author: ELLINGTON, Presiding Judge.

text:
    A13A0645.
    DARST v. THE STATE.
    (746 SE2d 865)
   ELLINGTON, Presiding Judge.

A Gwinnett County jury found Roger Darst guilty beyond a reasonable doubt of four counts of aggravated child molestation, OCGA § 16-6-4 (c). He appeals from the denial of his motion for new trial, contending that his trial counsel provided ineffective assistance by failing to obtain certain records concerning the victims, present expert witness testimony, and object to certain testimony. He also contends that the trial court erred in failing to dismiss four jurors for cause. For the following reasons, we conclude that, although the evidence was sufficient to support Darst’s convictions, he received ineffective assistance of counsel and, as a result, the trial court erred in denying his motion for new trial. Therefore, we reverse his convictions and remand this case to the trial court for a new trial.

1. Viewed in favor of the jury’s verdict, the trial transcript shows the following relevant facts. In February 2002, Darst and his girlfriend, Sasha Binzel, became the foster parents of two girls, twenty-month-old S. C. and four-year-old C. C. Although the children had been removed from their biological parents’ home due to neglect, the children’s mother (who was separated from their father) continued to work with the Georgia Department of Family and Children Services (“Department”) to regain custody of the girls. In addition, the children’s paternal grandparents, who lived in Pennsylvania, began participating in juvenile court custody proceedings in Georgia and working on the requirements to obtain permanent custody of the girls. Pursuant to those proceedings, the juvenile court allowed the grandparents to have visitation with the girls for a few weeks in the summers of 2003 and 2004, during which time the children’s biological father, who lived nearby, was allowed to have supervised visitation with the girls. In September 2004, the juvenile court granted the grandparents’ petition for permanent custody of the children, and the girls were told that they were going to be moving to Pennsylvania in the next few months.

In October 2004, when S. C. was four years old, the child told Binzel that Darst had been playing the “private game” with her, that he had touched her “private part” with his hand, that he had forced her to put her mouth on his “private part” and told her to suck it, and that his “private part” was “sticking out.” According to S. C., Darst had warned her not to tell anyone or he would do “something bad.” Although Binzel told Darst about S. C.’s outcry shortly after the child made the statements, she did not report the outcry to law enforcement officials. Instead, Binzel called a therapist who had been treating the older child, C. C., and told her about S. C.’s outcry. Although the therapist did not testify at trial, another witness testified that S. C. told the therapist that both Darst and her “Uncle Billy” had had sexual contact with her. The therapist reported the outcry to the Department, and the Department arranged for a psycho-sexual evaluation to be conducted on S. C. As a result of S. C.’s statements to the therapist and her psycho-sexual evaluation, Binzel was told that she should not allow Darst to be alone with S. C. Despite this instruction, Binzel continued to leave C. C. alone with Darst.

On Saturday, November 13, 2004, about a month after S. C.’s outcry to Binzel, seven-year-old C. C. told Binzel that Darst had touched her “private,” that he had forced her to put her hands and mouth on his “private,” and that he had showed her a magazine. According to C. C., she did not know about S. C.’s allegations against Darst when she (C. C.) made her outcry to Binzel, and Binzel testified that she had not told C. C. about S. C.’s earlier statements about Darst. Just as she had done after S. C.’s outcry, Binzel told Darst about the allegations and scheduled an appointment for C. C. with the child’s therapist for the following Monday, but she did not call the police or the Department. Instead, over the next two days, Binzel repeatedly questioned C. C. about the allegations. At trial, Binzel admitted that, in an attempt to “scare [C. C.] so she would tell the truth,” she told the child that the police might make her do a polygraph test to see if she was lying and that they might take her to a doctor and make her take her clothes off so they could look at her and check for fingerprints, telling her that fingerprints never go away. Further, during the investigation that followed C. C.’s outcry, Binzel admitted that, in addition to these statements, she told C. C. that she should not trust the police, that the police were going to be mean to her and take her away, that the police were going to do exams on her that would hurt, and that the police were going to “fingerprint her vagina.” Despite the intense questioning by Binzel, however, C. C. did not recant her statements or tell Binzel that anyone else had molested her.

On Monday and Tuesday, November 15 and 16, 2004, Binzel took C. C. to the therapist. The next day, the therapist reported C. C.’s outcry to the Department’s case manager, who then contacted the special victims unit of the Gwinnett County Police Department. The case manager took the children to a Gwinnett County police station, where a police investigator attempted to question the children about their outcries. S. C., however, refused to talk to the investigator about anything but unrelated, “fun” topics. Similarly, C. C. refused to talk about her allegations other than to say that Darst had done something “bad” to her. As a result of the children’s reluctance to talk to the police investigator, and in an effort to help the children feel more comfortable talking with the police, the investigator asked a female detective to interview the children, but the children did not disclose anything to her, either.

In December, forensic interviews were conducted with both children at the Children’s Healthcare of Atlanta’s Child Protection Center. Because S. C. was unwilling to go into the interview room alone, the Department case manager stayed in the room throughout the interview. During that interview, S. C. reported that Darst had “tasted” her genital area with his mouth and had forced her to “lick” his penis. Similarly, during her forensic interview, C. C. reported that Darst had touched her “private” with his hand and mouth and had forced her to touch his “private” with her hand and mouth. The interviewer asked both children if anyone had ever touched them like that other than Darst, and both girls said no. The recordings of the interviews were admitted into evidence at trial without objection, and the State played the recordings for the jury.

As a result of the children’s allegations, the State charged Darst with committing two counts of aggravated child molestation against C. C., with one count alleging that he placed his mouth on her vagina and the other count alleging that he put his penis in her mouth. The State also charged him with committing the same offenses against S. C.

At trial, Darst, Binzel, and four character witnesses testified for the defense. Darst denied the allegations, and his defense was focused on attacking the children’s credibility by showing the jury that their outcries to Binzel, their interview statements, and their trial testimony were inconsistent and unbelievable. His counsel suggested that, if the children had been molested, it was by someone else, such as their biological father or their “Uncle Billy.”

We conclude that the evidence presented at trial was sufficient to authorize the jury to find Darst guilty beyond a reasonable doubt of each count of aggravated child molestation as charged in the indictment. See Beaudoin v. State, 311 Ga. App. 91, 92 (1) (714 SE2d 624) (2011); Gentry v. State, 213 Ga. App. 24, 24-25 (1) (443 SE2d 667) (1994).

2. In several related claims of error, Darst contends that his trial counsel provided ineffective assistance and that the trial court erred in finding otherwise. Specifically, Darst argues that his counsel was ineffective when he failed to obtain and utilize the children’s therapy, school, and Department records; failed to consult with or present the testimony of experts on the issues of how to conduct reliable forensic interviews and the behavioral patterns of abused children; and failed to object or move for a mistrial when certain witnesses repeated hearsay that seriously undermined his defense strategy.

In order to establish a claim of ineffective assistance of counsel, a criminal defendant must address the two-pronged test enunciated by the Supreme Court of the United States in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). First, the defendant must show that counsel’s performance was deficient, overcoming the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. Id. Second, the defendant must show that the deficient performance so prejudiced him or her that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Id.; see Terry v. Jenkins, 280 Ga. 341, 347 (2) (c) (627 SE2d 7) (2006) (“[T]he burden in an ineffective assistance claim is to show only ‘a reasonable probability’ of a different outcome, not that a different outcome would have been certain or even ‘more likely than not.’ ”) (citation and punctuation omitted).

When a defendant establishes that trial counsel’s performance was deficient in more than one respect, the court’s determination of whether he or she was prejudiced thereby requires consideration of the “collective effect of the deficiencies.” (Citation omitted.) State v. Worsley, 293 Ga. 315, 324 (3) (745 SE2d 617) (2013). See Perkins v. Hall, 288 Ga. 810, 812 (II) (708 SE2d 335) (2011) (accord); Robbins v. State, 290 Ga. App. 323, 329 (4) (659 SE2d 628) (2008) (“[T]he combined effects of counsel’s errors should be considered together as one issue with regard to the prejudice test.”) (footnote omitted). “[I]t is the prejudice arising from counsel’s errors that is constitutionally relevant,” so each individual error by counsel should not be “considered in a vacuum.” (Citation and punctuation omitted.) Schofield v. Holsey, 281 Ga. 809, 812 (II), n. 1 (642 SE2d 56) (2007), citing Strickland v. Washington, 466 U. S. at 687 (III).

Finally, when this Court reviews a trial court’s ruling on an ineffective assistance claim on appeal, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. at 76.

(a) Was trial counsel’s performance in this case deficient?

(i) Darst contends that his trial counsel’s failure to obtain the children’s school, therapy, and Department records constituted ineffective assistance because those records demonstrate that the children’s documented behavior during the time he and Binzel were their foster parents was inconsistent with their allegations of his molestation of them.

The record shows that, on the first day of the three-day hearing on the motion for new trial, Darst’s appellate counsel stated that, unlike trial counsel, he had obtained the children’s school, therapy, Department, and juvenile court records for the three years they lived in Georgia. According to the Department’s records, beginning in April 2002, C. C. reported that her biological father had danced naked in front of her, had slept with her while he was nude, had “made [her] touch him,” and had done “secret touching of [her] privates.” The Department case manager who supervised the children’s care during their first year with Darst and Binzel testified that C. C. had, in fact, made those statements to her and that she had generated a child protective services report of the allegations. Moreover, the children’s therapist testified that, during a session in November 2002, C. C. had said that her biological father had touched her privates and, as a result, the therapist had reported the matter to the Department as required by law. This mandatory report was included in the Department’s records.

Further, the Department’s records contained numerous reports from its case manager and caseworker, the children’s therapist, and other sources that documented the children’s positive social, developmental, and educational progress from the fall of2002 until the fall of 2004, while the children were living with Darst and Binzel, as well as the status of their relationships with Darst and Binzel. The records also showed, however, that the children’s behavior and academic performance began to deteriorate in September 2004, shortly after they learned that they would be moving to Pennsylvania to live with their grandparents.

During the hearing on the motion for new trial, trial counsel admitted that he had not obtained a subpoena for any of the records prior to trial, and he offered no strategic reason for failing to do so. Instead, he stated that it was his “understanding” that the Department’s records for the children had been lost. Although he later testified that he “was told [the records] were lost,” he never identified any person he had contacted or other measures he had taken prior to trial to verify whether the records were, in fact, available. Moreover, trial counsel admitted that he did not know what information was in the Department’s records, stating that “[m]aybe it would have been something helpful [to Darst], maybe not.” Instead of trying to obtain the records, he decided that he would just “let it go” and try to use the absence of the records to Darst’s advantage at trial by arguing to the jurors that the records were just another piece of evidence the State had failed to present that would have helped them better understand the children’s background. Further, although trial counsel testified that he made some efforts to contact the children’s therapist before trial, he offered no explanation for why he did not attempt to subpoena the children’s therapy or school records.

We conclude that Darst has demonstrated that some of the information in the records at issue here was clearly favorable to his defense theory that, if the children had been molested, it was by someone other than him. Further, as explained below, the records were relevant and necessary to the expert witness’ determination that the children’s behavior was inconsistent with having been molested by Darst and that other explanations exist for their behavior. Darst has also demonstrated that the records were available pursuant to a subpoena.

In contrast, trial counsel has offered no reasonable explanation for his failure to conduct any investigation into the availability or contents of the records in order to make an informed determination of whether the information therein would have been more favorable than harmful to Darst’s defense. Nor has he explained his failure to make any effort to obtain the school’s or the Department’s records. Instead, he has admitted that he decided to forfeit the possibility that the records supported his only defenses at trial for the chance to argue to the jury that the State had failed to present evidence that might have helped the jurors to better understand the children’s background.

Under these circumstances, we find that Darst has met his burden of demonstrating that counsel’s failure to obtain evidence that was both available and favorable to the defense constituted deficient performance. See Harris v. Upton, 292 Ga. 491, 493 (2) (739 SE2d 300) (2013) (noting that counsel’s failure to conduct an investigation is unreasonable where it is the result of inattention, rather than reasoned strategic judgment); Terry v. Jenkins, 280 Ga. at 347 (2) (c) (noting that trial counsel’s decision to end his investigation was inconsistent with professional standards and patently unreasonable “in light of the evidence obtained by habeas counsel, evidence that would have caused reasonably competent counsel to investigate further”).

(ii) Darst contends that trial counsel was ineffective for failing to consult with and utilize an expert witness who would have been able to show the jury that the children’s behavior was inconsistent with having been molested by him.

In perfecting the evidence on this issue during the motion for new trial hearing, appellate counsel first presented the testimony of five lay witnesses, including the children’s half-brother, half-sister, stepmother, Binzel’s sister, and Darst’s daughter, all of whom testified about their observations of the girls’ behavior when they were with Darst, particularly the girls’ apparent lack of fear of Darst and their consistently enthusiastic and affectionate physical contact with him. According to the witnesses, the children called Darst “daddy,” ran to him when he came home from work, seemed excited to see him, liked to be held by him, hugged him and held his hand, jumped on him or sat on his lap, played games with him, and wanted to ride with him in his truck.

One of C. C.’s teachers testified about behavioral, social, and academic problems C. C. was exhibiting when she entered kindergarten in 2002, as well as the generally positive changes she observed in C. C. over the next two years. According to the teacher, however, C. C.’s behavior at school became “very erratic” in September 2004, after the juvenile court awarded custody of the girls to their grandparents. The teacher testified that “it seemed very obvious that the imminent change [in where she would be living] was distressing [to C. C.]”

Appellate counsel subsequently presented the testimony of Dr. Nancy Aldridge, who was qualified by the trial court as an expert in forensic interviewing techniques and in the types of behavior that are typically observed in victims of child molestation, physical abuse, neglect, and/or abandonment. According to Dr. Aldridge, she reviewed the trial transcript, S. C.’s psycho-sexual evaluation, police reports, transcripts and recordings of the children’s forensic interviews, the hearing testimony of the lay witnesses, and the children’s records that had been obtained by appellate counsel.

Dr. Aldridge testified about the typical behavioral patterns observed in children who have been sexually abused, particularly if some force was involved, as in this case. These behaviors include their active avoidance of the perpetrator, expression of their fear of the perpetrator, and serious psychological symptoms, including depression, anxiety, withdrawal from others, and hyper vigilance. In addition, the children often experience a decline in school performance due to their preoccupation with thoughts of the abuse, their inability to concentrate, and their tendency to be easily distracted.

According to Dr. Aldridge, the school, therapy, and Department records that documented C. C.’s numerous behavioral, social, and academic problems when she entered kindergarten in the fall of 2002 were consistent with her almost contemporaneous reports that she had been molested by her biological father before she was placed in foster care. In contrast, the lay witnesses’ hearing testimony that described the girls’ affectionate, fearless behavior with Darst was inconsistent with the behavior typically observed of children who are being sexually abused in the manner the girls had reported. Similarly, the school, therapy, and Department records that documented C. C.’s emotional, psychological, and academic improvement while living with Darst and Binzel were inconsistent with what would have been expected if she was being molested.

Dr. Aldridge also testified that C. C.’s behavioral problems that arose after the September 2004 custody ruling may not have been the result of molestation but, instead, may have been the result of a condition called “reactive attachment disorder,” which results when a small child is neglected or abused to the extent that the child becomes unable to develop a secure bond or attachment to a specific caretaker. In one type of this disorder, a child becomes emotionally distant, avoids eye contact, and does not want to be touched or held. In the other type, a child is uninhibited about seeking attention from others, but is unable to overcome his or her feeling of abandonment. Symptoms of this disorder include emotional withdrawal, low self-esteem, depression, aggressiveness, impulsive behavior, lack of remorse, anger, and lashing out. According to Dr. Aldridge, when a previously neglected child, such as C. C., has bonded with a trusted caregiver, but that secure relationship is disrupted, the disorder may develop as a defense mechanism to help the child cope with the change and the feeling of abandonment, leading the child to direct his or her anger at the caregiver.

During the motion for new trial hearing, trial counsel testified that he was aware that expert witness testimony on the behavioral patterns of sexually abused children was admissible in child molestation cases. Even so, when asked why he failed to consult with an expert in this area or to hire an expert to testify on behalf of the defense, trial counsel readily admitted that he had not made a conscious strategic decision about whether to do so. Instead, the use of an expert witness at trial simply had not occurred to him. He also admitted that he did not talk to Darst about using an expert witness and that he had no reason to believe that Darst would have been opposed to hiring one.

Under these circumstances, we conclude that trial counsel’s failure to enlist the services of an expert witness constituted deficient performance. See Goldstein v. State, 283 Ga. App. 1, 7-8 (3) (b) (640 SE2d 599) (2006) (This Court concluded that trial counsel’s performance was deficient based upon, inter alia, his testimony that it had “never crossed his mind” to consult with medical doctors to determine the validity of opinions expressed by the State’s expert witnesses.).

(iii) Darst also contends that his trial counsel was ineffective for failing to consult with and utilize an expert on the subject of conducting reliable forensic interviews. According to Darst, such an expert would have been able to demonstrate at trial that the statements made by the children during their forensic interviews were unreliable due to the methodology used during the interviews and the contamination that resulted from the repeated questioning of the children by untrained individuals prior to the forensic interviews.

As shown above, before a forensic interview was conducted with either of the children in this case, Binzel, the children’s therapist, and two police investigators either questioned them about their outcries or attempted to do so. A sexual abuse medical examination was also conducted on each child. In addition, S. C. was subjected to a psycho-sexual evaluation, and two months passed between her initial outcry to Binzel and her forensic interview. As for C. C., before she spoke to anyone else about her allegations, she was subjected to several hours of questioning by Binzel over a two-day period.

At the new trial hearing, appellate counsel presented the testimony of Amy Morton, who, like Dr. Aldridge, was qualified by the trial court as an expert in, inter alia, conducting forensic examinations of children who may have been sexually abused, and who, prior to testifying, reviewed the same case materials as Dr. Aldridge. According to Morton, a forensic interview is essentially “an unbiased search for the truth in a situation where there’s a reasonable probability that the information gained from that interview could be presented in court.” She explained that children tend to be “suggestible,” so interviewers must avoid techniques that can suggest certain answers to their questions, because a child’s actual memories of an event can be impacted by suggestive techniques. To that end, she testified that forensic interviewers must be specially trained, unbiased, knowledgeable about the developmental differences between various age groups of children, and generally aware of the child’s background and whether the child is taking medication. To help ensure the reliability of the information obtained through the interview, it should be conducted as soon as possible after the child’s first outcry in order to minimize memory lapses and reduce the possibility that third parties may intentionally or inadvertently influence the child. This situation frequently occurs when “well-meaning people who question children, who don’t have training, who inadvertently break all the rules for how these interviews should be done, and suggest things, even unintentionally, that the child then incorporates into their understanding of their own experience.” For example, when an adult either understands or misunderstands what a preschool age child has told them and then repeats what they think they heard back to the child, “that can become [the child’s] story.”

According to Morton, a forensic interviewer should avoid the following: using suggestive statements and leading questions that contain information that the child has not yet disclosed; selective reinforcement of the child’s statements, i.e., communicating to the child, either verbally or through your demeanor, approval or disapproval of what the child is saying; “co-opting” the child, i.e., encouraging the child to help in the investigation; using a type of “peer pressure” by telling the child that a sibling or someone else has already talked about the issue; and using anatomical drawings and dolls before the child discloses abuse, because premature use of the tools may improperly influence the child. Finally, the interview should be recorded or otherwise objectively documented in order to later assess the reliability of the interview process.

During her testimony, Morton offered a few criticisms of the forensic interviews at issue in this case. For example, she expressed some concern that the Department case manager was allowed to be present throughout S. C.’s interview and that S. C. was allowed to sit on the manager’s lap. The primary focus of Morton’s testimony, however, was her harsh criticism of the professionals in this case, including the therapist, the Department case manager, the police investigators, and the psycho-sexual evaluator, each of whom allowed the children to be subjected to repeated, suggestive questioning about the allegations, instead of ensuring that forensic interviews of the children were conducted without unnecessary delay. According to Morton, the “ball got dropped” by these professionals. Morton characterized the circumstances as a “collection of error [s]” that began when S. C. made her outcry to Binzel, stating that “[i]t is not one person’s fault, it is a collective [,] building situation where these children . . . did not get the care and attention needed in a timely manner to make it most possible that they would provide reliable information.”

Morton was also extremely critical of Binzel’s post-outcry interactions with both children, especially her prolonged, intensive questioning of C. C. She described Binzel as an untrained interviewer whose participation was suggestive, biased, antagonistic, and threatening, and opined that Binzel’s influence was one of the factors that rendered the children’s statements unreliable.

Significantly, Darst’s trial counsel failed to address any of these issues in his cursory cross-examination of the forensic examiner. During the new trial hearing, he testified that he had watched the recordings of the children’s interviews repeatedly with Darst, and he did not see anything that he thought was an improper interviewing technique or that suggested that the children’s statements had resulted from coaching. Even so, as noted in the previous subsection, trial counsel admitted that he did not make a conscious strategic decision about whether to consult with or hire an expert to offer an opinion on the reliability of the interviews, that he simply had not considered the option of using such an expert witness at trial, and that he had never discussed the issue with Darst.

As in the previous subsection, we conclude that, under the circumstances presented, trial counsel’s failure to enlist the services of an expert witness constituted deficient performance. See Goldstein v. State, 283 Ga. App. at 7-9 (3) (b) (Testimony from credible, objective experts was available to trial counsel before trial to substantially undermine the State’s case. Yet, for no strategic reason, counsel failed to present the evidence at trial, so the jury was left with the impression that the opinions of the State’s expert witnesses were unassailable. Under these circumstances, this Court concluded that trial counsel’s failure to seek and present expert testimony to rebut that presented by the State was a crucial omission that fell below the standard of acceptable professional conduct.); see also Barlow v. State, 270 Ga. 54 (507 SE2d 416) (1998); Weeks v. State, 270 Ga. App. 889, 894 (3) (608 SE2d 259) (2004).

(iv) Darst contends that trial counsel’s failure to object to certain testimony constituted ineffective assistance. Specifically, Darst argues that counsel should have objected to inadmissible hearsay testimony that the children’s biological father and uncle had successfully completed psycho-sexual evaluations, as well as hearsay testimony that there had been a recommendation that he submit to a psycho-sexual evaluation, but that it was unclear whether he had done so. The following statements are at issue.

First, during cross-examination of the Department case manager who had taken the children to meet with the police investigator after C. C.’s outcry, trial counsel asked the manager if the Department had received a report that someone other than Darst had inappropriately touched the children. The manager responded that, in 2002, after the Department had placed the children in foster care, C. C. had made some statements about possible sexually inappropriate behavior by her biological father when she had lived with him. According to the manager, the behavior at issue was his walking around the house naked in the child’s presence, and there were no reports of inappropriate touching, fondling or acts of sodomy by the father. The manager testified that the claim was investigated, the father had previously undergone a psycho-sexual evaluation in Virginia, and the claim was deemed “unsubstantiated.”

Second, during the State’s questioning of the Department caseworker who had supervised the children’s foster placement in Georgia from March to November 2004, the caseworker testified that the children’s paternal grandparents, who lived in Pennsylvania, had completed foster parent training and other state-mandated requirements in support of their efforts to get permanent custody of the children. According to the caseworker, because the children’s biological father and a paternal uncle would have contact with the children if they were placed in their grandparents’ custody, the men were ordered to complete psycho-sexual evaluations. The caseworker testified that both men completed the evaluations and “there were no red flags,” so the men were allowed to have supervised contact with the children if the grandparents obtained custody.

Finally, during direct examination by the State, the caseworker testified that, as a result of S. C.’s outcry about inappropriate sexual acts by Darst, it had also been recommended that Darst undergo a psycho-sexual evaluation. The caseworker testified, however, that she did not know if he had completed the evaluation.

It is undisputed that the professional(s) who conducted the psycho-sexual evaluations on the children’s biological father and “Uncle Billy” did not testify at trial and that neither of the Department employees who testified about those evaluations had any actual personal knowledge of what occurred during those purported out-of-state evaluations. Further, there is nothing in the record to show that the caseworker had any personal knowledge about Darst’s alleged referral for a psycho-sexual evaluation and, if she was relying on a document in the Department’s records, that document was never admitted at trial. Under these circumstances, the witnesses’ testimony about whether Darst, the children’s biological father, or “Uncle Billy’ participated in and/or passed a psycho-sexual evaluation constituted inadmissible hearsay. See former OCGA § 24-3-1 (a) (“Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.”); In the Interest of C.A., 316 Ga.App. 185, 189-190 (728 SE2d 816) (2012) (The diagnostic opinion of a third party who was not available for cross-examination, as well as a Department caseworker’s testimony that was based entirely upon reports of third parties who were not available for cross-examination, constituted inadmissible hearsay.); In the Interest of C. D. E., 248 Ga. App. 756, 764 (2) (546 SE2d 837) (2001) (“[R]ecords which contain diagnostic opinions of third parties who are not available for cross-examination are generally inadmissible.”) (punctuation and footnote omitted).

Thus, trial counsel erred in failing to object to these references to psycho-sexual evaluations. Even absent an objection, however, the testimony lacked any probative value and should not have been presented for the jury’s consideration. Grindle v. State, 299 Ga. App. 412, 417 (1) (b), n. 4 (683 SE2d 72) (2009) (“Hearsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact.”) (citation and punctuation omitted); In the Interest of C. D. E., 248 Ga. App. at 764 (2) (“[H]earsay evidence has no probative value even when it is admitted without objection.”) (footnote omitted).

(b) Did the collective effect of trial counsel’s errors prejudice Darst?

In determining whether the collective effect of trial counsel’s deficient performance, as described above, prejudiced Darst’s defense, we reach the following conclusions.

Because trial counsel failed to petition the trial court to subpoena the children’s Department records, he was unable to show the jury that, not only did C. C.’s biological father walk around in front of her while nude, but that he allegedly molested her by touching her “privates,” which would have provided significant support for Darst’s defense theory that she had been molested by someone else. The numerous records documenting the children’s negative behavioral changes following their summer 2004 visit to Pennsylvania and the September 2004 change of custody ruling would have supported Dr. Aldridge’s testimony about alternative explanations for their behavior besides molestation. Similarly, Dr. Aldridge’s testimony that the children’s behavior around Darst was inconsistent with their reports that he molested them (testimony which was clearly favorable to Darst’s defense) was almost entirely dependent on her review of the records at issue, as well as the lay witness testimony presented during the hearing.

Further, Morton’s expert testimony about the many factors that may have improperly influenced the children’s memories and, in her opinion, reduced the reliability of their forensic interview statements and trial testimony supported Darst’s contention that the children’s allegations against him were not credible.

Finally, the improper presentation of hearsay evidence regarding the lack of “red flags” resulting from the psycho-sexual evaluations of the biological father and “Uncle Billy” essentially eliminated them as possible molestation suspects and, as a result, severely undermined one of Darst’s primary defense theories, a fact the State specifically emphasized in its closing argument.

Decided July 16, 2013

Reconsideration denied July 31, 2013

Consequently, we conclude that Darst has met his burden of demonstrating that, absent trial counsel’s errors, there is a reasonable probability that the outcome of the trial would have been different. State v. Worsley, 293 Ga. at 324 (3); Schofield v. Holsey, 281 Ga. at 812 (II), n. 1; see Perkins v. Hall, 288 Ga. at 812-818 (II) (the collective effect of trial counsel’s errors resulted in the reversal of the defendant’s death sentence); Goldstein v. State, 283 Ga. App. at 1, 7-9 (3) (b) (In reversing the denial of the defendant’s motion for new trial, the Court concluded that, “although... trial counsel was experienced and generally able, his assistance in this trial was ineffective, particularly because he inexplicably failed to present evidence known to him that bears on several important issues and which could have changed the outcome of the trial.”).

It follows that, although the evidence was sufficient to support Darst’s convictions, the trial court erred in finding that Darst did not receive ineffective assistance of counsel and, as a result, in denying his motion for new trial. We remand this case to the trial court for a new trial. See Green v. State, 291 Ga. 287, 288-289 (1) (728 SE2d 668) (2012) (“[W]ith rare exceptions, where a defendant was deprived of effective assistance of counsel [,] but the evidence was nevertheless sufficient to convict, the proper remedy is to reverse [the] defendant’s conviction and remand the matter for a new trial.”) (citation and punctuation omitted).

3. As a result of our rulings on Darst’s ineffective assistance claims, his remaining allegation of ineffective assistance of counsel is moot. Goldstein v. State, 283 Ga. App. at 10 (4). Similarly, Darst’s contention that the trial court erred in failing to excuse four jurors for cause is moot. Id.

Judgment reversed.

Phipps, C. J., concurs. Branch, J., concurs in judgment only.

J. Scott Key, for appellant.

Daniel J. Porter, District Attorney, Lisa A. Jones, Assistant District Attorney, for appellee.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       The children moved to Pennsylvania in January 2005.

       See Division 2, infra, regarding the therapist’s testimony during the motion for new trial hearing, as well as testimony by an expert witness on her opinion about the therapist’s actions in this case.

       The person who conducted the psycho-sexual evaluation did not testify at trial.

       At trial, C. C. also testified that Darst sometimes slapped and yelled at her, particularly when Binzel was not present.

       The forensic interviewer’s expert qualifications included obtaining Bachelor’s and Master’s degrees in Social Work; attending several week-long training sessions in forensic interviewing; conducting approximately 525 forensic interviews during her career; having been repeatedly qualified as an expert in forensic interviewing by courts; and serving as a supervisor of new forensic interviewers. The interviewer testified that, during such interviews, she often uses anatomical drawings to allow a child to name various body parts using his or her own terms and, if a child reports any inappropriate contact, to give him or her a chance to point to the body parts that were touched. She also uses anatomically correct dolls for demonstration purposes if a child has reported some inappropriate sexual contact but has difficulty describing what happened to them.

       Under the relevant portion of OCGA § 16-6-4 (c), a person commits the offense of aggravated child molestation when he or she commits an act of child molestation that involves an act of sodomy. See OCGA § 16-6-4 (a) (1) (“Aperson commits the offense of child molestation when such person... [d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person].]”).

       Because due process requires the existence of sufficient evidence as to every element of the crime of which a defendant is convicted, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the fact that this issue was not explicitly raised does not prevent us from addressing (nor, more importantly, does it justify a refusal to address) the issue at this juncture.
      (Citations omitted.) Garza v. State, 284 Ga. 696, 704 (3), n. 7 (670 SE2d 73) (2008).We note that erroneously-admitted hearsay, which is “wholly without probative value and [has] no weight in establishing the facts necessary to convict the defendant,” has not been considered in reviewing the sufficiency of the evidence in this case. (Citations and punctuation omitted.) Livingston v. State, 268 Ga. 205, 209 (1) (486 SE2d 845) (1997). See Division 2 (a) (iv), infra, regarding inadmissible hearsay evidence in this case.

       See also Smith v. State, 291 Ga. App. 389, 390 (1) (662 SE2d 201) (2008) (“[CJorroboration of a child molestation victim’s testimony is not required under Georgia law[.]”) (footnote omitted); Cook v. State, 276 Ga. App. 803, 804-805 (1) (625 SE2d 83) (2005) (“The testimony of the victim and those to whom she reported [the defendant’s] actions constituted sufficient evidence to sustain [his] conviction of child molestation[.]”) (citations omitted).

       If a defendant fails to satisfy either prong of the test, he will be unable to prevail on his ineffective assistance claim, so the court is not required to consider the remaining prong. Covington v. State, 251 Ga. App. 849, 852 (2) (555 SE2d 204) (2001).

       Specifically, appellate counsel obtained 68 pages of school records, 331 pages of therapy records, 232 pages of Department records, and 64 pages of juvenile court records.

       Apparently, trial counsel relied on a statement hy the police investigator during his interview with Binzel that the Department had “mysteriously lost the children’s records. The investigator did not identify where he had obtained that information.

       We acknowledge that the Department’s records involving child abuse allegations are deemed confidential under OCGA § 49-5-40 (b). See OCGA § 49-5-40 (a) (3) (B), (C) (The term “child abuse” includes neglect of a child by a parent or caretaker and sexual abuse of a child.). Such records may be obtained, however, by petitioning the trial court to subpoena the records under the provisions of OCGA § 49-5-4Í (a) (2), which states that reasonable access of confidential Department records shall be provided to
      [a] court, by subpoena, upon its finding that access to such records may be necessary for determination of an issue before such court; provided, however, that the court shall examine such record in camera, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then before it and the record is otherwise admissible under the rules of evidence[.]
      See Dunagan v. State, 255 Ga. App. 309, 311-312 (4) (565 SE2d 526) (2002) (The trial court conducted an in camera inspection of the child’s Department file and provided the defendant with several documents from the file concerning earlier child abuse that the court determined might be exculpatory and relevant to his defense.); Plante v. State, 203 Ga. App. 33 (416 SE2d 316) (1992) (In a case involving child molestation and sodomy, the defendant caused a subpoena duces tecum to be issued to the Department, calling upon it to produce at trial all records in its possession pertaining to the child. After conducting an in camera inspection of the requested materials, the trial court made four pages of that agency’s records available to the defendant.).
      We also note that, contrary to the State’s assertion, there is no competent evidence in the appellate record that the Department’s records were unavailable to trial counsel prior to trial.

       The testimony of the children’s therapist echoed these observations.

       The record shows that Dr. Aldridge has extensive educational and professional experience in conducting forensic interviews of children who had been physically or sexually abused, educating other professionals in appropriate interviewing techniques, conducting relevant research, and serving as the executive and clinical director of two advocacy centers for physically and sexually abused children for a total of ten years.

        See Hall v. State, 201 Ga. App. 626, 627 (2) (411 SE2d 777) (1991) (“The‘typical’behavior of sexually abused children is not within the ken of the average juror and is, therefore, a proper matter for expert testimony.”) (citation omitted).

       Cf. Gawlak v. State, 310 Ga. App. 757, 759-760 (2) (a) (714 SE2d 354) (2011) (Trial counsel testified that he had investigated the possibility of utilizing an expert to testify that the victim’s behavior was inconsistent with that of a child who had been sexually abused, but he decided not to do so because the testimony would have been inconsistent with his defense theory. This Court concluded that the defendant had failed to demonstrate that trial counsel’s strategic decision was unreasonable and that he was prejudiced thereby.).

       The record shows that Morton is a marriage and family therapist with specialized training and at least 25 years of experience in conducting forensic interviews of children who allegedly had been sexually abused and in training others to conduct such interviews. She also provides therapy for children who have been sexually abused.

       Similarly, the other expert witness, Dr. Aldridge, testified that she believed the children’s purported memories of Darst’s molestation likely resulted from the numerous, suggestive interviews that occurred prior to the forensic interviews and injected improper third party influences, thereby contaminating the children’s original memories.

       The record shows that, during trial counsel’s cross-examination of the forensic interviewer, he asked only three questions, all about whether the interviewer had talked with either of the children before the interviews. The interviewer responded that, other than what was said when she went into the waiting room and brought the children, separately, into the interview room, everything she and the children said to one another was on the recordings of the interviews.

       Although trial counsel added that presenting such expert testimony at trial might require him to play the recordings for the jury a second time, which would not have been favorable to Darst, almost all of the opinion testimony offered by Amy Morton, the expert retained by appellate counsel, was directed at the events preceding the forensic interviews and their negative effect on the reliability of the children’s interview statements. The record shows that both Morton and Dr. Aldridge were able to testify during the hearing without replaying the interview recordings.

       Cf. Gawlak v. State, 310 Ga. App. at 758-759 (2) (a) (Trial counsel testified that he had investigated the possibility of utilizing an expert to testify about proper child interviewing techniques but decided that he would address the interview issues by cross-examining the State’s expert witnesses, who had conducted the interviews. The record showed that counsel extensively cross-examined those witnesses about the interview techniques at trial. This Court concluded that the defendant had failed to demonstrate that trial counsel’s strategic decision not to call an expert witness was unreasonable and that he was prejudiced thereby.); Towry v. State, 304 Ga. App. 139, 147 (2) (f) (695 SE2d 683) (2010) (Trial counsel testified that he had reviewed the recording of the victim’s interview by a police investigator and that, based upon his training in forensic interviewing techniques and his experience in conducting such interviews when he was a police officer, he concluded that it was unnecessary to utilize an expert witness to testify about forensic interviewing techniques. This Court concluded that the defendant had failed to demonstrate that trial counsel’s strategic decision was unreasonable and that he was prejudiced thereby.).

       As shown in Division 2 (a) (i), supra, however, the Department’s records actually showed that C. C. had reported that her biological father had slept with her while he was naked and had touched her "privates.”

       Notably, during cross-examination of the caseworker, defense counsel elicited her testimony that S. C.’s statements to the children’s therapist about inappropriate sexual behavior by her “Uncle Bill/’ was the reason he was ordered to undergo a psycho-sexual evaluation.

       In 2011, the Georgia General Assembly repealed the existing Evidence Code in its entirety and replaced it with a new Evidence Code, the provisions of which became effective on January 1,2013, and apply to any motion, hearing or trial commenced on or after such date. Ga. L. 2011, p. 99, §§ 1, 101. Pursuant to that legislative act, “hearsay” has been redefined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OCGA § 24-8-801 (c) (2013).

       Trial counsel testified that his failure to object to the evidence was not the result of a strategic decision.

       See also Terry v. Jenkins, 280 Ga. at 347-348 (2) (c) (“Whatever our own opinions maybe about the verdict in this case, we conclude, in agreement with the habeas court, that there is a reasonable probability that the jury would have reached a different verdict in the guilt/innocence phase of trial if confronted with the evidence presented by habeas counsel that trial counsel failed to obtain.”).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A13A0601.
    A13A0602.
    COOK v. FORRESTER. WYNN v. FORRESTER.
    (746 SE2d 624)
   Boggs, Judge.

In this medical malpractice action, James Wynn, M.D., and Lloyd Cook, M.D., appeal from the trial court’s orders denying their claim of official immunity provided by the Georgia Tort Claims Act, OCGA § 50-21-1 et seq. In their sole enumeration of error on appeal, they contend that the trial court erred by concluding that our recent opinion in Jones v. Allen, 312 Ga. App. 762 (720 SE2d 1) (2011), precludes a finding of immunity. Based upon the Supreme Court of Georgia’s recent decision in Shekhawat v. Jones, 293 Ga. 468 (746 SE2d 89) (2013), we reverse.

The party seeking to benefit from the doctrine of official immunity has the burden of proof. See Howell v. Willis, 317 Ga. App. 199, 203 (729 SE2d 643) (2012). The trial court’s ruling on a motion to dismiss is reviewed de novo, while factual findings are sustained if there is evidence supporting them. Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 (666 SE2d 383) (2008).

The record shows that Charlotte Forrester’s treating physician referred her to the Kidney Transplant Program at the Medical College of Georgia hospital. During a surgery to remove both her kidneys that was scheduled several weeks before Mrs. Forrester was to receive a donated kidney from her sister, Mrs. Forrester’s spleen was injured, and the doctors performing the surgery, Dr. James Brown and Dr. Jeremiah Murphy, ordered blood transfusions. The blood provided to Mrs. Forrester during these transfusions was not leukoreduced, and she subsequently “developed antibodies against her sister,” resulting in the cancellation of her scheduled transplant. At some point after the transplant of her sister’s kidney at another hospital and over a year after the surgery in which her kidneys were removed at the Medical College of Georgia hospital, Mrs. Forrester died. At the time Mrs. Forrester’s kidneys were removed, the Medical College of Georgia did not have any policies in place to ensure that transplant patients receive leukoreduced blood.

Following Mrs. Forrester’s death, John Forrester, as executor of the estate, sued the Board of Regents of the University System of Georgia, the Board of Regents of the University System of Georgia d/b/a Medical College of Georgia Hospitals and Clinics (“MCG”), MCG Health, Inc. (“MCGHI”), the doctors who performed the surgery to remove Mrs. Forrester’s kidneys (Dr. Brown and Dr. Murphy), as well as the director of the blood bank (Dr. Lloyd Cook), and the director of the renal transplant program (Dr. James Wynn). The plaintiff’s amended complaint asserts that Dr. Cook and Dr. Wynn

were employees of the Defendant Board of Regents of the University System of Georgia, Board of Regents of the University System of Georgia, d/b/a Medical College of Georgia Hospitals and Clinics, and/or agents of the Defendant MCG Health, Inc., and each of said Defendants care and treatment of Charlotte Forrester was within the scope of their employment with [each of these entities].

It also contends that the doctors

exercised discretion not controlled by policies of the Defendant Board of Regents, and had independent obligations to the Plaintiff and Charlotte Forrester that were independent of official state duties. Said Defendants are also individually liable to the Plaintiff for the professionally negligent performance of such acts.

According to the complaint, Dr. Cook and Dr. Wynn’s “care and treatment of Charlotte Forrester ... fell below the standards of care of the medical and hospital professions generally under like or similar circumstances.” With regard to Dr. Wynn, the amended complaint alleges:

As Medical Director and as Administrative Director of the Department of Transplant Surgery, it was the responsibility of [Dr. Wynn] to establish, administer and oversee the solid organ transplant program and the system of services required of such a program at the Medical College of Georgia. Such a system should have included an institution-wide system for immediate identification of the transfusion needs of potential or actual solid organ transplant patients. Further, such a system should have included the provision of leukoreduced blood for potential or actual transplant patient/candidates should the need for transfusion occur. Said Defendant was negligent in his failure to so establish, administer and/or oversee such a system, and such failure was a proximate cause of the sensitization that led to Mrs. Forrester’s injuries.

The expert affidavits attached to the complaint did not include a contention that Dr. Wynn, in his capacity as Charlotte Forrester’s transplant surgeon, committed a negligent act or omission. During depositions of two of the plaintiff’s identified expert witnesses (Dr. Snyder and Dr. Hardy), Dr. Wynn’s counsel confirmed that their only standard-of-care criticism of Dr. Wynn related to his administrative failures as the medical director of the transplant surgery, not his professional care of Charlotte Forrester as an individual patient. Nevertheless, a third plaintiff’s expert (Dr. Goodnough) testified that Dr. Wynn violated the standard of care by failing to provide leukoreduced blood to Charlotte Forrester.

With regard to Dr. Cook, the amended complaint asserts:

[A]s Director of the Blood Bank at the Medical College of Georgia [Dr. Cook] had the professional, medical and administrative responsibility to establish, administer, and oversee the Blood Bank of the Medical College of Georgia (hereinafter “MCG”) as an integral part of the transplant program as required by the standards of care of hospitals similarly situated as MCG, including provision of leukoreduced blood for the transfusion needs of patients identified for organ transplant and a system-wide identification system for such patient-candidates. Said Defendant was negligent in his failure to establish, administer and/or oversee such a program, and such failure was a proximate cause of the sensitization that led to Mrs. Forrester’s injuries.

Because Dr. Cook was not an attending physician of Mrs. Forrester, it is undisputed that the plaintiff’s allegations against Dr. Cook relate solely to his administrative duties as the blood bank director.

Dr. Cook moved to dismiss and Dr. Wynn moved for summary judgment based upon the official immunity provided to a state employee while acting within the scope of their employment under the Georgia Tort Claims Act. OCGA §§ 50-21-25 (a) and 50-21-23 (b). Although the trial court initially granted Dr. Wynn’s motion for summary judgment, it subsequently granted the plaintiff’s motion for reconsideration and denied Dr. Wynn’s motion for summary judgment, as well as Dr. Cook’s motion to dismiss.

All of the parties relied upon provisions in several contracts governing the relationship between MCG, MCGHI, the Medical College of Georgia Physicians Practice Group (“PPG”), and member physicians of PPG in support of their positions with regard to the issue of immunity.

The Amended Master Affiliation Agreement between MCG and MCGHI, provides that “MCGHI is committed to supporting [the Board of] Regents Mission, and meeting the health care needs of the State and communities served by the MCG Hospital and Clinics.” The agreement provides that the Board of Regents mission

with regard to MCG Hospital... is to: (1) educate and train competent health care professionals; (2) provide integrated, comprehensive, and quality health care services; (3) benefit the indigent, near indigent, and paying patients in accordance with OCGA § 20-3-520;[] and (4) conduct medical and biomedical research.

The agreement provided for “the lease and transfer of facilities, assets, employees and obligations of MCG Hospital... from Regents to MCGHI in a manner supportive of the public purposes of Regents and MCG Hospital....” The Amended Master Affiliation Agreement also provided that the parties would “execute a Clinical, Educational and Research Service Agreement (‘CERSA’).” The CERSA agreement provides: “Regents employs all Faculty other than adjunct (clinical) Faculty and is responsible for the allocation of any and all of the professional time and services of employed Faculty Members,” and that MCGHI agrees to “provide non-physician clinical and support services for the benefit of MCG. . . .”

The Medical College of Georgia Physicians Practice Group, PPG, is a “cooperative organization” of the Board of Regents that handles billing, collecting and disbursement of fees generated by member physician’s services, as well as the management of the practice of medicine by MCG. All full-time faculty members of the MCG Hospital are members “by reason of such employment.” The PPG membership agreement form signed by physicians employed by the Board of Regents expressly provides that the physician “is an employee of the Board of Regents of the University System of Georgia and is not an employee of PPG.”

The agreement between PPG and the Board of Regents provides that the Board of Regents “has the authority to determine what portion of a faculty members’ [sic] time may be devoted to clinical services, medical direction and medical management services,” that faculty members “are employees of the Board of Regents,” that “[a]ll faculty appointments will be made at the discretion of MCG,” that all compensation for MCG faculty will be determined by MCG, and that PPG shall not pay any compensation to MCG faculty other than “fringe benefits in keeping with historical fringe benefit packages.”

Based upon these agreements, MCGHI would pay a contractual fee to PPG for the services of MCG faculty who perform administrative roles such as medical directors of various departments. “PPG in turn pays MCG the fees it receives from MCGHI for the administrative” services, and MCG pays the doctors.

Both doctors pointed to the following evidence in support of their claim that they were acting within the scope of their employment with MCG: they were professors at MCG in addition to their roles as medical directors at the hospital; that only full-time faculty members with MCG can be appointed as medical directors; that a condition of employment with MCG is acceptance of appointments to various positions at facilities operated by MCGHI, including the director of the blood bank; that MCGHI denied that it employed them; that MCG paid them and issued their W-2 tax form; and that their employment contracts were with MCG only.

The plaintiff asserts with regard to both doctors that their negligent conduct arose from their respective roles as medical director for MCGHI, not their employment as faculty members of MCG. In support of this argument, the plaintiff points to the following facts: MCGHI operates the blood bank for MCG; MCGHI appointed Dr. Cook to serve as the director of the blood bank and Dr. Wynn as the director of the renal transplant program for the hospital on an annual basis “via recommendation of MCGHI President/CEO and Chief Medical Officer in consultation with PPG and the Dean of the School of Medicine”; that MCGHI compensated PPG doctors for their services as medical directors; that Dr. Wynn testified in his deposition that he rendered services to MCGHI and that he performed services for MCGHI as the medical director of the renal transplant program; that MCGHI purchased professional liability insurance which would cover the doctors for claims arising out of their administrative duties for MCGHI; and the MCGHI job descriptions specified that their performance as medical directors would be evaluated annually by MCGHI and that “[u]nsatisfactory performance may be addressed at any time through the mechanism as described in the PPG/MCGHI agreement.” This agreement provided:

The Medical Administrative Services shall be provided by members of PPG who are also members in good standing of the medical staff of the Component of the Hospital in which such person is providing the Medical Administrative Services. If such person is serving as the chief of a service or as medical director of a unit such person shall have clinical privileges allowing him/her to practice medicine in that service or unit as the case may be. After consultation with PPG and the Dean of the Medical College of Georgia School of Medicine, MCGHI shall appoint the individuals to serve in such positions. If MCGHI is dissatisfied with the performance of any person providing Medical Administrative Services it shall notify PPG in writing summarizing the reasons for its dissatisfaction. PPG shall then consult with MCGHI and counsel the individual involved and attempt to rectify the situation. If at least 30 days have passed and MCGHI is still dissatisfied, then MCGHI may remove and replace such person in accordance with the procedures for appointment set forth above. If MCGHI feels that the problem involved is having a detrimental impact on patient care, is causing a threat to the safety of patients, or is damaging the reputation or standing of the Hospital then it shall so notify PPG, in which case the foregoing procedures shall be dispensed with and the person maybe removed by MCGHI immediately.

With regard to both doctors, the trial court reasoned that they were not acting within the scope of their official duties while acting in their capacities as medical directors at the Medical College of Georgia, based upon this court’s intervening decision in Jones, supra, 312 Ga. App. at 762-766 (1), reversed by Shekhawat, supra. The trial court concluded:

The Court of Appeals has made it quite clear in the Jones case that a Board of Regents employed physician’s official duties as the Medical College of Georgia stem from obligations as a faculty member of the medical college____Because [defendants have] not shown that [their] position [s] as the Medical Director... correspond[ ] with [their] official duties as a faculty member of the Medical College of Georgia[, they] are not entitled to official immunity under the Georgia Tort Claims Act.

Decided July 15, 2013

Reconsiderations denied July 31, 2013.

Samuel S. Olens, Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Claude M. Sitton, J. David Stubins, Assistant Attorneys General, for appellant (case no. A13A0601).

Carlock, Copeland & Stair, Adam L. Appeal, Kim M. Ruder, for appellant (case no. A13A0602).

Blasingame, Burch, Garrard & Ashley, Gary B. Blasingame, Henry G. Garrard III, Andrew J. Hill III, Josh B. Wages, for appellee.

In their appeals, both doctors contend that the trial court erred by interpreting Jones, supra, to mandate a finding against immunity. The plaintiff asserts that we should affirm based upon Jones, supra, as well as the Supreme Court of Georgia’s decision in Keenan v. Plouffe, 267 Ga. 791 (482 SE2d 253) (1997). Based upon the Supreme Court’s recent overruling of its decision in Keenan, and the reversal of this court’s decision in Jones, we reverse. Shekhawat, supra.

In Shekhawat, the Supreme Court concluded that the analysis of whether a physician is entitled to official immunity under the Georgia Tort Claims Act “shall proceed exclusively on the basis of whether the physician was acting within the scope of his state employment in performing the treatment that is the subject of the malpractice action.” Id. at 473. In this case, as in Shekhawat, the issue is “easily resolved” because this case involves identical affiliation agreements and it is clear from the record that Dr. Cook and Dr. Wynn were full-time faculty members at MCG who “were performing the regular duties of their employment, during their regular hours of employment, at their regular site of employment.” Id. They were therefore entitled to official immunity, and we must therefore reverse the trial court’s denial of Dr. Cook’s motion to dismiss in Case No. A13A0601 and the denial of Dr. Wynn’s motion for summary judgment in Case No. A13A0602.

Judgments reversed.

Doyle, P. J., and McFadden, J., concur.

       The purpose of the surgery was to prevent an infection from occurring before the scheduled transplant.

       Mr. Forrester subsequently dismissed his claims against Dr. Brown and Dr. Murphy without prejudice.

       MCGHI is a nonprofit, Section 501 (c) (3) tax-exempt, charitable corporation MCG created for the purpose of leasing and operating the hospital.

       This Code section provides in part:
      The board of regents in the exercise of its public and governmental functions shall have power and is authorized to lease, buy, build, construct, contract for the use of, maintain, and operate a general nonprofit teaching hospital at Augusta, Georgia ... for the benefit of indigent, near indigent, and paying patients ....


author: Ray, Judge.

text:
    A13A0748.
    PRICE v. THAPA.
    (745 SE2d 311)
   Ray, Judge.

James Price filed a complaint for damages against Raju Thapa and other defendants for injuries he sustained in a motor vehicle collision. On Thapa’s motion for summary judgment, the trial court found that Price had given contradictory testimony regarding his joint enterprise theory of liability based on “tandem driving.” Applying the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986), the court construed the favorable portions of Price’s testimony against him and found that, absent such favorable testimony, Thapa was entitled to judgment as a matter of law. On appeal, Price contends that the trial court erred in granting summary judgment, arguing that his testimony was not contradictory and that his testimony was supported by other evidence. For the following reasons, we reverse.

A grant of summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” (Citations omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

“[A] person driving a vehicle recklessly and in tandem with another vehicle [can] be held liable for a resulting collision under a joint enterprise theory, even if his car was not directly involved in the collision.” (Citations and footnotes omitted.) Baxter v. Wakefield, 259 Ga. App. 475, 476 (577 SE2d 804) (2003). To impose liability against a defendant under a joint enterprise theory, a plaintiff must show that the defendant was jointly engaged with one or more persons in an unlawful enterprise, and that each performed a wrongful act in pursuit of such purpose. If one of the wrongful acts causes an injury, the parties may be held jointly and severally liable. Id. With regard to “tandem driving” specifically, liability under a joint enterprise theory is authorized

[w]hen there is an understanding [between the participants] to reach a common destination and in doing so illegal speed is used and the cars are driven so closely together as to be practically in tandem, or to constitute a unit, . . . [creating] a situation of mutual stimulation where the negligence of each participant is so related to the negligence of the other participants that the participants should each be chargeable with the causal negligence of the other as to speed.

(Punctuation and footnote omitted.) Id. at 476-477.

The record shows that, on September 25,2008, Price was driving westbound on GA Highway 155 (Jackson Road) when a white van traveling southbound on Johnny Cut Road at an excessive rate of speed ran a stop sign and collided with Price’s vehicle. The driver of the van, Vijay Shah, was killed in the collision, and Price was seriously injured. Thapa was driving his vehicle 20 to 30 feet behind Shah’s van at the time of the collision, and he was following Shah to a gas station/convenience store.

In a sworn affidavit, Price stated that he observed Shah’s van and Thapa’s vehicle passing through the intersection at a high rate of speed. Price further stated that both vehicles ran the stop sign, and that he observed Thapa’s vehicle pass behind him prior to being struck by the van. Price stated that both vehicles were traveling approximately 60 to 70 miles per hour, in excess of the posted speed limit of 55 miles per hour. In his subsequent deposition, Price testified that he saw the white van approaching the intersection at approximately 60 miles per hour, but that he did not see Thapa’s vehicle until it passed behind him just before his vehicle was struck by the van. Based on the circumstances, Price testified that Thapa “had to be going just about as fast [as the van] ... to be coming behind me that fast [prior to the collision]” and “to be that close behind [the van].” Price further testified that he did not actually see the vehicles run the stop sign, but “that they had to have” based on “the speed of the vehicles and the impact.” Although Price testified that he did not know for sure if Thapa was following behind the van, he thought that Thapa was following the van because he saw Thapa “zoom” past the rear of his vehicle “maybe a second” before the collision.

Thapa testified during his deposition that he was, in fact, following Shah’s van at the time of the collision, and that he was approximately 20 to 30 feet behind the van and driving about 40 to 45 miles per hour. Thapa further testified that Shah did not stop at the stop sign, and that he, himself, tried to stop but continued on through the intersection before pulling over and parking at the side of the road. Although Thapa later testified that he stopped at the stop sign before the accident, the officer who investigated the accident testified that there were no skid marks leading up to the stop sign at the intersection, and that he would expect to see skid marks from Thapa’s vehicle if he was driving 40 to 45 miles per hour and 20 to 30 feet behind Shah’s van.

Generally speaking, in an appeal from an order granting a motion for summary judgment, we view the evidence in the light most favorable to the party opposing the motion. Silver Pigeon Properties v. Pickling & Co., 316 Ga. App. 167, 167 (728 SE2d 801) (2012). However, when a party has given contradictory testimony on the dispositive issue in the case, and when that party relies exclusively on that testimony in opposition to summary judgment, a court must “construe the contradictory testimony against him.” Prophecy, supra at 28 (1). In such a case, the court must disregard “the favorable portions of the contradictory testimony” and then construe the remaining testimony and evidence in favor of the nonmovant to determine whether summary judgment should be granted. (Footnote omitted.) Id. For purposes of the Prophecy rule, testimony is contradictory “if one part of the testimony asserts or expresses the opposite of another part of the testimony.” (Footnote omitted.) Id. at 30 (2). The issue of whether a party’s testimony is contradictory “is a question for the [trial] judge to decide.” Id.

The court below found contradictions in Price’s statements in his affidavit and deposition testimony concerning the speed of the vehicles and the running of the stop sign, and found that Price failed to offer any reasonable explanation for the contradictions. We conclude, however, that Price’s statements concerning these matters were essentially consistent and do not provide a proper basis for applying the Prophecy rule. Furthermore, Price’s contention that Thapa failed to stop at the stop sign is supported by other evidence of record.

For purposes of the Prophecy rule, the issue of whether a party-witness’s testimony is inconsistent is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said. Smith v. Vencare, Inc., 238 Ga. App. 621, 624 (1) (519 SE2d 735) (1999). In this case, Price’s deposition testimony as to how the accident occurred is not in material conflict with his description of the accident in his affidavit. Based on our review, Price’s deposition testimony offers a fuller, more expansive, and complete account of the accident, and it provides the underlying basis for his statements in the affidavit.

Because no material contradiction appears in Price’s statements concerning the speed of Shah’s and Thapa’s vehicles or their running of the stop sign, and because Price’s contention that Thapa failed to stop at the stop sign was supported by other evidence, it was error for the court below to apply the Prophecy rule and view his testimony in any light other than that most favorable to Price. When viewed in his favor, Price’s testimony is sufficient to create a genuine issue of material fact regarding his joint enterprise theory of liability based on “tandem driving.” See generally Bradley v. Winn-Dixie Stores, 314 Ga. App. 556, 559 (724 SE2d 855) (2012) (When no contradiction appears in a party’s testimony in opposition to summary judgment, the Prophecy rule does not apply, and the testimony as a whole must be construed in that party’s favor); Baxter, supra.

Decided July 10, 2013

Reconsideration denied July 31, 2013

Terry D. Jackson, for appellant.

Cruser & Mitchell, Christopher A. Corbett, EvanR. Mermelstein, Udai V. Singh, for appellee.

The trial court further found that, even if Price’s affidavit and deposition were not contradictory, there was no evidence of a tandem driving theory of liability because Thapa passed through the intersection after the collision, and because there was no evidence that Thapa encouraged Shah to drive in excess of the speed limit or to disregard the stop sign. In support of its finding, the trial court appears to rely on the fact that Thapa was not the “lead driver” and that Thapa did not know the specific location of their intended destination. However, Price’s testimony indicates that Thapa passed through the intersection and went behind Price’s vehicle prior to the collision. Furthermore, there is no legal authority in Georgia requiring that a defendant be the lead driver or that he know the specific location of the intended destination to establish liability for tandem driving. Rather, the joint enterprise theory of liability based on tandem driving only requires that the participants be jointly engaged in driving their respective vehicles in a negligent manner, in close proximity with one another, while traveling to a common destination. Baxter, supra. Accord Kilpatrick v. Foster, 185 Ga. App. 453, 454-455 (1) (364 SE2d 588) (1987). In this case, the evidence creates a genuine issue of material fact as to Thapa’s liability.

For the above reasons, the trial court erred in awarding summary judgment to Thapa.

Judgment reversed.

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

       The other defendants are not parties to this appeal.

       Contradictory testimony is not to be construed against a party if the trial court finds that the party offers a reasonable explanation for the contradiction. Prophecy, supra at 30 (2). Whether a reasonable explanation has been offered is a question of law for the trial court, and the judge’s determination on this issue will be upheld unless it is clearly erroneous. Bithoney v. Fulton-DeKalb Hosp. Auth., 313 Ga. App. 335, 342 (III) (1) (721 SE2d 577) (2011).


text:
    A13A0750.
    SERMONS et al. v. AGASARKISIAN et al.
    (746 SE2d 596)
   Boggs, Judge.

Veronica and Barry Sermons (collectively “the Sermons”) appeal from the order of the superior court adopting the report of a special master and decreeing that they have no interest in an alleged alley running to the rear boundary of their property and that all interest in the disputed property is vested in Sarkis Agasarkisian and William Martin “pursuant to the deeds of record describing their individual interests in the disputed property.” The Sermons contend that the trial court erred by: (1) concluding that the alley was abandoned by nonuse; (2) relying upon an unauthenticated document not admitted into evidence; (3) failing to consider their objections to the special master’s report; (4) failing to vest a portion of the abandoned alley into their title; and (5) entering a final order without resolving their trespass and nuisance claims. For the reasons explained below, we reverse the trial court’s order based upon an error of law.

[O]nce the trial court adopts the special master’s findings and enters judgment, the court’s decision is upheld by the appellate court unless clearly erroneous. Therefore, if there is any evidence supporting the judgment of the trial court, it will not be disturbed. But conclusions of law are reviewed de novo.

(Citations and punctuation omitted.) McGregor v. River Pond Farm, 312 Ga.App. 652, 653(1) (719 SE2d 546) (2011). So viewed, the record shows that the Sermons own property located at 816 Berkeley Avenue in Fulton County. William Martin owns property facing Forrest Street with a rear boundary that adjoins the rear property line of the Sermons’ property. A lot owned by John Green adjoins both the Sermons’ property and that of Agasarkisian and faces Howell Mill Road. Agasarkisian’s property is situated on the corner of Forrest Street and Howell Mill Road. The deeds to all of the properties reference an alley running between the properties of Martin and Agasarkisian, along the rear of Green’s property, and to the rear of the Sermons’ property.

After a load of dirt was placed in the middle of the alley in 2008, the Sermons and other adjoining property owners, who are not parties to this appeal, filed a complaint against Martin and Agasarkisian seeking damages for trespass, nuisance, and a judgment declaring the existence of the alley for the mutual use of all adjoining landowners. Martin and Agasarkisian denied liability and counterclaimed for a judgment declaring the disputed alley does not exist and has been abandoned. They also asserted that Martin was the owner in fee of the portion of the easement used by him as a driveway and had acquired an exclusive easement by prescription in the remaining portion of the disputed alley. Following its grant of an interlocutory injunction preventing interference with the plaintiffs’ use of the alley by foot or vehicle, the trial court appointed a special master “to conduct hearings and make such findings of fact and conclusions of law as may be necessary.”

In a hearing held by the special master in December 2009, Barry Sermons testified that he has lived at 816 Berkeley Avenue since 1991, and that he purchased the property in 1995. He testified that from the time he first lived at 816 Berkeley Avenue, pedestrians used an alley running from the back of his property to Forrest Street to travel between Berkeley Avenue and Forrest Street, as well as to walk their dogs. He testified that a survey showing the alley factored into his decision to purchase 816 Berkeley Avenue. He testified that he currently uses the alley to access a garage on the rear of his property, that he has always used the alley to walk his dog, and that he started using it “for vehicular traffic” beginning in the year 2000. He testified that he and an adjoining property owner “put just under $3,000 in [gravel] and dirt and topsoil in to keep it passable.” He also installed a silt fence on one side of the alley and railroad ties on the other to prevent erosion.

He testified that in the year 2000, he obtained a building permit to construct a driveway on the rear portion of his property, that Martin and Agasarkisian sought a temporary restraining order to prevent him from using the alley to access the driveway, but they later “dropped their case.” Since 2000, the Sermons have continuously used the alley. In July 2008, however, Agasarkisian dumped a load of dirt in the middle of the alley to block the Sermons’ use of it. After the trial court granted an interlocutory injunction, Sermons moved the dirt out of the way with a skidloader and resumed his use of the alley.

Sermons initially testified that he obtained a building permit in 2000 to put up a fence on the rear of his property and construct a driveway, but during cross-examination, he was shown a building permit for the driveway issued on December 12, 2002. Sermons admitted that after he obtained the permit, he placed gravel in the disputed alley as well as on his own property. In 2006, he obtained a second building permit to build a two-story addition to his house, including a two-car garage, and the work began in 2007. Before adding on to their home, the Sermons had access to the rear of their property from a driveway off of Berkeley Avenue.

Green, who owns property facing Howell Mill Road and adjoining both the Sermons’ and Agasarkisian’s property, testified that he has lived in the area around the alleged alley since 1970 and has knowledge of the area dating back to the 1940s. He testified that he has continuously used the alley since 1967, when his mother moved into the neighborhood.

Martin testified that he purchased his property in 1966 or 1967, that he never saw an alleyway on his property, and that he installed a driveway on his property and in a portion of the disputed alley to gain access to the rear of his commercial building. Martin testified that before he installed the driveway, the area was not developed and “was just a steep hill.”

Martin’s son testified that after his father purchased the property in 1967, he helped his father build a commercial building on the property to house his electrical motor repair business. During construction, a gravel driveway going to the rear of the building was constructed in the disputed alley. He testified that the portion of the disputed alley beyond the constructed driveway for the commercial building “was an absolute ravine . . . overgrown with kudzu.” This ravine ran from the rear portion of Agasarkisian and Martin’s properties and was “all overgrown, trees falling in it, all that kind of stuff.” Between 1967 and 2002, Martin’s son never saw the disputed alley “in any condition to be used for egress and ingress” or anyone “trying to grade a road in there or drive a vehicle.” He never saw anyone who previously owned the Sermons’ property attempt to develop the disputed alley to gain access to Forrest Street. Finally, no one ever attempted to prevent his father from using the driveway he constructed in the area of the disputed alley.

Agasarkisian testified that when he purchased his property in 1988, there were many trees and a steep hill in the end of the alleged alley between his property and Martin’s property, rendering it impossible for a vehicle to pass through to the Sermons’ property. In 2002, after Sermons had been cutting down trees for years, Sermons brought in dirt to fill the area. He testified that he knew John Green and never saw him use the alley from the time he purchased his property in 1988 through the time of the hearing.

Following the hearing, the special master correctly concluded in her written report that the following facts were undisputed: that the alley was created by a 1924 alley agreement between adjoining property owners; the alley agreement references a 1916 plat depicting the two properties; that a recorded 1937 Berkeley Park Subdivision plat depicts the alley; that the Sermons’ deed references the Berkeley Park Subdivision plat; that Martin’s deed states that his property runs up to, but not into, the alley; and that Agasarkisian’s deed also states that it runs up to, but not into, the alley. At the conclusion of its report, the special master found

that if the alleyway . . . ever existed it has long since been abandoned because of an extensive period of nonuse, the fact that there is no evidence that an alleyway was ever constructed by the City of Atlanta; and, the Special Master is not persuaded . . . that the property was ever used as an alleyway.

The trial court concluded, based upon the special master’s report, that the alley “has long been abandoned because of an extensive period of nonuse (if it ever existed at all).”

1. On appeal, the Sermons contend that the trial court committed a legal error by adopting the special master’s conclusion that the express easement (the alley) had been abandoned by nonuse. We agree.

“The law does not favor the extinguishment of easements, and an easement acquired by grant is not extinguished merely by nonuse; there must be clear, unequivocal, and decisive evidence of an intent to abandon the easement.” Whipple v. Hatcher, 283 Ga. 309, 310 (658 SE2d 585) (2008). See also Sadler v. First Nat. Bank of Baldwin County, 267 Ga. 122, 123 (2) (475 SE2d 643) (1996). Stated otherwise,

[wjhere a right of way or other easement is acquired by grant or deed, no duty is thereby cast upon the owner of the dominant estate thus created to make use thereof or enjoy the same as a condition to the right to retain his interest therein, and the mere non-user of such an easement for a period however long will not amount to an abandonment. The mere fact that one does not immediately begin to exercise his right of use under an easement, or that he delays doing so for a number of years, would not occasion a loss of the easement. His right being complete, he could not be deprived of it except by express abandonment, or by such conduct as would be tantamount to the same.

Owens Hardware Co. v. Walters, 210 Ga. 321, 321-322 (2) (80 SE2d 285) (1954). Moreover, “it is not essential to the acquisition of such easement by the purchasers that there was a dedication of the street to public use and acceptance thereof by the public, evidenced by its use.” Id. at 321 (1). “When a deed incorporates a recorded plat by reference as the legal description, such incorporated plat has the effect as if it were written out in the deed.” Reidling v. Holcomb, 225 Ga. App. 229, 231 (1) (483 SE2d 624) (1997). And “[w]here a developer sells lots according to a recorded plat, the grantees acquire an easement in any areas set apart for their use, and that easement is an irrevocable property right,” Hampton Ridge Homeowners Assn. v. Marett Properties, 265 Ga. 655, 656 (1) (460 SE2d 790) (1995), that will automatically pass to successors in interest. Ford v. Harris, 95 Ga. 97, 101 (22 SE 144) (1894); Church of the Nativity v. Whitener, 249 Ga. App. 45, 47-48 (2) (b) (547 SE2d 587) (2001).

In this case, there is no evidence showing any express intent by the Sermons to waive or abandon their express easement in the alley following their purchase of the property in 1995. To the contrary, it is undisputed that the existence of the alley factored into the Sermons’ decision to purchase the property and that they spent money improving the alley in 2002. While there appears to be some conflict in the Supreme Court of Georgia’s authority on whether an express easement may be abandoned by nonuse for a period of 20 years, we need not address this issue because the Sermons did not own the property-more than 20 years before they undisputedly took action in 2002 to maintain a portion of the alley and in 2008 to actively use the alley for vehicle ingress and egress. See Gilbert v. Reynolds, 233 Ga. 488, 493-494 (212 SE2d 332) (1975) (no abandonment of easement where defendant owned his property only 13 years; express easement dated back to 1880 and easement recognized in chain of title of both plaintiff and defendant).

Decided July 15, 2013

Reconsideration denied July 31, 2013.

Gregory D. Smith, for appellants.

Barry L. Katz, for appellees.

2. Based upon our holding in Division 1, the Sermons’ additional enumerations of error are rendered moot and their claims for trespass and nuisance remain pending below.

Judgment reversed.

Doyle, P. J., and McFadden, J., concur.

       While this ease was originally filed in the Supreme Court of Georgia, the Supreme Court transferred it to this court based upon its conclusion that appellants “do not claim more than an easement in the property and an easement is an interest in land less than fee simple title____ As easement cases do not fall within this Court’s title to land jurisdiction,... this appeal hereby is transferred to the Court of Appeals.” The Supreme Court acknowledged that “Appellants filed this direct appeal seeking review of the trial court’s order finding that easements they claimed for their mutual and common use had been abandoned, and its determination that title to the subject property was vested in appellees.” (Emphasis supplied.)

       Based upon inconsistencies in portions of Green’s testimony, the special master found “Green’s testimony to be contradictory and unsupported by the Special Master’s inspection of the disputed property.”

       See OCGA § 44-9-6 (“An easement may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment.”); Boling v. Golden Arch Realty Corp., 242 Ga. 3 (247 SE2d 744) (1978) (“no presumption of abandonment arises from mere nonuse for a time of less than twenty-years [sic], as a matter of law”); Gilbert v. Reynolds, 233 Ga. 488, 493 (212 SE2d 332) (1975) (“current of authority seems to be that mere non-user for twenty years affords a presumption, though not a conclusive one, of extinguishment, even in cases where no other circumstances indicating an intention to abandon appear[ ]”) (Emphasis in original.); Harris v. Powell, 177 Ga. 15, 19 (169 SE 355) (1933) (“An easement created by deed is not forfeited by mere nonuser or abandonment, when the nonuser or abandonment has not continued for a term sufficient to raise the presumption of release or abandonment”) (punctuation omitted); Ford, supra, 95 Ga. at 101 (stating in dicta that right to express easement might “become stale by long lapse of time, or by non-user under circumstances manifesting that the parties at interest had no intention ever to claim or use the right”). Compare Sadler, supra, 267 Ga. at 123 (2) (“Where an easement of way has been acquired by grant, the doctrine of extinction by nonuser does not apply; and mere nonuser without further evidence of an intent to abandon such easement will not constitute an abandonment.”) (punctuation omitted); Owens Hardware, supra, 210 Ga. at 321-322 (2) (“The mere non-user of ... an easement [created by deed,] for a period however long[,] will not amount to an abandonment.”); Westbrook v. Comer, 197 Ga. 433, 442 (29 SE2d 574) (1944) (same); Tietjen v. Meldrim, 169 Ga. 678, 695 (151 SE 349) (1930) (same; citing 19 C. J. 942 (151) (2)).