author: Dillard, Judge.

text:
    A14A1837.
    THE STATE v. ALLEN.
    (769 SE2d 165)
   Dillard, Judge.

Jennifer Leigh Allen was arrested and charged, via accusation, with possession of methamphetamine. Allen filed a motion to suppress, challenging the lawfulness of the investigatory detention, during which she consented to the search of her purse where the methamphetamine was discovered. The trial court granted Allen’s motion, and the State now appeals, arguing that the court erred in finding that the arresting law-enforcement officers had no reasonable, articulable suspicion to justify the detention. For the reasons set forth infra, we affirm.

Construing the evidence to uphold the trial court’s findings and judgment, the record shows that around 9:00 p.m. on July 25, 2012, a Paulding County sheriff’s deputy was patrolling a local shopping center parking lot in his marked vehicle when he noticed a red pickup truck, which he believed looked suspicious. Consequently, as he continued driving through the parking lot, the deputy ran the truck’s tag number through the Georgia Crime Information Center (“GCIC”) database, and, in doing so, learned that the truck’s owner, William Couch, was wanted for a parole violation. The deputy then turned his vehicle around, at which point he saw the truck now parked and a male and a female, who appeared to have just exited the vehicle, walking toward a Mexican restaurant in the shopping center. Believing the male to be Couch, the deputy used his patrol vehicle’s PA system to request that both individuals stop. The couple, however, ignored this request and continued into the restaurant.

After parking his vehicle and following the couple into the restaurant, the deputy saw the female, Allen, sitting alone in a booth, and one of the restaurant’s employees informed the deputy that the male had exited out the back of the building. The deputy then approached Allen and asked her where Couch had gone. Allen replied that he was possibly in the restroom, but she was unsure of his whereabouts. But after checking the bathroom and determining that Couch was not there, the deputy ordered Allen to step outside for further questioning, and she complied. By this time, a second law-enforcement officer arrived on the scene, and during the ensuing questioning, Allen acknowledged that Couch had mentioned that there was a warrant out for his arrest. The second officer then told Allen to call some of Couch’s friends to inquire as to his whereabouts and ultimately asked Allen if he could search her purse. Allen consented, and during the search, the officer found a clear wrapper containing methamphetamine.

Allen was later charged, via accusation, with possession of methamphetamine. Shortly thereafter, she filed a motion to suppress the evidence garnered as a result of her detention and subsequent consent to the search of her purse. Specifically, she argued that the officers had no reasonable, articulable suspicion to justify her detention, and, therefore, her consent to the search of her purse was invalid. Accordingly, she concluded that the methamphetamine found by the officers in her purse as a result of that search should be suppressed as “fruit of the poisonous tree.”

During the hearing on Allen’s motion to suppress, the deputy who first saw Couch’s truck and then followed Couch and Allen into the restaurant testified that when he initially approached Allen, he did not suspect that she had committed any crime, but nevertheless wanted to question her regarding Couch. The deputy then added that he believed Allen was untruthful when she said Couch may have gone to the bathroom, and thus, she impeded his investigation. In addition, the second officer who arrived on the scene (and ultimately searched Allen’s purse) testified that Allen was not free to leave the encounter and that detaining someone with information was lawful even if that person was not suspected of engaging in criminal activity. After the hearing concluded, the trial court took the matter under advisement and, one day later, issued an order granting Allen’s motion to suppress. This appeal by the State follows.

At the outset, we note that on a motion to suppress, “the burden of proving the search was lawful is on the [S]tate.” And in 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.” That said, we owe no deference to the way in which the court below “resolved questions of law.” With these guiding principles in mind, we turn now to the State’s contention on appeal.

In its sole enumeration of error, the State maintains that the trial court erred in granting Allen’s motion to suppress, arguing that the law-enforcement officers had reasonable, articulable suspicion to justify detaining Allen and, ultimately, seeking consent to search her purse. We disagree.

The Fourth Amendment to the United States Constitution provides, inter alia, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ,” In construing this amendment, the Supreme Court of the United States has set forth— including most notably in Terry v. Ohio — three tiers of police-citizen encounters: “(1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.”

In a first-tier encounter, police may “approach citizens, ask for identification, ask for consent to search, and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave.”* Thus, a citizen’s ability to “walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter.” But here, the deputy who observed Allen and Couch walking toward the restaurant first requested that they stop, then approached Allen as she sat in a booth and, shortly thereafter, directed her to accompany him outside. Given these circumstances, no reasonable person in Allen’s position would have felt free to end the encounter, and, in fact, the second officer to arrive on the scene explicitly testified at the hearing that Allen was not free to leave. Accordingly, the officers’ stop of Allen “was a second-tier, investigative detention that required the [officers] to have a particularized and objective basis for suspecting that [Allen] was or was about to be involved in criminal activity.”

As the Supreme Court of the United States emphasized in Terry, a law-enforcement officer, “even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.” In doing so, the officer’s action must be justified by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion, and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.” Furthermore, while a mere hunch is not sufficient to render an investigative detention reasonable, “law enforcement officers are permitted to draw upon their own experience and training in assessing the circumstances in which they find themselves.”

In the case sub judice, the deputy who first saw Couch’s pickup truck ran its tag through the GCIC database and determined that he was wanted for a parole violation. Recounting this fact, the State argues that the deputy was, therefore, authorized to initiate a traffic stop. However, by the time the deputy learned that the truck’s male owner, Couch, was wanted, the truck was already stopped and Couch and Allen were walking toward the restaurant. At that point, although the deputy certainly possessed a reasonable, articulable suspicion to detain Couch, he had no basis whatsoever for believing that Allen was either committing, or was about to commit, a crime. Indeed, at the motion-to-suppress hearing, the deputy admitted that when he first approached Allen, as she sat in the restaurant booth, he had no suspicion that she had committed, or was about to commit, a crime. And while the deputy added that he believed Allen was untruthful when she told him that she was unsure as to where Couch had gone, the trial court, in granting Allen’s motion to suppress, obviously found that her response did not provide an objective basis for a reasonable suspicion that she was obstructing the deputy in the lawful discharge of his official duties. Thus, construed most favorably to uphold the trial court’s judgment, we conclude that the court did not err in finding that the officers’ detention of Allen was unreasonable. Moreover, because Allen’s consent to the search of her purse was the product of an illegal detention, it was not valid. Accordingly, the trial court did not err in granting Allen’s motion to suppress.

Decided February 23, 2015.

Dick Donovan, District Attorney, Steven J. Messinger, Assistant District Attorney, for appellant.

Andrew S. Fleischman, for appellee.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

        See, e.g., Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).

        See OCGA § 16-13-30 (a).

       We note that “[t]he ‘fruit of the poisonous tree’ doctrine provides that any evidence acquired hy the police through exploitation of information obtained by means of unlawful conduct is inadmissible in a criminal prosecution.” Lawson v. State, 299 Ga. App. 865, 868 (1) (684 SE2d 1) (2009); see also Brown v. Illinois, 422 U. S. 590, 603-04 (III) (95 SCt 2254, 45 LE2d 416) (1975) (providing test to determine whether evidence must be excluded under doctrine).

        Walker V. State, 299 Ga. App. 788, 788 (683 SE2d 867) (2009); accord Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996).

        Hammont, 309 Ga. App. at 396 (punctuation omitted); accord Brown v. State, 293 Ga. 787, 803 (3) (b) (750 SE2d 148) (2013).

        Hammont, 309 Ga. App. at 396 (punctuation omitted); Brown, 293 Ga. at 803 (3) (b).

        Brandt v. State, 314 Ga. App. 343, 343 (723 SE2d 733) (2012); cf. Edenfield v. State, 293 Ga. 370, 374 (2) (744 SE2d 738) (2013) (noting that in reviewing the denial of a motion to suppress a statement, appellate courts owe no deference to the way in which the trial court resolved questions of law).

       U. S. Const. amend. IV.

       392 U. S. 1, 21 (III) (88 SCt 1868, 20 LE2d 889) (1968).

        Minor V. State, 298 Ga.App. 391, 394 (1) (a) (680 SE2d 459) (2009) (punctuation omitted); accord State v. Walker, 295 Ga. 888, 889-890 (764 SE2d 804) (2014).

        Minor, 298 Ga. App. at 394 (1) (a) (punctuation omitted); accord Jones v. State, 291 Ga. 35, 37 (1) (727 SE2d 456) (2012) (noting that a first-tier encounter may become a seizure when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave” (punctuation omitted)).

        Thomas v. State, 301 Ga. App. 198, 201 (1) (687 SE2d 203) (2009) (punctuation omitted); accord Jones, 291 Ga. at 37 (1).

        Thomas, 301 Ga. App. at 201-02 (1); see also Walker, 299 Ga. App. at 790.

        See Terry, 392 U. S. at 21 (III).

        Black v. State, 281 Ga. App. 40, 43 (1) (635 SE2d 568) (2006) (punctuation omitted); see Ramirez v. State, 279 Ga. 569, 571-72 (1) (619 SE2d 668) (2005) (noting that officer had particularized and objective basis for suspecting that defendant was engaged in criminal activity and, thus, holding that the stop was justified).

        Black, 281 Ga. App. at 43 (1) (punctuation omitted); see also State v. Harris, 261 Ga. App. 119, 122 (581 SE2d 736) (2003).

        Culpepper v. State, 312 Ga. App. 115, 119 (717 SE2d 698) (2011); see also Esposito v. State, 293 Ga. App. 573, 576 (667 SE2d 425) (2008).

        See Humphreys v. State, 304 Ga. App. 365, 367 (696 SE2d 400) (2010) (holding that “the particularized and objective basis for the initial stop was the information from GCIC — in this case, that the male owner of the registered vehicle [he] was operating had a suspended driver’s license”); see also Ramirez, 279 Ga. at 571-72 (1).

        Cf. Brown v. State, 301 Ga. App. 82, 85 (686 SE2d 793) (2009) (holding that none of defendant’s described activities, i.e., walking faster away from the police, ignoring the police officer calling his name, or being present in an area known for its propensity for criminal activity, is a crime in and of itself, nor are they enough to make an objective determination that defendant was about to be engagedin criminal activity); Teal v. State, 291 Ga. App. 488, 489 (662 SE2d 268) (2008) (holding that officer lacked reasonable basis for concluding that passenger was armed or was otherwise a threat to his personal safety after another officer had stopped car to serve warrant on driver, and, thus, Terry pat-down for weapons was unlawful).

        See Beckom v. State, 286 Ga. App. 38, 41-42 (2) (648 SE2d 656) (2007) (holding that defendant initially refusing to answer the door for officers and denying knowledge of missing boy’s whereabouts, even though it was later determined that boy was one of the attendees of defendant’s son’s party, did not constitute obstruction); cf. Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992) (holding that wilfully lying to officers attempting to execute a warrant by asserting that arrestee was not on the premises constituted obstruction).

        See State v. Mincher, 313 Ga. App. 875, 877-78 (723 SE2d 300) (2012) (holding that trial court was authorized to find that defendant’s right turn was not illegal and thus officer had no reasonable articulable suspicion to justify traffic stop).

        See Walker, 299 Ga. App. at 791 (2) (holding that defendant’s consent to search of his person was invalid when it was the product of an illegal detention); Black, 281 Ga. App. at 47-48 (1) (holding that consent to search of bedroom only a few moments after being unlawfully detained was invalid).


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A14A2088.
    STAFFORD v. GARELECK et al.
    (769 SE2d 169)
   McMlLLIAN, Judge.

Grant Stafford appeals the trial court’s order dismissing his complaint asserting claims for fraud, conversion, breach of fiduciary duty, and accounting against Steven S. Gareleck and RSC Tennis, LLC (the “LLC”), arising out of the sale of the LLC. We reverse for the reasons set forth below.

“On appeal, we review a trial court’s decision to grant or deny a motion to dismiss de novo.” Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423 (762 SE2d 138) (2014). And “[i]n reviewing the grant of a motion to dismiss, an appellate court must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant’s favor.” (Citation and punctuation omitted.) Ewing v. City of Atlanta, 281 Ga. 652, 653 (2) (642 SE2d 100) (2007). We may also consider any exhibits attached to and incorporated into the complaint and the answer, also construing them in the appellant’s favor. Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 89 (2) (764 SE2d 398) (2014); Islam v. Wells Fargo Bank, N.A., 327 Ga. App. 197 (757 SE2d 663) (2014).

And as our Supreme Court has explained, a motion to dismiss should not be granted unless “the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof[.]” (Citation omitted.) Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014). See also Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997). Therefore, the movant must establish that the plaintiff cannot possibly introduce evidence within the allegations of the complaint entitling him to the relief sought. Austin, 294 Ga. at 774-775.

Stafford filed his complaint on December 30, 2013, and filed an amended complaint on March 24, 2014. The complaint, as amended, asserted that Stafford and Gareleck were members of the LLC, and Gareleck was a managing member. Beginning in late 2011, Life Time Fitness, Inc. (“Life Time”), a Minnesota-based company, expressed an interest in buying the LLC, and Life Time, in fact, purchased the company in February 2012 for an unknown amount. In the interim, on January 28, 2012, Gareleck presented a document to Stafford that he represented Stafford must sign in order to effectuate both the sale of the LLC to Life Time and the transfer and payment of Stafford’s share of the proceeds, which Gareleck said amounted to $170,099.22 (the “Contract”). Stafford signed the document based on Gareleck’s representations. Stafford asserts, however, that unbeknownst to him, the document transferred his interest in the LLC to Gareleck, allowing Gareleck to underpay Stafford the true value of his membership interests and to defraud Stafford out of his fair share of the sale proceeds.

Stafford later obtained information that led him to believe that he had been underpaid, defrauded, or otherwise tricked by Gareleck into signing away his interest in the LLC. Stafford notified Gareleck that the amount he received was unacceptable, that he was demanding additional money and documentation evidencing the sale of the LLC to Life Time, and that he was rescinding the Contract. Stafford asserts that in response, Gareleck acknowledged Stafford’s rescission of the Contract and agreed to pay Stafford additional money and provide documentation. Despite this representation, Gareleck has failed to pay Stafford additional money or to provide documentation of the sale. Stafford asserts that he is entitled to full payment of his interest in the LLC.

The complaint additionally alleged that Gareleck engaged in misconduct in his role as a managing member of the LLC

by authorizing the LLC to pay Gareleck unfair and usurious rates of interest on loans made from Gareleck to the LLC, paying significant sums from the LLC bank account to contractors for non-LLC related work and expenses, paying for personal trips and travel out of the LLC bank account, and engaging in other self-dealing,

which negatively impacted the amount of sales proceeds realized on the sale to Life Time.

Based on these allegations, Stafford asserted claims for fraud based on false representations made by Gareleck relating to the sale of the LLC, fraud in the inducement in connection with Stafford’s execution of the Contract, conversion of sales proceeds due and owing to Stafford, and breach of fiduciary duty arising out of Gareleck’s duties as a managing member of the LLC. The complaint also sought an accounting, punitive damages, and attorney fees.

The LLC and Gareleck filed a verified answer to Stafford’s complaint, in which they denied liability, but admitted, inter alia, that Stafford accepted $170,099.22 after signing the Contract on January 28, 2012. Gareleck and the LLC identified the Contract as the “Mutual Release and Ownership Interest Purchase” (the “Release”), which they attached to their answer. The answer further asserts that Stafford had neither returned nor offered to return the $170,099.22 he received in exchange for signing the Release. The Release itself represented that Stafford held a one-third interest in the LLC and the $170,099.22 was payment for that ownership interest. The Release also stated that Stafford was releasing “any and all claims and liabilities, known and unknown, of every kind and nature whatsoever in law or equity, which [Stafford] had, now has, or may have against” the LLC and Gareleck. The Release further provided that Stafford would not “file any charge or complaint against [the LLC] or [Gareleck] with any government agency or . . . any lawsuit or other legal proceeding with any court asserting any claim that is released in this Release.”

The trial court subsequently granted a motion to dismiss filed by Gareleck and the LLC on the grounds that the Release signed by Stafford released all claims against Gareleck and the LLC; that Stafford failed to plead his fraud in the inducement claim with sufficient particularity; and that the merger clause in the Release barred Stafford’s claims. On appeal, Stafford argues that the trial court erred (1) in relying upon the release language in the Release since his signature on that document was procured by fraud and he rescinded the Release prior to filing suit; (2) in concluding that he did not properly plead a fraud in the inducement claim; and (3) in concluding that the merger clause bars his claims.

1. We turn first to the issue of rescission, which could be determinative in both Stafford’s first and third enumerations. “In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for damages from the fraud or breach; or (2) promptly rescind the contract and sue in tort for fraud.” (Citation and punctuation omitted.) Novare Group, Inc. v. Sarif, 290 Ga. 186, 188 (1) (718 SE2d 304) (2011). “Where a party elects to rescind the contract, he must do so prior to filing the lawsuit.” Id. And Georgia courts have long recognized that a tender to restore, or offer to restore, the consideration received is a condition precedent to filing a lawsuit for fraud in the inducement. Id.; Williams v. Fouche, 157 Ga. 227 (121 SE 217) (1924).

Stafford’s complaint alleged that he made a prompt rescission of the contract, but it did not address the issue of tender. However, under the notice pleading requirements of Georgia’s Civil Practice Act, Stafford was not required to do so. See Blower v. Jones, 226 Ga. 847, 849 (3) (178 SE2d 172) (1970) (issue of tender not “a matter raised by a mere general motion to dismiss,” but an issue of fact); Fender v. Fender, 226 Ga. 129, 130 (4) (173 SE2d 211) (1970) (issue of tender a matter of evidence, not pleadings). Nevertheless, Stafford concedes in his briefing that he did not tender the $170,099.22 back to Gareleck and the LLC, but he asserts he was not required to make a tender because this case falls within an exception to the tender requirement.

Under Georgia law, a party seeking to rescind must either make a tender “or show a sufficient reason for not doing so; he need not tender back what he is entitled to keep, and need not offer to restore where the defrauding party has made restoration impossible, or when to do so would be unreasonable.” (Citation omitted; emphasis supplied.) Mitchell v. Backus Cadillac-Pontiac, Inc., 274 Ga. App. 330, 334 (2) (618 SE2d 87) (2005). Stafford argues that because he was entitled to more than the $170,099.22 he received for his one-third ownership interest in the LLC, he did not have to return what he was entitled to retain. See Georgia R. Bank & Trust Co. v. Liberty Nat. Bank & Trust Co., 180 Ga. 4, 19 (177 SE 803) (1934) (“If the allegations [of the complaint] be true, the plaintiff is entitled to recover many times the amount which it may have received ..., and equity will not require the useless procedure of returning a part which should be included in the larger sum which it seeks to recover.”); Farnell v. Brady, 159 Ga. 209 (125 SE 57) (1924) (same). See also Remediation Svcs., Inc. v. Georgia-Pacific Corp., 209 Ga. App. 427, 433 (1) (433 SE2d 631) (1993); Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589, 590 (1) (411 SE2d 518) (1991); Krawagna v. H & S Liquor, 176 Ga. App. 816, 818 (4) (338 SE2d284) (1985); Atlanta Life Ins. Co. v. Walker, 53 Ga. App. 80, 84 (184 SE 776) (1936).

However, we need not reach the issue of whether Stafford was required to make a tender in this case because he alleged in his complaint that he gave prompt notice of his intention to rescind in the spring or summer of 2012; that Gareleck acknowledged the rescission of the parties’ contract; and that he agreed to pay Stafford additional monies. Therefore, because it is possible that Stafford could present evidence showing that Gareleck agreed to a rescission of the parties’ contract, regardless of any tender, Gareleck and the LLC have failed to carry their burden of showing that Stafford could not possibly introduce evidence within the allegations of the complaint demonstrating that the Release had been rescinded.

Accordingly, given the possibility that Stafford could present evidence showing that the Release had been rescinded prior to suit, the trial court erred in applying the language of that document, including the merger clause, as grounds for dismissing Stafford’s complaint. See Catrett v. Landmark Dodge, Inc., 253 Ga. App. 639, 641 (1) (560 SE2d 101) (2002) (merger clause in rescinded contract does not bar fraud claims). See also Authentic Architectural Mill-works, Inc. v. SCM Group USA, Inc., 262 Ga. App. 826, 828 (2) (a) (586 SE2d 726) (2003) (merger clause does not bar claims arising from misrepresentations contained in the contract upon which plaintiff relied).

2. The trial court also found that Stafford failed to plead his fraud in the inducement claim with sufficient particularity. Although OCGA § 9-11-9 (b) requires that claims of fraud be pled with particularity, “a complaint alleging fraud should not be dismissed for failure to state a claim unless it appears beyond a doubt that the pleader can prove no set of facts in support of his claim which would entitle him to relief.” (Citation omitted.) Roberts v. Nessim, 297 Ga. App. 278, 284-285 (2) (676 SE2d 734) (2009).

“The tort of fraud [including fraudulent inducement] has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” (Citation and punctuation omitted.) Sims v. Bayside Capital, Inc., 327 Ga. App. 47, 51 (2) (755 SE2d 520) (2014). Here, the trial court found that Stafford failed to allege the content of any purported misrepresentation or how it was communicated and further failed to allege facts even remotely suggesting that he justifiably relied upon any purported misrepresentation because he had the opportunity to read and understand the terms of the Release before he signed it.

However, the claim for common law fraud set out in the complaint, as amended, contains allegations detailing a number of misrepresentations and fraudulent omissions by Gareleck and the LLC with regard to the sale of the LLC to Life Time. The claim for fraudulent inducement incorporates these allegations and alleges that Gareleck and the LLC made these misrepresentations or omissions with the intent of inducing him to sign over his interest in the LLC for less than its fair value. Stafford also alleges that he relied on these misrepresentations to his detriment. Additionally, the complaint alleged that as a managing member of the LLC, Gareleck owed a fiduciary duty to Stafford in connection with LLC business.

Although Stafford alleges that Gareleck made a number of misrepresentations, the gist of his claim for fraud in the inducement was that he signed the Release based on alleged misrepresentations that the $170,099.22 he received represented the full and fair value of his one-third ownership interest. Given the allegations that Gareleck owed him a fiduciary duty, we cannot say beyond a doubt that Stafford could present no evidence showing that he justifiably relied on any representations by Gareleck. See Northwest Plaza, LLC (MI) v. Northeast Enterprises, Inc., 305 Ga. App. 182, 191 (3) (a) (699 SE2d 410) (2010) (“Issues of justifiable reliance and proper due diligence are generally for the jury.”); Savu v. SunTrust Bank, 293 Ga. App. 683, 690-691 (3) (668 SE2d 276) (2008) (“Because a confidential relationship may be found whenever one party is justified in reposing confidence in another, the issue of whether a confidential relationship has been created is ordinarily reserved for the jury.”) (citation omitted). Moreover, the Release itself places the same value on Stafford’s interest and contains no language indicating that this amount was intended as a settlement, compromise, or discount as to that value. Thus, at this stage of the litigation, we cannot say beyond a doubt that merely reading the Release should have placed Stafford on notice of any alleged misrepresentation as to the value of his interest.

Decided February 24, 2015.

David A. Anton, for appellant.

Raley & Sandifer, John W. Sandifer, Benjamin D. Lorber, for appellees.

We find that the allegations in the complaint, as amended, are sufficient to state a claim of fraud in the inducement, and the trial court erred in dismissing Stafford’s complaint on the ground that it failed to allege such a claim with the requisite particularity.

Judgment reversed.

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

       Although Stafford did not file a claim for rescission in his complaint and only sought to recover damages, the allegations and claims in the complaint express no clear intent to affirm the Release. Stafford makes no claim for breach of contract, but rather asserts claims of fraud and fraud in the inducement in connection with the Release, which could also support a claim of rescission. Under these circumstances, we find that nothing in the complaint contravenes Stafford’s intent to rescind. See Conway v. Romarion, 252 Ga. App. 528, 532 (1) (557 SE2d 54) (2001). But as this Court noted in Conway, “[t]he better practice, of course, would have been to assert a separate claim for rescission in the complaint.” Id.


author: RAY, Judge.

text:
    A14A2233.
    MALOOF v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (769 SE2d 174)
   RAY, Judge.

Stephen Gerard Maloof, as administrator of Lorraine Maloof’s estate (the “Estate”), sued Metropolitan Atlanta Rapid Transit Authority (“MARTA”) for injuries sustained by Lorraine while she was riding as a wheelchair-bound passenger on a MARTA para-transit van that collided with another vehicle. MARTA filed a motion for summary judgment as to the Estate’s remaining claims for negligence in failing to properly secure her wheelchair and failure to maintain a lane, which the trial court granted. The Estate appeals from this order. For the following reasons, we affirm the trial court’s grant of summary judgment as it relates to claims of MARTA’s negligence for failing to properly secure Lorraine’s wheelchair, we vacate the trial court’s grant of summary judgment as it relates to claims of MARTA’s negligence for failure to maintain a lane, and we remand the case to the trial court for further proceedings.

“On appeal from the trial court’s grant of summary judgment, we conduct a de novo review of the record to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact.” (Citation and punctuation omitted.) Bennett v. MARTA, 316 Ga.App. 565, 566 (730 SE2d 52) (2012). Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party demonstrates that it is entitled to judgment as a matter of law. Id.

The record shows that on April 13, 2005, Lorraine was a passenger on a MARTA para-transit van. After Lorraine got on the bus, she backed her powered wheelchair into position on the van, and the driver secured the wheelchair to the floor in four places and placed a lap belt on her. On the day of the accident, Lorraine refused to wear the shoulder harness. Lorraine had ridden the van at least a “couple dozen” times before and always declined use of the shoulder harness. Once Lorraine was secured, the van continued along its normal route.

As the van began traveling west on Ponce de Leon Avenue, William Cleveland’s vehicle was also traveling west in the lane to the left of the MARTA van, closest to oncoming traffic. The MARTA van slowed down to make a wide right turn onto Piedmont Avenue and, in doing so, veered into the other westbound lane. As the MARTA van turned, Cleveland’s right mirror struck and broke the left mirror of the MARTA van. The impact simply pushed Cleveland’s vehicle’s mirror inward, but did not damage it. Anticipating the impact, the MARTA van’s driver stepped on the brakes, and Lorraine fell to the ground and fractured her leg. The wheelchair remained secured to the floor of the van. Police were summoned to the scene, and neither driver was issued a citation as a result of the incident. Lorraine was treated for her injuries and was immobile for several months before passing away on August 23, 2005.

As a result of Lorraine’s injuries, the Estate filed suit against MARTA alleging that “MARTA’s van driver was negligent in failing to secure the wheelchair properly and in failing to maintain her lane.” The Estate appeals from the trial court’s grant of summary judgment to MARTA.

1. The Estate contends that the trial court erred in failing to give evidentiary weight to the transcribed and recorded, but unsworn, statement given by Lorraine (the “Statement”) to an insurance agent acting on behalf of MARTA after the accident on the grounds that it constituted hearsay. Lorraine’s Statement was provided to the Estate by MARTA in its response to a request for production of documents, and the Estate relied upon the statement in its response brief to MARTA’s motion for summary judgment. MARTA objected to the admission of the Statement as hearsay, and the trial court agreed.

“Admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally.” (Punctuation and footnote omitted.) Capital City Developers, LLC v. Bank of North Ga., 316 Ga. App. 624, 625-626 (1) (730 SE2d 99) (2012). This Court will not disturb a trial court’s ruling on whether to admit evidence as an exception to the hearsay rule absent an abuse of discretion. Id.

For the first time on appeal, and without providing substantive argument or citations to the record, the Estate contends that Lorraine’s Statement is subject to several exceptions from the hearsay rule under Georgia’s new Evidence Code. We examine each in turn.

(a) Then existing mental, emotional, or physical condition. OCGA § 24-8-803 (3) provides an exception from the hearsay rule for statements “of the declarant’s then existing state of mind, emotion, sensation, or physical condition .. . but not including a statement of memory or belief to prove the fact remembered or believed[.]” However, before a statement can be admitted under this exception, “the declarant’s state of mind must be a relevant issue.” (Citation omitted.) T. Harris Young & Assocs., Inc. v. Marquette Electronics, Inc., 931 F2d 816, 828 (III) (B) (11th Cir. 1991). Here, Lorraine’s state of mind, emotional or physical condition is not at issue regarding MARTA’s alleged negligence in failing to secure her shoulder harness. Accordingly, we cannot conclude that this hearsay exception applies to Lorraine’s Statement. See id.

(b) Records of regularly conducted activity. OCGA § 24-8-803 (6) provides that the following is not excluded by the hearsay rule:

... [A] memorandum, report, record, or data compilation... if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with [relevant code sections], . . .

Here, Lorraine’s Statement does not fall under this exception of the hearsay rule as the Estate did not attempt to comply with the foundational requirements set forth in OCGA § 24-8-803 (6) when relying upon the documents. See Noble v. Alabama Dept. of Environmental Mgmt., 872 F2d 361, 366-367 (III) (11th Cir. 1989) (district court erred in admitting evidence under Fed. R. Evid. 803 (6) when party seeking admission of document did not lay adequate foundation for its admission under the business records exception to the hearsay rule).

(c) Public Records and Reports. Lorraine’s Statement does not fall under OCGA § 24-8-803 (8) as it is not a public record or report.

(d) Residual Exception. Further, the Estate’s argument that her Statement falls under the residual exception found in OCGA § 24-8-807 is without merit. That Code section provides:

A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that: (1) The statement is offered as evidence of a material fact; (2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence. . . .

We find no abuse of discretion in the trial court’s conclusion that the Statement was not admissible. The trial court, in its order, clearly noted that the Statement was not more probative on the point for which it was offered than any other evidence which could be provided. The Estate sought to introduce the Statement for the purpose of showing that MARTA did not provide Lorraine with a shoulder harness on the day of the incident. The trial court correctly noted that this evidence was not inconsistent with the testimony provided by the van’s driver that Lorraine declined to wear a shoulder harness that day and that the shoulder harness was optional on the part of the passenger. Further, the Statement lacks the “equivalent circumstantial guarantees of trustworthiness” that Rule 807 requires as Lorraine provided the Statement to MARTA as part of an ongoing insurance investigation that she hoped to glean benefit from. United Technologies Corp. v. Mazer, 556 F3d 1260, 1279 (III) (11th Cir. 2009).

(e) Based upon our conclusion that Lorraine’s Statement did not fall under any of the hearsay exceptions enumerated by the Estate, we need not address whether the admission of Lorraine’s Statement would create an issue of material fact as to the Estate’s claim that MARTA was negligent in failing to properly secure her wheelchair. Accordingly, we affirm the trial court’s grant of summary judgment to MARTA on the issue of whether MARTA negligently secured Lorraine’s wheelchair to the van.

2. The Estate next contends that the trial court erred in finding that the police report prepared by the officer responding to the scene constituted inadmissible hearsay because it was unsworn. Because we find that the report fell under the public records exception to the hearsay rule, OCGA § 24-8-803 (8), we agree.

OCGA § 24-8-803 (8) provides an exception to the hearsay rule for

public records, reports, statements, or data compilations, in any form, of public offices, setting forth: . . . (B) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report ... or (C) In civil proceedings . . . factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness [.]

It has been held that, in civil cases, when a police officer personally observed the matter described in a police report, that officer’s report is admissible. See Jonas v. Isuzu Motors Ltd., 210 FSupp.2d 1373, 1378 (III) (A) (M.D. Ga. 2002) (in a lawsuit arising from an automobile accident, police report containing diagram of the accident admissible under Fed. R. Evid. 803 (8) because it was prepared from the officer’s own personal observation of the scene).

Accordingly, to the extent the police report references observations made by the officer himself, the content of the police report is admissible, and the trial court erred in finding that such constituted hearsay. Further, we cannot find that such error was harmless where the trial court expressly noted in its order that

Decided February 24, 2015.

Joseph H. King, Jr., for appellant.

Thomas Kennedy Sampson & Tompkins, Thomas G. Sampson II, Gerond J. Lawrence, for appellee.

were [the information contained in the police report] admissible, the [trial court] would find a question of fact on the issue of negligence for causing the accident because the officer’s depiction of the accident and the location of the debris describe one thing, and the driver’s depiction of the accident describes another.

Accordingly, we vacate the order as it relates to the issue of MARTA’s negligence for causing the accident and remand for further proceedings.

Judgment affirmed in part and reversed in part, and case remanded.

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

       In MARTA v. Maloof, 304 Ga. App. 824 (698 SE2d 1) (2010), this Court reversed, upon interlocutory appeal, the trial court’s denial of MARTA’s motion for summary judgment on Maloof’s claims for wrongful death.

       Specifically, the Estate contends that the Statement falls under the following exceptions to the hearsay rule under Georgia’s new Evidence Code: OCGA §§ 24-8-803 (3) (“Then existing mental, emotional, or physical condition”); 24-8-803 (6) (“Records of regularly conducted activity”); 24-8-803 (8) (“Public records and reports”) and 24-8-807 (“Residual exception”).

       “Because OCGA § 24-8-803 mirrors Rule 803 of the Federal Rules of Evidence, we will look to case law from federal courts within the Eleventh Circuit for guidance in interpreting that statute.” (Citations omitted.) Ware v. Multibank 2009-1 RES-ADC Venture, LLC, 327 Ga. App. 245, 249 (2), n. 11 (758 SE2d 145) (2014).

       Lorraine’s Statement does not reveal whether she wanted MARTA to secure the shoulder harness upon her. Had such statement included this information, our decision on this issue may very well have been different.

       We note that the police report contains out-of-court statements from third parties made to the police officer during the investigation. As such out-of-court statements have not been challenged, we express no opinion herein whether they would be admissible through the police report at trial.


author: BARNES, Presiding Judge.

text:
    A14A2114.
    BRAY v. THE STATE.
    (768 SE2d 285)
   BARNES, Presiding Judge.

Following a bench trial, the trial court found Kirk Devin Bray guilty of multiple offenses arising out of a police car chase and collision with another vehicle, including two counts of serious injury by vehicle, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Bray filed a motion for new trial, which the trial court denied. On appeal, Bray contends that there was insufficient evidence to convict him of serious injury by vehicle because the State failed to prove the statutory element of “serious disfigurement”; that there was insufficient evidence to convict him of the firearm-related offenses because the State failed to prove that he knowingly possessed the handgun in question; and that his sentence under Georgia’s recidivist statute was unconstitutionally cruel and unusual. For the reasons discussed below, we affirm.

Construed in the light most favorable to the verdict, see Trujillo v. State, 304 Ga. App. 849, 849 (698 SE2d 350) (2010), the evidence showed that the Oconee County Sheriff’s Office received information to be on the lookout (“BOLO”) for a gray Ford F350 pickup truck with a particular license tag number that had been stolen from its owner in Greene County on May 1, 2011. On the afternoon of May 5, 2011, sheriff’s investigators in two separate vehicles that were traveling northbound on Georgia Highway 441 in response to an unrelated matter observed a pickup truck that matched the description in the BOLO. The truck was in the lane to the right of the investigators and drove up the entrance ramp onto the Georgia 10 Loop.

One of the investigators confirmed with the police dispatcher that the license tag number on the pickup truck matched the tag number identified in the BOLO. The confirmed sighting of the truck was relayed to other patrol units in the area, and a police chase ensued in which several deputies had the blue lights and sirens activated on their vehicles. During the chase, the pickup truck, which was traveling at a speed of 80 to 100 miles per hour, crossed over the median of the Georgia 10 Loop and traveled the wrong direction up the exit ramp onto Georgia Highway 316. The truck then proceeded down Highway 316 until the truck reached the intersection of Highway 316 with the Oconee Connector. At that intersection, the truck crossed over a grass median and over two lanes of oncoming traffic, where it collided head-on with a car that was traveling in the right direction. That car was occupied by an elderly married couple, who were rushed to the hospital by ambulance. Because of complications caused by her blood thinner medication and concerns over her heart rate, the wife remained in the hospital for several days after the collision.

After the collision, the driver of the stolen pickup truck, later identified as Bray, fled on foot into the woods. He was apprehended a few hours later when he emerged from the woods near the scene of the collision. A deputy searched Bray and found a bag of methamphetamine in his pocket, and an investigator searched the pickup truck and discovered, among other items, a handgun in a nylon zippered case on the front passenger floorboard. The handgun was registered to a third party who lived in Forsyth County and had been stolen from him a few months earlier.

Following his apprehension, Bray was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), and agreed to speak with investigators the day after the collision. During the recorded interview, Bray admitted to the investigators that he had worked as a “middle man” who would drive stolen trucks to another person who would buy them. Bray further admitted that he had driven the stolen pickup truck involved in the collision, that he was a long-time methamphetamine addict, and that he had “dope” in his pocket when he was apprehended. Bray denied knowing that the stolen handgun was in the truck.

Bray subsequently wrote a letter “[t]o the lady who was injured in the accident.” In the letter, Bray stated that his “mind [had] not been right in a long time because of [his] drug use” and that he had “remorse for [his] actions.” He asked for forgiveness for causing her injuries.

Bray was indicted for sixteen criminal offenses, including theft by receiving the stolen pickup truck, two counts of serious injury by vehicle, two counts of fleeing or attempting to elude a police officer, possession of methamphetamine, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. By consent of the parties, a bench trial was conducted in November 2012.

At the bench trial, the sheriff’s investigators and deputies involved in the pursuit and apprehension of Bray testified to the events as set out above, and several eyewitnesses testified about the collision and the driver of the truck fleeing from the scene. The State also introduced into evidence the letter that Bray wrote apologizing to the elderly wife and the video recording of his interview with the investigators. A transcript of the video recording was prepared and provided to the trial court as well.

The elderly couple testified about the collision and the injuries they sustained. The husband testified that after the collision, he temporarily lost consciousness, “couldn’t get [his] breath,” and had to receive “oxygen in the ambulance.” According to the husband, he broke his sternum and several ribs and was so bruised that he was “the color of an eggplant.” The husband further testified that his “urine was black for about a week.”

The wife testified that she broke her toe, cut and dislocated her finger, cut her knees and the back of her head, and was “black all over” from bruising. The wife also testified that she was hospitalized for six days, including three days in intensive care.

In addition to the elderly couple’s testimony, the State introduced testimony from the emergency room physicians who treated them after the collision as well as photographs of their injuries. Among other things, the physicians testified that the husband and the wife both sustained sternum and rib fractures revealed by CT scan and that the laceration to the wife’s head required staples. The photographs showed severe bruising in the area of the husband’s rib cage, lower back, side, and pelvis, and the wife’s dislocated finger and the lacerations to one of her knees and to her head.

Similar transaction evidence of Bray’s receipt and operation of other stolen trucks was introduced by the State in connection with the theft-related charge. To support the charge of possession of a firearm by a convicted felon, the State introduced a certified copy of Bray’s prior indictment, plea, and sentence for theft by taking in March 2008.

After receiving all of the evidence, the trial court found Bray guilty of 14 of the charged offenses, including the specific offenses previously listed. A sentencing hearing ensued in which the State introduced certified copies of Bray’s indictment, plea, and sentence to two counts of theft by receiving stolen property in July 2008, and to seven counts of theft by receiving stolen property in September 2008. Taking into account these prior convictions in addition to the theft-by-taking conviction introduced at trial, the trial court sentenced Bray as a recidivist and imposed various concurrent sentences that amounted to fifteen years in confinement without parole, followed by ten years on probation. This appeal followed.

1. Bray contends that there was insufficient evidence to convict him of the two counts of serious injury by vehicle. Specifically, he argues that the State failed to prove the statutory element of serious disfigurement with respect to either the elderly husband or his wife. We are unpersuaded.

On appeal from a bench trial resulting in a criminal conviction, we view all evidence in the light most favorable to the trial court’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence; our role is to determine whether the evidence presented is sufficient for a rational trier of fact to find guilt beyond a reasonable doubt.

(Citations and punctuation omitted.) Trujillo, 304 Ga. App. at 849.

“Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” OCGA § 40-6-390 (a). A person commits the offense of serious injury by vehicle if, without malice, he causes bodily harm to another by “seriously disfiguring his body or a member thereof” through the violation of OCGA § 40-6-390 (a). OCGA § 40-6-394. “Serious disfigurement” means to gravely or greatly impair or injure the appearance of a person. Keef v. State, 220 Ga. App. 134, 137 (1) (a) (469 SE2d 318) (1996). See Baker v. State, 246 Ga. 317, 318 (2) (271 SE2d 360) (1980); In the Interest of H. S., 199 Ga. App. 481 (405 SE2d 323) (1991). There is no requirement that the disfigurement be permanent. See Baker v. State, 245 Ga. 657, 667 (6) (266 SE2d 477) (1980); Keef, 220 Ga. App. at 137 (1) (a); In the Interest of H. S., 199 Ga. App. at 481. Furthermore, the question whether an injury constitutes serious disfigurement is normally for the trier of fact. Silvers v. State, 245 Ga. App. 486 (1) (538 SE2d 135) (2000). And if the indictment alleges that the victim was seriously disfigured in more than one way, the State need only prove that the victim suffered serious disfigurement in one of those separate ways to sustain a conviction. See Riddick v. State, 320 Ga. App. 500, 501 (1) (740 SE2d 244) (2013) (“If a crime may be committed in more than one way, it is sufficient for the [Sjtate to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.”) (punctuation and footnote omitted).

(a) The indictment alleged that the husband was seriously disfigured in that he suffered a fractured sternum and ribs as a result of the collision. According to Bray, the husband’s fractures did not constitute serious disfigurement because these injuries were not discernible to the naked eye and were only discovered once a CT scan was performed, and thus did not impair or injure the husband’s appearance. But whether fractured bones rise to the level of serious disfigurement turns on the specific facts of the case. See Harris v. State, 272 Ga. App. 366, 369 (2) (612 SE2d 557) (2005). And evidence that the victim fractured a bone, combined with photographs showing bruising or other visible injuries in the area of the fracture, can constitute sufficient evidence of serious disfigurement. See Christensen v. State, 245 Ga. App. 165, 167-168 (3) (537 SE2d 446) (2000); Pollard v. State, 230 Ga. App. 159, 160 (1) (495 SE2d 629) (1998).

Here, in conjunction with expert medical testimony that the husband sustained “multiple right-side rib fractures,” the State introduced a photograph showing severe bruising in that same area of his body. Accordingly, the trial court, sitting as the trier of fact, was authorized to find that the injury to the husband’s ribs rose to the level of serious disfigurement. See Christensen, 245 Ga. App. at 167-168 (3); Pollard, 230 Ga. App. at 160 (1). See also Baker, 245 Ga. at 667 (6) (victim’s fractured jaw bone could constitute serious disfigurement); Feagin v. State, 317 Ga. App. 543, 545 (1) (731 SE2d 778) (2012) (fractured eye socket combined with severe bruising could constitute serious disfigurement).

Bray, however, contends that the trial court could not rely upon the photographic evidence of bruising because the indictment did not specifically refer to bruising when describing the husband’s serious disfigurement. Bray’s contention is without merit. The indictment specifically averred that the husband was seriously disfigured as a result of the fractures to his ribs, and the State was not required to go further and summarize the specific evidence it intended to introduce at trial to prove that the fractures caused serious disfigurement. See Harris, 272 Ga. App. at 369 (2) (“Whether fractured bones constitute serious disfigurement will depend on the specific facts of the case, and the [S]tate is not required to allege all of those facts in the indictment.”) (footnotes omitted). See also Watson v. State, 178 Ga. App. 778, 780 (1) (344 SE2d 667) (1986) (physical precedent only) (State not required to summarize in indictment all of the evidence it intended to introduce at trial to support the charge); Mell v. State, 69 Ga. App. 302, 304 (25 SE2d 142) (1943) (same).

(b) The indictment alleged that the wife was seriously disfigured in that she suffered a fractured sternum and ribs, a dislocated finger, and a laceration to her head. Bray contends that the wife’s fractured sternum and ribs did not constitute serious disfigurement because they were not discernible to the naked eye, and that none of her remaining injuries were of sufficient severity to show that she was seriously disfigured as a result of the collision. We disagree. Separate and apart from the fractures, evidence that the wife dislocated her finger and sustained a head laceration requiring staples was sufficient to authorize the trial court to find serious disfigurement. See Ganas v. State, 245 Ga. App. 645, 646 (1) (a) (537 SE2d 758) (2000) (broken and distended finger could constitute serious disfigurement); Ramsey v. State, 233 Ga. App. 810, 811 (1) (505 SE2d 779) (1998) (lacerations requiring stitches could constitute serious disfigurement).

2. Bray also argues that the evidence was insufficient to support his convictions for possession of a firearm during the commission of a crime and possession of a firearm by a convicted felon. According to Bray, the State failed to prove that he knew that the nylon case was in the stolen pickup truck or that it contained a handgun. We do not agree.

In cases involving contraband found in automobiles, the State is generally entitled to an evidentiary presumption that the owner or driver of the automobile is in constructive possession of the contraband. Here, there was evidence indicating that [Bray] controlled the vehicle in which the [stolen handgun] was found. Thus, evidence existed for the [trial court] to find that [Bray] was guilty of [the firearm-related offenses] beyond a reasonable doubt.

(Punctuation and footnote omitted.) Salazar v. State, 326 Ga. App. 627, 630 (1) (b) (757 SE2d 224) (2014). See Turner v. State, 277 Ga. App. 205, 206-207 (1) (626 SE2d 176) (2006); Edwards v. State, 255 Ga. App. 269, 271-272 (2) (b) (565 SE2d 127) (2002).

“Furthermore, knowledge may be proved by facts and circumstances from which [the trier of fact] could reasonably infer that a defendant knowingly possessed contraband.” (Punctuation and footnote omitted.) Salazar, 326 Ga. App. at 630 (1) (b). In the present case, witnesses to the collision testified that there was only one occupant in the truck, the handgun did not belong to the truck’s owner, and the handgun was registered to a third party from whom it had been stolen. Moreover, while the handgun was in a zippered nylon case, the case was on the front passenger side floorboard, and the outline of the case was “more in the shape of a pistol” than rectangular. The trial court, sitting as the trier of fact, was entitled to infer from these circumstances, in combination with the fact that Bray was driving the truck in which the gun was found, that Bray knowingly possessed the handgun and thus find him guilty of the charged offenses. See Salazar, 326 Ga. App. at 630 (1) (b).

3. Bray further contends that the trial court’s decision to sentence him as a recidivist under OCGA § 17-10-7 (c) to 15 years in confinement without the possibility of parole constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Bray concedes that Georgia courts have upheld the constitutionality of sentences of confinement without the possibility of parole imposed pursuant to OCGA § 17-10-7 (c). See Hight v. State, 302 Ga. App. 826, 828-829 (5) (692 SE2d 69) (2010); Howard v. State, 233 Ga. App. 724, 727 (1) (c) (505 SE2d 768) (1998), overruled in part on other grounds by Wilson v. State, 277 Ga. 195, 199 (2) (586 SE2d 669) (2003). Nevertheless, citing to OCGA §§ 16-13-2 (c) and 17-10-7 (b.l), Bray argues that sentencing him as a recidivist was unconstitutionally cruel and unusual under the specific facts of this case because

Georgia has recognized that those convicted of non-violent crimes attributable to substance abuse issues should be given the opportunity to work through these substance abuse issues through focusing on rehabilitation, rather than being condemned to the prison system without any possibility of parole for the maximum time allowable for the offense charged.

We are unpersuaded.

“[A] punishment may be unconstitutionally cruel and unusual in the rare circumstance where the defendant’s sentence is ‘grossly disproportionate’ to the underlying crime.” Middleton v. State, 313 Ga. App. 193, 194 (721 SE2d 111) (2011). See Graham v. Florida, 560 U. S. 48, 60 (II) (130 SCt 2011, 176 LE2d 825) (2010). Notably, however, Bray does not dispute that his sentences fell within the statutory limits for the crimes charged. If the defendant’s sentence falls within the statutory range of punishment set by the legislature, a presumption arises that the sentence does not violate the Eighth Amendment, and the “presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience.” (Citation omitted.) Cuvas v. State, 306 Ga. App. 679, 683 (2) (703 SE2d 116) (2010). See also Smith v. State, 311 Ga. App. 184, 189 (10) (715 SE2d 434) (2011). Bray has failed to make such a showing.

Although Bray describes his crimes in this case as “non-violent,” he led the police on a dangerous car chase that culminated in his head-on collision with another vehicle, causing severe injury to its elderly occupants. Furthermore, his multiple prior convictions were all theft-related offenses, and in the present case, Bray was again in possession of a stolen vehicle. Under these circumstances, Bray’s contention that his recidivist sentence was unconstitutionally disproportionate to his crimes is without merit. See Willis v. State, 316 Ga. App. 258, 268 (7) (728 SE2d 857) (2012).

Judgment affirmed.

Boggs and Branch, JJ., concur.

Decided February 4, 2015

Reconsideration denied February 25, 2015

Benjamin A. Pearlman, for appellant.

Kenneth W. Mauldin, District Attorney, Kristopher M. Bolden, Assistant District Attorney, for appellee.

       In a separate indictment, Bray was charged with theft by taking for stealing a different Ford pickup truck in April 2011. The trial court heard evidence regarding this theft as part of the same bench trial and found Bray guilty of the charged offense.

       Bray elected not to testify and did not call any defense witnesses.

       A punishment also can he unconstitutionally cruel and unusual “if it violates certain narrow ‘categorical restrictions’ enunciated by the United States Supreme Court,” such as the imposition of the death penalty upon juvenile offenders. (Citations omitted.) Middleton, 313 Ga. App. at 194. See Graham, 560 U. S. at 60-61 (II); Roper v. Simmons, 543 U. S. 551, 568 (III) (B) (125 SCt 1183, 161 LE2d 1) (2005). Bray does not allege that his punishment violates any “categorical restrictions.”


author: McFadden, Judge.

text:
    A14A1842.
    IKOMONI v. BANK OF AMERICA, N.A.
    (769 SE2d 527)
   McFadden, Judge.

This appeal is from a trial court order granting a motion to dismiss a complaint for failure to state a claim. Because it does not appear with certainty that the plaintiff would be entitled to no relief under any set of facts that could be proven in support of his claims, we reverse.

Alexander Ikomoni filed a pro se complaint against Bank of America, N.A., asserting counts for wrongful foreclosure, mental anguish and punitive damages. In support of these counts, he alleged as operative facts that he had acquired interests in two properties by quitclaim deed; that the deeds were recorded; that the bank knew or should have known of his ownership from conversations with him and his repeated calls informing it of his interest; that the bank foreclosed on the properties without giving him any notice of the foreclosure or advertising the foreclosure as required by law; that the price realized at the foreclosure sale was inadequate; and that he has suffered extreme mental anguish as a result of the bank’s wanton, reckless, extreme and outrageous conduct.

The bank filed a motion to dismiss the complaint, pursuant to OCGA § 9-11-12 (b) (6), for failure to state a claim upon which relief could be granted. The trial court granted the motion and dismissed the complaint for failure to state a claim. Ikomoni appeals.

A trial court should not grant a motion to dismiss for failure to state a claim upon which relief may be granted unless:

(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor. In other words, a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

Webb v. Bank of America, 328 Ga. App. 62, 63 (761 SE2d 485) (2014) (citation omitted). Moreover, “[a] pro se complaint[, such as Ikomoni’s,] is not held to stringent standards of formal pleadings.” Johnson v. Jones, 178 Ga. App. 346, 349 (343 SE2d 403) (1986) (citations omitted).

In this case, the allegations of the complaint do not disclose with certainty that Ikomoni would not be entitled to relief under any set of provable facts. On the contrary, within the framework of the complaint, he may be able to introduce evidence supporting his allegations, including that the bank acknowledged his ownership of the property, which he used as a dwelling place, so that he was entitled to notice under OCGA § 44-14-162.1 and then-applicable § 44-14-162.3, yet the bank did not notify him of the foreclosure as required by OCGA § 44-14-162.2. Such a state of provable facts could warrant a grant of the relief sought for wrongful foreclosure and the other counts. Webb, 328 Ga. App. at 63. Amotion to dismiss addressed to an entire complaint, such as the bank’s, should not be granted if the complaint sets forth at least one claim. Walker v. Gowen Stores, 322 Ga. App. 376, 378 (745 SE2d 287) (2013).

Ikomoni’s purported failure to allege certain elements of the various causes of action set forth in the complaint does not mandate dismissal because

[i]t is no longer necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. Likewise, the bank’s own factual allegations, such as its claim that [Ikomoni was not a debtor as defined in the statute and thus was not entitled to notice], do not require dismissal of the complaint for failure to state a claim. This is factual evidence which may or may not be developed during discovery and can be considered on a subsequent motion for summary judgment. Because it cannot be said with certainty that within the framework of the complaint no evidence could be introduced that would support the claims for relief, the motion to dismiss should have been denied.

Decided February 25, 2015.

Mack & Harris, Robert L. Mack, Jr., for appellant.

McGuireWoods, Jarrod S. Mendel, for appellee.

Webb, 328 Ga. App. at 64 (citations and punctuation omitted).

Judgment reversed.

Andrews, P. J., and Ray, J., concur.

       Under the version of OCGA § 44-14-162.3 applicable to this case, a secured creditor was required to give OCGA § 44-14-162.2 (a) notice only for foreclosed properties “ ‘used as a dwelling place by the debtor,’ . . . but the General Assembly removed this limitation in an amendment effective July 1, 2012.” Peters v. CertusBank Nat. Assn., 329 Ga. App. 29, 31 (2) (763 SE2d 498) (2014) (citation omitted) (physical precedent only). Under the amended version of the statute, the secured creditor must give notice to all debtors, regardless of whether the property is used as a dwelling place. See id.


author: McFADDEN, Judge.

text:
    A14A1863.
    BROWN v. SEABOARD CONSTRUCTION COMPANY.
    (769 SE2d 530)
   McFADDEN, Judge.

Marietta Brown was injured in a single-vehicle accident that she attributed to a poorly paved road. Defendant Seaboard Construction had performed paving work on the road several years before the accident. Brown, along with the vehicle’s driver, Oscar Mangram, sued Seaboard, alleging that Seaboard’s employees had negligently performed the paving work and that Seaboard had negligently failed to warn of the road’s dangerous and defective condition. The trial court granted summary judgment to Seaboard, and Brown appeals. Because Seaboard has demonstrated the absence of a genuine issue of material fact, we affirm the trial court’s grant of summary judgment. We do not reach Brown’s claim that the trial court erred in dismissing Mangram’s appeal, because that ruling is not properly a part of this case.

1. Summary judgment.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c); Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). “A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims.” Cowart, 287 Ga. at 623 (1) (a) (citation and punctuation omitted). Once a defendant moving for summary judgment discharges this burden, “the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Id. (citation and punctuation omitted). We review a grant of summary judgment de novo and construe the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Abdel-Samed v. Dailey, 294 Ga. 758, 760 (1) (755 SE2d 805) (2014).

So viewed, the evidence showed that in 1997 and 1998, Seaboard repaved a portion of the F. J. Torras Causeway pursuant to a contract with the Department of Transportation (DOT). Several years later, on a morning in October 2005, Mangram was driving Brown to work on the causeway when he hit a water-filled pothole, hydroplaned, and collided with a guardrail. In her lawsuit, Brown alleged that the accident and her resulting injuries were proximately caused by Seaboard’s repaving work, which she claimed was negligently performed.

The general rule is that “a road contractor cannot be held responsible for completed work over which it no longer exercises any control.” Baker v. Reynolds Trucking Co., 181 Ga. App. 242, 243 (351 SE2d 657) (1986). “[T]he contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least, if the defect is not hidden but readily observable on reasonable inspection.” Id. at 243-244 (citations and punctuation omitted). There are exceptions to this rule where the work is a nuisance per se, or inherently or intrinsically dangerous, or so negligently defective as to be imminently dangerous. Id. at 244. But

[i]f the work performed by the contractor is not shown to come within one of the exceptions to the general rule, when the work is finished by him and accepted by his employer, the liability of the former generally ceases and the employer becomes answerable for damages which may thereafter accrue from the defective conditions of the work.

Id. (citations and punctuation omitted). See also Ogles v. E. A. Mann & Co., 277 Ga. App. 22, 24 (1) (625 SE2d 425) (2005) (discussing general rule of road contractor liability).

Pursuant to this rule, Seaboard argues that it is not liable to Brown because the DOT accepted its earlier repaving work. In an earlier appearance of this case before this court, however, we reversed a grant of summary judgment to Seaboard, holding that Seaboard could not use an affidavit of its president, Stephen Swan, to support its motion because the business records referred to and relied upon by the affiant were not attached thereto, and because the remaining evidence did not demonstrate that Seaboard was entitled to summary judgment. Brown v. Seaboard Constr. Co., 317 Ga. App. 667, 669 (2) (732 SE2d 325) (2012) {Brown I). On remand, Seaboard moved again for summary judgment, submitting the affidavit of its vice president, Jeffrey Kicklighter, who stated that he had worked for Seaboard for more than 20 years and had personal knowledge of the “subject causeway repaving.” Among other things, Kicklighter stated that in 1998 Seaboard completed the causeway repaving and the DOT accepted that work.

This evidence was sufficient for Seaboard either to negate an essential element of or to show an absence of evidence to support Brown’s claim. The Kicklighter affidavit established that Seaboard had finished its repaving work and the DOT had accepted that work well before the accident in this case occurred. Although Brown correctly points out that the affidavit referred to and included an unauthenticated DOT document, Kicklighter’s testimony about the repaving work’s completion and acceptance was not dependent upon the DOT document. “To the extent that the affidavit was based on his personal knowledge, it was admissible,” Manesh v. Baker Equip. Engineering Co., 247 Ga. App. 407, 410 (1) (a) (543 SE2d 61) (2000) (citations omitted), and the affidavit makes clear that Kicklighter had personal knowledge about the repaving work (unlike the earlier affiant, Swan, who had not worked for Seaboard at the time of the repaving work). The affidavit indicates that Kicklighter referred to the DOT document for the precise dates of the work’s completion and acceptance. Those precise dates are not necessary to resolve the summary judgment motion, because — regardless of those precise dates — the record contains no evidence either that Seaboard had not completed the work or that the DOT had not accepted the work by 2005, when the accident occurred. Compare Johnson v. E. A. Mann & Co., 273 Ga. App. 716, 719 (2) (616 SE2d 98) (2005) (summary judgment to road contractor was not appropriate where there was evidence that the accident occurred before the DOT gave its final acceptance of the road work). Likewise, nothing in the record suggests that, at the time of the 2005 accident, Seaboard was exercising any control over the causeway. See Ogles, 277 Ga. App. at 24 (1) (“a road contractor cannot be held responsible for completed work over which it no longer exercises any control”) (citation and punctuation omitted). See generally Fraker v. C. W. Matthews Contracting Co., 272 Ga. App. 807, 810 (2) (614 SE2d 94) (2005) (“Georgia law dictates that the DOT shall have control and responsibility for all construction and maintenance of the state highway system.”) (citation omitted).

Finally, nothing in the record suggests that the causeway had a “hidden” defect when the DOT accepted the work or that any of the other exceptions to the general rule regarding road contractor liability apply. Evidence that a water-filled pothole existed on the causeway in October 2005 does not demonstrate that it was due to a “hidden” defect in Seaboard’s work, performed several years earlier, or that Seaboard’s work was a nuisance per se, was inherently or intrinsically dangerous, or was so negligently defective as to be imminently dangerous. See Smith v. Dabbs-Williams Gen. Contractors, 287 Ga. App. 646, 648-649 (2) (653 SE2d 87) (2007); Baker, 181 Ga. App. at 244. Although Brown testified that the causeway “always [had] puddles,” neither her testimony nor any other record evidence offers insight into when or why the pothole at issue in this case developed.

Because Seaboard discharged its burden as movant for summary judgment, Brown was required to point to specific evidence in the record that created a genuine issue of material fact. Cowart, 287 Ga. at 623 (1) (a). She did not do so. Although she argues that Seaboard’s president gave contradictory affidavit testimony as to whether the construction was completed in 1997 or 1998, we held in Brown I, 317 Ga. App. at 668 (1), that the testimony was not contradictory and that holding is binding in this case. See OCGA § 9-11-60 (h). The trial court did not err in granting summary judgment to Seaboard.

2. Dismissal of Mangram’s appeal.

After the trial court granted summary judgment to Seaboard, Brown and Mangram filed a notice of appeal. The trial court subsequently dismissed Mangram’s appeal for his failure to pay costs. The appellate brief in this case, which purports to be on behalf of Man-gram as well as Brown, enumerates this dismissal as error. By virtue of the dismissal order, however, Mangram is not a party to this appeal, and because the dismissal order was entered after the filing of the notice of appeal in this case it cannot be enumerated as error in this appeal. See Bloomfield v. Bloomfield, 282 Ga. 108, 112 (5) (646 SE2d 207) (2007).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

Decided February 25, 2015.

W. Douglas Adams, for appellant.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard A. Brown, Jr., for appellee.


author: DOYLE, Presiding Judge.

text:
    A14A1743.
    PIERRE v. THE STATE.
    (769 SE2d 533)
   DOYLE, Presiding Judge.

Following a jury trial, Stanley Claude Pierre was convicted of false imprisonment, theft by taking, and three counts of battery. He appeals the denial of his subsequent amended motion for new trial, challenging the sufficiency of the evidence and arguing that he received ineffective assistance of counsel. We affirm for the reasons that follow.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.[] Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.

So viewed, the record shows that on December 6, 2011, Officer Jennifer Freshwater was dispatched to Brenda Copeland’s home in response to a domestic disturbance call. Copeland met Officer Freshwater in the driveway, and the officer observed that Copeland’s shirt was ripped, her mouth was bleeding, and she had a large knot on the back of her head. Once inside the home, Officer Freshwater saw that the bedroom, attached bathroom, and closet were in disarray, and the box spring was exposed “as if someone had either been pushed on it or it had been moved to remove an item from underneath it or between the two.” Copeland told the officer that Pierre came to her home to retrieve some personal items after they recently ended their six-month relationship. Pierre locked Copeland in her bedroom, took her cell phone, and called her employer to say that she was sick and would not be at work that day. When Copeland tried to escape, Pierre pushed her onto the bed, struck her in the mouth and j aw, and told her that “she wasn’t going to leave until he f-ked her up.” Pierre then struck her in the back of the head with a blunt object, which she believed was a shotgun that he kept in her bedroom between the mattress and the box spring. Copeland lost consciousness, and when she came to, Pierre was standing over her with the gun in his hands. Copeland talked Pierre into allowing her to get ice for her injuries, and she tried to escape through the front door, but he pulled her back into her home and threw her to the ground. Copeland eventually escaped through a side door and ran to a neighbor’s home, and the neighbor called 911. Pierre fled, running toward his home. Copeland gave a written statement, and police took photographs of her injuries, which were later shown to the jury.

Police spotted Pierre when they arrived on the scene, but he fled when he saw the police car. Police recovered a loaded sawed-off shotgun in Copeland’s next-door neighbor’s yard. Pierre was eventually apprehended and charged with false imprisonment, theft by taking, three counts of family violence battery, aggravated assault, reckless conduct, possession of a dangerous weapon, possession of an illegal weapon, and possession of a firearm during the commission of a crime.

Copeland testified at trial, recanting her statement to the police. Copeland testified that on the day of the incident, she returned home and found Pierre in bed with another woman. Copeland told Pierre that she was “going to hurt him,” they “tussled,” and Pierre “hit [her] by accident” and “elbowed [her] ... in [the] mouth . . . because [Copeland] was grabbing at him, trying to get at [the other woman].” According to Copeland, she lied to the police and fabricated the allegations against Pierre because she was angry; Pierre did not intentionally strike her nor did he threaten her with a gun.

At the conclusion of the trial, the jury found Pierre guilty of false imprisonment, theft by taking, and three counts of battery (as lesser included offenses of family violence battery); Pierre was acquitted of the remaining charges. This appeal follows the denial of his motion for new trial.

1. Pierre argues that the evidence was insufficient to support his convictions. We disagree.

Viewed in the light most favorable to the verdict, the evidence shows that Pierre locked Copeland in her room, struck her in the face, hit her in the back of the head with a blunt object, threw her to the floor when she tried to escape, and took her cell phone. Given this evidence, the jury was authorized to find Pierre guilty beyond a reasonable doubt of false imprisonment, theft by taking, and three counts of battery.

The fact that Copeland later disavowed her statements to the police does not require reversal.

[T]he jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from the evidence. This is true even in cases in which the victim recants her previous accusation against the defendant. The reason for this rule is that a victim’s prior inconsistent statements are admissible as substantive evidence for the jury’s consideration[] Thus, a jury is authorized to believe the victim’s pre-trial statements rather than her in-court disavowal.

2. Pierre contends that trial counsel was ineffective because he failed to request a jury charge on justification. This enumeration is without merit.

Under Strickland v. Washington, [] to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. When reviewing the trial court’s decision, this Court will accept the trial court’s factual findings and credibility determinations unless clearly erroneous; however, we review the court’s application of legal principles de novo.
[I]f a defendant bases his ineffectiveness claim on trial counsel’s failure to request a charge on a certain defense, it is irrelevant whether the trial court would have been required to give such a charge absent a request. Rather, the appropriate inquiry is whether trial counsel provided deficient representation in failing to request the charge, and if so, whether the defendant can meet the prejudice prong of Strickland v. Washington. In making the latter determination, the relevant inquiry is whether the charge, if it had been requested, was warranted by the evidence, and if it had been given, whether there is a reasonable probability that it would have changed the outcome of the trial.

“Justification is an affirmative defense whereby the defendant admits acting with the intent to inflict an injury, but claims that he did so while in reasonable fear of suffering immediate serious harm to himself or another.” Here, Pierre did not admit committing any of the offenses with which he was charged. And even assuming that a witness’s testimony can provide the basis for a justification defense in the absence of an admission by the defendant, Copeland testified that Pierre accidentally struck her. Because the evidence did not support a charge on justification, trial counsel’s failure to request one does not constitute ineffective assistance.

Decided February 27, 2015.

Raina J. Nadler, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       OCGA § 16-5-41 (a).

       OCGA § 16-8-2.

       OCGA § 16-5-23.1 (a). Pierre was charged with three counts of family violence battery, but the jury found him guilty of battery as a lesser included offense; he was acquitted of aggravated assault, reckless conduct, possession of a dangerous weapon, possession of an illegal weapon, and possession of a firearm during the commission of a crime.

       443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       (Punctuation and footnotes omitted.) Taylor v. State, 327 Ga. App. 882, 892 (9) (761 SE2d 426) (2014), quoting Waller v. State, 267 Ga. App. 608 (600 SE2d 706) (2004).

       Copeland explained that she loved Pierre, and they were still together at the time of the trial.

       See Jackson, 443 U. S. at 319 (III); OCGA §§ 16-5-41 (a) (false imprisonment); 16-8-2 (theft by taking); 16-5-23.1 (a) (battery).

       See former OCGA § 24-9-83 (this case was tried in 2012). Georgia’s new Evidence Code addresses the introduction of a witness’s prior inconsistent statement at OCGA § 24-6-613 (b).

       (Punctuation omitted.) Miller v. State, 300 Ga. App. 652, 655 (686 SE2d 302) (2009), quoting Andrews v. State, 275 Ga. App. 426, 429 (1) (620 SE2d 629) (2005).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

       (Punctuation omitted.) Williams v. State, 326 Ga. App. 665, 669-670 (3) (757 SE2d 267) (2014), quoting Russell v. State, 319 Ga. App. 472, 476 (3) (735 SE2d 797) (2012).

        Bush v. State, 271 Ga. 156, 157-158 (2) (517 SE2d 509) (1999), citing Lucas v. State, 265 Ga. 514, 516-517 (3) (458 SE2d 103) (1995).

        Alston v. State, 277 Ga. App. 117 (1) (a) (625 SE2d 475) (2005). See also McPetrie v. State, 263 Ga. App. 85, 88 (2) (587 SE2d 233) (2003) (“[trustification is an affirmative defense, and as a general rule, a defendant must admit the crime before he can raise that defense.”) (punctuation omitted).

       Pierre did not testify at trial, and neither opening nor closing statements were included in the appellate record.

       See Branton v. State, 258 Ga. App. 221, 225 (4) (573 SE2d 475) (2002); Porter v. State, 272 Ga. 533, 534-535 (3) (531 SE2d 97) (2000) (justification defense requires “reasonable] beliejf] that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force”) (emphasis supplied).