile courts and superior courts have concurrent jurisdiction over termination of parental rights, the first court taking jurisdiction over such a matter retains jurisdiction. In the Interest of J. C. W., 315 Ga. App. at 572 (1). As we explained, the policy behind the doctrine of priority jurisdiction is to reduce litigation, by avoiding duplicative suits, and to avoid inconsistent, competing rulings on an issue. Id.

In this case, the juvenile court and the superior court potentially had concurrent jurisdiction with respect to the issue of termination of parental rights, and a petition for termination of the parental rights had been filed in the juvenile court before the Stones filed their adoption petition in the superior court. It is undisputed, however, that the juvenile court never issued a ruling regarding the parental rights of A. S.’s biological father, C. W., because C. W. filed a petition for legitimation and that the juvenile court later dismissed the petition for legitimation without declaring that C. W. is A. S.’s legal father. When the superior court considered the Stones’ adoption petition, the proceeding in the juvenile court had long since ended, and therefore there was no problem of overlapping jurisdiction or competing, inconsistent rulings. Furthermore, because, at the time of the final hearing and ruling on the Stones’ adoption petition, C. W. was a biological father who had failed to take any of the actions to acquire the rights of a legal father to object to adoption proceedings, OCGA § 19-8-12 (f) required the superior court to enter an order terminating his parental rights.* Parker’s argument presents no basis for reversing the superior court’s adoption decree.

Decided July 8, 2015 —

Reconsideration denied July 30, 2015 —

Andrew B. Koplan, for appellant.

James B. Outman, for appellees.

3. The Stones’ motion pursuant to Court of Appeals Rule 15 (b) to impose a penalty for frivolous appeal is hereby denied.

Judgment affirmed.

McFadden, J., concurs. Dillard, J., concurs fully in Divisions 1 and 3 and in judgment only in Division 2.

DILLARD, Judge,

concurring specially.

I concur fully as to Divisions 1 and 3 of the majority’s opinion. I concur in judgment only as to Division 2 because I do not agree with all that is said in that division of the majority opinion. Thus, the majority’s opinion in Division 2 decides only the issues presented in that division and may not be cited as binding precedent in future cases. See Court of Appeals Rule 33 (a).

       We note that the Stones filed a motion to quash all pleadings filed by Parker. The superior court granted the motion, effectively dismissing Parker from the case, and granted the adoption petition on December 22, 2009. In an earlier appeal, we vacated the decree and reversed, holding that the superior court erred in granting the motion to quash Parker’s pleadings without determining whether he is a blood relative of A. S., because, when someone seeks to adopt a child who has no legal father or legal mother living, OCGA § 19-8-15 gives the privilege to file objections to the petition for adoption of the child to any person related to the child by blood. Parker v. Stone, 306 Ga. App. 636, 637-638 (1) (702 SE2d 636) (2010).

       See Parker v. Stone, 306 Ga. App. at 636, n. 1 (deeming Parker’s responsive pleading to be an objection pursuant to OCGA § 19-8-15 to the Stones’ adoption petition).

       Under OCGA § 19-8-12 (f) (3):
      A biological father who is not the legal father loses all rights to the child and the court shall enter an order terminating all such father’s rights to the child and such father may not thereafter object to the adoption and is not entitled to receive further notice of the adoption if within 30 days from his receipt of the notice provided for in subsection (b) of this Code section he:
      (1) Does not file a legitimation petition and give notice as required in subsection (e) of this Code section;
      (2) Files a legitimation petition which is subsequently dismissed for failure to prosecute; or
      (3) Files a legitimation petition and the action is subsequently concluded without a court order declaring a finding that he is the father of the child.
      See OCGA § 19-8-1 (1) (“ ‘Biological father’ means the male who impregnated the biological mother resulting in the birth of the child.”); (6) (“Legal father” means a male who has legally adopted a child; was married to the biological mother under specified circumstances; or has legitimated the child and who has not surrendered or had terminated his rights to the child.).

       “Either party in any civil case and the defendant in any criminal proceeding in the superior, state, or city courts may appeal from any sentence, judgment, decision, or decree of the court, or of the judge thereof in any matter heard at chambers.” OCGA § 5-6-33 (a) (1). See also OCGA § 5-6-37 (“All parties to the proceedings in the lower court shall be parties on appeal and shall be served with a copy of the notice of appeal in the manner prescribed by [the Appellate Practice Act].”).

       Contrary to the Stones’ contention, this case is not controlled by Lockey v. Bennett, 244 Ga. 339 (260 SE2d 56) (1979). In that case, the Supreme Court of Georgia decided in one appeal that the appellants had no statutory right to file objections to an adoption petition under the predecessor to OCGA § 19-8-15. 244 Ga. at 340 (1). Once it had been judicially determined and affirmed on appeal that they lacked standing to file objections to the adoption petition, it followed that they lacked standing to pursue in a separate appeal any challenge to the adoption decree that followed. 244 Ga. at 340 (2). See Echols v. Cochran, 214 Ga. App. 348 (447 SE2d 700) (1994).

       See Echols v. Cochran, 214 Ga. App. at 348 (addressing on the merits an appeal filed by blood relatives of a child sought to be adopted, where the child had no legal father or legal mother living, from an order declaring that the appellants lacked standing to file objections to the adoption petition); see also State Bar of Ga. v. Beazley, 256 Ga. 561, 563 (1) (b) (350 SE2d 422) (1986) ("The term ‘party’ to an action includes all who are directly interested in the subject matter, and who have a right to make defense, control the pleadings, examine and cross-examine witnesses, and appeal from the judgment.”) (citations omitted); Ga. Music Operators Assn. v. Fulton County, 184 Ga. 348, 349-350 (1), (2) (191 SE 117) (1937) (“[A] party is aggrieved by a judgment or decree when it operates on his rights of property, or bears directly upon his interest.” Only a party who is aggrieved by a judgment has a legal right to except thereto as having “just cause” to complain of the judgment.) (citations and punctuation omitted); see generally Christopher J. McFadden et al., Ga. Appellate Practice, § 16:1 (updated November 2014).

       See also State Bar of Ga. v. Beazley, 256 Ga. at 563 (1) (b) (Where an attorney filed an action styled “In Re” the attorney’s name, without making the State Bar of Georgia a party to the action, the State Bar was nonetheless a party to the action capable of injecting the res judicata doctrine. The Supreme Court noted that the State Bar participated in the action by the lower court’s invitation, because of the State Bar’s extensive past involvement with the case and its possession of certain documents and transcripts from previous litigation; the State Bar filed an answer, responses to the attorney’s motions and motions of its own; it was ordered by rule nisi to appear at a hearing and show cause why the attorney’s motion to set aside should not be granted; it introduced exhibits into evidence; it pursued an appeal; and it otherwise acted and was treated as a party.).

       See OCGA §23-1-5 (“Where law and equity have concurrent jurisdiction, whichever first takes jurisdiction shall retain it, unless a good reason shall be given for the interference of equity.”).

       See Griffin v. State, 266 Ga. 115 (464 SE2d 371) (1995) (“Where two or more courts have concurrent jurisdiction of the same offense, the court which first acquires jurisdiction of the prosecution retains it to the exclusion of others while that case is pending, thereby preempting jurisdiction for all offenses originating in the same course of criminal conduct.”) (citations omitted; emphasis supplied).

       See footnote 3, supra.

       See In the Interest of V. B. L., 306 Ga. App. 709, 712 (1) (703 SE2d 127) (2010); Smith v. Soligon, 254 Ga. App. 172, 174-175 (3) (561 SE2d 850) (2002).

       Compare In the Interest of J. C. W., cited by Parker. In that case, the State filed a petition seeking termination of a mother’s parental rights to her children in the juvenile court. Id. at 568. While the juvenile court proceeding was pending, the children’s foster parents filed a petition for adoption that also sought termination of the mother’s parental rights. Id. at 570-571. The juvenile court issued an order denying the petition for termination of parental rights, finding that termination was not in the children’s best interests. Id. at 570. Thereafter, the superior court granted the adoption petition and terminated the mother’s parental rights. Id. at 571. On appeal, we vacated the superior court’s order terminating the mother’s parental rights. Id. at 571-572 (1).


author: ELLINGTON, Presiding Judge. MCFADDEN, Judge,

text:
    A15A0456, A15A0457.
    THE STATE v. BROWN et al. (two cases).
    (777 S.E.2d 27)
   ELLINGTON, Presiding Judge.

The Superior Court of Fulton County entered directed verdicts of acquittal in favor of Javaris Brown, Meyetta King, and Kevin Rouse on charges of trafficking in cocaine, OCGA § 16-13-31 (a) (1) (A); possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1); and other violations of the Georgia Controlled Substances Act. In Case No. A15A0457, the State appeals, contending, inter alia, that the judgments must be vacated as having been entered when jurisdiction lay in this Court and not in the trial court. In addition, in Case No. A15A0456, the State appeals from two interlocutory rulings, contending that the trial court abused its discretion in granting the defendants’ motions to exclude certain evidence as a sanction for discovery violations and in granting the defendants’ motions to exclude evidence of other crimes. For the reasons explained below, we vacate the judgments of acquittal, reverse the exclusion of evidence as a sanction for discovery violations, vacate the exclusion of evidence of other crimes, and remand.

Case No. A15A0457

1. The trial court directed verdicts of acquittal on all counts. As a threshold matter, therefore, we must determine whether the State has any right to appeal. Ordinarily, the State

may not appeal a trial court’s grant to a criminal defendant of a directed verdict of acquittal based on an insufficiency of the evidence to support a conviction, in that a new trial would be barred by the double jeopardy clause of the Fifth Amendment. The government cannot appeal such a directed verdict of acquittal, even if it is erroneously granted.

(Citations omitted.) State v. Williams, 246 Ga. 788-789 (1) (272 SE2d 725) (1980). In this regard, the State contends that, when the trial court called the case for trial, it lacked the authority to do so. Specifically, the State contends that it was authorized pursuant to OCGA § 5-7-1 (a) (5) to appeal from certain evidentiary rulings entered by the trial court a few days before the scheduled trial, that it filed a notice of appeal that was sufficient to divest the trial court of jurisdiction of the case and invest this Court with jurisdiction (Case No. A15A0456), and that the trial court will be reinvested with jurisdiction only after this Court disposes of the pending appeal, when we issue a remittitur and the same is filed in the trial court. Because the trial court lacked jurisdiction when it called the instant case for trial, the State contends, the judgments of acquittal must be vacated.

The record shows the following proceedings. The defendants were arrested and indicted in April 2014. On July 3, 2014, the State filed pursuant to OCGA § 24-4-404 (b) notice of intent to introduce evidence of other acts of Brown and Rouse. On August 4, 2014, Brown filed a motion to suppress evidence seized pursuant to a search warrant executed on April 23, 2014. On August 18, 2014, Rouse filed a motion to suppress evidence seized on April 23, 2014, when he was detained outside the searched premises.

The trial court conducted a hearing on the evidentiary issues on August 7, September 9, and September 10, 2014. On September 11, 2014, the trial judge signed an order excluding certain evidence as a sanction for discovery violations and excluding the other-acts evidence, and the clerk of court stamped the order “filed” on September 12, 2014. The court placed the case on a trial calendar for September 17, 2014.

On September 12, 2014, the State filed a notice of appeal in the trial court pursuant to OCGA § 5-7-1 (a) (5). That Code section provides that in criminal cases the State may appeal “[f]rom an order, decision, or judgment excluding any . . . evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first[.]” To take such an appeal, the State must file “the notice of appeal... within two days of such order, decision, or judgmentf,]” and the prosecuting attorney must “certif [y] to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding[.]” Id. On September 12, 2014, the State also filed a separate “Certificate of Purpose” in which the prosecuting attorney stated, “I hereby certify that the State’s appeal of this Court’s order excluding evidence as a sanction for discovery violations and excluding OCGA § 24-4-404 (b) evidence is not taken for purpose of delay, and the evidence is a substantial proof of a material fact in the proceedings.”

The trial court called the case for trial on September 17, 2014. The State notified the court that it had filed a notice of appeal from the September 12, 2014 rulings and argued that its notice of appeal had divested the trial court of jurisdiction to try the case. The defendants disputed this, arguing that the State failed to comply with the procedural requirements of OCGA § 5-7-1 (a) (5) (B). Specifically, they argued that the statute requires the State to serve the trial judge directly with the required certification, that is, the State’s filing of its Certificate of Purpose in the office of the clerk of the trial court was insufficient to certify to the trial court that such appeal was not taken for purpose of delay and that the excluded evidence was substantial proof of a material fact. They also argued that the State’s appeal was in fact for purpose of delay. They argued that, given the abuse of discretion standard of review that would be applied by this Court, the. State could not prevail on appeal. The prosecuting attorney reiterated that the appeal was not taken for purpose of delay and stated that it was necessary to appeal the court’s evidentiary rulings because, without the excluded evidence, the State could not carry its burden of proof at trial. The trial court found that, although “[t]he State filed a document purporting to be... [the] certification” required by OCGA § 5-7-1 (a) (5), the State did not provide it “to the trial court” as required. The trial court also found that the State’s purpose in appealing was delay. The trial court ruled that the State’s appeal was invalid and that the court would proceed with the trial.

The defendants all announced ready for trial. The State declined to participate, on the basis that the pending appeal divested the trial court of jurisdiction. The trial court then impaneled a jury. The State having failed to adduce any evidence, the defendants each moved for a directed verdict, and the trial court entered a directed verdict of acquittal as to each defendant.

If, contrary to the trial court’s ruling, the State’s September 12, 2014 notice of appeal was effective under OCGA § 5-7-1 (a) (5), then that notice of appeal deprived the trial court of jurisdiction to try the defendants until the State’s appeal was resolved and the trial court received the remittitur from this Court. Chambers v. State, 262 Ga. 200, 201-202 (1), (2), (3) (415 SE2d 643) (1992) (holding that the State’s appeal of an order suppressing evidence deprived the trial court of jurisdiction to try the accused and any proceeding so conducted in the trial court was coram non judice and vacating the resulting judgment and that the return of the remittitur reinvests the trial court with jurisdiction). Although a notice of appeal must be filed in the trial court, the appellate court “alone has the authority to determine whether such filing is sufficient to invoke its jurisdiction.” (Citation and punctuation omitted.) Hughes v. Sikes, 273 Ga. 804, 805 (1) (546 SE2d 518) (2001). Thus, we owe no deference to the trial court’s analysis of whether the State’s notice of appeal from the court’s evidentiary rulings was effective.

In this case, it is undisputed that the State filed its notice of appeal from the trial court’s evidentiary ruling within two days after the ruling was entered, that is, the date a written judgment was received and stamped “filed” by the clerk of the trial court. See OCGA § 5-6-31 (“The filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of [the Appellate Practice Act].”); In the Interest of K. D., 272 Ga. App. 803, 805 (613 SE2d 239) (2005); Brown v. Webb, 224 Ga. App. 856, 857 (482 SE2d 382) (1997). Further, it is undisputed that the State filed with the clerk of the trial court a certification executed by the prosecuting attorney, who is an officer of the court, that the appeal was not taken for purpose of delay and that the evidence excluded in the appealed rulings was material. We conclude that this was sufficient to invoke the jurisdiction of this Court. We find no basis for concluding that the prosecuting attorney’s certification of purpose and necessity “to the trial court” can only be satisfied by personally serving the judge presiding over a case. When the General Assembly has intended that certain communications be made personally to a judge — as compared to matters that are to be submitted to a trial court as a governmental entity and made part of the official court records by filing in the office of the clerk of court — it has so provided. Moreover, it is undisputed that, before the trial judge moved forward with impaneling a jury in this case, the prosecuting attorney personally informed the judge of the pending appeal, on the record and in open court. There is no issue of any lack of actual notice. Finally, even if this Court were inclined to question the prosecuting attorney’s representation that the State did not file its appeal from the trial court’s evidentiary rulings for purpose of delay, we find no support in the record for finding that delay was the State’s purpose, especially in light of the fact that the trial court’s pretrial rulings excluded virtually all of the inculpatory evidence that the State planned to offer* **** and effectively doomed the entire prosecution.

For the foregoing reasons, we conclude that the State’s pretrial notice of appeal was effective and deprived the trial court of jurisdiction to try the defendants pending resolution of the appeal. State v. Vansant, 208 Ga. App. 772, 776 (2) (431 SE2d 708) (1993), affirmed in relevant part, Vansant v. State, 264 Ga. 319, 321 (3) (443 SE2d 474) (1994). Because the trial court lacked jurisdiction to proceed with a trial of the defendants, such proceedings were without legal effect, and the directed verdicts of acquittal are void. Chambers v. State, 262 Ga. at 201-202 (2). The final order of acquittal of all defendants is hereby vacated, and we turn to the underlying appeal.

Case No. A15A0456

2. The State contends that the trial court abused its discretion in granting the defendants’ motion to exclude certain evidence, which was seized when investigators executed a search warrant, based on the court’s finding that the State violated its reciprocal discovery obligations.

When a criminal defendant elects to engage in reciprocal discovery under Georgia’s Criminal Procedure Discovery Act, the State and the defendant are required to produce certain types of evidence and information. See OCGA § 17-16-1 et seq. If it comes to the attention of the trial court that either the State or the defendant has failed to comply with the requirements of the Act, the court has wide latitude in fashioning a remedy for such violation. OCGA § 17-6-6; Wilkins v. State, 291 Ga. 483, 486-487 (5) (731 SE2d 346) (2012); Leger v. State, 291 Ga. 584, 588 (2) (b) (732 SE2d 53) (2012); Jones v. State, 290 Ga. 576, 577-578 (2) (722 SE2d 853) (2012). As we have noted, this broad discretion allows such remedy as is warranted “to ensure a fair trial.” (Citation omitted.) Blankenship v. State, 229 Ga. App. 793, 794 (494 SE2d 758) (1997). See Burton v. State, 330 Ga. App. 503, 507 (767 SE2d 510) (2014) (accord). For example, when the State violates the Act by failing to timely identify a witness, “[i]t is usually a sufficient remedy for the defense to be afforded an opportunity to interview the witness.” (Citation and punctuation omitted.) Leger v. State, 291 Ga. at 588 (2) (b). Although the Act authorizes a trial court to prohibit the State from introducing evidence that it failed to disclose as required, “[ejxclusion of evidence is a particularly harsh sanction and should be imposed only where there is a showing of prejudice to the defense and bad faith by the State.” (Citation and punctuation omitted.) Id. at 586 (2). “[T]he remedy a trial court fashions to cure a discovery violation is reviewed on appeal only for abuse of discretion.” (Citation omitted.) Jones v. State, 290 Ga. at 578 (2).

The record shows the following. In early 2014, the Atlanta Police Department received information that illegal drugs were being sold out of 1808 Brewer Boulevard, a single-family house. An investigator arranged for a confidential source to buy cocaine and marijuana there, on April 7 and April 16. After the second controlled buy, the investigator obtained a search warrant for the premises. A team executed the search warrant on April 23, 2014. When the team arrived, Rouse was beside his car in the driveway, and Brown and King were inside the house. Brown jumped out of a window and was immediately captured. Officers found a total of over 50 grams of cocaine, 9.72 grams of marijuana, and three scales in the kitchen and 10.27 grams of cocaine in one of the bedrooms. Officers arrested Brown and King. In a search incident to that arrest, officers found 11.51 grams of a Schedule I controlled substance in Brown’s sock. King told officers that Rouse had been selling drugs from the house. Officers then searched Rouse and seized a large quantity of cash that he had in his pocket and 16.81 grams of heroin that was concealed in his underwear.

In their motions to suppress all evidence seized as a result of the search, the defendants argued that the issuance of the search warrant was not supported by probable cause, that they were merely present in the house at the execution of the warrant, and that there was not probable cause to arrest them. Before the hearing on the motions to suppress, the State represented to the trial court that it had provided discovery to the defendants. At the motions hearing on August 7, 2014, the State advised the court that investigators had recorded the execution of the search warrant, but the State had not produced the recording to the defendants. The court suspended the hearing to allow the State to make supplemental discovery response and to allow the defendants an opportunity to review the recording.

The hearing resumed on September 9, 2014. During the State’s direct examination of the investigator who obtained the search warrant, the prosecutor asked whether the investigator had conducted surveillance on 1808 Brewer Boulevard before arranging for controlled purchases by her confidential source. The investigator replied that she had gone to the house twice in the weeks before the controlled buys. She saw some people going in and out of the house but could not determine what they were doing there. When asked whether she included information about the surveillance in her affidavit in support of her application for a warrant, the investigator responded, “I think I just have it in my . . . personal notes,” but testified that she had discussed the surveillance with the magistrate who handled the warrant application. Defense counsel cross-examined the investigator about her surveillance and whether she had written down information about the surveillance and turned it over to the State. The investigator responded that she had written it down but had not turned it over to the State. At this point, the trial court asked where the investigator “maintain[ed] a log about the surveillance [,]” and the investigator replied, “on the computer. We just type our own notes.” The trial court asked whether defense counsel wanted “time with [those] notes” before proceeding with the hearing and, when they said they did, suspended the hearing to allow the State to “get the notes off the computer” and produce them to the defendants.

When the hearing reconvened the following day, the prosecuting attorney reported that the investigator had searched her computer and her files and had prepared a narrative summary of everything she could remember about the surveillance. The investigator testified that she had used the wrong terminology in referring to a “log” or “personal notes” and that the only thing that she had typed on the computer was her investigative summary, which she created and then added to as her investigation progressed. She had provided that document to the State, and the prosecuting attorney had previously produced it to the defendants. According to the investigator, the only notes that she had ever created in connection with the case that she had not provided to the State were handwritten on scraps of paper and were limited to a description of the house and “what [she] saw that day,” which was information she needed to include in her warrant application and affidavit. After she had transcribed this information verbatim into her warrant application, the investigator had discarded those scraps of paper; they were not part of the State’s discovery production.

The trial court stated to the prosecuting attorney, “the State is responsible for everything that law enforcement has. So it is the State’s obligation to get it, determine whether it is discoverable, determine whether it is Brady material, and produce it____When law enforcement has [information], the State has it.” The trial court then instructed the investigator “for future reference,” that

when a case gets indicted... everything counts [.] Your scrap notes, your personal notes, everything associated with that case ... is subject to discovery[.] And[,] when you don’t produce it, it puts everyone, including the State, because they’re responsible for producing it, in a position where folks start [wondering], [“]well, what are they hiding..., what got covered up, what else don’t we know[?”] ... It puts me in a position where I have to decide whether there’s been intentional misconduct [.] And if there’s been intentional misconduct, [evidence] gets thrown out[,] because the Constitution pretty much says that’s what happens when there’s intentional misconduct[:] it gets held against the State. So when you testify under oath there are notes on the computer and then[,] the next day, there are no notes on the computer, that’s a problem.

The court found that “the failure to preserve notes pertinent to the case ... raise [d] an issue of spoliation.” Taking this together with the delayed production of the recording of the execution of the search, the trial court found a “pattern of failure [of the State] to provide full discovery.” The court found that this pattern of behavior was “grossly unfair” and “violate[d] these folks’ rights.” On this basis, the trial court granted the motions to suppress everything seized in executing the search warrant. The trial court expressly found, however, that the warrant was supported by probable cause and was properly executed and ruled that the suppression was “for reasons independent of the validity of the warrant itself.”

Although, as posited by the trial court, when law enforcement has information, the State is deemed to have it for purposes of the Reciprocal Discovery Act, this does not mean, as the trial court went on to conclude, that “everything associated with [a] case ... is subject to discovery.” The Act specifies materials that must be produced, including statements attributable to the defendant; pictures, documents, and tangible evidence “intended for use by the prosecuting attorney as evidence” at trial; results or reports of physical or mental examinations and of scientific tests or experiments, again, if intended for use by the prosecuting attorney at trial; and any statement of any witness that the prosecuting attorney intends to call as a witness at trial and that relates to the subject matter of the witness’s testimony. See White v. State, 271 Ga. 130 (518 SE2d 113) (1999). The purpose of the Act is to promote fairness and efficiency in criminal proceedings and to prevent so-called “trial by ambush.” We find no basis for concluding that the Act requires every member of law enforcement to preserve “everything associated with [every] case,” including informal notes created by an investigator only for the purpose of helping the investigator include accurate information in a warrant application. The record does not show that the investigator’s informal notes, which the State could not produce, were subject to discovery under any of the provisions of the Act. We conclude, therefore, that the trial court abused its discretion in imposing the extreme sanction of evidence exclusion for the State’s failure to produce the investigator’s notes.

3. The State contends that the trial court erred in ruling that the State’s intended evidence of other crimes was not relevant for a proper purpose and abused its discretion in granting the defendants’ motion to exclude the evidence on that basis.

Georgia’s new Evidence Code governs this contention. OCGA § 24-4-404 (b) addresses the admissibility of evidence of a person’s crimes or acts other than those directly at issue in a particular proceeding. That section provides:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

This section tracks Rule 404 (b) of the Federal Rules of Evidence, and as such it embodies the longstanding and fundamental principle that evidence of a person’s other acts is inadmissible for the purpose of showing that the person has a criminal disposition or a propensity for certain conduct because of the risks inherent in such evidence in compromising the presumption of innocence and the reasonable doubt standard. Like the Eleventh Circuit Court of Appeals, Georgia’s courts apply a three-part test to determine admissibility of evidence of other crimes and acts under Rule 404 (b): “(1) the evidence must be relevant [] to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.” (Citation, punctuation and footnote omitted.) Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015).

Even when a trial court determines that all three prongs of the test for admissibility under OCGA § 24-4-404 (b) are satisfied, the trial court may still exclude the evidence pursuant to OCGA § 24-4-403. That Code section, which also tracks its federal counterpart, provides: “[r] elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” See State v. Jones, 297 Ga. 156, 163 (3) (773 SE2d 170) (2015) (Evidence of other acts is not necessarily admissible in every criminal prosecution even when it is relevant to prove intent and knowledge, because such evidence may be deemed inadmissible on the basis of those considerations set out in OCGA § 24-4-403.).

Atrial court’s decision under OCGA §§ 24-4-403 and 24-4-404 (b) to exclude or admit other acts evidence will be overturned only where there is a clear abuse of discretion. State v. Jones, 297 Ga. at 158 (1); Bradshaw v. State, 296 Ga. at 656 (3). See also Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014) (“Evidentiary rulings are reviewed under an abuse of discretion standard[.]”) (citation omitted).

In this case, the record shows that the State filed its notice of intent to introduce evidence of other acts pursuant to OCGA § 24-4-404 (b) as proof of intent, motive, plan, and absence of mistake or accident. Specifically, the State identified the following acts: a 2005 charge against Brown and Rouse for trafficking in cocaine and a 2009 charge against Brown for possession of marijuana with intent to distribute.

As to the 2005 incident, a police officer testified that he received information from a concerned citizen that drugs were being “bagged” at a house in Fulton County. Upon arriving at the house, the officer observed through one of the windows three men, including Brown and Rouse, cutting and packaging crack cocaine and marijuana in the kitchen of the house. The team of officers forced entry and found the men hiding in a bedroom closet. The house, which was in an area where most of the houses were vacant, had little furniture, but there was a TV with some cameras hooked to it. The officers seized 137 grams of crack cocaine and 11 grams of marijuana.

As to the 2009 incident, a patrol officer testified that he received a call that several men were selling and using drugs at a food mart in Fulton County. The officer went to that location, where he saw six men including Brown. The officer and his partner obtained the men’s consent to search their persons. Brown had on his person 11 bags of marijuana, collectively weighing 8.1 grams.

After hearing this evidence, the trial court noted that the State intended to adduce proof at trial that, when officers arrived to execute a warrant to search the house where the cocaine and marijuana were found, Rouse was in the driveway getting into a car and Brown was jumping out of a window. The trial court found that evidence of the 2005 incident, when Rouse was seen cutting and packaging cocaine and marijuana in a nearly vacant house, “would absolutely be nothing more than propensity evidence and is more prejudicial than probative.” The court ruled that, as to Rouse, the evidence was not admissible for any purpose. As to the same 2005 incident, when Brown was also seen cutting drugs, the court found that

cutting drugs in a house, is, unfortunately, in this community and in this society, a common occurrence. It does not purport anything other than that one does that sort of thing. Insofar as that is the case, the court finds that admission of the evidence would be more prejudicial than probative. Insofar as [the evidence] might be offered for purposes of establishing that there was no mistake, that there was a plan or scheme, those purposes are actually in the court’s view more consistent with [rebutting] a potential defense which might be raised,

and the evidence would therefore not be admitted during the State’s case-in-chief. As to the 2009 incident, the trial court found that evidence that Brown had packets of drugs on his person was “not pertinent in terms of proving mistake, intent, plan, or scheme, and it will not be admitted for any purpose.”

With regard to intent, the Supreme Court of Georgia recently explained that

a defendant who enters a not guilty plea makes intent a material issue which imposes a substantial burden on the government to prove intent, which it may prove by qualifying [OCGA § 24-4-404 (b)] evidence absent affirmative steps by the defendant to remove intent as an issue. Where the extrinsic offense is offered to prove intent, its relevance is determined by comparing the defendant’s state of mind in perpetrating both the extrinsic and charged offenses. Thus, where the state of mind required for the charged and extrinsic offenses is the same, the first prong of the [OCGA § 24-4-404 (b)] test is satisfied.

(Citation and punctuation omitted.) Bradshaw v. State, 296 Ga. at 656-657 (3).

In this case, we cannot discern from the existing record whether the trial court considered whether Brown and Rouse, having entered pleas of not guilty to the charged offenses, had taken affirmative steps to withdraw intent as an element to be proved by the State. Further, it is not clear from the record whether the trial court compared the state of mind involved in the extrinsic offenses with that involved in the charged offenses before finding that the other-acts evidence constituted nothing more than inadmissible propensity evidence. To the extent the trial court discounted the propriety of the evidence for the State’s stated purpose of proving intent without considering these issues, the trial court failed to exercise its discretion. Because this uncertainty thwarts our review of the trial court’s analysis of the first prong of the three-part test (that is, relevance of the evidence to an issue other than the defendants’ character), we cannot meaningfully review the trial court’s analysis of the second prong (that is, weighing the probative value of the evidence, which flows from that relevance determination, against any undue prejudice). In State v. Jones, the Supreme Court of Georgia

caution[ed] that the potential for prejudice caused by the introduction of other acts evidence is great and the often subtle distinctions between the permissible purposes of intent and knowledge and the impermissible purpose of proving character may sometimes be difficult to discern. The danger of the subtlety of this distinction is that a jury could consider prior acts evidence for an impermissible purpose, thus elevating the importance of [OCGA § 24-4-403’s] balancing of the need for other acts evidence against the dangers of its introduction. Unfortunately, there is no mechanical solution for this balancing test. Instead, a trial court must undertake in each case a considered evaluation of the proffered justification for the admission of such evidence and make an independent determination of whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

(Citation and punctuation omitted.) Id. at 163 (3). As an appellate court, we afford great deference to a trial court’s decision in this regard, but we cannot properly review a decision to exclude or admit other-acts evidence where, as in this case, the trial court stopped short of considering the proffered evidence under the applicable standard.

For all of the foregoing reasons, the trial court’s ruling that the other-acts evidence will not be admitted is vacated, and we remand this case for the trial court to reconsider the appellees’ motion to exclude such evidence under the applicable standard. State v. Jones, 297 Ga. at 163 (3).

Decided July 30, 2015.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Assistant District Attorney, for appellant.

Lawrence M. Korn; Kristin A. Howell; King, King & Jones, David H. Jones, for appellees.

Judgment reversed in part and vacated in part, and case remanded in Case No. A1SA0456. Judgment vacated in Case No. A1SA04S7.

Dillard, J., concurs. McFadden, J., concurs fully and specially.

MCFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority opinion. I write separately to lament the ease with which this spectacle — an unauthorized criminal trial that the prosecutor was compelled to boycott leading to ineffective acquittals that an appellate court must unwind — could have been avoided.

When this case was called for trial, the state told the trial court that it had appealed her suppression order. The trial court erroneously replied that the state’s notice of appeal was ineffective. At noon that same day, the state filed an emergency motion with this court. Less than four-and-a-half hours later, we granted the emergency motion and stayed the trial. But by that time, the purported trial had taken place and the purported acquittals had been entered.

        See Tolbert v. Toole, 296 Ga. 357 (767 SE2d 24) (2014); State v. Vansant, 208 Ga. App. 772, 776 (2) (431 SE2d 708) (1993), reversed in part on other grounds, Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994); State v. Fly, 193 Ga. App. 190, 191 (2) (387 SE2d 347) (1989); State v. Warren, 133 Ga. App. 793, 795-796 (213 SE2d 53) (1975). See also State v. Coffee, 291 Ga. 31, 33 (2) (728 SE2d 171) (2012) (“The State does not have the right to appeal decisions in criminal cases unless there is a specific statutory provision granting the right.”) (citation omitted).

       See Division 3, infra.

       See Division 2, infra.

       See also Styles v. State, 245 Ga. App. 90, 92 (537 SE2d 377) (2000) (Blackburn, P. J., concurring specially) (explaining that the supersedeas resulting from an appeal in a criminal case applies to all “proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matters”).

       See also Christopher J. McFadden et al., Ga. Appellate Practice, § 10:3 (updated November 2014).

       See OCGA § 5-7-2 (b) (1) (Acertificate of immediate review shall not be required to appeal from an order suppressing or excluding evidence under OCGA § 5-7-1 (a) (5).).

       See OCGA § 5-7-6 (“This chapter], that is, OCGA §§ 5-7-1 through 5-7-6,] shall be liberally construed to effectuate the purposes stated in this chapter.”).

       See OCGA §§ 17-7-170 (“[A] demand for speedy trial shall be filed with the clerk of court and served upon the prosecutor and upon the judge to whom the case is assigned or, if the case is not assigned, upon the chief judge of the court in which the case is pending.”); 44-14-161 (a) (“When any real estate is sold on [nonjudicial] foreclosure..., no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.”). See also Uniform Superior Court Rules 16.1 (Anotice of an attorney’s leave of absence shall be submitted to the clerk of the court and, in addition, “[a] copy of the notice shall be sent, contemporaneously, to the judge before whom an action is pending and all opposing counsel.”); 17.1 (B) (A written notice of an attorney’s conflict shall be given “to opposing counsel, to the clerk of each court and to the judge before whom each action is set for hearing (or, to an appropriate judge if there has been no designation of a presiding judge).”).

       See Divisions 2 and 3, infra.

       See OCGA § 16-13-25 (3) (DDD) (methylone).

       See Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963).

       See OCGA § 17-16-1 (a) (“ ‘Possession, custody, or control of the state or prosecution’ means an item which is within the possession, custody, or control of the prosecuting attorney or any law enforcement agency involved in the investigation of the case being prosecuted.”).

       OCGA § 17-16-4 (a) (1).

       OCGA § 17-16-4 (a) (3).

       OCGA § 17-16-4 (a) (4).

       OCGA § 17-16-7.

        State v. Dickerson, 273 Ga. 408, 410 (1) (542 SE2d 487) (2001) (“The purpose of the Act is to establish a closely symmetrical scheme of discovery in criminal cases that maximizes the presentation of reliable evidence, minimizes the risk that a judgment will be predicated on incomplete or misleading evidence, and fosters fairness and efficiency in criminal proceedings.”) (citation and punctuation omitted); White v. State, 271 Ga. at 130 (1) (“The purpose of the act is to prevent surprise and trial by ambush[.]”) (footnote omitted). See also Jones v. State, 276 Ga. 171, 174-175 (575 SE2d 456) (2003) (“Contrary to the view of some, our legal system is not simply an elaborate game of ‘Gotcha!’ This Court does not endorse acquittal by ambush on the part of a defendant any more than it does trial by ambush on the part of the State. Nor do we condone induced error. The object of all legal investigation is the truth, and procedural rules are in place to further such goal in an orderly fashion.”) (citation and punctuation omitted).

       Cf. OCGA §§ 17-5-55 (retention of property that is introduced into evidence during the pendency of a criminal case); 17-5-56 (a) (preservation of physical evidence collected at the time of a crime that contains biological material relating to the identity of the perpetrator of the crime).

       To the extent the appellees suggest that the notes may have been exculpatory, they have not articulated how the investigator’s description of the activity she observed during her surveillance could have been exculpatory. A finding of a Brady violation, that is, that the State failed to disclose evidence that is both favorable to the accused and material either to guilt or to punishment, Brady v. Maryland, 373 U. S. at 87, cannot be based on mere speculation. Williams v. State, 251 Ga. 749, 789 (7) (312 SE2d 40) (1983); Jones v. State, 276 Ga. App. 728, 730-731 (624 SE2d 275) (2005); Pinson v. State, 266 Ga. App. 254, 263-264 (8) (596 SE2d 734) (2004); Nikitin v. State, 257 Ga. App. 852, 854 (1) (a) (572 SE2d 377) (2002); Merritt v. State, 248 Ga. App. 709, 713-714 (3) (548 SE2d 427) (2001).

       See Ga. L. 2011, p. 99, §§ 2, 101 (Georgia’s new Evidence Code, OCGA § 24-1-1 et seq., applies to any motion, hearing or trial commenced on or after January 1, 2013.).

       Our new Evidence Code was based in large part on the Federal Rules of Evidence. And where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance. Thus, the uncodified first section of the statute enacting the new Evidence Code explains: It is the intent of the General Assembly in enacting this Act to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal as of January 1,2013, to the extent that such interpretation is consistent with the Constitution of Georgia. Where conflicts were found to exist among the decisions of the various circuit courts of appeal interpreting the federal rules of evidence, the General Assembly considered the decisions of the 11th Circuit Court of Appeals. It is the intent of the General Assembly to revise, modernize, and reenact the general laws of this state relating to evidence while adopting, in large measure, the Federal Rules of Evidence.
      (Citations and punctuation omitted.) Parker v. State, 296 Ga. 586, 592 (3) (769 SE2d 329) (2015). See Bradshaw v. State, 296 Ga. 650, 655 (3) (769 SE2d 892) (2015) (OCGA § 24-4-404 (b) tracks Rule 404 (b) of the Federal Rules of Evidence.).

       As the United States Supreme Court explained more than half a century ago:
      The [S]tate may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically he persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.
      (Footnotes omitted.) Michelson v. United. States, 335 U. S. 469, 475-476 (69 SCt 213, 93 LE 168) (1948). See also Amey v. State, 331 Ga. App. 244, 248-249 (1) (770 SE2d 321) (2015) (accord).

       See OCGA § 24-4-401 (“As used in [OCGA §§ 24-4-401 through 24-4-417], the term ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would he without the evidence.”); State v. Jones, 297 Ga. 156, 159 (2), n. 2 (773 SE2d 170) (2015) (“[T]he relevance standard codified [in OCGA § 24-4-401] is a liberal one.”) (citations omitted); Ashley v. State, 331 Ga. App. 794, 799 (2) (771 SE2d 462) (2015) (“[E]vidence is relevant if it logically tends to prove or disprove any material fact at issue in the case.”) (citations omitted).

       See Curry v. State, 330 Ga. App. 610 (1) (768 SE2d 791) (2015) (accord); see also United States v. Lamons, 532 F3d 1251, 1265-1266 (II) (B) (11th Cir. 2008). We note that a somewhat different three-part test applied under prior law, but that test also required the State to show that the evidence was relevant to an issue other than the defendant’s character. See Peoples v. State, 295 Ga. 44, 54 (4) (b) (757 SE2d 646) (2014) (Under prior law, the State bore the burden of showing that “the independent offense or act [was] offered not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility].]” In addition, the State was required to show that the accused committed the independent offense or act and that there was a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.) (citation and punctuation omitted).

        Bradshaw v. State, 296 Ga. at 655 (3).

       See also State v. Jones, 297 Ga. at 161 (2), n. 4 (“[A] defendant puts his intent in issue when he pleads not guilty unless he takes affirmative steps to withdraw intent as an element to he proved by the State.”) (citations omitted). See also Mathews v. United States, 485 U. S. 58, 64-65 (108 SCt 883, 99 LE2d 54) (1988) (“Asimple plea of not guilty puts the prosecution to its proof as to all elements of the crime charged.”) (citation omitted); United States v. Edouard, 485 F3d 1324, 1345 (C) (1) (11th Cir. 2007) (“Where the extrinsic offense is offered to prove intent, its relevance is determined by comparing the defendant’s state of mind in perpetrating both the extrinsic and charged offenses.”) (citation and punctuation omitted); United States v. Costa, 947 F2d 919, 925 (III) (B) (11th Cir. 1991) (Where defendants did not “affirmatively take the issue of intent out of contention by stipulating that they possessed the requisite intent,” the trial court did not abuse its discretion in admitting evidence of unindicted extrinsic bad acts.) (citation omitted). But see Chynoweth v. State, 331 Ga. App. 123, 128 (3) (768 SE2d 536) (2015) (To determine whether intent is actually in issue in a case, “[t]he test is to ask: under the facts of the case, is there any danger that a rational jury could find that although the defendant committed the objective, charged acts, he did not intend to do so?”) (citation and punctuation omitted). See also Amey v. State, 331 Ga. App. at 250 (1) (b) (discussing use of other-acts evidence to show a defendant’s motive to commit the charged offense).

       Our review is complicated by the unique procedural posture presented, where, as noted above, the trial court acquitted the defendants after the State declined to present its evidence or otherwise participate in the trial, and where our decision to vacate the judgments of acquittal in Division 1, supra, effectively returns the prosecution to a pretrial status.

       See State v. Jones, 297 Ga. at 159 (2) (The same state of mind was required for committing the prior act of DUI and the charged DUI offenses, “i.e., the general intent to drive while under the influence of alcohol,” and therefore the defendant’s previous DUI conviction was relevant under OCGA § 24-4-404 (b).); Bradshaw v. State, 296 Ga. at 656-658 (3) (Where the defendant was charged with murdering a drug buyer who balked at paying for drugs the defendant had delivered, another incident, six months earlier, when the defendant murdered another drug buyer who refused to pay for drugs his brother had delivered involved the same mental state and showed the defendant’s willingness to use violence when he or someone close to him was cheated in a drug deal. Consequently, the trial court did not abuse its discretion in admitting evidence of the earlier murder for the purpose of showing the defendant’s intent and motive to commit the later crime.); Chynoweth v. State, 331 Ga. App. at 127-128 (3) (Where the defendant was charged with riot in a penal institution and obstruction of a law enforcement officer, based on his attack on two law enforcement officers who were transporting him to a hearing, there was evidence that the defendant had been prescribed antipsychotic medication, and the defendant raised defenses concerning lack of mental capacity and mental illness, there was a disputed issue concerning the defendant’s state of mind and a danger that “a jury could have concluded that[,] while he committed the charged act, he did not intend to do so.” Consequently, the trial court did not abuse its discretion in permitting other-acts evidence of the defendant’s unprovoked attack on a cellmate for the purpose of showing his intent and the absence of mistake or accident.) (citation omitted); Curry v. State, 330 Ga. App. at 612 (1) (Where the defendant was charged with trafficking persons for sexual servitude and related offenses, he squarely challenged the element of intent by arguing that he intended only to help the victims, but not to commit any criminal offenses; under the circumstances, evidence that he acted as a pimp, for whom a witness earned money as a prostitute against her will, was admissible for a purpose other than his character, and the trial court did not err in finding that the first prong of the three-part test was satisfied.).

        Harris v. State, 330 Ga. App. 267, 271 (1) (765 SE2d 369) (2014) (decided under comparable provisions of the former Evidence Code). See also United States v. Doe, 216 Fed. Appx. 874,877 (II) (11th Cir. 2007) (“When employing an abuse-of-discretion standard, we must affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.”) (citation and punctuation omitted); United States v. Brown, 415 F3d 1257 (11th Cir. 2005) (explaining reasons an appellate court gives a trial court’s rulings on the admissibility of evidence “considerable deference” under the abuse-of-discretion standard of review).


author: PHIPPS, Presiding Judge.

text:
    A15A0032.
    FIELDER et al. v. JOHNSON.
    (773 S.E.2d 831)
   PHIPPS, Presiding Judge.

In May 2013, Samuel and Julie Fielder filed a petition under OCGA § 19-7-3 (commonly known as the Grandparent Visitation Statute), seeking visitation with the minor child of their deceased daughter. The Fielders (hereinafter, the Grandparents) named as defendant the child’s father, Kelly Johnson (hereinafter, the Father). He filed a motion to dismiss the Grandparents’ action, arguing that they lacked standing. The trial court granted the motion, and the Grandparents appeal. For reasons that follow, we reverse.

In support of his motion to dismiss, the Father presented his affidavit detailing this chronology of events that preceded the Grandparents’ action: (i) he and the child’s mother were once married; (ii) upon their divorce, he was awarded sole physical custody of the child; (iii) he married another woman; (iv) the child’s mother died; then (v) his wife adopted the child in 2012. Additionally, the Father averred:

At all times since [my wife] and I married, [the child] has lived with both of us and continues to do so today. At no time have [my wife] and I been separated. We are not presently separated. Presently, [the child], [my wife], and I live together .... Neither of us are incapacitated and neither of us has been or presently is incarcerated.

Citing those circumstances, the Father argued that subsection (b) of the Grandparent Visitation Statute, together with Kunz v. Bailey, made it clear that the Grandparents’ petition for visitation could not be sustained, given that it was filed as an original action.

In Kunz, biological grandparents filed an action seeking visitation with the child born to their son. Prior to the action being filed, their son had terminated (surrendered) his parental rights to the child, and the child’s mother had then married another man, who thereupon had adopted the child. Citing that the child lived with them, the child’s mother and her husband moved to dismiss the grandparents’ action as unsustainable given the plain language of OCGA § 19-7-3 (b).

The Supreme Court of Georgia concluded in Kunz that the parents’ position was correct, setting forth the text of OCGA § 19-7-3 (b):

Except as otherwise provided in this subsection, any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, a divorce of the parents or a parent of such minor child, a termination of the parental rights of either parent of such minor child, or visitation rights concerning such minor child or whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent, notwithstanding the provisions of Code Section 19-8-19. This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both of the parents.

The Kunz Court explained:

A plain reading of OCGA § 19-7-3 (b) offers two avenues by which grandparents may seek court-sanctioned visitation rights to their grandchildren. They can (1) file an original action or they can (2) intervene in an existing court action. Grandparents may intervene in any action where custody of the grandchild is an issue; in the divorce of the parents or a parent; in the termination of rights case of either parent; in the termination of visitation rights of either parent; and in the adoption of the grandchild by a blood relative or by a stepparent. Also, by virtue of the limiting language in the last sentence of OCGA § 19-7-3 (b), grandparents may only file an original action for visitation when the parents are separated and the child is not living with both parents. In keeping with our decision in Brooks v. Parkerson,[] the statute does not otherwise allow grandparents, by court action, to intrude upon the “constitutionally protected interest of parents to raise their children.”

In reaching its conclusion that the grandparents’ action (which had been filed as an original action) should have been dismissed, the Kunz Court expressly rejected the grandparents’ argument that the term “parents,” as used in the statute, included only biological parents (and, thus, not adoptive parents) of the child. Indeed, the Court recited the principle that “language cannot be added to a statute by judicial decree.” Thus, the Kunz Court concluded, “Since [the mother’s husband] was the child’s parent at the time [the grandparents] filed their original action for visitation . . . and the child was living with [the mother and her husband] who were not separated, [the grandparents] had no basis to file an original action for visitation under the statute.”

In the instant case, there is no dispute that the Grandparents filed an original action; that is, the Grandparents did not intervene in either the divorce or the adoption proceedings. In dismissing the Grandparents’ original action, the trial court reasoned:

[The Grandparents] cannot simply ignore the fact that the Child was adopted by Stepmother____The Child is living with two parents, her biological father and her adoptive mother; therefore, the [Grandparents] do not have standing to file a petition seeking court-ordered visitation and access.

On appeal, the Grandparents contend that the trial court erred in dismissing their action. They point out that a few months after the Kunz decision, the General Assembly amended the Grandparent Visitation Statute. Given such amendment, the Grandparents maintain that they remain within “a group of protected people who the legislature has intended to provide very specific rights.” Indeed, the statutory scheme supports the Grandparents’ assertion.

“The cardinal rule of statutory construction is to seek the intent of the legislature, and language in one part of a statute must be construed in the light of the legislative intent as found in the statute as a whole.” A court is required to

follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to [e]nsure that the legislature meant something else.. .. The court also considers the law as it existed before the statute was passed and identifies the mischief sought to be corrected.

Further,

[t]he General Assembly is presumed to enact all statutes with full knowledge of the existing condition of the law and with reference to it. The meaning and effect of a statute are to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts.

“At common law grandparents had no legal right of visitation with their grandchildren over the objections of the parents.” “The [Grandparent Visitation] [S]tatute was enacted to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild, where ... a child’s parent objects.” When the Grandparent Visitation Statute was analyzed in Kunz, the Court concluded that dismissal of the grandparents’ action there was the proper outcome, because the grandparents had not complied with subsection (b), and as the Court determined, “the statute [did] not otherwise allow grandparents, by court action, to intrude upon the constitutionally protected interest of parents to raise their children.” When the General Assembly amended the Grandparent Visitation Statute within months of the Kunz decision, among other things it added was subsection (d), which provision the Grandparents in this case specifically relied upon in responding to the Father’s argument that they lacked standing because they had not complied with subsection (b). In its entirety, OCGA § 19-7-3 (d) provides:

Notwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased, incapacitated, or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds that such visitation would be in the best interests of the child. The custodial parent’s judgment as to the best interests of the child regarding visitation shall be given deference by the court but shall not be conclusive.

Decided July 16, 2015 —

Reconsideration denied July 31, 2015 —

Quite explicitly, the language italicized above eliminates the provisions of subsections (b) and (c) from impeding an award of reasonable visitation to individuals particularly designated by subsection (d). Moreover, applying the literal language — “ [notwithstanding the provisions of subsections (b) and (c)” — produces no contradiction, absurdity or such an inconvenience as to ensure that the legislature meant something else. And as the Grandparents are “the parent[s] of the deceased... parent [] of such minor child,” they fall within the ambit of subsection (d).

In determining that subsection (d) was nevertheless inapplicable, the trial court reasoned, “OCGA § 19-7-3 (d) applies where one parent is dead..., resulting in a single parent situation and then, and only then, allows grandparents to petition for visitation with the child.” We discern no such legislative intent. Nothing in the plain language of subsection (d) explicitly limits its application to that circumstance. And although the final sentence of subsection (d) references “[t]he custodial parent,” a longstanding rule of statutory construction is that “[t]he singular or plural number each indicates the other, unless the other is expressly excluded.” The legislature has made no express exclusion.

Given the foregoing, the dismissal of the Grandparents’ action on the ground that the Grandparents lacked standing for failing to comply with OCGA § 19-7-3 (b) was error.

Judgment reversed.

Doyle, C. J., and Boggs, J., concur.

Hollé Weiss-Friedman, for appellants.

Taylor, Odachowski, Schmidt & Crossland, Donna L. Crossland, for appellee.

       See, e.g., Sheppard v. McCraney, 317 Ga. App. 91, 92 (730 SE2d 721) (2012).

       290 Ga. 361 (720 SE2d 634) (2012).

       Id.

       Id.

       See id.

       Id., quoting OCGA § 19-7-3 (b) (2011).

       265 Ga. 189 (454 SE2d 769) (1995). Brooks adhered to well-established law: “The U. S. Supreme Court has long recognized a constitutionally protected interest of parents to raise their children without undue state interference.... Parents have comparable interests under our state constitutional protections of liberty and privacy rights. The right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.” Id. at 191,192 (2) (a) (citations and punctuation omitted).

       Kunz, supra at 362 (emphasis omitted and supplied), quoting Brooks, supra at 191 (2) (a).

        Kunz, supra.

       Id. at 362-363, citing In the Interest of T. C. D., 281 Ga. App. 517, 518 (636 SE2d 704) (2006).

        Kunz, supra at 363.

       Ga. L. 2012, p. 860 (amending statute, effective May 1, 2012). The current version of the Grandparent Visitation Statute, which version was analyzed by the trial court in this case, contains a subsection (b) that is substantively identical to the subsection (b) analyzed in Kunz. See generally Esasky v. Ford, 321 Ga.App. 891, 892, n. 1 (743 SE2d 550) (2013) (reiterating that because “amendments to the grandparent visitation statute apply retroactively,” an appellate court will “analyze the . . . case [before it] under this current version of the law”).

        In the Interest of N. M., 316 Ga. App. 649, 653 (2) (730 SE2d 127) (2012) (citation and punctuation omitted).

        Ga. Power Co. v. Monroe County, 284 Ga. App. 707, 709 (644 SE2d 882) (2007) (punctuation omitted).

        Summerlin v. Ga. Pines Community Sue. Board, 286 Ga. 593, 594 (2) (690 SE2d 401) (2010) (citation and punctuation omitted).

        Brooks, supra at 190, n. 2 (citation omitted).

        Sheppard, supra (citation and punctuation omitted).

        Kunz, supra at 363.

       Id.

       Id. at 362 (citation and punctuation omitted).

       (Emphasis supplied.)

       See generally Kunz, supra at 362-363 (rejecting appellant’s invitation to limit the term “parents” — whether they he natural, adoptive, or some combination thereof — as used in the Grandparent Visitation Statute, because “[i]f the General Assembly [had] intended such a limitation, it would have included specific language to that effect in the statute”) (emphasis supplied).

       OCGA § 1-3-1 (d) (6). See generally Sanborn v. Farley, 192 Ga. App. 376, 377 (385 SE2d 6) (1989) (describing the rule of statutory construction contained in OCGA § 1-3-1 (d) (6) as “the singular ordinarily includes the plural”) (citation omitted); Herndon v. Jones County, 18 Ga. App. 523-524 (89 SE 1047) (1916) (noting that prescribed for the construction of statutory enactments is the rule that “the singular or plural number shall each include the other, unless expressly excluded”).