author: Bethel, Judge.

text:
    A17A0844.
    JACKSON v. THE STATE.
    (805 SE2d 457)
   Bethel, Judge.

Manuel Laman Jackson brings this interlocutory appeal from a trial court order granting the State’s request to introduce two uncharged prior sexual acts at his child molestation trial. Jackson argues that the trial court erred when it admitted the prior acts without performing the balancing test required under OCGA § 24-4-403 (“Rule 403”). In light of clarifying and controlling precedent unavailable to the trial court at the time it reached its decision, we agree with Jackson. We therefore vacate the court’s order and remand the case for the trial court to consider the balancing test set forth in OCGA § 24-4-403 in deciding whether to admit evidence of the prior acts under OCGA § 24-4-414.

The record shows that Jackson was indicted for child molestation and criminal attempt to commit a felony (child molestation). The indictment alleges that Jackson committed an immoral and indecent act by touching the vagina of a child under the age of 16 years and that he attempted to commit the crime of child molestation by asking the same child to open her legs so that he could take a picture of her vagina.

On July 28, 2015, the State filed a notice of intent to present evidence under OCGA §§ 24-4-404 (b), 24-4-413 (“Rule 413”), and 24-4-414 (“Rule 414”), seeking to introduce evidence of two uncharged acts. In the first, Jackson is alleged to have forced one of his sons, when he was approximately seven years old, to perform oral sex on Jackson. In the second, Jackson is alleged to have forced a different, minor son to have sexual relations with a female minor child while Jackson watched. The State contended in its notice that this conduct would constitute the crimes of aggravated child molestation and child molestation, making the uncharged acts relevant to the charges currently pending against Jackson. Jackson opposed the State’s notice, maintaining that the evidence was inadmissible pursuant to the balancing test under OCGA § 24-4-403, and he requested a pre-trial hearing to determine the admissibility of such evidence.

On June 23, 2016, the Superior Court of Bibb County conducted a hearing regarding the State’s notice and Jackson’s objections. Several months after the hearing, the trial court issued its order, ruling that the State would be permitted to present this evidence in accordance with the notice provided to Jackson. The trial court noted that no argument had been made that the evidence was irrelevant, instead focusing on the application of the balancing test under OCGA § 24-4-403 and whether the plain language of OCGA §§ 24-4-413 and 24-4-414 obviated the need for Rule 403 analysis. The trial court determined that applying the balancing test would “add a requirement to Rules 413 and 414 that does not otherwise exist” within the text of the statute. The trial court noted that this decision was not consistent with the federal courts’ interpretation of the corresponding Federal Rules of Evidence but opined that the “significant and substantive difference between the Federal Rules... and the Georgia Rules” necessitated differing results. In particular, the trial court focused on the permissive language of the Federal Rule providing that federal courts “may” admit other acts evidence and contrasted that language with the directive in the comparable Georgia rule providing that the evidence “shall be admissible.” Following its order, the trial court issued a certificate of immediate review pursuant to the interlocutory appeal provisions of OCGA § 5-6-34 (b), which this Court granted.

The sole issue on appeal for this Court to resolve is whether the trial court must conduct the balancing test set forth in OCGA § 24-4-403 when considering the admissibility of prior sexual offenses under OCGA § 24-4-414. Because this question is one of statutory interpretation, our review of this purely legal issue is de novo. Harris v. Mahone, 340 Ga.App. 415, 417 (1) (797 SE2d 688) (2017). We review the trial court’s decision on whether to admit evidence under Rule 414 for a clear abuse of discretion. State v. McPherson, 341 Ga. App. 871, 875 (800 SE2d 389) (2017).

OCGA § 24-4-414 (a) states that “[i]n a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused’s commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant.” OCGA § 24-4-414 (a) (emphasis supplied). This provision supersedes that of OCGA § 24-4-404 (b) in child molestation cases. See Dixon v. State, 341 Ga. App. 255, 258 (1) (800 SE2d 11) (2017). Jackson correctly notes that the language of this Rule is slightly different, from the corresponding Federal Rule of Evidence. Federal Rule 414 states, in relevant part, that “[i]n a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.” Fed. R. Evid. 414 (a) (emphasis supplied). The State argues, and the trial court found, that the use of the word “shall” in Georgia’s Rule 414 meant that qualifying evidence was to be admitted regardless of any Rule 403 considerations. They are mistaken.

When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant, and so we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. The common and customary usages of the words are important, but so is their context. For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.

Zaldivar v. Prickett, 297 Ga. 589, 591 (1) (774 SE2d 688) (2015) (citations and punctuation omitted). Thus, “even if words are apparently plain in meaning, they must not be read in isolation. Instead, they must be read in the context of the statute as a whole.” Pfeiffer v. Dept. of Transp., 250 Ga. App. 643, 647 (2) (551 SE2d 58) (2001) (citations and punctuation omitted).

Given the express direction that evidence of prior sexual offenses committed by the defendant “shall be admissible,” OCGA § 24-4-414 (a) has been “construed as creating a rule of inclusion, with a strong presumption in favor of admissibility” McPherson, 341 Ga. App. at 873 (citations and punctuation omitted).

As this Court has held, under OCGA § 24-4-414 (a), showing a disposition toward molestation is a relevant purpose and not unfairly prejudicial in light of the nature of that conduct. Thus, evidence that a defendant engaged in child molestation in the past is admissible to prove that the defendant has a disposition of character that makes it more likely that he did commit the act of child molestation charged in the instant case.

Id. at 873-874 (citation and punctuation omitted).

Yet, even so, in McPherson, which was issued after the filing of the briefs in this appeal, this Court stated that evidence admissible under OCGA § 24-4-414 (a) may be excluded under OCGA § 24-4-403 “if the trial court concludes that its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury” McPherson, 341 Ga. App. at 874 (citations and punctuation omitted). McPherson expressly relied on and incorporated Eleventh Circuit law holding that evidence admitted under Federal Rule 414 (a) must also satisfy Federal Rule 403. Id. at 874, n. 8. See also Dixon, 341 Ga. App. at 260 (1) (b) (noting that OCGA § 24-4-403 applies to evidence admitted under OCGA § 24-4-414). Despite the difference in word choice between the two Rules, the meaning of Georgia Rule 414 is the same as Federal Rule 414. OCGA § 24-4-414’s provision that prior act evidence “shall be admissible” does not mean, as the State suggests, that qualifying evidence must be admitted. Rather, “admissible” merely means that the evidence is “capable of being legally admitted” — that is, that it may be admitted. Further, we do not consider OCGA § 24-4-414 in isolation — rather, we look at OCGA § 24-4-414 within the broader context of the Evidence Code.

Decided September 5, 2017.

Andrew W. Jenkins, Mark B. Beberman, for appellant.

K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.

Thus, in the instant case, the trial court must give Jackson an opportunity to show whether the prior act evidence sought to be introduced by the State would confuse the issues, mislead the jury, waste time, or be cumulative of other evidence, or that the probative value of the evidence would otherwise be substantially outweighed by its prejudicial impact. See McPherson, 341 Ga.App. at 875-876 (1). Its failure to do so was an abuse of discretion, and therefore we vacate the trial court’s order and remand the case to the trial court so that it may apply the balancing test set forth in Rule 403 in deciding whether to admit the prior acts under OCGA § 24-4-414.

Judgment vacated and case remanded.

McFadden, P. J., and Branch, J., concur.

       See Case No. A17I0076.

       While the trial courtanalyzedwhetherthebalancingtestappliestobothOCGA §§ 24-4-413 and 24-4-414, we have limited our analysis to OCGA § 24-4-414 because Jackson was charged with child molestation offenses.

       OCGA § 24-4-404 (b) provides the general rule for the admission of evidence of “other crimes, wrongs, or acts).]”

       OCGA § 24-4-403 provides that “[Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

       See Black’s Law Dictionary (8th ed. 2004), p. 50 (emphasis supplied).


source: Caselaw Access Project

license: Public Domain

text:
    A17A0827.
    MUJKIC et al. v. LAM.
    (804 SE2d 706)
   Bethel, Judge.

Amra Mujkic and Señad Mujkic (the “Mujkics”) appeal the trial court’s order dismissing the lawsuit they filed to recover medical expenses of their minor son resulting from personal injuries he sustained while working on property owned by Tai Lam. They argue that the trial court erred when it dismissed their lawsuit because it was barred by the two-year statute of limitation governing personal injury claims. Instead, they argue that the trial court should have applied the four-year statute of limitation governing personal property claims. We disagree and affirm because the two-year statute of limitation applies to their claims.

Consistent with the appropriate standard of review, the record reveals the following set of facts and circumstances that are not in dispute at this stage of the proceedings. The Mujkics resided with their son, Renato Mujkic, as tenants in a home owned and managed by Tai Lam. On August 13, 2012, while cleaning the carport, Renato leaned against a brick wall of the carport, causing its collapse and his subsequent injuries. Renato’s mother, Amra, filed suit against Lam as “next of kin” because Renato was then a minor. In that action, she sought to recover, on behalf of her son, medical expenses and damages for pain and suffering. Once Renato reached majority, the parties agreed to voluntarily dismiss Amra (with prejudice) as a party in the personal injury action, allowing Renato to proceed with the suit independently As part of Renato’s lawsuit, the trial court barred recovery of medical expenses, as those had been incurred by Renato’s parents, who were not a party to the suit. Nonetheless, a jury awarded Renato $50,000 for his pain and suffering derived from the incident.

The Mujkics subsequently filed suit against Lam on March 15, 2016, seeking to recover $35,484.98 in medical expenses under OCGA § 19-7-1 which they incurred on behalf of their then-minor son. Lam filed a motion to dismiss, which the trial court granted following a hearing. In its order dismissing the Mujkics’ action, the trial court held that the Mujkics’ claims were subject to the two-year statute of limitation for personal injury under OCGA § 9-3-33, and that expiration of that time extinguished the Mujkics’ ability to recoup medical expenses from Lam. This appeal followed.

The Mujkics argue that the trial court erred in applying the two-year statute of limitation governing personal injury claims to dismiss their lawsuit. They argue that the trial court should have applied the four-year statute of limitation governing personal property claims. We disagree.

OCGA § 9-3-33 provides that “actions for injuries to the person shall be brought within two years after the right of action accrues[.]” This two-year statute of limitation for personal injury applies with equal force to a parent’s attempt to recover a minor’s medical expenses under OCGA § 19-7-2. See Mitchell v. Hamilton, 228 Ga. App. 850, 851-852 (2) (493 SE2d 41) (1997). See also Brent v. Hin, 254 Ga. App. 77, 78-79 (1) (561 SE2d 212) (2002) (medical expenses arising out of injury to the person falls under the two-year statute of limitation found in OCGA § 9-3-33). As Renato was injured on August 13, 2012, and the Mujkics did not file their lawsuit until nearly four years later (on March 15, 2016), the lawsuit is barred under the applicable statute of limitation. See Mitchell, 228 Ga. App. at 851-852 (2). Therefore, the trial court was authorized to dismiss the Mujkics’ suit seeking to recover medical expenses incurred as a result of their son’s injury while working on property owned by Lam.

Decided September 6, 2017.

Jonathan P. Sexton; Aleksandra H. Bronsted, for appellants.

Our prior decisions in the cases cited by the Mujkics, Krasner v. O’Dell, 89 Ga. App. 718 (80 SE2d 852) (1954), MARTA v. Tuck, 163 Ga. App. 132 (292 SE2d 878) (1982), and Brent, 254 Ga. App. at 77, do not change our analysis. Parents do indeed have a personal property interest in the recovery of medical expenses incurred for treatment of a minor child’s injuries resulting from the tortious act of another. See Krasner, 89 Ga. App. at 718 (2); MARTA, 163 Ga. App. at 137-138 (2); Brent, 254 Ga. App. at 79 (1). But the existence of that personal property interest does not transform a personal injury claim into a personal property claim. If the only injury caused by a defendant was to a person and not that person’s property, then the two-year statute of limitation for personal injury claims applies. See Mitchell, 228 Ga. App. at 851-852 (2).

Judgment affirmed.

McFadden, P. J., and Branch, J., concur.

Mabry & McClelland, James W. Scarbrough, for appellee.

       We apply a de novo standard of review to the trial court’s grant of a motion to dismiss. A motion to dismiss may be granted only where a complaint, viewed in the light most favorable to the plaintiff and with all doubts resolved in the plaintiff’s favor, shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim. See Homes of Ga. v. Humana Employers Health Plan of Ga., 282 Ga.App. 802, 804 (640 SE2d 313) (2006).

       Senad Mujkic, Renato’s father, was not a party to this lawsuit.

       Because of our holding here, we need not address the parties’ arguments regarding the applicability of res judicata to the Mujkics’ lawsuit.

       The Mujkics did not argue before the trial court or on appeal whether the statute was tolled during the time that Renato was a minor, and therefore we will not consider the issue. See White v. Jones, 244 Ga. App. 485, 486 (1) (536 SE2d 167) (2000). Compare Mitchell, 228 Ga. App. at 852 (3) (appellant did not waive right to make this argument where she raised the issue at oral argument before the trial court).

       If medical expenses arising from a personal injury created a personal property claim wherever the injured party (or, in the case of a minor, the minor’s parent(s)) sought recovery of such expenses, then claims involving plaintiffs who only suffered injury to their person would be subject to a four-year instead of a two-year statute of limitation. But the case law is clear that the two-year statute of limitation applies. See, e.g., Epps v. Hin, 255 Ga. App. 370, 372 (565 SE2d 577) (2002) (“medical expenses constitute damage flowing from personal injury and are thus subject to the two-year limitation period for personal injury claims set forth in OCGA § 9-3-33. To hold otherwise would enable litigants to circumvent the limitation periodfor personal injuries by declaring that the damages being sought constituted ‘property’ claims.” (punctuation omitted)).


author: RAY, Presiding Judge.

text:
    A17A1083.
    CITY OF KINGSLAND v. GRANTHAM.
    (805 SE2d 116)
   RAY, Presiding Judge.

Destini Grantham brought this action against the City of Kings-land (the “City”) and its police officer, Vincent Bryant, after she sustained injuries when a patrol car driven by Officer Bryant collided with the car in which she was riding. The City appeals from the denial of its motion for a partial judgment on the pleadings, arguing that the trial court erred in concluding that Grantham’s claims against the City for negligent training, negligent supervision, and negligent entrustment were not redundant to her claims against the City for respondeat superior. For the following reasons, we reverse.

This Court reviews de novo a trial court’s decision on a motion for judgment on the pleadings. Mills v. Allstate Ins. Co., 288 Ga. App. 257, 257-258 (653 SE2d 850) (2007). When ruling on a motion for a judgment on the pleadings, the issue

is whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law. All well-pleaded material allegations by the nonmovant are taken as true. . . . Where the movant does not introduce affidavits, depositions, or interrogatories in support of the motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the plaintiff’s claim.

(Citation and punctuation omitted.) Id. at 257-258.

Grantham’s complaint alleges that on June 14, 2015, she was a passenger in a vehicle driven by a nonparty on 1-95 in Camden County At the same time, Officer Bryant was “conducting radar speed detection on vehicles traveling on 1-95.” As Grantham’s vehicle approached Officer Bryant’s location on 1-95, Officer Bryant abruptly pulled out of the median and into the lane of travel occupied by Grantham’s vehicle. As a result, Grantham’s vehicle struck Officer Bryant’s police cruiser and then overturned. Grantham sustained injuries as a result of the collision.

Grantham sued Officer Bryant and the City to recover for her injuries. Grantham’s complaint asserted claims for negligence and negligence per se under various Code sections and contended that the City was vicariously liable for Officer Bryant’s acts because he was acting in the course and scope of his employment. Grantham also asserted a claim against the City for negligent training, negligent supervision, and negligent entrustment of Officer Bryant.

The City filed a motion for partial judgment on the pleadings on Grantham’s claim for negligent training, negligent supervision, and negligent entrustment. In that motion, the City argued that the claims for negligent training, negligent supervision, and negligent entrustment should be dismissed as redundant because they seek recovery that is duplicative of that sought under respondeat superior. In her response, Grantham argued that these claims should not be dismissed because the City’s liability could differ from Officer Bryant’s under Georgia’s new apportionment statute, OCGA § 51-12-33. The trial court entered an order denying the City’s motion for partial judgment on the pleadings but certified it for immediate review. This Court granted the City’s application for an interlocutory appeal from that order.

It is true that, prior to 2005, Georgia cases held that if a defendant employer concedes that it will be vicariously liable under the doctrine of respondeat superior for the negligence of its employee, the employer is entitled to summary judgment on the plaintiff’s claims for negligent entrustment, negligent hiring, negligent training, and negligent supervision, unless the plaintiff has also brought a valid claim for punitive damages against the employer for its own independent negligence (hereinafter, the “Respondeat Superior Rule”). See Kelley v. Blue Line Carriers, 300 Ga. App. 577, 580 (2) (685 SE2d 479) (2009); Durben v. American Materials, 232 Ga. App. 750, 751 (1) (503 SE2d 618) (1998); Bartja v. Nat. Union Fire Ins. Co. of Pittsburgh, 218 Ga. App. 815, 817 (2) (463 SE2d 358) (1995). The rationale underlying the Respondeat Superior Rule “is that, since the employer would be liable for the employee’s negligence under respondeat superior, allowing claims for negligent entrustment, hiring, and retention would not entitle the plaintiff to a greater recovery, but would merely serve to prejudice the employer.” Durben, supra. Such prejudice could be caused by, inter alia, allowing the introduction of unfairly prejudicial information about the employee’s prior employment history See Kelley, supra. That line of cases held that “where no punitive damages are sought, ... a defendant employer’s admission of liability under respondeat superior establishes the liability link from the negligence of the driver rendering proof of negligent entrustment unnecessary and irrelevant.” (Citation and punctuation omitted.) Bartja, supra.

In 2005, the Georgia General Assembly enacted tort reform legislation. Ga. L. 2005, p. 1, § 12. As part of that reform, the General Assembly passed Georgia’s apportionment statute, OCGA § 51-12-33, eliminating joint and several liability Georgia’s apportionment statute, OCGA § 51-12-33 (b), states in pertinent part:

Where an action is brought against more than one person for injury to person or property, the trier of fact . . . shall. .. apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

OCGA § 51-12-33 (b). See also McReynolds v. Krebs, 290 Ga. 850, 852 (1) (b) (725 SE2d 584) (2012). Accordingly, the General Assembly has now expressly determined that fault must be apportioned between all negligent parties whose negligence caused or contributed to cause a plaintiff’s injuries.

Grantham argues, and the trial court agreed, that in the wake of Georgia’s abolishment of joint and several liability through the enactment of the apportionment statute, OCGA § 51-12-33 (b), the Respondeat Superior Rule is no longer applicable. In support of this argument, Grantham cites to Little v. McClure, No. 5:12-CV-147, 2014 WL 4276118 (M.D. Ga., decided August 29, 2014). In Little, the United States District Court for the Middle District of Georgia held that Georgia’s apportionment statute superseded the Respondeat Superior Rule. The Little court held that “[bjecause the jury must apportion separate percentages of damages to each party at fault [under OCGA § 51-12-33 (b)], the employer’s liability will no longer necessarily be coextensive with the employee’s simply because respon-deat superior applies.” (Emphasis omitted.) Id. at *3 (II) (B). That court explained that

[ujnder a system of joint and several liability, both the employer and employee would be liable for the entire amount of the plaintiff’s damages if respondeat superior applies, regardless of whether the employer was also independently negligent. However, under Georgia’s apportionment statute, an employer would be separately responsible for its degree of fault, if any, based on its independent negligence. A defendant is only liable for the percentage of a plaintiff’s damages attributable to his apportioned fault, so the employee’s negligence (for which the employer would be liable by virtue of respondeat superior) would be apportioned separately from the employer’s independent negligence. See OCGA§ 51-12-33 (b).

(Emphasis omitted.) Id.

However, in Schreckengast v. Carollo, No. CV-416-038, 2017 WL 2702543 (S.D. Ga., decided June 22, 2017), the United States District Court for the Southern District of Georgia declined to extend the holding in Little, supra, and found that the plaintiffs’ negligent hiring claim was redundant to the plaintiffs’ claim for respondeat superior in that case. Id. at *2-*3 (II) (A). Accord Downer v. Boyer, No. 1:15-CV-3734-TWT, 2017 WL 1093167, *2 (III) (N.D. Ga., decided March 23, 2017) (“Under Georgia law, respondeat superior and negligent hiring, training, and supervision are mutually exclusive theories of liability”).

“As a state appellate court, we are not bound by the decisions of the federal district courts. To the contrary and as a general matter, this Court adopts such federal decisions only when they are not in conflict with our own legal precedent.” (Citation omitted.) RESGA Hightower v. Golshani, 334 Ga. App. 176, 180 (1) (a) n. 8 (778 SE2d 805) (2015). Accordingly, we decline to adopt the reasoning set forth in Little, supra, because we are bound by this Court’s recent decision in Hospital Auth. of Valdosta/Lowndes County v. Fender, 342 Ga. App. 13 (802 SE2d 346) (2017), which rejected it. Id. at 23 (2) n. 4. In Fender, supra, this Court considered the issue of whether the 2005 passage of Georgia’s apportionment statute superseded the Respon-deat Superior Rule. Id. at 21-23 (2). In concluding that it did not, this Court ruled that claims based on respondeat superior and claims based upon negligent hiring, supervision, and retention of an employee

are derivative of the underlying tortious conduct of the employee. Thus, where, as here, the employer has admitted respondeat superior liability and the plaintiff is not seeking punitive damages, the claims for negligent hiring, training, supervision, and retention are merely duplicative of the respondeat superior claim.

Decided September 6, 2017.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard K. Strickland, Steven G. Blackerby, for appellant.

Ferrelle Burns, J. Rice Ferrelle, Jr., John R. Ferrelle, Amanda E. Ferrelle, for appellee.

(Citations and punctuation omitted.) Id. at 23 (2).

In the instant case, the City admitted that Officer Bryant was acting within the scope of his employment at the time of the accident. Thus, a factual basis for respondeat superior has been admitted. Further, Grantham has no valid claim for punitive damages since punitive damages are not allowed against a governmental entity See MARTA v. Boswell, 261 Ga. 427, 427-428 (405 SE2d 869) (1991). As we are bound by this Court’s ruling in Fender, supra, that the Respondeat Superior Rule has not been nullified by the 2005 passing of Georgia’s apportionment statute, we reverse the trial court’s denial of the City’s motion for a partial judgment on the pleadings.

Judgment reversed.

Dillard, C. J., and Self, J., concur.

       See Alfano, Jr., Michael David, Employer Escape Hatch Closed in Georgia: How The Interpretation of Georgia’s Apportionment Statute in Zaldivar Prohibits Employers From Using Respondeat Superior to Eschew Direct Negligence Claims, 50 Ga. L. Rev. 1233, 1249-1255 (III) (A)-(B) (Summer 2016) for a discussion of Little, supra, and conflicting case law.


author: Rickman, Judge.

text:
    A17A1191.
    SMITH et al. v. BRASWELL et al.
    (804 SE2d 709)
   Rickman, Judge.

T’Miaya Smith’s son, J. H., began having seizures after his birth, and a head CT scan revealed ischemic injuries to his brain. Smith filed suit against Lauren Braswell (a midwife who provided care to Smith during her labor and delivery), and Atlanta Women’s Health Group (Braswell’s employer) (collectively, “Braswell”), alleging that Braswell was negligent in the management of Smith’s labor and delivery and seeking damages. Braswell filed a motion seeking to exclude the testimony of Dr. Barry Schifrin, one of Smith’s expert witnesses, a motion to exclude causation testimony from any of Smith’s expert witnesses, and a motion for summary judgment. The trial court granted Braswell’s motions. Smith appeals, and for the following reasons, we affirm.

1. Smith contends that the trial court erred in granting Bras-well’s motion to exclude the testimony of her expert witness, Dr. Schifrin. We disagree.

“The determination of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.” (Citation and punctuation omitted.) HNTB Ga. v. Hamilton-King, 287 Ga. 641, 642 (1) (697 SE2d 770) (2010). OCGA § 24-7-702 (b), which governs the admissibility of expert testimony in civil cases, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

“In determining the admissibility of expert testimony, the trial court acts as a gatekeeper, assessing both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.” (Citation omitted.) HNTB Ga., 287 Ga. at 642 (1).

Reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training.

(Citation omitted.) Id. See Kumho Tire Co. v. Carmichael, 526 U. S. 137, 141 (119 SCt 1167, 143 LE2d 238) (1999); see also Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579, 592-594 (II) (C) (113 SCt 2786, 125 LE2d 469) (1993). “There are many different kinds of experts and many different kinds of expertise, and it follows that the test of reliability is a flexible one, the specific factors neither necessarily nor exclusively applying to all experts in every case.” (Citations and punctuation omitted.) HNTB Ga., 287 Ga. at 643 (1).

Applying those principles to the facts of this case, Dr. Schifrin is “an obstetrician/gynecologist with [a] subspecialty certification in maternal-fetal medicine.” Currently, Dr. Schifrin primarily writes, researches, and gives lectures. Dr. Schifrin has not had hospital privileges since 2011, the last time he was a full time maternal-fetal medicine physician was approximately 17 years ago, and he has not regularly delivered babies since 2003.

Dr. Schifrin opined that J. H.’s injury was the result of ischemia caused by “mechanical compressive forces” on his head during the course of Smith’s labor. The mechanical compressive forces that Dr. Schifrin refers to are, inter alia, the use of pitocin, excessive uterine activity, malposition of J. H., pushing prior to Smith’s full cervical dilation, and fundal pressure. Dr. Schifrin has coined this mechanism of injury cranial compression ischemic encephalopathy (“CCIE”). In a thorough order, the trial court concluded that Dr. Schifrin’s testimony and any expert testimony regarding the mechanism of injury posited by Dr. Schifrin would be inadmissible pursuant to OCGA § 24-7-702 (b) and the Daubert factors because Dr. Schifrin’s theory has not been reliably tested, has not been subject to peer review and publication, is not generally accepted in the scientific community, and has not been clinically diagnosed in any other patients.

Smith argues that the trial court erred by failing to consider the causation opinions given by two of her other experts, Dr. Daune MacGregor, a pediatric neurologist, and Dr. Thomas Paul Naidich, a neuroradiologist, notwithstanding the fact that the trial court cites to both Dr. Naidich’s and Dr. MacGregor’s deposition testimony in its order. Dr. Naidich deposed that he

will leave [clinical opinions about what specifically took place during the labor and delivery that might have caused or contributed to these injuries] to those who are truly expert in that. I’m the radiologist. Specific mechanical events in labor and delivery will be discussed by others. I will offer no opinion on those.

Likewise, Dr. MacGregor deposed that her “understanding is [what causes compression resulting in injury] has to do with the amount of pressure that’s put on by uterine contractions, that overcomes the natural mechanisms that maintain brain and blood supply,” but she is “not an expert in the mechanics of delivery.” Contrary to Smith’s assertion that Dr. Schifrin’s role is only one part of the causation theory, the case hinges upon the testimony of Dr. Schifrin as to the mechanical forces in labor that allegedly caused J. H.’s injury

Dr. Schifrin co-authored a chapter of a book titled, “Cranial Compression Ischemic Encephalopathy: Fetal Neurological Injury Related to the Mechanical Forces of Labor and Delivery.” In that chapter, Dr. Schifrin proposes the concept of CCIE and explains that “[t]he overall contribution of [mechanical] forces to ischemic brain injury during labor is difficult to establish, in no small measure because in modern obstetrics necessary details about these various factors are often unmeasured, unrecorded, and not considered.” In regards to testing of the theory, Dr. Schifrin writes, “[t]o isolate the contribution of mechanical factors it will be necessary for epidemio-logic studies to adjust for the role of potentially mitigating factors” because “[w]e must learn more about the ability of the fetal skull to protect the fetal brain.” Dr. Schifrin deposed that there have not been any long-term epidemiological studies on the mechanism of injury and that he “recommend[s] them in the context of understanding [CCIE] as a potential cause of injury” Dr. Naidich deposed that he was not aware of any studies that have looked at external pressure on the skull causing this type of injury. Dr. Naidich deposed that if such studies existed he “would appreciate the reference just for [his] general knowledge.” Dr. MacGregor deposed that she is not aware of any studies that determined the incidence rate of the proposed mechanism of injury in this case. Additionally, another one of Smith’s experts, Dr. Paul Govaert, a neonatologist and pediatrician in Belgium and Holland, deposed that the “hypothesis” proposed by Dr. Schifrin was “possible” but that “we ... still need some more research in science.”

In regards to peer-reviewed literature about the alleged mechanism of injury in this case, Dr. Govaert deposed that he was not aware of any peer-reviewed articles about this type of injury caused by increased intracranial pressure because of increased intrauterine pressure. Because of this lack of peer-reviewed literature, Dr. Gov-aert deposed that he “should publish it if I can.” Another one of Smith’s experts, Dr. Raymond Cheng, a pediatric neurologist, deposed that he has never read any peer-reviewed literature on the alleged mechanism of injury in this case.

In his book chapter, Dr. Schifrin explains, himself, how this mechanism of injury is not accepted in the scientific community Dr. Schifrin writes that “[i]n recent decades, only scant attention has been turned to the effects of the mechanical forces of labor and delivery on intracranial pressure” and “[t]he prevailing monolithic view is that . . . contractile force[s] cannot be ‘excessive.’ ’’Additionally, Dr. Govaert deposed that Schifrin’s theory is not well known amongst his colleagues which is a reason why he intended to write an article about the theory and publish it. See Hendrix v. Evenflo Co., 609 F3d 1183, 1194 (B) (1) (11th Cir. 2010) (“Given time, information, and resources, courts may only admit the state of science as it is. Courts are cautioned not to admit speculation, conjecture, or inference that cannot be supported by sound scientific principles. The courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.”) (citations and punctuation omitted).

Additionally, the trial court determined that lack of diagnosis in other patients of this mechanism of injury weighed against the theory’s reliability. Dr. Govaert deposed that he had never diagnosed one of his patients as having ischemic injury because of intrauterine pressure due to excessive intrauterine activity. Dr. Cheng deposed that he had never seen this mechanism of injury applied to this condition in terms of diagnosis. Dr. MacGregor deposed that she had never diagnosed this mechanism of injury but wondered if it would have applied to one previous patient. Moreover, Dr. Schifrin deposed that he had not diagnosed one of his patients in the past decade with an ischemic injury due to this mechanism of injury but that it “may” have happened to a previous patient.

Accordingly, under the circumstances of this case, the trial court did not abuse its discretion in concluding that “the preponderance of the evidence weighs against the admissibility of the CCIE theory of causation under OCGA § 24-7-702 (b)” and thus “excluding] the theory and Dr. Schifrin’s testimony.” See Webster v. Desai, 305 Ga. App. 234, 237 (1) (699 SE2d 419) (2010) (trial court properly excluded expert testimony in a medical malpractice case when the expert’s theory was not supported by studies or peer-reviewed literature); see also HNTB Ga., 287 Ga. at 643 (1) (in a negligence action, trial court did not abuse its discretion in excluding expert testimony where the expert could not prove its theory was accepted and recognized by other practitioners in his field).

Decided September 7, 2017

Warshauer Law Group, Lyle G. Warshauer, for appellants.

Huff, Powell & Bailey, Daniel J. Huff, Taylor C. Tribble, for appellees.

2. Smith contends that the trial court erred by granting summary judgment to Braswell. We disagree.

“In a medical malpractice case, the plaintiff must present expert medical testimony establishing that the defendant’s negligence either proximately caused or contributed to his injuries.” (Citation and punctuation omitted.) Webster, 305 Ga. App. at 238 (2). Contrary to Smith’s assertion that additional evidence of causation remains in the record, the trial court clearly excluded not only Dr. Schifrin’s testimony but all testimony as to the alleged mechanism of injury in this case. The trial court properly concluded that “[bjecause the [trial court] has excluded [Smith’s] theory of causation ... an essential element of [Smith’s] case is absent and summary judgment . . . must be granted.” Accordingly, the trial court properly granted Braswell’s motion for summary judgment. See id.

Judgment affirmed.

Ellington, P. J., and Andrews, J., concur.

       Ischemic injuries result from diminution or lack of blood flow.

       J. H.’s father was also a plaintiff, but he voluntarily dismissed his claims.

       Smith also filed suit against Northside Hospital, the hospital where J. H. was delivered, but Northside Hospital entered into a settlement agreement with Smith, was dismissed from this action, and is not a party to this appeal.

       Because the hearing on Braswell’s motions took place in June 2016, the new Evidence Code applies. See Dempsey v. Gwinnett Hosp. System, 330 Ga. App. 469, 471 (1) (a) n. 3 (765 SE2d 525) (2014) (“The new Evidence Code became effective on January 1, 2013, and applies to any motion made or hearing or trial commenced on or after such date.”). “Further, because OCGA § 24-7-702 is ‘substantively identical’to its predecessor statute, former OCGA § 24-9-67.1, cases decided under the former statute offer useful guidance when analyzing the current version of the statute.” (Citation omitted.) Id.

       Dr. Schifrin may have delivered one baby between 2005 and 2011.

       Smith spends a portion of her brief arguing that the trial court erred by focusing on the CCIE label for the alleged mechanism of injury in this case. However, it is clear from the trial court’s order that it understands the causation theory in this case and that Dr. Schifrin uses the label CCIE to describe the theory.

       Smith argues the trial court erred by analyzing whether her experts had previously diagnosed this mechanism of injury. However, as noted above, the test of reliability is flexible, and the factors do not necessarily or exclusively apply to every expert. See HNTB Ga., 287 Ga. at 643 (1).


text:
    A17A1252.
    SMITH v. THE STATE.
    (805 SE2d 460)
   Rickman, Judge.

Following a jury trial, Quincy Alexander Smith was convicted of homicide by vehicle in the first degree for causing the death of another person while driving with an alcohol concentration of 0.08 grams or more (DUI per se). He argues, among other things, that the trial court committed reversible error in refusing to charge the jury on the lesser included offense of homicide by vehicle in the second degree and in admitting extrinsic act evidence. For the following reasons, we reverse Smith’s conviction and remand this case for a new trial.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Laster v. State, 340 Ga. App. 96, 97 (796 SE2d 484) (2017).

So construed, the evidence adduced at trial showed that shortly after 7:00 a.m. on March 1, 2015, Smith was returning home from dropping off his wife and children at a friend’s house. There was a light, misty rain and a low fog at that time. Upon returning to his subdivision, Smith turned left into the path of a motorcycle being driven by the victim, resulting in the motorcycle colliding with the rear passenger side of Smith’s vehicle. The victim was killed in the collision.

The ensuing investigation revealed that Smith had been consuming alcohol the previous night and had returned home sometime between 2:00 and 3:00 a.m. He slept before being awakened to transport his wife and children.

Although Smith exhibited no visual signs of impairment at the scene, several law enforcement officers noticed an odor of alcohol emanating from his person, and he admitted to having consumed alcohol sometime prior to the collision. A state trooper conducted field sobriety tests at the scene and concluded that Smith was driving under the influence of alcohol to the extent that he was less safe to drive (DUI less safe), and a blood test conducted more than an hour after the incident revealed Smith’s alcohol content to be 0.136.

Smith was arrested and charged with homicide by vehicle in the first degree for causing the death of another person while DUI per se, homicide by vehicle in the first degree for causing the death of another person while DUI less safe, and one count each of DUI per se and DUI less safe. See OCGA §§ 40-6-391 (a) (2); 40-6-391 (a) (5); 40-6-393 (a).

During the ensuing trial, the trial court admitted, over Smith’s objection, extrinsic act evidence related to a prior arrest. Specifically, the State presented evidence that approximately eight months prior to the instant collision, a police officer had observed Smith driving around 6:00 a.m. with what appeared to be a road sign embedded into the front of the vehicle. Smith’s windshield contained spiderweb-type cracking and Smith had a visible wound on his head. Although the officer smelled an odor of alcohol emanating from Smith and he admitted to drinking alcohol two hours prior, Smith refused to submit to a State-administered test, and field sobriety tests were not conducted due to his head injury Smith was arrested and originally accused of reckless driving. After he was indicted in the instant case, however, the prosecuting attorney amended the accusation and charged Smith with DUI less safe.

In his written requests to charge, Smith requested that the jury be permitted to consider the lesser included offense of second degree vehicular homicide and argued during the charge conference that there was some evidence from which the jury could conclude that the victim’s death was caused by Smith’s failure to yield as opposed to his DUI. The State objected, and the trial court refused to give the charge. Smith preserved his objection to the trial court’s failure to give the charge.

The jury found Smith guilty on all charges, and the trial court merged the latter three charges into his conviction for first degree vehicular homicide while DUI per se for sentencing purposes. This appeal follows.

1. Smith contends that the trial court erred in refusing to charge the jury on the lesser included offense of vehicular homicide in the second degree pursuant to OCGA § 40-6-393 (c). We agree.

Under Georgia law, one commits the offense of vehicular homicide in the first degree when he or she, without malice aforethought, causes the death of another person through the violation of certain specified traffic laws, including DUI. See OCGA § 40-6-393 (a). The offense of vehicular homicide in the second degree is committed when one, without an intention to do so, causes the death of another person by violating any other Title 40 traffic law not specified in OCGA § 40-6-393 (a). See OCGA § 40-6-393 (c). “Because the difference between first and second degree vehicular homicide is the culpability of the predicate traffic offense, second degree vehicular homicide is considered a lesser included offense of first degree vehicular homicide.” Brown v. State, 287 Ga. App. 755, 757 (652 SE2d 631) (2007); see Hayles v. State, 180 Ga. App. 860, 861 (3) (350 SE2d 793) (1986).

When prosecuting a first degree vehicular homicide case, the burden is on the State to establish a causal connection between the defendant’s violation of the applicable traffic offense — in this case the DUI — and the victim’s death. See Miller v. State, 236 Ga. App. 825, 828 (1) (513 SE2d 27) (1999). That is to say, “the State must prove that the defendant’s conduct [in violating OCGA § 40-6-391] was the ‘legal’ or ‘proximate’ cause, as well as the cause in fact, of the death.” Id. at 828 (2).

Additionally, “a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” (Citation and punctuation omitted.) Shah v. State, 300 Ga. 14, 19 (2) (793 SE2d 81) (2016); accord Allaben v. State, 299 Ga. 253, 257 (3) (a) (787 SE2d 711) (2016). In the context of a vehicular homicide charge premised upon DUI, an instruction on second degree vehicular homicide must be given “if there is any evidence showing that a less culpable traffic offense caused the fatal collision.” Brown, 287 Ga. App. at 758. Significantly, a defendant need not “be charged with a traffic offense involving less culpable conduct before a charge on vehicular homicide in the second degree is authorized.” Lefler v. State, 210 Ga. App. 609, 610-611 (2) (436 SE2d 777) (1993).

Here, although there was sufficient evidence to authorize Smith’s conviction of vehicular homicide in the first degree in the manner charged, there was also evidence that he committed the separate traffic offense of failing to yield and that this less-culpable traffic violation may have caused the collision resulting in the victim’s death. See OCGA § 40-6-71 (“The driver of a vehicle intending to turn to the left within an intersection... shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.”). Indeed, the investigating officer testified that Smith “turn[ed] in front of the motorcycle causing the motorcycle to hit the passenger’s side,” and the State’s accident reconstruction expert testified as to his conclusion that Smith “fail[ed] to yield [the] right-of-way while turning left.”

[When] some evidence shows that [Smith] committed an act of [failing to yield], a traffic violation “other than” the more culpable offense of DUI, and that such may have caused the collision and resulting death, the fact that [Smith] may have also committed a DUI does not demand a finding that the DUI was the sole proximate cause of the collision and of the victim’s death.

(Citation and punctuation omitted.) Brown, 287 Ga. App. at 758. Because the State must prove that the more culpable traffic offense actually caused the victim’s death, a jury could believe that Smith was guilty of DUI, but nevertheless conclude that the victim’s death was caused by Smith’s failure to yield. Id. “Under such circumstances, there is no evidentiary or legal impediment to the return of a verdict of guilt as to DUI and a verdict of guilt as to second degree vehicular homicide.” (Citation and punctuation omitted.) Id. Consequently, the trial court erred in refusing to give Smith’s request to charge on second degree vehicular homicide. See id. (remanding for a new trial after concluding that the trial court erred in failing to give second degree vehicular homicide charge when there was evidence to support a finding that the victim’s death was caused by appellant’s commission of the less-culpable traffic offense of following too closely); Lefler, 210 Ga. App. at 610-611 (2) (holding the trial court committed reversible error in failing to charge on second degree vehicular homicide despite evidence that the victim’s death may have resulted from defendant’s speeding and/or failing to obey a traffic signal, though neither traffic offense was charged); Hayles, 180 Ga. App. at 860-861 (3) (granting appellant a new trial because the trial court failed to charge the jury on vehicular homicide in the second degree and “[t]he evidence did not... demand a finding that the DUI was the sole proximate cause of the collision and of the victim’s death” when there was also evidence that appellant was following too closely).

We reject the State’s argument that Otuwa v. State, 319 Ga. App. 339 (734 SE2d 273) (2012), requires a different result. In Otuwa, the trial court instructed the jury on second degree vehicular homicide by speeding as a lesser included offense of some, but not all, of the defendant’s first degree vehicular homicide charges. Id. at 342 (2). Reversal was not required because the jury was given the opportunity to return a guilty verdict on second degree vehicular homicide, but declined to do so. Id. It was otherwise apparent by the verdict returned that the jury had considered and rejected any argument that the victim in that case died as a result of a lesser-culpable traffic offense committed by the defendant. Id. at 342-343 (2).

Accordingly, we reverse Smith’s conviction and remand this case for a new trial. See Brown, 287 Ga. App. at 758; Lefler, 210 Ga. App. at 610-611 (2); Hayles, 180 Ga. App. at 860-862 (3).

2. Smith also asserts that the trial court erred in admitting extrinsic act evidence of his prior arrest that resulted in him being charged with DUI less safe. The State argued that the evidence should be admitted to show “knowledge, intent, and absence of mistake or accident,” and the trial court allowed it for those purposes.

Decided September 7, 2017.

Nora M. Benavidez, Matthew K. Winchester, for appellant.

Brian K. Fortner, District Attorney, Sean A. Garrett, Thomas E. Kegley, Assistant District Attorneys, for appellee.

In the recent case of Jones v. State, 301 Ga. 544 (802 SE2d 234) (2017), the Supreme Court of Georgia clarified the analysis applicable to the admissibility of extrinsic act evidence, and specifically evidence of prior DUI, under OCGA §§ 24-4-403 and 24-4-404 (b). Jones and the relevant cases discussed therein were issued after the trial in this case. On remand, the trial court should reexamine the admissibility of Smith’s prior arrest, taking into consideration the discussion and analysis set forth in Jones.

3. In light of our holding in Division 1, we need not consider Smith’s remaining enumerations of error.

Judgment reversed and case remanded.

Andrews, J., concurs. Ellington, P. J., concurs in judgment only.

       Notably, the State argued at trial and continues to argue on appeal that the evidence was necessary because Smith’s defense of the collision was accident, and yet the State steadfastly objected to Smith’s request to charge the jury on the defense of accident, and the trial court refused to give the charge.


author: Branch, Judge.

text:
    A16A1575.
    In the Interest of E. T., a child.
    (804 SE2d 725)
   Branch, Judge.

Following his adjudication of delinquency for aggravated assault, aggravated battery, and criminal attempt to commit a felony (armed robbery), E. T. appeals, contending the trial court improperly allowed the victim to testify via two-way video conference during the adjudicatory hearing. He also contends the trial court improperly amended the order of disposition and improperly merged certain charges. For the reasons that follow, we hold that the trial court erred by allowing the victim to testify via video conference and that a new trial is required.

“On appeal of an adjudication of delinquency, the appellate court determines whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the acts charged beyond a reasonable doubt.” In the Interest of L. J., 337 Ga. App. 653, 653 (788 SE2d 531) (2016) (citations omitted).

E. T. does not challenge the sufficiency of the evidence, but we find it sufficient to support the adjudication. The record shows that on June 30, 2015, R. R., a long-time friend of E. T.’s, persuaded another friend, the victim, to come along with R. R. on a walk to a subdivision where supposedly there were girls to meet. At that subdivision, and shortly after R. R. had been engaged in texting someone else, a person wearing a mask and holding a gun appeared from behind a truck and attempted to rob the victim using the gun. Because the mask had large holes for the eyes, nose, and mouth, the victim immediately recognized E. T., whom he had met previously through R. R., as the robber. The victim later identified E. T. during a pre-trial photo lineup and at trial as the robber. When a struggle for the gun ensued, the victim was shot and suffered severe injuries, including loss of all or part of several internal organs. Meanwhile, E. T., age 15 at the time, fled the scene but moments later sent R. R. a text “to delete everything.” R. R. made several inconsistent statements to the police: in one, he admitted that E. T. had been present before and during the robbery but that he had run away; in a separate statement, R. R. said that it was possible that E. T. had been the shooter. R. R. also gave the investigating officer a description of the shooter that was different, from E. T.’s general description. But R. R. did not testify at the adjudicatory hearing.

The victim, who was age 18 at the time of the incident, testified that he was in a hospital in Miami awaiting a transplant of his entire digestive system. He explained that he received liquid nutrition via an intravenous (IV) tube. But he told the court that he was “feeling perfectly fine” at the end of his testimony, and he remained connected to the video conference after his testimony concluded. The victim’s initial treating physician in Savannah testified to the severity of the victim’s injuries (he lost all of his small intestine and one kidney and half of his stomach, large intestine, and pancreas); the doctor also testified about the effort to save the victim’s life and to the fact that he was awaiting a transplant in a Miami hospital. The doctor added that the victim could receive his IV therapy outside of the hospital.

On August 6, 2015, the State filed a delinquency petition in which E. T. was charged with aggravated assault with a deadly weapon, aggravated battery by maliciously causing bodily harm by rendering the victim’s intestines useless, and criminal attempt to commit a felony (armed robbery); the indictment asserted that each charge was a class A designated felony. Following the adjudicatory hearing, at which the victim testified via video conference from a hospital in Miami, the juvenile court adjudicated E. T. delinquent on all three counts; the court also found that the aggravated battery adjudication merged into the adjudication of aggravated assault. Two days later, however, the juvenile court amended the adjudication sua sponte and without notice to either party, to show that E. T. had committed aggravated assault with intent to rob rather than with a deadly weapon as alleged in the indictment; the court reentered the remainder of the original adjudication, including merging aggravated battery into aggravated assault. The court also ordered that E. T. remain in a youth detention center pending the disposition hearing, which was set for October 15, 2015, but later continued to November 10, 2015. Following the disposition hearing, at which the victim and his mother made statements via video conference from the Miami hospital where the victim was still awaiting a transplant, the court entered an order of disposition requiring E. T. to serve 48 months in restrictive custody, with credit for time spent in secure detention, followed by 12 months of intensive supervision. E. T. appealed to this Court. In addition to asserting that the trial court erred by allowing the video-conference testimony, E. T. contends the court erred by amending the order of disposition to reflect the commission of aggravated assault with intent to rob rather than with a deadly weapon as charged. The State agrees and urges this Court to remand for resentencing on the correct charge. E. T. also contends the trial court erred by not merging criminal attempt to commit armed robbery with aggravated assault with intent to rob. The State finds issue with a different aspect of the trial court’s decision on what charges to merge.

1. In three enumerations of error, E. T. contends that the trial court’s decision to allow the victim to testify via video conference violated Rule 2.7 of the Uniform Rules for the Juvenile Court (URJC) and his right to confrontation as found in the Constitution of Georgia and the United States Constitution.

The record shows that initially the adjudicatory hearing was scheduled for August 28, 2015. But on that day, the State requested that it be allowed to present the victim’s testimony via Skype from a hospital in Miami, and E. T. objected. The trial court therefore ordered that the hearing be continued until September 2, 2015, so that the State and E. T. could determine whether they could depose the victim. On September 1, 2015, however, the State filed a notice of intent to present the victim’s testimony by video conference or, in the alternative, that the victim’s testimony be taken by deposition in advance of trial. In support, the State asserted that the victim was hospitalized, awaiting a multi-organ transplant in Miami; that his injuries “left him so infirm as to afford reasonable grounds to believe that he will be unable to testify in person as a witness at a criminal trial or proceeding”; and that his “long-term prognosis” was “speculative.” The State added that the victim was a material witness and that his testimony and identification of the defendant “are crucial to the State’s case.” The State indicated that it preferred the video conference option “to avoid the unnecessary expense, delay, and inconvenience of traveling to Miami, Florida,” but that it was willing to consent to testimony by deposition “if said deposition can be transacted by video-conferencing.” The State explained that even with a deposition, it was concerned for the victim’s safety in the presence of the defendant:

[IJjnless the defendant waives in writing his right to be present, the State has safety concerns about transporting the defendant to and from Miami, Florida, and [safety concerns about the defendant’s] physical presence in the victim’s hospital room where the victim is lying helpless in bed, connected to medical equipment necessary to keep him alive, and is physically unable to run or defend himself.

E. T. responded by objecting to the video conference option on the same grounds raised on appeal; E. T. did not object to the deposition option.

Based on the representations of the State and without conducting an evidentiary hearing on the motion, the trial court held that it had the discretion under URJC Rule 2.7-2 to allow video conference testimony upon a showing of good cause, that good cause had been shown, that E.T.’s right to confrontation could be protected if the procedure used preserved the essence of effective confrontation, and that the same rule provided such a procedure. The court therefore granted the State’s motion to present the victim’s testimony via video conference and held that the request for testimony via deposition was therefore moot. At the beginning of trial, E. T. reiterated his objections. At trial, the prosecutor, the defense, and the victim each had a computer monitor in front of them that allowed each to see, hear, and communicate with each other simultaneously, and all participants could observe each other’s demeanor and nonverbal communications. But it is unclear whether anyone was in the hospital room with the victim during his testimony. The technology being employed was named WebEx, which is a program for transmitting two-way live video; the picture on at least one of the screens would change based on who was speaking, and the live video was recorded for the record.

(a) E. T. first contends that the court’s decision to allow the victim to testify via video conference was prohibited by the Uniform Juvenile Court Rules. Both parties contend there is an inconsistency between Rule 2.7-2 (A) and (C). We disagree.

Like the construction of statutes, the construction of court rules is a question of law for the courts. See, e.g., Jones v. State, 276 Ga. 171, 172 (575 SE2d 456) (2003) (construing the Uniform State Court Rules). The plain language of subsection (A) allows a juvenile court to conduct “any Juvenile Court matters” by video conference with two exceptions, including formal adjudicatory delinquency hearings:

At the discretion of the court, any Juvenile Court matters may be conducted by video-conference with the following exceptions: 1. Formal adjudicatory hearings on Petitions alleging the delinquency or unruliness of a child; and 2. Hearings alleging the violation of a juvenile court protective order which may result in the loss of liberty of the person alleging to have violated the protective order.

Thus, under these exceptions, the court may not conduct the actual hearing itself by video conference but instead must hold the hearing in court.

On the other hand, Rule 2.7-2 (C) provides: “In any pending matter, a witness may testify via video-conference.” (Emphasis supplied.) Thus, subsection (C), which pertains to witnesses rather than matters or hearings, gives a court conducting “any pending [juvenile court] matter” — without stating any exceptions — the discretion to allow individual witnesses to testify via video conference. Although subsection (C) (2) provides that parties may object to a notice of video conference testimony and that “[i]n a delinquency or unruliness matter, such objection by the child shall be sustained,” (emphasis supplied), subsection (C) (2) goes on to provide that “such objection shall act as a motion for continuance and shall toll the applicable time limits,” and subsection (C) (3) provides that the juvenile court “may modify these requirements upon a showing of good cause.” Further, “[t]he discretion to allow testimony via video-conference shall rest with the judge.” Id. Thus, the continuance gives the State time to determine whether good cause for a modification exists, to make arrangements to bring the witness to court, or to preserve the witness’s testimony by deposition. See OCGA §§ 15-11-17 (b) (providing that juvenile court hearings be conducted in accordance with Title 24, except as otherwise provided); 24-13-130 (providing for taking of a material witness’s testimony by deposition).

As shown above, the plain language of Rule 2.7-2 gave the juvenile court in the present case the discretion to allow the victim to testify via video conference upon a showing of good cause. Because E. T. does not challenge the finding of good cause, we conclude that the trial court acted within its discretion under that rule. Whether that rule protects the defendant’s constitutional rights is another question.

(b) E. T. contends that allowing the victim to testify via video conference violated his right to confrontation as found in Art. I, Sec. I, Par. XIV of the Constitution of Georgia and the Sixth and Fourteenth Amendments to the United States Constitution. “The admission of testimony by two-way video conference presents a mixed question of law and fact; therefore, we review de novo [the appellant’s] claim that [his] Sixth Amendment rights were violated.” United States v. Yates, 438 F3d 1307, 1311 (II) (11th Cir. 2006) (citation omitted). We begin with the Sixth Amendment.

“The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: ‘In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.’” Maryland v. Craig, 497 U. S. 836, 844 (II) (110 SCt 3157, 111 LE2d 666) (1990). This right applies in a Georgia delinquency proceeding.

The combined effect of [the four] elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.

Id. at 846 (II) (citation omitted). And, the Supreme Court “[has] recognized, for example, that face-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person.” Id. (citation omitted).

Although in general “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact,” the Supreme Court has explained that it has “never held . . . that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial.” Craig, 497 U. S. at 844 (II) (citations omitted; emphasis in original). Rather, the majority held, “in certain narrow circumstances, competing interests, if ‘closely examined,’ may warrant dispensing with confrontation at trial.” Id. at 848 (II) (citations and punctuation omitted). In what is now referred to as the Craig test, the Supreme Court held that “a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 850 (II). The Court held that “[t]he requisite finding of necessity must of course be a case-specific one[.]” Id. at 855 (III). Under Craig, it is the State’s burden to make an adequate showing of necessity during a required evidentiary hearing. Id.

In Craig, the Supreme Court held that the Sixth Amendment did not categorically prohibit a child sexual abuse victim from testifying by one-way closed circuit television in accordance with a Maryland statutory procedure. Rather, based on expert testimony about the effect on the individual child victims of testifying in the presence of the accused under the circumstances of that case, the court found that the testimony was necessary to further the important public policy of protecting the physical and psychological well-being of those child abuse victims. Craig, 497 U. S. at 853 (III). The Supreme Court found that the trial court properly heard evidence regarding the need for the closed circuit testimony and made a case-specific finding that the use of one-way closed circuit television was necessary to further the public interest stated above. Id. at 855-856 (III). The Supreme Court also found that Maryland’s statutory procedure for the introduction of one-way closed circuit testimony adequately safeguarded the reliability of that evidence. Id. at 851-852 (III).

In the case before us, the trial court did not hold an evidentiary hearing or examine whether having the victim testify via video conference was necessary to further an important public policy. The trial court determined only that, based on the State’s representations, good cause for a video conference had been shown under Rule 2.7-2 and that the defendant’s right to confront the witnesses against him could be safeguarded as long as the technical standards of video conferencing found in that rule were met. But that rule’s standards do not address public policy concerns. Rather, they are related to Craig’s concern regarding the reliability of the evidence, the second prong of the Craig test. And even if the rule’s technical standards were sufficient to satisfy the reliability prong of the Craig test, which we do not decide here, “a mere finding that evidence is reliable is insufficient to outweigh a defendant’s confrontation rights if the denial of confrontation is not necessary to further an important public policy.” Brumley v. Wingard, 269 F3d 629, 643 (II) (B) (1) (b) (6th Cir. 2001) (footnote omitted). Also, for the reasons that follow, we cannot conclude that the “good cause” portion of the Rule 2.7-2 test can, in this case, substitute for the first part of the Craig test — that video-conference testimony by the victim was “necessary to further an important public policy,” especially when the court had another option, namely a face-to-face videotaped pretrial deposition.

First, the State failed to articulate an important public policy, and therefore we have no basis to conclude that the trial court equated good cause under Rule 2.7-2 with any important public policy. See United States v. Jacobs, 97 F3d 275, 282 (1) (8th Cir. 1996) (“Mere speculation [as to the state’s public policy interest in requiring the defendant to cross-examine a witness by telephone] is insufficient to justify abridgement of defendant’s constitutional right to confront his accuser face-to-face in the jury’s presence.”). Second, the State argued that good cause was shown because (1) the victim was too infirm to travel to Savannah to testify; (2) the victim’s testimony was crucial to the case; and (3) video conference testimony was more economical than the option of taking the victim’s testimony via a pretrial deposition. Yet the fact that video conference testimony may be more economical than face-to-face video deposition testimony does not justify a departure from the rules of confrontation. See Brumley, 269 F3d at 644 (II) (B) (1) (b) (“administrative convenience and budgetary concerns” do not outweigh a defendant’s Sixth Amendment rights). And even if we were to read the trial court opinion as saying that there is an important public policy to allow video testimony of critical witnesses who are physically unable to travel to court during a reasonable period of time for conducting a juvenile court adjudicatory hearing, see Horn v. Quarterman, 508 F3d 306, 320 (II) (A) (5th Cir. 2007) (“protection of seriously ill witnesses may give rise to the type of necessity required under Craig to permit testimony byway of closed-circuit television”) (citation omitted), in this case, the trial court did not conduct a hearing or take any evidence regarding the victim’s specific medical circumstances before deciding whether to permit video testimony. By contrast in Horn, the Fifth Circuit noted that the trial court considered evidence and conducted a telephone conference with the witness’s doctor in Ohio regarding the witness’s illness and inability to travel before overruling Horn’s objection to the witness’s testimony via video conference. Id.

Although the seriousness of the victim’s injuries, as represented by counsel for the State, was not disputed, the court did not obtain specific evidence as to whether the victim could travel while awaiting a transplant, whether he might have been able to testify in court within a reasonable amount of time in the future, or whether, as more fully addressed below, a video deposition in Miami would have been appropriate. The State’s representation that there were “reasonable grounds to believe that he will be unable to testify in person” may be true, but it was not supported by any medical testimony. Many victims of violent crimes require hospitalization and significant periods of rehabilitation as a result of their injuries, which can make it difficult for victims to testify in court. But the simple fact that a victim has medical issues or is hospitalized for a period of time does not mean that the State automatically can present the testimony of any such victim via video conference. Rather, under Craig, the Sixth Amendment requires a court to take evidence and make a case-specific determination that a video conference satisfies an articulated important public policy. In this case, the trial court failed to do so.

For example, as stated by the Eighth Circuit in a case involving a witness with medical issues,

the [trial] court must determine the necessities of the specific case by weighing the importance of the absent witness for the case; the nature and extent of the cross-examination; the nature of the illness; the expected time of recovery; the reliability of the evidence of the probable duration of the illness; and any special circumstances counseling against delay.

Jacobs, 97 F3d at 282 (2) (citations and punctuation omitted) (holding that trial court’s decision to require defense to complete cross-examination of important witness via telephone due to her pregnancy was a violation of defendant’s right to confrontation, although harmless under the circumstances); see also Stoner v. Sowders, 997 F2d 209, 212-213 (6th Cir. 1993) (“When the government is claiming witness unavailability due to illness, the specific inquiry must focus on both the severity and duration of the illness. The court must inquire as to the specific symptoms of the illness to determine what tasks the patient is able to perform, and the court must determine whether there is the probability that the illness will last long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed.”) (citation and punctuation omitted).

Also, although the Juvenile Code requires that juvenile delinquency matters proceed on a fast-track schedule, see OCGA § 15-11-582, the juvenile court is authorized to grant continuances for good cause, see OCGA § 15-11-478, which, if the confined accused is so inclined, can include protection of his Sixth Amendment right to confront the witnesses against him. “[A] continuance under the juvenile court rules is mandatory when the lack thereof will result in injury or prejudice to the defendant.” In the Interest of D. W., 232 Ga. App. 777, 779 (1) (b) (503 SE2d 647) (1998), citing Sanchez v. Walker County Dept. of Family & Children Svcs., 237 Ga. 406, 410 (229 SE2d 66) (1976).

Moreover, an alternate procedure was available to the trial court that would have protected E. T.’s right to confrontation — a videotaped deposition in Miami with E. T. present. OCGA § 24-13-130 (b) provides that upon motion of a party, the trial court may order that the testimony of a material witness may be taken by deposition if

it appears to the satisfaction of the court that the testimony of the witness is material to the proceeding and the witness: (1) Is in imminent danger of death or great bodily harm; . . . [or] (4) Is so sick or infirm as to afford reasonable grounds to believe that such witness will be unable to testify as a witness at a criminal trial or proceeding^]

A deposition provides “the opportunity to be present at the deposition and thus an opportunity for physical face-to-face confrontation.” Yates, 438 F3d at 1314 (III) (A). As held in Yates,

under the circumstances of this case (which include the availability of a ... deposition), the prosecutor’s need for the video conference testimony to make a case and to expeditiously resolve it are not the type of public policies that are important enough to outweigh the Defendants’ rights to confront their accusers face-to-face.

Id. at 1316 (III) (A) (case involving two witnesses from Australia who were not willing to travel to the United States to testify in a criminal trial).

In sum, the trial court erred by failing to apply the Craig test to the specific circumstances raised in this case. Further, an alternate procedure was available whereby a face-to-face confrontation could have been accomplished. Yates, 438 F3d at 1315-1316 (III) (A) (trial court erred by allowing two-way video conference testimony in part because the court failed to hold hearing to consider evidence of necessity for video conference testimony and instead relied on the government’s assertions, and failed to make case-specific findings of necessity); State v. Thomas, 376 P3d 184, 195 (II) (B) (3) (N.M. 2016) (where court “did not conduct an evidentiary hearing or enter any findings on the [Craig test] . . . the admission of remote testimony violated Defendant’s right to confrontation”). As for the State’s concern for the victim’s safety from E. T. during such a deposition, the State did not provide any factual basis for such a concern, and security measures are certainly available to alleviate routine security matters.

We therefore hold that the trial court erred by failing to apply the Craig test before allowing the victim to testify via two-way video conference. Given that the trial court itself admitted that the victim’s testimony was the critical factor used to identify E. T. as the assailant, we cannot conclude that the error was harmless. We therefore vacate E. T.’s adjudication and remand for a new adjudicatory hearing.

Decided September 8, 2017.

Mark J. Nathan, Robert L. Persse, for appellant.

Meg E. Heap, District Attorney, Allison E. Bailey, Assistant District Attorney, for appellee.

2. The remaining enumerations of error are not likely to recur and therefore need not be addressed.

Judgment vacated and case remanded with direction.

McFadden, P. J., and Bethel, J., concur.

       Petitions alleging delinquency must state whether the child “is being charged with a class A designated felony act or class B designated felony act.” OCGA § 15-11-522 (5); In the In terest of J. H., 335 Ga. App. 848, 851 (783 SE2d 367) (2016). See also OCGA § 15-11-2 (12), (13) (defining class A and class B designated felony acts). When a child is adjudicated to have committed a class A designated felony act, the order of disposition may include placing the child in restrictive custody for up to 60 months; the maximum for a class B designated felony act is 36 months. OCGA § 15-11-602 (c) (1) and (d) (1).

       We initially transferred this appeal to the Supreme Court on the ground that the issue presented involves construction of the right to confrontation as found in both the state and federal Constitutions. See Atlanta Independent School System v. Lane, 266 Ga. 657, 657 (1) (469 SE2d 22) (1996); 1983 Ga. Const., Art. VI, Sec. VI, Par. II. The Supreme Court returned the appeal to this Court on the ground that this Court has jurisdiction to address issues involving settled principles of constitutional law.

       The Council of Juvenile Court Judges, comprised of “[a]ll of the judges and associate judges of the courts exercising jurisdiction over children, ” is authorized to “promulgate uniform rules and forms governing procedures and practices of the courts.” OCGA § 15-11-58 (a), (b); see also 1983 Ga. Const. Art. VI, Sec. IX, Par. I. And in 1985, the Council promulgated the Uniform Rules for the Juvenile Courts, which have been modified from time to time since then. See URJC Rule 1.1 et seq.

       “[WJhere the proceedings may result in the incarceration of the juvenile offender, certain due process requirements must be observed.” Florida Publishing Co. v. Morgan, 253 Ga. 467, 469 (a) (322 SE2d 233) (1984), citing In re Gault, 387 U. S. 1 (87 SCt 1428, 18 LE2d 527) (1967); see also In the Interest of C. M. M., 244 Ga. 787, 787 (1) (262 SE2d 103) (1979) (juvenile court delinquency hearings must measure up to the “essentials of due process and fair treatment”). Thus, as this Court has explained, a juvenile charged with delinquency is entitled to “the right to adequate notice of the charges, appointment of counsel, the constitutional privilege against self-incrimination, and the right to confront opposing witnesses.” In the Interest of S. H., 220 Ga. App. 569, 571 (469 SE2d 810) (1996).

       In Craig, a 5-4 decision, Justice Scalia, joined by Justices Brennan, Marshall, and Stevens, dissented, arguing that the majority’s reasoning was erroneous “because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was ‘face-to-face’ confrontation.” Craig, 497 U. S. at 862 (I) (Scalia, J., dissenting).

       Although Craig involved the use of one-way video conferencing, the Eleventh Circuit has held, en banc, that the Craig test applies to two-way video conference testimony as well, and most other federal circuit courts that have addressed the issue agree. Yates, 438 F3d at 1313, 1315 (III) (A) (“The Sixth Amendment’s guarantee of the right to confront one’s accuser is most certainly compromised when the confrontation occurs through an electronic medium.”), and cases cited therein; see also United States v. Bordeaux, 400 F3d 548, 554 (I) (8th Cir. 2005) (“It is true that a two-way closed-circuit television creates an encounter that more closely approximates a face-to-face confrontation than a one-way closed-circuit television does because a witness can view the defendant with a two-way system. But two-way systems share with one-way systems a trait that by itself justifies the application of Craig', the ‘confrontations’ they create are virtual, and not real in the sense that a face-to-face confrontation is real.”). But see United States v. Gigante, 166 F3d 75, 81 (I) (2d Cir. 1999) (Craig test not required for two-way video conference testimony; rather, “[u]pon a finding of exceptional circumstances, ... a trial court may allow a witness to testify via two-way closed-circuit television when this furthers the interest of justice.”); United States v. Benson, 79 Fed. Appx. 813, 821 (II) (5) (6th Cir. 2003) (following Gigan te). We will therefore apply the Craig test in this case involving two-way video conferencing.
      Although it is not controlling, we also note the following:
      In 2002, the Advisory Committee on the Criminal Rules suggested a revision to Federal Rule of Criminal Procedure 26 that would have allowed testimony by means of two-way video conferencing. Thereafter, the Supreme Court transmitted to Congress proposed amendments to the Federal Rules of Criminal Procedure. The Court declined to transmit the proposed revision to Rule 26 that would have allowed testimony by two-way video conference. Justice Scalia filed a statement explaining that he shared “the majority’s view that the Judicial Conference’s proposed Fed. Rule Crim. Proc. 26 (b) is of dubious validity under the Confrontation Clause of the Sixth Amendment to the United States Constitution.” Order of the Supreme Court, 207 FRD 89, 93 (2002). He remarked that the proposed amendments were “contrary to the rule enunciated in Craig” in that they would not limit the use of remote testimony to “instances where there has been a ‘case-specific finding’ that it is ‘necessary to further an important public policy.’ ” Id. (citation omitted). Rule 26 was not revised to allow such testimony.

        Yates, 438 F3d at 1314-1315 (III) (A).

       We also agree with the Eleventh Circuit’s conclusion that the United States Supreme Court’s opinion in Crawford v. Washington, 541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004), does not alter the need to apply the Craig test in this case. See Yates, 438 F3d at 1314 (III) (A), n. 4.

       The procedure was described by the Supreme Court as follows:
      Once the procedure is invoked, the child witness, prosecutor, and defense counsel withdraw to a separate room; the judge, jury, and defendant remain in the courtroom. The child witness is then examined and cross-examined in the separate room, while a video monitor records and displays the witness’ testimony to those in the courtroom. During this time the witness cannot see the defendant. The defendant remains in electronic communication with defense counsel, and objections may be made and ruled on as if the witness were testifying in the courtroom.

        Craig, 497 U. S. at 841-842 (I).

       Like Craig, most Georgia criminal cases applying Craig involve whether a trial court may take steps to protect a child victim of sexual abuse from having to see the defendant while the child victim testifies in court based on the state’s interest in protecting the physical and psychological well-being of child abuse victims. See In the Interest of B. H., 295 Ga. App. 297, 300 (5) (671 SE2d 303) (2008) (considering whether trial court in a deprivation case erred by “requiring the father [who was accused of sexually abusing the victim] to view [the victim’s] courtroom testimony from a television monitor in a separate room” in order to protect the child from the trauma of testifying in the father’s presence where the trauma would impair the child’s ability to communicate); Harris v. State, 269 Ga. App. 316, 319-320 (3) (604 SE2d 565) (2004) (child victim of sexual abuse allowed to testify with a blackboard placed in a position where the defendant could see the witness and the jury and the child could see the defendant, “though not as easily as she might have without the blackboard”); see also Ortiz v. State, 188 Ga. App. 532, 533 (2) (374 SE2d 92) (1988) (a pre-Craig case where “trial court allowed the witness chair to be turned at an angle so the [child victims of sexual abuse] would not be forced to directly face [the defendant]”). Other cases involve whether a juvenile judge may take steps to accommodate a child witness’s fears in testifying in the presence of allegedly abusive parents in cases involving child custody and the termination of parental rights. See, e.g., In the Interest of C. W. D., 232 Ga. App. 200, 202, 210 (5) (501 SE2d 232) (1998) (children permitted to testify via closed circuit television where they had allegedly suffered physical, psychological, and emotional abuse by parent); In the Interest of B. G., 225 Ga. App. 492, 493-494 (1) (484 SE2d 293) (1997) (in a case involving the termination of parental rights, the trial court erred by excluding the mother from the courtroom during her children’s testimony because the court failed to “make an evidentiary finding that the child would be substantially traumatized by the event and that the child’s welfare compels a limitation on the party’s right to confront the child witness”) (citation omitted).

       Subsection (E) of Rule 2.7-2 provides:
      Technical Standards. Any video-conferencing system utilized under this rule must conform to the following minimum requirements: 1. All participants must be able to see, hear, and communicate with each other simultaneously; 2. All participants must be able to see, hear, and otherwise observe any physical evidence or exhibits presented during the proceedings, either by video, facsimile, or other method; 3. Video quality must be adequate to allow participants to observe each other’s demeanor and nonverbal communications; and 4. If the proceeding is one from which the general public may not be excluded as provided by [former OCGA § 15-11-78 (b) (now OCGA § 15-11-700 (b))], the location from which the judge is presiding shall be accessible to the public to the same extent as such proceeding would if not conducted by video conference. In any such case, the court shall accommodate any request by interested parties to observe the entire proceeding.

        Horn was a habeas case decided under a different standard, which makes that and other habeas cases distinguishable . Id. at 312 (I) (“There are two categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim that was adjudicated on the merits in state court: if the state court decision was either ‘contrary to clearly established Federal law, as determined by the Supreme Court’ or ‘involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court.’ ”) (citation omitted). See also Harrell v. Butterworth, 251 F3d 926 (11th Cir. 2001). In Harrell, a habeas case, the Eleventh Circuit held that the following findings of the trial court were not contrary to nor an unreasonable application of federal law:
      The Court began by recognizing public policy reasons justifying an exception to face-to-face confrontation. First, the witnesses lived beyond the subpoena power of the court and thus there was no way to compel them to appear in court. The Court found this to be an important consideration, because it was “clearly in the state’s interest to expeditiously and justly resolve criminal matters that are pending in the state court system.” Second, there was evidence that one of the witnesses was in poor health and could not travel to this country. Finally, the testimony of these two witnesses was “absolutely essential to this case.” The Court concluded that “these three concerns, taken together, amount to the type of public policy considerations that justify an exception to the Confrontation Clause.”
      Id. at 929 (I) (citations and punctuation omitted).