author: BARNES, Presiding Judge.

text:
    A10A1176.
    WALKER v. AMERIREACH.COM, LLC et al.
    (722 SE2d 201)
   BARNES, Presiding Judge.

In Amerireach.com, LLC v. Walker, 290 Ga. 261 (719 SE2d 489) (2011), the Supreme Court of Georgia reversed Division 1 of our decision in Walker v. Amerireach.com, LLC, 306 Ga. App. 658 (703 SE2d 100) (2010), in which we held that the trial court erred in granting summary judgment to Amerireach on Walker’s statutory claims. The Supreme Court held that a Texas default judgment obtained by Amerireach against Carol Walker was res judicata, and therefore the trial court properly granted summary judgment against her on her claim against the company for violations of the Georgia Fair Business Practices Act. Amerireach.com, LLC, 290 Ga. at 262 (1). The only avenue of collateral attack available to Walker, the Supreme Court held, would have been to claim that the issue of personal jurisdiction had not been fully and fairly litigated in the Texas proceedings, but Walker had not raised that issue, presented evidence on it, or sought a ruling from the trial court.

The Supreme Court did not address Division 2 of our earlier opinion, and affirmed Division 3, in which we concluded that the trial court erred in dismissing the claims against the individual defendants for lack of personal jurisdiction. Amerireach.com, LLC, 260 Ga. at 264 (2).

Decided January 18, 2012.

Henry A. Turner, for appellant.

Webb, Tanner, Powell, Mertz & Wilson, Robert J. Wilson, for appellees.

Thurbert E. Baker, Attorney General, Isaac Byrd, Deputy Attorney General, Sydney R. Barrett, Senior Assistant Attorney General, Amy C. M. Burns, Assistant Attorney General, amici curiae.

Accordingly, we vacate Division 1 of our opinion, and adopt the judgment of the Supreme Court as our own. As such, we affirm the trial court’s grant of summary judgment in favor of Amerireach but reverse its grant of summary judgment in favor of the individual defendants.

Judgment affirmed in part and reversed in part.

Blackwell and Dillard, JJ., concur.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A11A1512.
    BOCKER v. CRISP et al.
    (722 SE2d 186)
   PHIPPS, Presiding Judge.

After conducting a trial in this case without defendant Mark Bocker or his attorney present, the superior court entered judgment against Bocker and in favor of Pam Crisp. Bocker appeals from the judgment, contending that the court abused its discretion in (1) denying his motion for continuance when illness prevented him from appearing at the trial of the case, and (2) denying his motion to reconsider the ruling on the motion for continuance and to set aside the judgment. For the reasons that follow, we affirm.

Crisp filed a petition in probate court seeking, inter alia, removal of Bocker as administrator of her stepfather’s estate and damages for his alleged breach of fiduciary duties. After conducting a hearing, the probate court entered judgment in favor of Crisp, removing Bocker as administrator and awarding her damages. Bocker appealed the judgment to superior court. The court scheduled the trial of the case for December 15, 2010.

On December 13, 2010, Bocker’s attorney filed a motion for continuance on the grounds that he (counsel) had not recovered from knee replacement surgery. Attached to the motion was a physician’s affidavit stating that Bocker’s attorney was unable to resume normal activity for at least two more weeks. The attorney also stated in the motion that he had received information that Bocker had been admitted to a rehabilitation facility for treatment, that Bocker would not be permitted to leave the facility prior to January 19, 2011, and that Bocker’s stay may be extended beyond that date. Thus, Bocker’s attorney stated, it was not possible for either he (counsel) or Bocker to appear in court on December 15. No documents were attached to support the attorney’s claim that Bocker was unable to appear in court.

Bocker’s attorney further stated in the motion that opposing counsel had “consented to a continuance of this matter to January 26, 2011.” Bocker’s attorney then “move[d] this Court for a continuance of the scheduled hearing in this matter to January 26, 2011, or such later date as may be convenient for the Court.” Bocker’s attorney prepared and presented to the court an “ORDER FOR CONTINUANCE,” which provided: “it appearing that good cause exists to grant said Motion and that opposing counsel have consented thereto, it is therefore ORDERED, that said hearing be continued to January 26, 11 at 9:00 o’clock A. M., in Courtroom_[_, 2011, at _ o’clock _ .M., in Courtroom _].” The letter “D” was handwritten in the space following the first “Courtroom” and a line was drawn through the material inside the brackets. The order was signed by Bocker’s attorney, by opposing counsel (by Bocker’s attorney with express permission), and by the court. Bocker’s attorney served the motion for continuance and proposed order on opposing counsel by mail on December 10, 2010. The order signed by the attorneys and the court was filed on December 13, 2010.

On January 24, 2011, Bocker filed an amended motion for continuance. In it, Bocker’s attorney stated that Bocker was still in a rehabilitation facility and would not be released until February 26, at the earliest. Thus, Bocker’s attorney asserted, Bocker would not be able to appear in court until early March and counsel could not proceed without Bocker’s assistance and testimony; his attorney requested a continuance of the hearing until March 7, 2011 (or such later date as may be convenient for the court). No documentation was attached to support the claim that Bocker was ill or otherwise prevented from appearing in court.

On January 26, 2011, the case came on for a hearing before the superior court. The court noted in its judgment that Bocker had filed an amended motion for continuance, that the court had not excused Bocker or his attorney from appearing, and that Bocker and his attorney failed to appear “at the hearing scheduled for January 26, 2011.” The court denied Bocker’s amended motion for continuance and, after hearing the issues and considering the full record and all submissions and arguments, entered judgment against him.

1. Bocker contends that the trial court erred in denying his amended motion for continuance. He asserts that illness prevented his court appearance and that he was entitled to a continuance under OCGA § 9-10-154, which provides:

If either party is providentially prevented from attending the trial of a case, and the counsel of the absent party will state in his place that he cannot go safely to trial without the presence of the absent party, the case shall be continued, provided the continuances of the party have not been exhausted.

To be entitled to a continuance pursuant to OCGA § 9-10-154, a party must present evidence of some character, under oath, that the absent party was in fact providentially prevented from attending the trial of the case. In Georgia, all applications for continuances are addressed to the sound legal discretion of the trial court.

In this case, Bocker failed to present any evidence under oath that he was prevented from attending the trial of the case. “A statement by counsel of the absent party . . . that [the party] was ill and could not attend court was not a sufficient showing in support of the motion” for continuance. Because factual assertions contained in a party’s brief to the lower court are not evidence, Bocker’s attorney’s assertions in the amended motion for continuance regarding Bocker’s health were not evidence. Given Bocker’s failure to present any sworn evidence that he was in fact providentially prevented from attending the trial of the case, the superior court did not abuse its discretion in denying his amended motion for continuance.

2. Bocker contends that the court abused its discretion in failing to set aside its judgment, as requested in his motion for reconsideration, because his attorney had no notice of the January 26, 2011 trial date. Bocker argues that he was entitled to have the judgment set aside pursuant to OCGA § 9-11-60 (d) based on the court’s failure to give his attorney notice of the trial date. We review a trial court’s ruling on a motion to set aside judgment under OCGA § 9-11-60 (d) (as well as a ruling on a motion for reconsideration) for abuse of discretion.

OCGA § 9-11-40 (c) pertinently provides:

The courts shall provide for the placing of actions upon the trial calendar: (1) Without request of the parties but upon notice to the parties; or (2) Upon request of a party and notice to the other parties. . . .

Here, the court placed the case on the January 26, 2011 trial calendar upon Bocker’s request (with the consent of the other parties and pursuant to a consent order signed by the court). Therefore, pursuant to OCGA § 9-11-40 (c) (2), the court was not required to provide Bocker with notice of the trial date he specifically requested in the order he prepared. The cases upon which Bocker relies are inapposite, as they did not involve a consent order setting forth a particular trial date and the holding of the trial on that date; and, not only did the instant case involve a consent order that set forth the date on which the trial was later held, the consent order here was prepared, signed, presented to the court and served upon opposing parties by the party claiming to have had no notice of the trial date.

Decided January 18, 2012.

J. Robert Thompson, for appellant.

Where parties have a case in court, it is their duty to attend and look after their interests. They can not remain away without sufficient cause and subsequently have set aside a judgment properly rendered against them. They are bound to take notice of the time and place of trial and of when their presence is required.

Bocker’s attorney requested that the trial be held on January 26, 2011, obtained consent of opposing counsel for that date, prepared and submitted a proposed consent order to the court scheduling trial for that date, and served opposing counsel with the proposed consent order setting forth that date as the trial date. Under the circumstances presented in this case, Bocker’s attorney had a duty to attend court on January 26 and look after his (and Bocker’s) interests. The trial court did not abuse its discretion in denying Bocker’s motion to set aside the judgment based on the claim that his attorney had no notice of the trial date.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

White, Choate, Watkins & Mroczko, John T. Mroczko, Perrotta, Cahn & Prieto, Michael A. Prieto, for appellees.

       The court appointed Michael Prieto (county administrator) as Bocker’s successor. Along with Crisp, Prieto was named as an appellee in the action filed in superior court and is so named in the appeal in this court.

        Americani v. Sidky, 199 Ga. App. 823, 824 (406 SE2d 259) (1991).

        McLellan v. Chilivis, Cochran, Larkins & Bever, LLP, 302 Ga. App. 562, 565 (2) (692 SE2d 26) (2010).

        Americani, supra at 823 (2) (citations and punctuation omitted).

       See Tahamtam v. Sawnee Electric Membership Corp., 228 Ga. App. 485, 486 (491 SE2d 918) (1997) (factual assertions in the parties’ briefs to the lower court are not evidence).

       Id.

       See King v. Irvin, 273 Ga. App. 64, 65-66 (614 SE2d 190) (2005) (counsel’s statements that client could not attend trial because he had received military orders were insufficient to support continuance motion absent evidence of said orders or other evidence of his service requirements).

       OCGA § 9-11-60 (d) pertinently provides that a motion may be brought to set aside a judgment based upon: (1) lack of jurisdiction over the person or subject matter; (2) fraud, accident or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) a nonamendable defect which appears on the face of the record or pleadings.

       Although the denial of a motion to set aside a judgment is ordinarily subject to the discretionary appeal procedure (OCGA § 5-6-35 (a) (8)), the denial is reviewable here in conjunction with Bocker’s appeal from the superior court’s judgment reviewing the probate court’s decision; the superior court’s judgment reviewing the probate court’s decision is directly appealable under OCGA § 5-6-34 (a) (1). See OCGA §§ 5-6-35 (a) (1), 5-6-34 (d); Martin v. Williams, 263 Ga. 707, 709-710 (3) (438 SE2d 353) (1994) (provisions of the Georgia Appellate Practice Act must be liberally construed, and OCGA § 5-6-34 (d) is broad enough to permit a party to raise in the appeal of a directly appealable order issues regarding an order that, standing alone, is subject to the application requirements of OCGA § 5-6-35).

        Stephens v. Alan V. Mock Constr. Co., 302 Ga. App. 280, 281 (1) (690 SE2d 225) (2010); Moore v. Davidson, 292 Ga. App. 57, 58 (663 SE2d 766) (2008).

       See Moore, supra (lack of notice of trial date constituted a nonamendable defect appearing on the face of the record and authorizing setting aside the judgment where court clerk sent notice of the trial date to pro se appellant at the wrong address, where appellant’s former attorney had notified the court of appellant’s proper address, and notice was subsequently returned); Taylor v. Chester, 207 Ga. App. 217, 218 (427 SE2d 582) (1993) (trial court erred by denying appellant’s motion to set aside judgment based on a nonamendable defect appearing on the face of the record where record showed appellant was not given notice of the trial date; record showed court sent trial calendar to wrong address and calendar was later returned; appellant had previously informed court of the correct address; and trial court, through a review of the record, should have been cognizant of the returned calendar before proceeding with trial).

        McLellan, supra at 565-566 (2) (citation and punctuation omitted).

       Notably, the record shows that upon receiving Bocker’s motion for reconsideration, the trial judge wrote Bocker’s attorney a letter admonishing him for his “untruthfulness” in claiming to have received no notice that a hearing date had been set. The judge cited a December 10, 2010 letter that Bocker’s attorney had sent to the court and opposing counsel in which the attorney stated that he “was able to obtain opposing counsel’s consent to a continuance to January 26, 2011, at 9:00AM,” and the fact that Bocker’s attorney had prepared and presented the proposed consent order setting forth that trial date.

       See OCGA § 9-11-40 (c) (2); see generally Redding v. Raines, 239 Ga. 865 (2) (239 SE2d 32) (1977) (appellant received sufficient notice of trial pursuant to OCGA § 9-11-40 (c), formerly Code Ann. § 81A-140 (c), where appellee’s attorney requested the case be placed on the next jury trial calendar and mailed a copy of the request to appellant, and appellant received a copy of the request); Holbrook v. Halpern Enterprises, 141 Ga. App. 648, 649 (234 SE2d 187) (1977) (even if party did not receive actual notice of the trial date, if there was compliance with requirements for giving notice, the provisions of Code Ann. § 81A-140 (c) were satisfied and trial court did not err in denying nonappearing party’s motion for new trial based on lack of notice).


author: Dillard, Judge.

text:
    A11A1608.
    JONES v. THE STATE.
    (722 SE2d 202)
   Dillard, Judge.

Following a jury trial, Blossom Lorayne Jones was convicted of two counts of first degree homicide by vehicle, one count of first degree feticide by vehicle, one count of driving under the influence of alcohol based on having a blood-alcohol content exceeding 0.08 grams per 100 milliliters (DUI per se), and one count of driving under the influence of alcohol to the extent that it was less safe for her to do so (DUI less safe). Jones appeals her convictions and the denial of her motion for new trial, (1) challenging the sufficiency of the evidence and (2) arguing that the trial court erred in denying her motion to suppress the result of her blood-alcohol content test, which was obtained via seizure of her blood samples pursuant to a search warrant. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that on December 15, 2006, Jones was visiting her friends, Tiffani Kimbrough and Bethany Stone, at Kimbrough’s home in McDonough. While at Kimbrough’s home, Jones drank at least two glasses of cognac, after which the three women decided to drive to Atlanta to visit another friend. With Kimbrough in the front passenger seat and Stone, who was pregnant, in the back seat, Jones first drove to a convenience store so that Kimbrough could buy some food and a bottle of beer. Some time around 10:00 p.m., the three set out on Interstate 75, heading north to Atlanta.

Shortly thereafter, two other motorists, who were also traveling north on 1-75, observed Jones’s vehicle veer sharply from the far left lane to the far right lane and hit a small pick-up truck, causing both vehicles to swerve off the highway and crash into a thicket of trees. One of the motorists who witnessed the accident called 911, and emergency medical services, as well as police, were quickly dispatched to the scene. Upon their arrival, the police officers and EMTs found Jones and Kimbrough alive but injured. However, Sonya Smeigh (who was the driver of the pick-up truck), Stone, and Stone’s unborn child were tragically killed as a result of the accident.

As Jones was being attended to by the EMTs, one of the responding police officers noticed the smell of an alcoholic beverage on her breath and that her eyes were glassy and bloodshot, and thus, he attempted to ask her some questions about the accident. Although the officer was not able to obtain much information from Jones, he was able to perform the horizontal gaze nystagmus evaluation, which indicated that Jones had been drinking alcohol. Consequently, after Jones was transported to a hospital, the officer met with her again, read her the implied-consent notice, and asked if she would consent to a blood-alcohol test. When Jones refused to submit to such a test, another police officer successfully sought a warrant to obtain blood samples drawn from Jones during the course of her treatment following the accident. Once obtained, Jones’s blood samples were sent to the GBI for testing, which ultimately indicated a blood-alcohol content of 0.158.

Jones was thereafter indicted on two counts of first degree homicide by vehicle, one count of first degree feticide by vehicle, one count of DUI per se, and one count of DUI less safe. Prior to trial, she filed a motion to suppress the results of her blood-alcohol test, which the trial court denied after conducting a hearing on the matter.

During Jones’s trial, the two motorists who witnessed the accident testified as to how it occurred, and one of the responding EMTs testified regarding his assistance of the victims at the scene. The responding police officers also testified regarding their investigation, and a forensic chemist with the GBI discussed her testing of Jones’s blood-alcohol content.

Jones testified in her own defense but claimed that she could not recall how the accident occurred. In addition, an accident-reconstruction expert hired by Jones testified that the accident could not have occurred in the manner described by the witnesses and police officers. Instead, Jones’s expert opined that based on where yaw marks from her vehicle were located on the interstate, another vehicle struck Jones’s vehicle from behind, causing Jones’s vehicle to veer out of control. Nevertheless, at the trial’s conclusion, the jury found Jones guilty on all counts in the indictment. Thereafter, Jones filed a motion for new trial, which the trial court denied after a hearing. This appeal follows.

1. Jones contends that the evidence was insufficient to support her first degree vehicular homicide and first degree vehicular feticide convictions. Specifically, she argues that the State failed to prove how the accident occurred beyond a reasonable doubt. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Thus, the jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case. . . .”

OCGA § 40-6-393 (a) provides: “[a]ny person who, without malice aforethought, causes the death of another person through the violation of subsection (a) of Code Section . . . 40-6-391 [driving under the influence of alcohol], . . . commits the offense of homicide by vehicle in the first degree. . . .” Similarly, OCGA § 40-6-393.1 (b) (1) provides:

A person commits the offense of feticide by vehicle in the first degree if he or she causes the death of an unborn child by any injury to the mother of such child which would be homicide by vehicle in the first degree as provided in subsection (a) . . . of Code Section 40-6-393 if it resulted in the death of such mother.

Here, Jones was charged with causing the death of Smeigh, Stone, and Stone’s unborn child through a violation of OCGA § 40-6-391, driving under the influence of alcohol. And the State presented evidence that Jones had a blood-alcohol content of 0.158—nearly double the legal limit—at or near the time she veered across three lanes of traffic and collided with Smeigh’s pick-up truck, tragically resulting in the three deaths. Despite this evidence, Jones argues that the State failed to prove that her driving under the influence of alcohol caused the accident in light of her expert’s testimony that another vehicle must have hit her vehicle and caused her to lose control. However, it was for the jury to determine the credibility of witnesses, as well as the weight to be accorded the expert testimony. Accordingly, the evidence was sufficient for the jury to find Jones guilty beyond a reasonable doubt.

2. Jones also contends that the trial court erred in denying her motion to suppress the results of her blood-alcohol test, arguing that the warrant used to obtain her blood samples from the hospital where she was treated on the night of the accident was unlawfully broad. We disagree.

In considering this argument, we note that “[i]n reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” Additionally, because the trial court is the trier of fact, “its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.”

With specific regard to warrants, in accordance with the Fourth Amendment to the United States Constitution, a search warrant may issue only upon “facts sufficient to show probable cause that a crime is being committed or has been committed . . . .” And in determining whether probable cause exists, the issuing judge is required

simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that. . . evidence of a crime will be found in a particular place.

Further, in reviewing the issuance of a search warrant, we are charged with ensuring—considering the totality of the circumstances and giving substantial deference to the issuing judge’s decision—that the judge had a “substantial basis” for concluding that probable cause existed. With these guiding principles in mind, we now turn to Jones’s argument in support of her claim of error.

In the case sub judice, the warrant specifically stated that the items to be seized were on the property of the hospital where Jones was treated on the night of the accident and described the items as follows: “blood samples withdrawn from Blossom Lorayne Jones, all medical records pertaining to the treatment, and toxicology screens received during admission, which is evidence in the crime of Homicide by Vehicle . . . Jones argues that this warrant was unlawfully broad in that it allowed the State to seize any of her medical records regardless of whether such records related to the accident. This contention lacks merit.

In King v. State, our Supreme Court held that a defendant’s rights are not violated “when the State obtains private medical records through a search warrant without notice to the defendant or a hearing on the request.” As the Supreme Court reasoned, this is because “the limitations on the State’s ability to obtain medical records through a search warrant is narrowly tailored to satisfy the State’s compelling interests,” and there is no need to “strike a new balance” between these interests and a defendant’s privacy concerns. And here, as in King and contrary to Jones’s assertion, the warrant was narrowly drafted to seek only the blood samples and medical records from the hospital where Jones was treated on the night of the accident.

Moreover, even if the warrant could be construed, as Jones argues, as authorizing a broader seizure of all of her medical records instead of only those relevant to her treatment related to the accident, Jones failed to show that any such broader seizure occurred and thus has failed to show any harm. Indeed, where a search as it was actually conducted is lawful, “it is not rendered invalid merely because the warrant pursuant to which it was made was over-broad[.]” Accordingly, the trial court did not err in denying Jones’s motion to suppress the results of her blood-alcohol-content test obtained via the seizure of her blood samples and pursuant to the search warrant.

Decided January 18, 2012.

Amanda R. Flora, for appellant.

Tommy K. Floyd, District Attorney, Thomas L. Williams, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell, P. J., and Boggs, J., concur.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        See OCGA § 40-5-67.1 (b) (2).

        See OCGA § 40-6-393 (a).

        See OCGA § 40-6-393.1 (b) (1).

        See OCGA § 40-6-391 (a) (5).

        See OCGA § 40-6-391 (a) (1).

       For purposes of sentencing, the DUI less safe conviction was merged into the DUI per se conviction.

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson, 443 U. S. at 319 (III) (B).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

        See Hamilton v. State, 281 Ga. 501, 502 (1) (640 SE2d 28) (2007); Murphy v. State, 263 Ga. App. 62, 64 (2) (587 SE2d 223) (2003).

        See Brown v. State, 310 Ga. App. 285, 285-86 (1) (712 SE2d 521) (2011) (holding that evidence that defendant had a blood-alcohol concentration of 0.164 at the time of the motor vehicle accident that killed his passenger was sufficient to support defendant’s first degree vehicular homicide conviction).

        Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011) (punctuation omitted).

        Id. (punctuation omitted).

       OCGA § 17-5-21 (a).

        State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009) (punctuation omitted).

        Whitten v. State, 174 Ga. App. 867, 868 (1) (331 SE2d 912) (1985).

       276 Ga. 126 (577 SE2d 764) (2003).

        Id. at 126.

        Id. at 128-29 (2).

        Id. at 129 (2) (holding that the warrant was proper given that “the solicitor-general’s office narrowly drafted the search warrant to seek only the medical records related to the hospital’s treatment of [defendant] on the night of his accident. . . .”).

        Butler v. State, 130 Ga. App. 469, 474 (2) (203 SE2d 558) (1973).

        See Bowling v. State, 289 Ga. 881, 887 (2) (c) (717 SE2d 190) (2011) (holding that warrant was not overbroad given that it was narrowly drafted to seek only the medical records related to the treatment of appellant on the night of the crimes); Stubblefield v. State, 302 Ga. App. 499, 501 (2) (690 SE2d 892) (2010) (holding that trial court properly denied defendant’s motion to suppress when warrant was sufficiently particularized because it was drafted to seek only the hospital’s medical records related to defendant’s treatment immediately after the traffic stop); Brogdon v. State, 299 Ga. App. 547, 552 (1) (c) (683 SE2d 99) (2009) (holding that the warrant was proper when it was narrowly drafted to seek only the medical records from the hospital where defendant was treated on the day of the accident).


author: Miller, Judge.

text:
    A11A1624.
    A11A1636.
    DENNIS v. THE STATE. BROWN v. THE STATE.
    (722 SE2d 190)
   Miller, Judge.

Tryce Dennis and Christopher Brown were jointly indicted, tried, and convicted of felony possession of more than one ounce of marijuana (OCGA § 16-13-30 (j) (!))• They filed motions for new trial, which the trial court denied. On appeal, Dennis and Brown both contend that the evidence was insufficient to sustain their respective convictions. For the reasons set forth below, we affirm.

On appeal from a criminal conviction, this court views the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. This court neither weighs the evidence nor judges the credibility of witnesses, but only determines whether the evidence presented at trial was sufficient for a rational trier of fact to find the defendant guilty of the crime beyond a reasonable doubt.

(Citation omitted.) Cochran v. State, 300 Ga. App. 92 (684 SE2d 136) (2009).

So viewed, the trial evidence shows that on the afternoon of April 26, 2010, a school resource officer with the Gwinnett County School Police Division was on duty at a local high school and observed an unauthorized minivan backing out of the school’s faculty parking area. He followed behind the minivan to check the tag, and then initiated a stop in a nearby parking lot.

The minivan had two front seats, including the driver’s seat and a passenger seat. There were no back seats in the minivan, and the rear consisted only of a flat floorboard. The driver and a front seat passenger remained seated in the front of the minivan. Dennis, Brown, and another passenger occupied the back of the minivan. Initially, the school resource officer observed only four occupants in the minivan. As he began to approach, however, the school resource officer noticed Brown stand up in the back of the minivan. The school resource officer retreated to his patrol vehicle for officer safety and called for the assistance of additional officers.

The school resource officer then observed the occupants actively moving around inside the minivan. The school resource officer described that everyone in the minivan was moving around, looking down, and turning back and forth.

Upon the arrival of the other officers, the school resource officer asked the driver to exit the minivan with his driver’s license and proof of insurance. The driver stepped to the rear of the minivan and cooperated with the school resource officer’s investigation. The school resource officer asked the driver why everyone was moving around inside the minivan. The driver responded that “[he was] not going to lie” and informed the school resource officer that “they [had marijuana] and they’re hiding [marijuana] in the [mini]van.” The driver informed the officers that the marijuana belonged to the other four passengers and gave the officers permission to search the minivan.

Upon entering the minivan to perform the search, the officers immediately detected the odor of marijuana. During the search, the officers discovered marijuana hidden in multiple areas inside the minivan. The officers recovered a bag containing a softball-size quantity of marijuana from the driver’s seat belt compartment. An officer testified that the passengers in the back of the minivan would have had better access to the driver’s seat belt area based upon the angle in which the bag was hidden. The officers also recovered three baggies of marijuana from a drink can that was in the center console between the driver and front passenger seat; three baggies of marijuana from the front glovebox; and fourteen baggies from underneath the front passenger seat. An officer stated that based upon the individual packaging, the marijuana was for distribution. Crime lab test results established that the substance in the baggies was marijuana weighing a total of 1.64 ounces.

The driver and all of the passengers were arrested and jointly indicted for the drug offense. At the trial of Dennis and Brown, each of the co-defendants testified. Their testimony, however, conflicted in several respects. The front passenger claimed that all of the marijuana recovered from the minivan belonged to him, and that he hid all of the marijuana. The front passenger, however, was unable to explain why the marijuana was hidden in the various places, instead of all together in one place. He also inconsistently stated that he hid the marijuana in the seat belt compartment on the passenger side, rather than on the driver’s side where it was found. A back seat passenger testified that he and the front passenger were smoking marijuana in the minivan prior to the stop, and thus, everyone was aware that marijuana was in the minivan. Dennis and Brown, however, testified that they did not smell marijuana inside the minivan, did not observe anyone smoking marijuana prior to the stop, and did not have knowledge or possession of the marijuana.

At the conclusion of the bench trial, the trial judge found Dennis and Brown guilty of the marijuana possession offense. Dennis and Brown contend that their respective convictions were unauthorized since the evidence showed only their spatial proximity to the drugs and since the circumstantial evidence failed to exclude every reasonable hypothesis save that of guilt. We disagree.

Possession of contraband may be actual or constructive. Moreover, joint constructive possession with another will sustain a conviction for possession of contraband. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.

(Citation omitted.) Cochran, supra, 300 Ga. App. at 94 (1) (a). “A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where the contraband is hidden.” (Citation and punctuation omitted.) Id. at 95 (1) (a).

To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. OCGA § 24-4-6. Whether this burden has been met is a question for the [trier of fact], and its determination will not be disturbed unless the verdict is insupportable as a matter of law.

Decided January 18, 2012.

Edwin J. Wilson, for appellant (case no. A11A1624).

Brown & Gill, Angela B. Dillon, for appellant (case no. A11A1636).

(Citations and punctuation omitted.) Carswell v. State, 201 Ga. App. 746, 747 (412 SE2d 572) (1991).

Here, Dennis and Brown were both charged with the drug offense. As such, the State could establish their guilt by showing that they were in joint constructive possession of the drug contraband. See Cochran, supra, 300 Ga. App. at 94-95 (1) (a). The evidence showed that Dennis and Brown knew that marijuana was inside the minivan. Their co-defendants had been smoking marijuana prior to the stop, and the strong odor of marijuana was obvious inside the minivan. See Vines v. State, 296 Ga. App. 543, 546 (1) (675 SE2d 260) (2009) (ruling that the strong odor of marijuana inside the vehicle allowed an inference that the vehicle’s occupants knowingly shared the power and intention to exercise dominion or control over it).

Furthermore, after the school resource officer initiated the stop, he observed everyone moving inside the minivan. When questioned about the passengers’ movements, the driver informed the school resource officer that the passengers were hiding marijuana inside the minivan. Dennis and Brown had been passengers in the back of the minivan, and an officer who searched the minivan testified that the back passengers had access to the driver’s seat belt compartment where a portion of the marijuana was found. Based upon this combined evidence, the trial judge was authorized to conclude that Dennis and Brown had equal access to and joint constructive possession of the marijuana, and that they participated as parties to the drug possession offense. See Reed v. State, 244 Ga. App. 146, 147 (534 SE2d 871) (2000); Carswell, supra, 201 Ga. App. at 748.

Although the front passenger testified that all of the marijuana recovered from the minivan belonged to him and that he hid all of the marijuana, the trial judge was not required to believe that part of the testimony. See White v. State, 295 Ga. App. 366, 368 (671 SE2d 851) (2008). Given the conflicts in the testimony given by the co-defendants, the trial judge was authorized to find that their version of the events lacked credibility. See Woodard v. State, 289 Ga. App. 643, 651-652 (2) (b) (658 SE2d 129) (2008). The trial judge was entitled to conclude instead that Dennis and Brown were not merely innocent passengers, but rather, were in joint constructive possession of the marijuana. See Cochran, supra, 300 Ga. App. at 96 (1) (a).

Judgment affirmed.

Ellington, C. J., and Doyle, P. J., concur.

Daniel J. Porter, District Attorney, Stephen A. Fern, Assistant District Attorney, for appellee.


text:
    A11A1688.
    A11A2146.
    A11A2281.
    LUANGKHOT v. THE STATE. SALEUMSY v. THE STATE. PHOMMACHANH v. THE STATE.
    (722 SE2d 193)
   Miller, Judge.

Khamone Luangkhot, Isaac Saleumsy, and Santisouk Phomm-achanh (collectively, “Defendants”), along with approximately 35 defendants, were charged in multiple indictments arising out of a single investigation involving charges of trafficking in ecstasy, conspiracy to traffic in ecstasy, and conspiracy to possess ecstasy with intent to distribute. Each Defendant filed a motion to suppress the evidence obtained from intercepted telephone conversations resulting from a series of wiretap warrants, extensions, and amendments. Among other grounds, the motions challenged the validity of the wiretap warrants on the basis that the trial court lacked jurisdiction to issue them. The trial court denied Defendants’ motions, finding that Gwinnett County was the proper jurisdiction and venue for the crimes being investigated, thereby authorizing Gwinnett County Superior Court judges to issue the foregoing wiretaps under Georgia’s wiretap statute, OCGA § 16-11-64.

This Court granted Defendants’ applications for interlocutory appeal and subsequently consolidated the three appeals. On appeal, Defendants seek reversal of the trial court’s orders denying their motions to suppress, contending that the wiretap warrants, extensions, and amendments were not authorized under Georgia’s wiretap statute. We disagree.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations and punctuation omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). Because the parties do not dispute the facts relevant to the motions to suppress, we will conduct a de novo review of the trial court’s rulings on Defendants’ motions to suppress.

The record shows that in early 2007, state and federal officers assigned to the Atlanta High Intensity Drug Trafficking Area task force (“Atlanta HIDTA”) received information from a confidential informant regarding an ecstasy distribution ring operating in and around Gwinnett County. Based on phone number information provided by the informants, recordings of phone calls between the informants and the targeted suspects, as well as surveillance of several controlled buys of ecstasy from the targeted suspects in Gwinnett County, the Gwinnett County District Attorney obtained a series of 25 investigative warrants, extensions, and amendments from Gwinnett County Superior Court judges authorizing wiretaps of numerous telephone lines. Because Atlanta HIDTA was conducting the investigation, the monitoring station was located at the Atlanta HIDTA office in Fulton County. The actual interceptions occurred in the “wire room” of the Atlanta HIDTA office. The warrants, extensions, and amendments resulted in the interception of a number of Defendants’ communications, all of which they subsequently moved to suppress.

On appeal, Defendants do not dispute that the Gwinnett County Superior Court judges had both subject matter jurisdiction and venue over the crimes for which they were indicted. Rather, Defendants contend that the wiretap warrants, extensions, and amendments in this case were not authorized under the state wiretap statute, because both the listening post and the physical location of the intercepted phones were located outside Gwinnett County. The State, on the other hand, contends that the state wiretap statute authorized the Gwinnett County Superior Court judges to order the wire intercepts because they had jurisdiction over the crimes being investigated. We agree with the State.

Georgia’s wiretap statute provides, in relevant part, that

[u]pon written application, under oath, of the prosecuting attorney having jurisdiction over prosecution of the crime under investigation, or the Attorney General, made before a judge of superior court, said court may issue an investigation warrant permitting the use of such device, as defined in Code Section 16-11-60, for the surveillance of such person or place to the extent the same is consistent with and subject to the terms, conditions, and procedures provided for by Chapter 119 of Title 18 of the United States Code Annotated, as amended.

OCGA § 16-11-64 (c). It is well established that “[w]iretapping and surveillance are the subjects of federal and state law[.]” (Citation, punctuation and footnote omitted.) North v. State, 250 Ga. App. 622, 623 (1) (552 SE2d 554) (2001). Accordingly, “[flor evidence obtained through state-authorized wiretaps to be admissible in a state criminal proceeding, it must have been obtained in a manner not inconsistent with the requirements of both the federal and state laws.” (Citation, punctuation and footnote omitted.) Id. Moreover, “Georgia law must meet the minimum standards of federal law in protecting privacy but may impose more stringent requirements” otherwise. (Citation, punctuation and footnote omitted.) Id.

Defendants’ interpretation of OCGA § 16-11-64 (c) relies primarily upon the federal wiretap statute, 18 USC § 2518 (1), (3), which provides that “a judge of competent jurisdiction . . . may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting].]” (Punctuation omitted; emphasis supplied.) According to Defendants, the language of 18 USC § 2518 (3) imposes a “territorial jurisdiction” upon Georgia superior court judges that is limited to the county in which the judge sits, and that therefore the Gwinnett County Superior Court judges in this case could not issue wiretap warrants for interceptions occurring beyond the bounds of Gwinnett County. Defendants’ reliance upon federal authority in this particular instance, however, is misplaced. Significantly, the “territorial jurisdiction” language of 18 USC § 2518 (3) relates to that of federal court judges issuing wiretap warrants pursuant to the federal wiretap statute — not to state court judges issuing wiretap warrants pursuant to a state wiretap statute. To that end, “it is clear that Congress intended that state law would define the ‘territorial jurisdiction’ of each state court.” (Footnote omitted.) Adams v. Lankford, 788 F2d 1493, 1500 (B) (11th Cir. 1986). The Eleventh Circuit in Adams reasoned that the flexibility built into 18 USC § 2518 (3) “implicitly delegate[d] to the states the job of defining the territorial parameters of [such] section.” (Punctuation omitted.) Id. at 1499 (B).

Thus, we turn to the language of OCGA § 16-11-64 (c), rather than the federal statute, to determine the scope of an issuing superior court judge’s territorial jurisdiction. We believe the legislative history of OCGA § 16-11-64 (c) is illustrative on this point. The pre-2000 version of Georgia’s wiretap statute included a territorial restriction that authorized

upon written application, under oath, of the district attorney of the circuit wherein the device is to be physically placed, or the Attorney General, . . . any judge of the superior court of the circuit aforesaid may issue an investigation warrant permitting the use of [the interception] devices ....

(Punctuation omitted; emphasis supplied.) OCGA § 16-11-64 (b) (1) (1999). This territorial restriction, however, was eliminated in 2000, at which time the General Assembly amended the wiretap statute so that it provided, in relevant part, that

upon written application, under oath, of the district attorney having jurisdiction over the prosecution of such crime, or the Attorney General,. . . any judge of the superior court having jurisdiction of such crime may issue an investigation warrant permitting the use of [the interception] devices ....

(Punctuation omitted; emphasis supplied.) OCGA § 16-11-64 (b) (1) (2000); see also Ga. L. 2000, p. 491, § 2. The wiretap statute was last amended in 2002, and currently provides an issuing superior court judge with a more expansive jurisdictional authority — that is,

[u]pon written application, under oath, of the prosecuting attorney having jurisdiction over prosecution of the crime under investigation, or the Attorney General, made before a judge of superior court, said court may issue an investigation warrant permitting the use of such [interception] device ....

(Punctuation omitted; emphasis supplied.) OCGA § 16-11-64 (c) (2002); see also Ga. L. 2002, p. 1432, § 3.

Despite the changes OCGA § 16-11-64 (c) has undergone, Defendants nevertheless rely upon the Supreme Court of Georgia’s Evans case, which was decided when the pre-2000 version of the wiretap statute was in effect. Defendants specifically point to the Evans language providing “that the jurisdictional provision of the federal law, 18 USCA § 2518 (3), confers jurisdiction on a superior court judge to authorize interception (aural acquisition) of wire communications within his territorial jurisdiction.” (Punctuation omitted.) Evans v. State, 252 Ga. 312, 317 (1) (314 SE2d 421) (1984). In light of the subsequent statutory amendments that have broadened the scope of a superior court judge’s territorial jurisdiction, however, this ruling in Evans is no longer controlling.

Currently, the plain language of the wiretap statute places a territorial limitation only upon the prosecuting attorney who applies for the warrant, i.e., “the prosecuting attorney having jurisdiction over prosecution of the crime under investigation[.]” OCGA § 16-11-64 (c). The statute otherwise requires only that the wiretap warrant be issued by “a judge of superior court[.]” OCGA § 16-11-64 (c). Thus, given the plain language and legislative history of our state’s wiretap statute, combined with Congress’ intent for the states to define “territorial jurisdiction,” we hold that OCGA § 16-11-64 (c) authorized Gwinnett County Superior Court judges, who had jurisdiction over the crimes being investigated, to issue wiretap warrants for interceptions occurring outside of Gwinnett County.

Defendants further assert that such an interpretation of OCGA § 16-11-64 (c) is unconstitutional, citing concerns with their individual privacy rights. As an initial matter, the Supreme Court of Georgia has exclusive appellate jurisdiction over all cases involving the constitutionality of a statute. Ga. Const, of 1983, Art. VI, Sec. VI, Par. II. In order to invoke that jurisdiction, however, the record must show that the trial court specifically passed on the constitutional issue. City of Decatur v. DeKalb County, 284 Ga. 434, 436 (1) (668 SE2d 247) (2008). Here, the record fails to show that the trial court directly ruled upon the question of whether enforcement of the wiretap warrants, extensions, and amendments violated the Defendants’ privacy rights. Cf. id. Therefore, Defendants’ constitutional challenge has not been preserved for appellate review, the Supreme “Court’s exclusive appellate jurisdiction of constitutional issues was not invoked and the appeal properly was filed in the Court of Appeals.” Id.

Finally, we note that our holding today serves the goals of the state wiretap statute. Significantly, it allows the same court, rather than multiple courts, to preside over cases that involve criminal enterprises spanning multiple jurisdictions. Defendants’ interpretation of OCGA § 16-11-64 (c), on the other hand, which would strictly ground a superior court judge’s jurisdiction to the county in which the listening post or intercepted phones are located, would have the effect of fragmenting the investigative efforts for drug trafficking cases, such as this one, which involve activities expanding throughout the state, among a variety of prosecutors and courts. We find no indication that the General Assembly intended to require such fragmentation of a multi-jurisdictional drug investigation.

In sum, we hold that OCGA § 16-11-64 (c) authorized the Gwinnett County Superior Court judges to issue the 25 wiretap warrants, extensions, and amendments in this case. Therefore, the trial court properly denied Defendants’ motions to suppress the evidence obtained from these wiretaps.

Decided January 18, 2012

K. Julie Hojnacki, Bruce S. Harvey, for appellant (case no. A11A1688).

Garland, Samuel & Loeb, John A. Garland, for appellant (case no. A11A2146).

David D. Marshall, for appellant (case no. A11A2281).

Daniel J. Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for appellee.

Judgments affirmed.

Ellington, C. J., and Doyle, P. J., concur.

       Specifically, Luangkhot was indicted with six counts of trafficking in ecstasy (OCGA § 16-13-31.1) and one count of conspiracy to possess ecstasy with intent to distribute (OCGA §§ 16-13-30 (b), 16-13-33). Saleumsy was indicted with one count of trafficking in ecstasy (OCGA § 16-13-31.1) and one count of conspiracy to possess ecstasy with intent to distribute (OCGA §§ 16-13-30 (b), 16-13-33). Phommachanh was indicted with one count of conspiracy to traffic in ecstasy (OCGA §§ 16-4-8, 16-13-31.1), one count of trafficking in ecstasy (OCGA § 16-13-31.1), and one count of possession of a sawed-off rifle (OCGA § 16-11-123).

       Where “interceptions” are deemed to occur varies by jurisdiction. In Evans v. State, 252 Ga. 312, 318-319 (1) (314 SE2d 421) (1984), our Supreme Court endorsed a more limited view of “interception” as the location of the listening post. We nevertheless note that Evans was based on a previous version of the Georgia wiretap statute that is no longer in effect. For purposes of this appeal, however, we need not address whether the current version of the Georgia wiretap statute might adopt a more expansive interpretation of “interception,” as the State concedes that no interceptions occurred in Gwinnett County.

       “By contrast, Congress did define which types of state courts could properly issue wiretap orders, i.e., a ‘judge of competent jurisdiction,’ defined in 18 USC § 2510 (9) (b) as any court of general criminal jurisdiction authorized by state statute to authorize wiretaps.” (Punctuation omitted.) Adams, supra, 788 F2d at 1499 (B), n. 12. With respect to the federal courts, however, a judge of competent jurisdiction means “a judge of a United States district court or a United States court of appeals!.]” (Punctuation omitted.) 18 USC § 2510 (9) (a).

       “We interpret a statute to give effect to the legislative intent; ‘in all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.’ ” (Punctuation omitted.) Fairwell v. State, 311 Ga. App. 834, 843 (4) (b) (717 SE2d 332) (2011) (citing OCGA § 1-3-1 (a)). By amending the statute to remove the prior language imposing a territorial limitation and to instead require only that the wiretap warrant he issued by “a judge of superior court,” the General Assembly appears to have intended to expand the jurisdiction of a superior court judge’s authority to issue warrants under OCGA § 16-11-64 (c).

       Defendant Luangkhot’s reliance upon Davis v. State, 21 A3d 181 (Md. Ct. Spec. App. 2011), cert, granted, 421 Md. 557 (2011), is unavailing. The court in Davis addressed a “liberalizing” amendment to Maryland’s state wiretap statute that specifically addressed the interception of mobile telephone communications. See Davis, supra, 21 A3d at 190-192 (“Particularly in view of the increasing usage of cell phones and with a further appreciation of the statewide anti-crime responsibilities of the Attorney General and the State Prosecutor, . . . the purpose of the . . . amendment was to broaden the authority of a judge to order an intercept anywhere in the State.”). Significantly, “guided by the legislative history of the [Maryland] amendment,” the Davis court held that “it [was] pellucid that [Md. Code Ann. § 10-408 (c) (3)], properly parsed, says that ‘an order may authorize the interception anywhere within the state of communications received or sent by a communication device.’ ” (Punctuation omitted; emphasis supplied.) Id. at 193. The reasoning of the Davis court is consistent with our interpretation of OCGA § 16-11-64 (c) in this case.

       We nevertheless note that in Adams, supra, 788 F2d at 1498 (B), the Eleventh Circuit previously found “no merit in appellants’ contention that because the district attorney that applied for the order and the judge that authorized the wiretap were not in the same county as some of the tapped telephones, Congress’ concern for privacy was called into play.” The Eleventh Circuit concluded that, given Congress’ deference to state law on the definition of territorial jurisdiction, “core congressional concerns d[id] not include the matter of the Fulton County District Attorney and the Fulton County Superior Court judge authorizing a wiretap of a telephone located in a nearby county.” Id. at 1499-1500 (B).


text:
    A11A1759.
    WHITE v. THE STATE.
    (722 SE2d 198)
   Miller, Judge.

Following a jury trial, Antonio Tyrone White was convicted of possession of cocaine (OCGA § 16-13-30 (a)). White appeals, contending that the evidence presented at trial was not sufficient to support his conviction, and that the trial court erred in denying his motion for a mistrial. Discerning no error, we affirm.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the prosecution to determine whether the evidence was sufficient to prove guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that on August 15, 2009, the police were dispatched to a Newton County gas station to investigate reported drug activity; they were given a description of White. Upon arrival at the gas station, the arresting officer observed White and three other individuals sitting on some crates in front of the gas station. When White saw the police vehicle pull into the gas station, he stood up and walked to a garbage dumpster at the back of the gas station. White leaned down on the side of the garbage dumpster, dropped an object onto the ground, stood back up, and continued walking. Observing White’s actions, the arresting officer stopped White and immediately investigated the area around the garbage dumpster. The arresting officer located a bag of cocaine lying in that area.

1. White argues that the arresting officer’s testimony shows only that White was near a garbage dumpster where cocaine was eventually found, which was insufficient to support his conviction for possession of cocaine. We disagree.

OCGA § 16-13-30 (a) provides that “it is unlawful for any person to . . . possess, or have under his control any controlled substance.”

Possession of contraband may be joint or exclusive, and actual or constructive. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.

(Footnote omitted.) Jackson v. State, 306 Ga. App. 33, 35 (1) (a) (701 SE2d 481) (2010). Here, the testimony of the arresting officer established by circumstantial evidence that White was in either constructive or actual possession of the cocaine. As detailed above, the arresting officer witnessed White walk to a garbage dumpster and drop something on the ground next to it; a bag of cocaine was the only item located on the ground next to the garbage dumpster immediately thereafter. Furthermore, from the time the arresting officer arrived at the gas station, White never left his line of sight, and the arresting officer never saw any person other than White approach the area around the garbage dumpster. Based on this evidence, the jury was authorized to infer that White had been in possession of the bag of cocaine found on the ground next to the garbage dumpster. Cf. Bush v. State, 305 Ga. App. 617, 618 (1) (699 SE2d 899) (2010) (“The evidence that cocaine was found on the ground, where [defendant] had been observed dropping what appeared to officers to be cocaine, permitted a rational trier of fact to infer that [defendant] had been in possession of the cocaine.”) (footnote omitted).

White nevertheless complains that the witnesses gave conflicting testimony. White points to the prior testimony of the arresting officer, reflecting that he had not been able to see whether White had dropped the bag of cocaine. The arresting officer’s prior testimony, however, was consistent with his subsequent testimony that he had not been able to ascertain the specific object that White dropped next to the dumpster. White also points to testimony of a witness, who stated that upon the officer’s arrival at the gas station, White stood up, went to the garbage dumpster, and threw away a beer. However, “ [i]t is solely within the purview of the factfinder to weigh conflicting evidence and judge the credibility of the witnesses.” (Punctuation and footnote omitted.) Benyard v. State, 311 Ga. App. 127 (714 SE2d 746) (2011). Notwithstanding any conflicts, the evidence in this case, viewed in the light most favorable to the verdict, was sufficient to support White’s conviction for possession of cocaine.

2. White also argues that the trial court erred by denying his motion for mistrial, on the ground that “bias and prejudicial interest were demonstrated by the jurors because they were worried about [White’s] note-taking.” “The abuse of discretion standard applies to the review of the denial by the trial court of a motion for mistrial.” (Citation omitted.) Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434) (1995).

Prior to being sworn, the jury delivered a message to the trial judge that they were concerned with their personal information being made available since they were identified as jurors. White’s counsel moved for a mistrial or to otherwise dismiss the jury, arguing that the jury’s concern, as a whole, that White had their names and where they worked, was biased or prejudicial on its face.

As an initial matter, a mistrial is not a proper or viable remedy before the jury has been empaneled and sworn. Baker v. State, 230 Ga. App. 813, 815 (1) (c) (498 SE2d 290) (1998). “Even though counsel has failed to follow the correct procedure or to use the proper procedural tool, however, we will not rely upon his inaccurate nomenclature, when the relief sought is clear.” (Citation omitted.) Mitchell v. State, 284 Ga. App. 209, 209 (1) (644 SE2d 147) (2007). “Trial courts have broad discretion to evaluate and rule upon a potential juror’s impartiality, based upon the ordinary general rules of human experience,” and appellate courts will not interfere with that discretion unless it has been abused. (Citations and punctuation omitted.) Clack-Rylee v. Auffarth, 273 Ga. App. 859, 860 (616 SE2d 193) (2005). “The test to be applied is whether the remarks were inherently prejudicial and deprived defendant of his right to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion.” (Citations and punctuation omitted.) Mitchell, supra, 284 Ga. App. at 209 (1).

Here, after White’s motion for mistrial, the trial court presented to each individual juror a curative instruction, as well as additional voir dire questions, to evaluate their impartiality prior to the commencement of trial. Specifically, the trial judge created and issued the following curative instruction to each juror individually:

The jury has expressed concern with your names being released or called out as you were called to be seated in the jury box. That is required by law so that the record will show who was selected. Your names will not be released to the media or made available to be used for any improper purpose. The questionnaires you completed are shredded by the clerk and are not filed. No personal information is provided to the attorneys or the parties.

Decided January 18, 2012.

Eric H. Cho, Jennifer F. Arndt, for appellant.

Layla H. Zon, District Attorney, Warren S. Summers, Sr., Assistant District Attorney, for appellee.

As jurors, you will be expected to listen carefully to the evidence and return a verdict that is based on that evidence, a verdict that is fair and is based on the law that I will give you. Now, does this answer your concerns?

Each juror responded to the trial court’s question in the affirmative. Upon further voir dire questioning, as requested by White’s counsel, each of the jurors expressed that he or she had not formed any opinion concerning the guilt or innocence of White, did not have any prejudice or bias, either for or against White, and that he or she was perfectly impartial between the State and White.

The trial court’s curative instruction and the jurors’ responses to the additional voir dire questions were adequate to dispel any alleged juror bias or prejudice. Cf. Clack-Rylee, supra, 273 Ga. App. at 862. As such, each juror was prima facie competent to serve. See Baker, supra, 230 Ga. App. at 815 (1) (c) (“When the [juror] indicates that he can render a fair and impartial verdict based solely upon the evidence presented at trial, he is prima facie competent to serve.”) (citation and punctuation omitted). Therefore, the trial court did not abuse its discretion in denying White’s motion for mistrial.

Judgment affirmed.

Ellington, C. J., and Doyle, E J., concur.


text:
    A11A2049.
    LAYNE v. THE STATE.
    (722 SE2d 351)
   Dillard, Judge.

Following a trial by jury, Ronald Layne was convicted of reckless conduct by discharging a firearm within 50 yards of a public street, terroristic threats, and possession of a firearm by a convicted felon. On appeal, Layne contends that the evidence was insufficient to sustain his convictions for terroristic threats and possession of a firearm. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that on April 18, 2005, Layne became engaged in an altercation with a neighbor after he swerved to hit the neighbor’s dog and then blocked the neighbor’s truck with his own vehicle. When the neighbor exited his truck to confront Layne, both the neighbor and a passenger in the truck heard a gunshot, and the passenger saw that Layne was wielding a handgun outside the window of his car. Layne then quickly put his vehicle in reverse and drove to his home down the road.

This incident was observed from a distance by an off-duty Albany police officer, who heard the gunshot and saw Layne retract his arm through the open window of his vehicle while holding a handgun. The officer drew his weapon and approached Layne’s house, whereupon Layne exited the residence and emerged onto a screened front porch, bearing a handgun and a high-pressure gas cylinder. Although the officer commanded Layne to drop the weapon, he refused to do so, responding instead that he would blow up the house and that he was “going to kill us all.” Given this threat and the fact that Layne also revealed that his 80-year-old mother was inside the home, the officer fell back to a safer location, and Layne retreated into the house.

Thereafter, a hostage situation ensued with the local SWAT team responding, and the house was placed under surveillance after law enforcement withdrew when Layne became agitated by the heavy police presence. Indeed, law enforcement backed off after a police-hostage negotiator spoke with Layne by phone and was informed that Layne had a propane tank inside and that he would blow up the house if the police came any closer. And despite the negotiator’s efforts to communicate with Layne, he continued to rant that he would blow up the home with propane should officers approach.

At one point during the standoff, Layne placed a call to a neighbor who lived directly behind him and told her that the police were holding him hostage. When the neighbor spoke to Layne a second time, he explained that if the police attempted to arrest him, he would use propane to blow up the home with his mother inside. This greatly concerned the neighbor, who knew that Layne’s mother was in poor health and required the use of oxygen tanks.

Layne’s residence remained under surveillance overnight, but he nonetheless managed to leave the home at one point. The crisis eventually came to an end when Layne was immediately apprehended upon his return early the next morning. Officers then searched the home pursuant to a search warrant and located a dirty propane tank inside the kitchen, which appeared to have been brought in from outdoors. Additionally, the neighbor Layne called the night before came over to check on Layne’s mother, and she too observed the propane in the kitchen along with two oxygen tanks used by Layne’s mother.

As police continued their search of the home, they discovered Layne’s padlocked bedroom, in which they located a loaded shotgun, a rifle, rifle cartridges, and other forms of ammunition. In a spare bedroom, officers located a loaded semiautomatic handgun that used a type of ammunition found in Layne’s bedroom. There were no guns in the room belonging to Layne’s mother. Finally, officers searched behind the home in an outdoor shed that Layne sometimes occupied. Inside that shed, they found additional ammunition for the types of guns discovered in the home.

Thereafter, Layne was indicted but was not brought to trial for some time due to a period of incompetency. When he was found competent to stand trial, Layne chose not to pursue an insanity defense, and he was ultimately convicted of one count of reckless conduct, one count of terroristic threats, and three counts of possessing a firearm as a convicted felon. This appeal follows.

At the outset, we note that after a defendant has been convicted, “we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence.” And we do not weigh the evidence or determine witness credibility, “but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” Moreover, to the extent that there are any conflicts in the evidence, “[i]t is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties . . . ,” With these guiding principles in mind, we will now address each of Layne’s enumerations of error in turn.

1. Layne first contends that the evidence against him was insufficient to sustain his conviction for making terroristic threats. Specifically, Layne argues that he lacked the necessary intent to commit the offense due to a history of mental illness. We disagree.

Pursuant to OCGA § 16-11-37, a person makes a terroristic threat “when he or she threatens to commit any crime of violence . . . with the purpose of terrorizing another . . . ,” And the determination of whether a defendant has made a terroristic threat “focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.” In this regard, “[d]irect evidence that the threats were made for the purpose of terrorizing another is not necessary if the circumstances surrounding the threats are sufficient for a trier of fact to find the threats were made for such a purpose.”

On the issue of intent, Layne argues that his conviction should be reversed because he “was untreated and had not been taking his medications” at the time of the alleged crimes. Additionally, he contends that any threats were conditional and spoken to his neighbor, not to the party that felt threatened (i.e., the police). But the evidence belies this latter argument. As to the former, although there was testimony that Layne suffered from a history of mental illness, he did not plead the affirmative defense of insanity. And ultimately, the issue of Layne’s criminal intent was a question of fact for the jury, which was presented with sufficient evidence to establish the requisite criminal intent.

Indeed, the evidence shows that Layne made repeated threats to blow up his home with propane if the police came any closer. First, he threatened the officer who initially responded to his home after the violent altercation with a neighbor, and he did so while actually holding a high-pressure gas cylinder and a handgun. In the second instance, he made the threat over the phone to a hostage negotiator, which resulted in the withdrawal of the police force out of concern for the safety of law enforcement, Layne, Layne’s mother, and neighboring homes. And in the third instance, Layne reiterated his direct threats to the officers by phoning a neighbor and informing her that he would blow up his home with propane if the police approached. Accordingly, given Layne’s actions and demeanor, as well as the fact that the police tailored their response to the situation because they took the threats seriously, the jury was presented with sufficient evidence by which to find that Layne intended to terrorize the responding officers by communicating his threat to blow up the home using propane.

2. Layne also contends that he lacked the necessary intent to commit the crime of possessing firearms as a convicted felon because the guns found in the home were actually owned by his mother. We disagree.

In Georgia, it is illegal for any person who has been convicted of a felony to possess a firearm, and possession of a firearm does not require ownership. Moreover, possession can be actual or constructive. Thus, the State needed only to prove that Layne, though not in actual possession or even the owner of the firearms in question, had “both the power and the intention at a given time to exercise dominion or control” over the firearms to be in constructive possession. This, the State did.

Decided January 18, 2012.

Troy E. Golden, for appellant.

Gregory W. Edwards, District Attorney, Matthew Breedon, Assistant District Attorney, for appellee.

As discussed supra, the evidence shows that Layne’s bedroom contained two firearms and ammunition for a third gun that was found in a spare bedroom. Additionally, a shed used by Layne also contained ammunition for the guns in question. This evidence was sufficient to show that Layne constructively possessed three firearms as a convicted felon.

Accordingly, for all the foregoing reasons, we affirm Layne’s convictions.

Judgment affirmed.

Mikell, P. J., and Boggs, J., concur.

        See OCGA § 16-11-103.

        See OCGA § 16-11-37 (a).

        See OCGA § 16-11-131 (b).

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       This was the foundation of Layne’s reckless-conduct conviction, which was indicted as aggravated assault but reduced by the jury to the lesser-included offense, and which he does not challenge on appeal.

       Officers also observed a set of nunchucks in Layne’s room and butcher knives strategically placed throughout the home.

        Powell, 310 Ga. App. at 144 (punctuation omitted).

        Id. (punctuation omitted).

        Mask v. State, 309 Ga. App. 761, 763 (2) (711 SE2d 348) (2011) (punctuation omitted).

       OCGA § 16-11-37 (a); see also Nassau v. State, 311 Ga. App. 438, 441 (715 SE2d 837) (2011).

        Nassau, 311 Ga. App. at 441 (punctuation omitted).

        Clement v. State, 309 Ga. App. 376, 380 (1) (b) (710 SE2d 590) (2011) (punctuation omitted).

       There was testimony that Layne had been diagnosed with schizoaffective disorder, bipolar disorder, delusions, and paranoia.

        See Foster v. State, 283 Ga. 47, 48 (1) (656 SE2d 838) (2008) (“A defendant claiming insanity has the burden of proving this affirmative defense by a preponderance of the evidence; unless the evidence of insanity is overwhelming, a jury determination that the defendant was sane at the time of the crime will be upheld.”); see also OCGA § 16-3-2 (insanity as defense).

        See OCGA § 16-2-6 (“A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”); see also Brown v. State, 298 Ga. App. 545, 548 (680 SE2d 579) (2009) (“The intent with which one does an act... is particularly an issue for the finder of fact.”); Bostic v. State, 183 Ga. App. 430, 433 (3) (359 SE2d 201) (1987) (holding that question of defendant’s criminal intent when he claimed that allegedly terroristic threats were just “big talk” was an issue for the jury’s consideration, not the court).

        See Shepherd v. State, 230 Ga. App. 426, 427 (496 SE2d 530) (1998) (holding that in considering defendant’s intent, jury could consider that threats were taken seriously); Stone v. State, 210 Ga. App. 198, 199 (435 SE2d 527) (1993) (holding that evidence of terroristic threats was corroborated by defendant’s angry and violent behavior toward officers).

        See Hobby v. State, 298 Ga. App. 52, 53 (679 SE2d 72) (2009) (holding that defendant’s behavior both before and after threat demonstrated an intent to terrorize the victim); Robinson v. State, 288 Ga. App. 219, 221 (2) (653 SE2d 810) (2007) (holding that employee’s threat to burn down restaurant if he was not paid immediately provided sufficient evidence to support terroristic threats conviction); Boone v. State, 155 Ga. App. 937, 939 (2) (274 SE2d 49) (1980) (holding that circumstances surrounding statements and actions of defendants supported jury’s finding that terroristic threats made with the requisite intent and were not conditional). Compare Koldewey v. State, 310 Ga. App. 788, 791 (1) (714 SE2d 371) (2011) (reversing conviction when defendant communicated threat for purpose of seeking mental health evaluation and treatment); Wiggins v. State, 171 Ga. App. 358, 359 (1) (319 SE2d 528) (1984) (reversing conviction when defendant made a threat to a third party unrelated to the alleged target, defendant had a history of mental illness, and the message was conditional in nature).

       OCGA § 16-11-131 (b).

        Parramore v. State, 277 Ga. App. 372, 373 (626 SE2d 567) (2006) (“[T]o violate OCGA § 16-11-131 (b), [the defendant] needed only to possess—not own—the gun in question.”); see also Reece v. State, 257 Ga. App. 137, 139 (1) (a) (570 SE2d 424) (2002) (“It is the possession, not the ownership, of the weapon by a convicted felon which constitutes a criminal violation.”).

        Parramore, 277 Ga. App. at 373 (“Possession can be either actual or constructive.”).

        Id. (punctuation omitted).

       We note that Layne’s trial was bifurcated on the issue of possessing firearms as a convicted felon, with the State introducing a certified felony conviction only after the jury rendered a verdict on the other counts. The trial court’s order denying Layne’s motion for new trial notes that there is no transcript from this latter portion of the proceedings due to technical difficulties. Because Layne challenges evidence presented earlier in the proceedings—namely, the evidence of possession—the appellate record contains the transcripts necessary for our review of this enumeration.

        See Mask, 309 Ga. App. at 764 (2) (sufficient evidence of possession when gun found under bed in bedroom belonging to convicted felon); Reece, 257 Ga. App. at 138 (sufficient evidence of possession when convicted felon “had actual knowledge of and direct access to two weapons concealed in his bedroom”); see also Crawford v. State, 233 Ga. App. 323, 324 (1) (b) (504 SE2d 19) (1998).


text:
    A11A2247.
    HUDGINS et al. v. HARDING et al.
    (722 SE2d 355)
   Miller, Judge.

Bessie Hudgins files this pro se appeal from an order denying her petition for grandparents’ visitation rights with minor child, K. H., pursuant to Georgia’s Grandparent Visitation Statute, OCGA § 19-7-3. For the following reasons, we reverse the trial court’s order and remand this case with direction.

Barbara Harding and Christopher McCurry are the natural parents of three minor children. See McCurry v. Harding, 270 Ga. App. 416 (606 SE2d 639) (2004). Harding and McCurry divorced in February 1999, and Harding was awarded sole custody of their three minor children. Id. Harding was remarried in May 2000 to Wesley Harding. Id. at 417. In 2003, the trial court granted Wesley Harding’s petition to adopt the three minor children, which this Court affirmed. Id. at 416-417, 421 (5). “In granting the petition for adoption the trial court found that McCurry had failed to communicate with or support the three minor children for a period of at least one year, terminated his parental rights, and held that the adoption was in the best interest of the children.” Id. at 416. Hudgins, the biological paternal grandmother of the minor children, subsequently filed a grandparents’ petition for visitation rights with the children pursuant to OCGA § 19-7-3. The trial court denied Hudgins’s petition with respect to the youngest child, K. H., from which ruling Hudgins now appeals.

As an initial matter, Hudgins’s brief on appeal fails to comply with the rules of this Court. See Georgia Court of Appeals Rule 25. Significantly, Hudgins sets forth no arguments and no citation to legal authority, instead posing three “issues” before the Court. See Georgia Court of Appeals Rule 25 (a) (3).

Briefs that do not conform to the rules regarding enumerations of error, structure of briefs, argument, or citation of authorities, as [Hudgins’s] fails to do, are not merely an inconvenience or grounds for refusing to consider a party’s contentions. Such briefs hinder this [CJourt in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown. Nevertheless, we will address [Hudgins’s] arguments, insofar as we are able to ascertain them from her brief.

(Citation and punctuation omitted.) Morman-Johnson v. Hathaway, 312 Ga. App. 300, 301 (718 SE2d 132) (2011).

Hudgins challenges the basis of the trial court’s authority in denying her visitation petition with respect to K. H. The trial court concluded that Hudgins was not entitled to seek visitation rights in light of Wesley Harding’s adoption of K. H. We disagree.

Generally, the adoption of a minor child extinguishes any visitation rights of the child’s former grandparents — OCGA § 19-8-19 (a) (1) provides that a decree of adoption has the effect of severing all former relationships of the adopted child. The Grandparent Visitation Statute, codified in OCGA § 19-7-3 (b), however, sets forth a limited exception to OCGA § 19-8-19 (a) (1). See Lightfoot v. Hollins, 308 Ga. App. 538, 540 (707 SE2d 491) (2011). Specifically, OCGA § 19-7-3 (b) entitles a grandparent of a minor child to seek visitation rights

whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent, notwithstanding the provisions of [OCGA §] 19-8-19. This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both of the parents.

Notwithstanding the current language of OCGA § 19-7-3 (b), the trial court found that the instant case was controlled by Echols v. Smith, 207 Ga. App. 317 (427 SE2d 820) (1993), and Campbell v. Holcomb, 193 Ga. App. 474 (388 SE2d 65) (1989), and concluded that paternal grandparents of a minor child are not entitled to visitation rights after the child is adopted by a stepparent when he or she is not a blood relative of the child. The trial court’s findings, however, were erroneous. Notably, at the time when Echols and Campbell were decided, OCGA § 19-7-3 (b) entitled grandparents to seek visitation rights of an adopted child only where the adoption was by a blood relative of the child. OCGA § 19-7-3 (b) (1992). Based upon this previous version of the statute, the paternal grandparents in Campbell and Echols were not entitled to visitation rights because the minor children had been adopted by stepfathers who were not blood relatives of the children. See Echols, supra, 207 Ga. App. at 317-318; Campbell, supra, 193 Ga. App. at 474-475.

Several months after the Echols decision, however, the Georgia General Assembly amended OCGA § 19-7-3 (b). See Ga. L. 1993, p. 456, § 1. As set forth above, OCGA § 19-7-3 (b) now entitles a grandparent of a minor child to seek visitation rights “whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent[.]” (Punctuation omitted; emphasis supplied.) Thus, the statutory amendment vested grandparents with the right to intervene and petition for visitation following a minor child’s adoption by either a blood relative or a stepparent. See OCGA § 19-7-3 (b). It was improper for the trial court to deny Hudgins’s petition based on an obsolete version and interpretation of the Grandparent Visitation Statute.

We nevertheless note that OCGA § 19-7-3 (b) further provides that a grandparent’s original action for visitation rights is not authorized “where the parents of the minor child are not separated and the child is living with both of the parents.” We recently interpreted the term “parents” as used in this last sentence of current OCGA § 19-7-3 (b) to include both “biological” or “natural parents,” as well as adoptive parents. See Bailey v. Kunz, 307 Ga. App. 710, 712-713 (706 SE2d 98) (2011), aff'd sub nom. Kunz v. Bailey, 290 Ga. 361 (720 SE2d 634) (2012). Based on this interpretation of OCGA § 19-7-3 (b), the paternal grandparents in Bailey were not authorized to seek visitation of a minor child adopted by his stepfather on the ground that the child lived together with his stepfather and his biological mother. Id.

Here, like the minor child in Bailey, K. H. was adopted by her stepfather, Wesley Harding, making him K. H.’s legal parent under OCGA § 19-8-19 (a) (2). This fact alone, however, did not automatically preclude Hudgins from seeking visitation rights with K. H., see OCGA § 19-7-3 (b), and the trial court erred by dismissing Hudgins’s petition on such ground. To determine whether Hudgins’s petition was authorized under OCGA § 19-7-3 (b), the trial court was required to make additional findings of fact concerning whether Barbara and Wesley Harding were separated and whether K. H. was living with both of them. The trial court failed to make any such findings, and the record evidence is unclear as to this issue. Therefore, we must reverse the trial court’s order and remand this case for the trial court to reconsider Hudgins’s petition for visitation rights with K. H. in light of the appropriate factual findings and the correct legal analysis.

Decided January 18, 2012.

Bessie Hudgins, pro se.

Richard Hudgins, pro se.

Barbara A. Harding, pro se.

Judgment reversed and case remanded with direction.

Ellington, C. J., and Doyle, P. J., concur.

       For example, while the record suggests that Barbara and Wesley Harding resided together at the same address, it also indicates that Barbara Harding and K. H. relocated to a another, separate residence.

       Given our holding, we need not address the additional issues presented by Hudgins on appeal.


author: Ellington, Chief Judge.

text:
    A12A0089.
    LAWSON v. BLOODSWORTH.
    (722 SE2d 358)
   Ellington, Chief Judge.

Rakeen Lawson brought this action in the Superior Court of Wilcox County for assault and battery against Clint Bloodsworth, alleging that Bloodsworth, who was his high school history teacher, deliberately and maliciously threw a chair at him. Following a hearing, the trial court granted Bloodsworth’s motion for summary judgment, and Lawson appeals. For the reasons explained below, we reverse.

To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law[.]” (Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). In moving for summary judgment, “a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmov-ing party’s case.” (Citation and punctuation omitted.) Id.

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. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Id. at 624 (1) (a).

Viewed in this light, the record shows the following. During class on May 11, 2010, Bloodsworth became suspicious that Lawson had copied an assignment from a student in an earlier class and directed Lawson to go out into the hallway. As Lawson walked away from Bloodsworth and toward the door, Bloodsworth threw or pushed a chair toward Lawson, saying, “You’re going to need this,” or words to that effect. Lawson deposed that the chair hit him in the back of the leg, although he was not physically injured. According to Lawson, Bloodsworth then screamed in his face, “acting furious.” Lawson was embarrassed by this incident and afterward felt he was the object of other students’ ridicule because a teacher had thrown a chair at him. Bloodsworth deposed that, as Lawson was leaving the classroom, he tried to make the chair slide toward Lawson and unintentionally made it take “a bad bounce” in his direction and that the chair “just barely nicked him, if [it touched him] at all.”

The trial court determined that it was undisputed that Bloods-worth did not intentionally try to hit Lawson and that Lawson was not physically injured. Referencing Georgia’s impact rule, the trial court ruled that, “[s]ince there was no physical injury, [Lawson] has no cause of action.” On appeal, Lawson contends that there is evidence in the record that Bloodsworth committed an intentional tort and, therefore, that the impact rule does not preclude his recovery of damages for his resulting mental pain and suffering. We agree.

A cause of action for battery will lie for any unlawful touching, that is, a touching of the plaintiffs person, even if minimal, which is offensive. Ellison v. Burger King Corp., 294 Ga. App. 814, 816-817 (2) (a) (670 SE2d 469) (2008). “[A]n offensive touching is one which proceeds from anger, rudeness, or lust. The test is what would be offensive to an ordinary person not unduly sensitive as to his dignity.” (Citation and punctuation omitted.) Id. See also Interstate Life &c. Co. v. Brewer, 56 Ga. App. 599, 607 (193 SE 458) (1937) (An unlawful touching of a person’s body is actionable even if the unlawful touching is indirect, as by throwing an object or substance at the person.).

In this case, Lawson’s deposition testimony provides evidence that a furious Bloodsworth intentionally threw the chair at him, that the chair hit his leg, and that Bloodsworth’s conduct caused him to suffer the emotional pain of humiliation. Thus, the facts are disputed regarding whether the chair physically touched Lawson and whether Bloodsworth pushed the chair toward him with a tortious, rather than an innocent, intent.

Given the relatively low threshold required to prove battery, we must conclude that [Lawson] has created a factual issue as to whether a battery occurred. To hold otherwise here would run contrary to [controlling] precedent and to our mandate to view all evidence in the light most favorable to [Lawson] as the nonmoving party.

Ellison v. Burger King Corp., 294 Ga. App. at 817 (2) (a).

Furthermore, because Lawson seeks to recover damages for emotional distress resulting from an intentional tort, rather than from merely negligent conduct, Georgia’s impact rule does not bar his claim, despite the absence of any physical injury. Clarke v. Freeman, 302 Ga. App. 831, 836 (1) (692 SE2d 80) (2010) (The trial court erred in ruling that the plaintiffs’ claims for emotional distress were barred by the impact rule where the complaint alleged that they suffered emotional injuries due to the defendants’ wilful, wanton, or malicious conduct that was directed at them.); see also Vasquez v. Smith, 259 Ga. App. 79, 82 (576 SE2d 59) (2003) (“[AJctual physical injury ... is not required to support a claim for battery, which is an intentional tort.”).

Decided January 18, 2012.

Mills & Chasteen, Ben B. Mills, Jr., for appellant.

Stephen L. Ivie, for appellee.

For the foregoing reasons, the trial court erred in granting summary judgment to Bloodsworth. Ellison v. Burger King Corp., 294 Ga. App. at 817 (2) (a); see also Vasquez v. Smith, 259 Ga. App. at 82 (The fact that the plaintiff and the defendant gave such differing accounts of the events at issue demonstrated that the relevant facts were in dispute.).

Judgment reversed.

Phipps, P. J., and Dillard, J., concur.

       See OCGA § 9-11-56 (c) (Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”).

       We note that Bloodsworth’s motion for summary judgment, and Lawson’s response, were based solely upon the depositions of the two parties. There is no evidence in the record from any of a number of other students who witnessed the incident.

       Georgia applies the impact rule to cases in which a party seeks to recover for emotional distress in a claim involving negligent conduct. The impact rule has three elements: (1) a physical impact to the plaintiff; (2) the physical impact causes physical injury to the plaintiff; and (3) the physical injury to the plaintiff causes the plaintiffs mental suffering or emotional distress. A party claiming negligent infliction of emotional distress must therefore show a physical impact resulting in physical injury. ... In addition to alleging facts that could show that [the defendant’s] behavior was malicious, wilful, or wanton, to meet this exception to the impact rule, [a plaintiff] also must allege sufficient facts that could show that the [defendant’s] behavior was directed at [the plaintiff, or at a group of people that included the plaintiff].
      (Punctuation and footnotes omitted.) Clarke v. Freeman, 302 Ga. App. 831, 836 (1) (692 SE2d 80) (2010).

       In general, the question of an alleged tortfeasor’s intent is reserved for the finder of fact. See Stephens v. Adkins, 226 Ga. App. 648, 649 (487 SE2d 440) (1997); Cohen v. Hartlage, 179 Ga. App. 847, 849 (348 SE2d 331) (1986); Bodge v. Salesworld, Inc., 154 Ga. App. 65 (267 SE2d 505) (1980).


author: Blackwell, Judge.

text:
    A11A2034.
    SHERMAN v. FULTON COUNTY BOARD OF ASSESSORS et al.
    (722 SE2d 330)
   Blackwell, Judge.

In this case, John Sherman seeks to represent a class of persons owning taxable real property in Fulton County, and he appeals from the denial of his motion to certify a class. When a court decides a motion to certify a class:

[TJhe court shall enter a written order addressing whether the factors required by [OCGA § 9-11-23] for certification of a class have been met and specifying the findings of fact and conclusions of law on which the court has based its decision with regard to whether each such factor has been established.

OCGA § 9-11-23 (f) (3). Here, the court below failed to do these things in its one-page order denying the motion to certify a class. It did not specifically address any of the factors required by OCGA § 9-11-23, it did not make any findings of fact, and it did not reach any conclusions of law. Instead, the court below said in its order only that it had considered “the record, motion, and supporting briefs, as well as the applicable principles of law and equity,” and based on these things, “the Court hereby finds that [Sherman]’s motion for class certification is DENIED.” Sherman contends that the court below erred when it failed to do the things required by OCGA § 9-11-23 (f) (3), and the defendants-appellees concede this point. We agree, and we vacate the order denying the motion to certify a class and remand for the court below to enter a more detailed order on the motion, one that complies with OCGA § 9-11-23 (f) (3). See Aleman v. UHS-Pruitt Holdings, Inc., 306 Ga. App. 650, 651 (703 SE2d 96) (2010); Griffin Indus., Inc. v. Green, 280 Ga. App. 858, 860 (1) (635 SE2d 231) (2006).

Decided December 21, 2011

Reconsideration denied January 19, 2012.

Martenson, Hashrouck & Simon, Robert D. Feagin, John F. Woodham, for appellant.

IchterThomas, Cary Ichter, Cheryl M. Ringer, Jerolyn W. Ferrari, for appellees.

Judgment vacated and case remanded with direction.

Barnes, P. J., and Adams, J., concur.