author: DOYLE, Presiding Judge.

text:
    A14A2255.
    HAYNES v. THE STATE.
    (769 SE2d 801)
   DOYLE, Presiding Judge.

George Haynes appeals from his conviction for tampering with evidence and committing financial transaction card fraud, contending that he was incorrectly sentenced for felony tampering because the indictment was ambiguous as to whether it alleged the felony or misdemeanor version of that offense. For the reasons that follow, we agree and remand the case for resentencing.

Based on his role in a burglary by an alleged accomplice resulting in the stabbing death of the victim, Haynes was indicted for felony murder, burglary, aggravated assault, armed robbery, possession of a knife during the commission of a crime, tampering with evidence, and financial transaction card fraud. Following a jury trial during which his alleged accomplice testified, Haynes was acquitted of all counts except for tampering with evidence and financial transaction card fraud. The trial evidence showed that Haynes’s alleged accomplice entered a mobile home to steal money and encountered the occupant, whom he killed during a struggle over a knife. The alleged accomplice then fled through a wooded path to a retail parking lot where Haynes was waiting in a car. The tampering charge arose from evidence that Haynes disposed of his alleged accomplice’s blood spattered jumpsuit and the victim’s wallet in a dumpster after the burglary.

The trial court sentenced Haynes to ten years confinement for the tampering count and two years concurrently for the fraud count. Haynes now appeals the sentence on the tampering count, arguing that the trial court erred by sentencing him for a felony when the indictment did not clearly charge him with a felony.

OCGA § 16-10-94 (c) provides the sentencing structure for tampering with evidence:

... [A] ny person who [commits the offense of tampering with evidence] involving the prosecution or defense of a felony and involving another person shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than three years; provided, however, that any person who violates subsection (a) of this Code section involving the prosecution or defense of a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1 and involving another person shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years. Except as otherwise provided in this subsection, any person who violates subsection (a) of this Code section involving the prosecution or defense of a misdemeanor shall be guilty of a misdemeanor.

Based on the emphasized language above, Georgia’s courts have interpreted this subsection to authorize a felony sentence only when the tampering is done in the case against another person. Tampering with evidence in one’s own case is merely a misdemeanor.

Haynes’s indictment accused him as follows:

We, the Grand Jurors aforesaid, do further charge and accuse [the alleged accomplice] and George Lee Haynes . . . with the offense of TAMPERING WITH EVIDENCE for that the said [alleged accomplice and Haynes] . . . did, with the intent to prevent the apprehension of each said accused for the felony offense of Murder, knowingly conceal certain physical evidence, to wit: the coveralls of [the alleged accomplice] and a wallet of [the victim], in violation of OCGA § 16-10-94, [c]ontrary to the laws of [Georgia].

Relying on Hampton v. State, Haynes argues that the indictment does not allege specifically whether he tampered with the evidence to prevent his own apprehension or the apprehension of his alleged accomplice. Therefore, Haynes argues, it is ambiguous and it must be construed in his favor, especially in light of the fact that neither the jury charge nor the verdict form required any specificity by the jury in its decision.

Hampton addressed a very similar scenario in which the indictment alleged tampering “to prevent the apprehension of [accomplice 1], [Hampton], and [accomplice 2] ,” Because of this nonspecific language, the Supreme Court of Georgia concluded that

[t]he indictment, along with the jury charge and the evidence, permitted the jury to find that Hampton tampered with the evidence in his case alone (a misdemeanor) or in either or both [accomplice l’s] and [accomplice 2’s] case (a felony). However, the verdict form simply contained a finding of guilty on the tampering count, making it impossible to determine if the jury found Hampton guilty of misdemeanor or felony tampering.

Based on the resulting ambiguity of the jury’s verdict, the Court vacated Hampton’s felony tampering sentence and remanded for misdemeanor sentencing, “[b]ecause Hampton must be given the benefit of the doubt in construing this ambiguous verdict.”*

Here, the situation is no different. The indictment accused Haynes and his alleged accomplice of tampering “with the intent to prevent the apprehension of each said accused.” Because “each said accused” could mean either of the accused, the jury could have found Haynes guilty of tampering to prevent his own apprehension (a misdemeanor) or the apprehension of his alleged accomplice (a felony). Neither the verdict form nor the jury charge required any further specificity. Therefore, as in Hampton, Haynes “must be given the benefit of the doubt in construing this ambiguous verdict.” Accordingly, we vacate Haynes’s felony tampering sentence and remand for resentencing in accordance with this opinion.

Decided March 11, 2015.

John W. Donnelly, for appellant.

Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellee.

Judgment reversed and case remanded.

Miller and Dillard, JJ., concur.

       OCGA § 16-10-94 (a).

       OCGA § 16-9-33 (a) (1).

       According to the State’s appellate brief, Haynes was initially found incompetent to stand trial, then later restored to competence; the State initially filed a notice of intent to seek the death penalty, then later withdrew that notice; and Haynes entered into a negotiated guilty plea, which he later withdrew pursuant to a consent order.

         Immediately following the burglary, Haynes purchased gas with the victim’s ATM card.

       (Emphasis supplied.)

       See, e.g., DeLeon v. State, 289 Ga. 782, 783 (1) (716 SE2d 173) (2011) (“Inasmuch as the evidence showed appellant threw the murder weapon away thereby tampering with evidence in his own case and not that of another, he could not be convicted of a felony, but only convicted of a misdemeanor.”); White v. State, 287 Ga. 713, 717 (1) (d) (699 SE2d 291) (2010) (“because appellant tampered with evidence in his own case and not to prevent the apprehension or prosecution of anyone other than himself, he was guilty of misdemeanor tampering”), citing Perry v. State, 283 Ga. App. 520, 521 (2) (642 SE2d 141) (2007); English v. State, 282 Ga. App. 552, 553 (2) (639 SE2d 551) (2006).

       See White, 287 Ga. at 717 (1) (d).

       289 Ga. 621 (713 SE2d 851) (2011).

       Id. at 623 (3).

       Id.

       Id., citing Lindsey v. State, 262 Ga. 665, 665-666 (1) (424 SE2d 616) (1993) (“[a] defendant is entitled to the benefit of the doubt in the construction of an ambiguous verdict”).

       Hampton, 289 Ga. at 623 (3).

       See id.; White, 287 Ga. at 718 (1) (d).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A14A2294, A14A2296.
    THE STATE v. GREEN (two cases).
    (769 SE2d 804)
   Boggs, Judge.

The State appeals from the trial court’s orders granting the motions by Carl Green and Quintavis Green (“the Greens”) to suppress evidence obtained as the result of an illegal stop without articulable suspicion (“the orders on the motions to suppress”). The State also appeals from the trial court’s orders dismissing 14 counts of the indictment against the Greens on account of the State’s failure to preserve exculpatory evidence (“the dismissal orders”). The Greens have moved to dismiss the State’s appeals of the dismissal orders for lack of jurisdiction. Because the State failed to secure certificates of immediate review under the version of OCGA § 5-7-2 applicable to this indictment, we dismiss the appeals from those orders. And because our dismissals resolve the counts upon which the trial court granted the motions to suppress, we also dismiss the State’s appeals of the orders on the motions to suppress as moot.

1. The trial court entered the dismissal orders based upon the State’s failure to preserve exculpatory evidence, finding that the State destroyed evidence in bad faith and that no alternative means of recovering that evidence existed. As a result, it dismissed 14 counts of the indictment. The Greens have moved to dismiss the State’s appeals from these orders on the ground that this court lacks jurisdiction under OCGA § 5-7-2, because the State failed to obtain a certificate of immediate review.

The Greens were arrested on September 11,2011 and indicted as part of a 116-count indictment naming 32 defendants. Both Greens were jointly charged in seven counts with hijacking a motor vehicle, armed robbery, aggravated assault, and four counts of “Violation of Street Gang Terrorism and Prevention Act” (“gang activity”). Quintavis Green was individually charged with one additional count of gang activity and possession of a firearm during the commission of a felony; Carl Green was individually charged with three additional counts of gang activity, possession of a firearm during the commission of a felony, and two counts of carrying a weapon without a license.

The Greens moved to suppress statements and other evidence based on violation of the reciprocal discovery rules and to dismiss the indictment against them on due process and confrontation clause grounds. A hearing was held at which the investigating officers and the records custodian for the police department testified that the recorded interviews with the Greens and the man who was arrested with them had been destroyed. After the hearing, the trial court entered orders finding that the interviews were exculpatory and favorable to the Greens, that this was known to the investigators, and that they failed to preserve the interviews in violation of department policy. It further concluded that the State acted in bad faith in failing to preserve the interviews, that the destroyed evidence was exculpatory, and that there was no reasonable alternative means to recover it. It therefore dismissed the indictment as it pertained to the Greens. The State did not obtain certificates of immediate review, but filed direct appeals “from the trial court’s September 13, 2013, orders granting the Defendant’s motions to suppress and dismiss.”

OCGA § 5-7-1 (a) (1) now provides that the State may appeal “[f]rom an order, decision, or judgment setting aside or dismissing any indictment, accusation, or a petition alleging that a child has committed a delinquent act, or any count thereof.” But at the time of the acts for which the Greens were indicted, OCGA § 5-7-2 provided in its entirety:

Other than from an order, decision, or judgment sustaining a motion to suppress evidence illegally seized, in any appeal under this chapter where the order, decision, or judgment is not final, it shall be necessary that the trial judge certify within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that an immediate review should be had.

OCGA § 5-7-2 was amended in 2012 to provide, inter alia, that a certificate of immediate review is no longer required to appeal from an order dismissing only part of an indictment under OCGA § 5-7-1 (a) (1). OCGA § 5-7-2 (b) (2). But the enacting legislation specifically provides that “this Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense.” Ga. L. 2012, p. 899, § 9-1 (a). See also State v. Hill, 321 Ga. App. 679, 681 (742 SE2d 497) (2013). As noted above, the Greens were arrested and charged in 2011, so the former statute applies.

As the Greens observe, our Supreme Court has addressed the question of our jurisdiction under OCGA § 5-7-2in State v. Outen, 289 Ga. 579 (714 SE2d 581) (2011). There, the trial court granted a plea in bar as to one count of a two-count indictment. The State appealed, and this court affirmed the plea in bar, but our Supreme Court reversed, observing:

The ability of the State to appeal in a criminal case is governed by OCGA §§ 5-7-1 and 5-7-2. In OCGA § 5-7-1 (a), the General Assembly has set forth only a limited right of appeal for the State in criminal cases. If the State attempts an appeal outside the ambit of OCGA § 5-7-1 (a), the appellate courts do not have jurisdiction to entertain it.

(Citations and punctuation omitted.) Id. at 580. The court further noted:

The trial court’s order dismissing Count 1 of the indictment is not a final order; Count 2 remains in the trial court. Accordingly, by the plain terms of OCGA § 5-7-2, a certificate of immediate review was required.
The requirement of OCGA § 5-7-2 will not be bypassed. OCGA § 5-7-1 et seq. must be construed strictly against the State and liberally in favor of the interests of defendants. The State did not secure the required certificate, and the order granting the special demurrer as to Count 1 is thus not appealable; the State’s attempted appeal is nugatory and does not activate appellate jurisdiction.

(Citations and punctuation omitted.) Id. at 581. The Supreme Court accordingly vacated the judgment and directed this court to dismiss the appeal for want of jurisdiction. Id.; see also Hill, supra, 321 Ga. App. at 681 (five counts of 37-count indictment dismissed; “[t]he State having failed to obtain a certificate of immediate review pursuant to OCGA § 5-7-2, the attempted appeal is nugatory and does not activate the appellate jurisdiction of this Court”).

Here, the trial court dismissed only 14 counts of a 116-count indictment, leaving the remainder of the indictment pending below. In its response to the Greens’ motions to dismiss, the State argues only that all the counts against these two defendants were dismissed, so that the prosecution has terminated as to them. But neither the statute nor the case law treats such an order as “final” for purposes of appealability. In State v. Ware, 282 Ga. 676 (653 SE2d 21) (2007), our Supreme Court in applying OCGA § 5-7-2 addressed the question of whether a trial court order granting a new trial in a criminal case was “final.” In making its determination, the court looked to the analogous provisions in civil cases, and concluded that the grant of a new trial in a criminal case is not “final” for purposes of appeal “because it results in the continuing pendency of the case in the lower court. [Cit.]” Id. at 677. In civil litigation, “[i]n the absence of express direction by the court, any order, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties.” (Citations and punctuation omitted.) Fulton County Bd. of Tax Assessors v. Toro Properties VI, 329 Ga. App. 26, 28 (763 SE2d 496) (2014). “While the case was still pending as to some parties, the judgment in favor of others was not final. [Cits.]” Lawson v. Athens Auto Supply & Electric, 200 Ga. App. 609, 611 (1) (409 SE2d 60) (1991). By analogy, the dismissal of fewer than all the counts of an indictment, even if it disposes of all counts against a particular defendant, therefore is not “final” for purposes of appeal. This is particularly true in light of our appellate courts’ consistent holding that “OCGA §§ 5-7-1 and 5-7-2 must be strictly construed against the State. [Cits.]” Ware, supra, 282 Ga. at 677.

Decided March 11, 2015.

Gregory W. Edwards, District Attorney, Smith N. Wilson, Assistant District Attorney, for appellant.

Jimmonique R. S. Rodgers, James C. Bonner, Jr., Robert R. McLendon TV, Randall P. Sharp, Kevin C. Armstrong, for appellees.

“The State having failed to obtain a certificate of immediate review pursuant to OCGA § 5-7-2, the attempted appeal is nugatory and does not activate the appellate jurisdiction of this Court.” (Citation and punctuation omitted.) Ware, supra, 282 Ga. at 678. Appellees’ motions to dismiss therefore are granted, and the appeals from the dismissal orders are dismissed.

2. Because the trial court dismissed all the counts of the indictment as to which the motions to suppress would be applicable, and we have affirmed those dismissals, the State’s appeals of the trial court’s orders granting the Greens’ motions to suppress are dismissed as moot. “[T]he general rule is that if [appellant] would receive no benefit by reversal of the case, it is moot.” (Citation, punctuation and footnote omitted.) Clark v. State, 301 Ga. App. 354, 355 (687 SE2d 593) (2009).

Appeals dismissed.

Barnes, P. J., and Branch, J., concur.

       Quintavis Green’s amended motion asserting the State’s failure to preserve exculpatory evidence is styled “Defendant’s Amended Motion to Suppress; Motion to Dismiss; and Brief in Support.” The trial court’s order granting that motion is styled “Order Granting Defendant’s Motion to Suppress Pursuant to the State Failing to Preserve Evidence.” But the trial court expressly found that the State acted in had faith in failing to preserve the evidence, that it could not reasonably be reproduced, and that Green’s due process rights were violated, and it ordered the relevant counts of the indictment “DISMISSED with prejudice.” “[T]he appealability of an order is ultimately determined by its substance and effect, not its nomenclature. [Cit.]” State of Ga. v. Singh, 291 Ga. 525, 526 (1) (731 SE2d 649) (2012).

       The trial court incorporated its findings in the order on Quintavis Green’s motion into its order on Carl Green’s motion.

       The State does not argue that the dismissal order is appealable under OCGA § 5-7-1 (a) (4). The dismissal order is in any event not an order “suppressing or excluding evidence illegally seized.” (Emphasis supplied.) Id. See also former OCGA § 5-7-2, infra.

       The State cites a decision, of this court, State v. Henderson, 283 Ga. App. 111 (640 SE2d 686) (2006), in which one count of an indictment was dismissed and the other apparently remained pending below, but we nevertheless addressed the appeal under OCGA § 5-7-1 (a). Id. at 111-112 (1). But there, the issue presented was different: the appellant claimed that the dismissal amounted to an acquittal and therefore was not appealable. The question of whether the judgment was “final” within the meaning of OCGA § 5-7-2 was not addressed. Id. Moreover, as the Supreme Court made clear in Outen, supra, 289 Ga. at 582, when an issue of jurisdiction is neither raised nor ruled upon in an appellate decision, the question only “ ‘lurk[s] in the record’ ” and the exercise of jurisdiction is not precedential.


author: Miller, Judge.

text:
    A14A2307.
    MORNAY et al. v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
    (769 SE2d 807)
   Miller, Judge.

Kenneth Mornay, Sr., individually and as the administrator of the Estate of Sylvia Mornay, Sharon Marie Mornay Bright, and Karen Ann Thomas (collectively “the Plaintiffs”) filed suit against Southeastrans, Inc. and its liability insurer, National Union Fire Insurance Company of Pittsburgh, PA (“National Union”), for claims arising out of Sylvia Mornay’s death. The Plaintiffs named National Union as a party pursuant to OCGA § 40-1-112, which allows plaintiffs to file a direct action against the insurers of motor carriers. National Union moved for summary judgment on the ground that the relevant vehicle fell within an exemption to the motor carrier definition under OCGA § 40-1-100 (12) (B) (vii). The trial court granted National Union’s motion. The Plaintiffs appeal, contending that the trial court erred in concluding that the subject vehicle was exempt from the definition of a motor carrier. For the reasons that follow, we affirm.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant’s favor, warrant judgment as a matter of law. We review de novo a trial court’s [grant or] denial of summary judgment, construing the evidence in a light most favorable to the nonmoving party.

(Footnotes omitted.) Occidental Fire & Cas. Co. of North Carolina v. Johnson, 302 Ga. App. 677 (691 SE2d 589) (2010).

So viewed, the evidence shows that the Department of Community Health (“DCH”) contracted with Southeastrans to act as a broker of non-emergency medical transportation to Medicaid members in Georgia. In turn, Southeastrans contracted with Samuel Maddy d/b/a Drop-4-Care Transportation to provide transportation services pursuant to Southeastrans’s DCH contract.

On April 19, 2010, Southeastrans dispatched a Drop-4-Care van to transport Sylvia Mornay from her nursing home to a medical appointment. During transport, the Drop-4-Care van, a 2002 Ford Ecoline E-350, stopped abruptly, causing Mornay to flip over in her wheel chair, resulting in injuries that ultimately led to her death. At the time of the accident, National Union provided automobile liability insurance to Southeastrans.

The Plaintiffs sued Southeastrans and its insurers, including National Union. The trial court granted summary judgment to National Union, finding that the Plaintiffs could not bring a direct action against National Union under OCGA § 40-1-112 because the Drop-4-Care van fell within an exemption to the motor carrier definition under OCGA § 40-1-100 (12) (B) (vii).

On appeal, the Plaintiffs contend that the trial court erred in concluding that the Drop-4-Care van fell within the motor carrier exemption under OCGA § 40-1-100 (12) (B) (vii). We disagree.

Under the Georgia Motor Carrier Act, “[i]t shall be permissible under this part for any person having a cause of action arising under this part to join in the same action the motor carrier and the insurance carrier, whether arising in tort or contract.” OCGA § 40-1-112 (c).

The purpose of permitting joinder of the insurance company in a claim against a common carrier is to further the policy of the Motor Carrier Act, that is, to protect the public against injuries caused by the motor carrier’s negligence. . . . The intent of this [S] fate’s motor carrier laws is that the insurer is to stand in the shoes of the motor carrier and be liable in any instance of negligence where the motor carrier is liable.

(Punctuation and footnotes omitted.) Johnson, supra, 302 Ga. App. at 677-678. The direct action statute is in derogation of common law, and its terms require strict compliance. See Werner Enterprises v. Stanton, 302 Ga. App. 25, 26 (690 SE2d 623) (2010).

A direct action cannot be maintained against a motor carrier’s insurance company where the vehicle involved in the incident is exempted from the definition of a “motor carrier.” See Smith v. Southern Gen. Ins. Co., 222 Ga. App. 582, 583 (3) (474 SE2d 745) (1996).

The burden of proof as to whether [an] exemption is applicable lies with the party claiming it, and there is no burden on the opposing party to prove that the motor vehicle is not within the exemption. Although at summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case, here [National Union] has the burden of proof with respect to the exemption and cannot merely rely upon the absence of evidence in the record disproving that the exemption applies.

(Punctuation and footnote omitted.) Johnson, supra, 302 Ga. App. at 678-679.

The term “motor carrier” shall not include privately owned and operated vehicles “capable of transporting not more than ten persons for hire when such vehicles are used exclusively to transport persons who are elderly, disabled, en route to receive medical care or prescription medication, or returning after receiving medical care or prescription medication.” OCGA § 40-1-100 (12) (B) (vii).

In this case, the Drop-4-Care van in question was originally designed to seat at least 12 passengers. However, the van was retrofitted to transport a wheelchair and, as a result of the modifications, was only capable of transporting one passenger in a wheelchair and three ambulatory passengers. Additionally, although Drop-4-Care advertised transportation to and from nonmedical events, such as weddings, errands, and other outings, Drop-4-Care exclusively provided transportation for nonemergency medical treatment through its contract with Southeastrans. Notwithstanding this evidence, the Plaintiffs argue that National Union did not meet the requirements of OCGA § 40-1-100 (12) (B) (vii).

1. The Plaintiffs first contend that the statutory exemption did not apply because the van was not used exclusively for medical transport, based on the testimony from Drop-4-Care’s corporate representative that the van could be used for nonmedical transport. Regardless of whether Drop-4-Care offered other services, however, the Plaintiffs provided no evidence refuting the testimony that Drop-4-Care used the van in question only for medical transport. Accordingly, this argument is without merit.

2. The Plaintiffs next contend that the van did not meet the statutory exemption because it transported people who were not elderly and disabled, citing evidence that Drop-4-Care was contractually obligated to be able to transport children. This argument also lacks merit.

The pertinent statutory language exempts from the definition of a motor carrier any vehicle (used exclusively to transport persons who are elderly, disabled, en route to receive medical care or prescription medication, or returning after receiving medical care or prescription medication.” (Emphasis supplied.) OCGA § 40-1-100 (12) (B) (vii). This language is phrased in the disjunctive. “[Wjhere a legislative provision is phrased in the disjunctive, it must be so construed absent a clear indication that a disjunctive construction is contrary to the legislative intent.” (Citation omitted.) Gearinger v. Lee, 266 Ga. 167, 169 (2) (465 SE2d 440) (1996). Applying this rule of construction, the use of the disjunctive in OCGA § 40-1-100 (12) (B) (vii) indicates that a vehicle is exempted from classification as a motor carrier if the vehicle transports persons who are elderly, disabled, or en route to or from medical treatment. Therefore, contrary to the Plaintiffs’ argument, the fact that the van may have transported children to and from medical appointments did not preclude it from meeting the statutory exemption. Since the undisputed evidence showed that the van was used exclusively for nonemergency medical transport, the van met the usage criteria.

3. The Plaintiffs next argue that the van did not meet the statutory exemption under OCGA § 40-1-100 (12) (B) (vii) because it was capable of transporting more than ten people based on its design. We disagree.

“The fundamental rules of statutory construction require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” (Citation and punctuation omitted.) Couch v. Red Roof Inns, 291 Ga. 359, 362 (1) (729 SE2d 378) (2012). Additionally, courts may look to other provisions of the same statute to determine the meaning of a particular statutory provision. See May v. State, 295 Ga. 388, 391 (761 SE2d 38) (2014) (“[C]ontext is a primary determinant of meaning.”) (citation and punctuation omitted).

The term “capable” is not defined in the statute, and we therefore look to its plain and ordinary meaning as defined by dictionaries. See Archer Western Contractors v. Estate of Pitts, 292 Ga. 219, 224 (2) (735 SE2d 772) (2012). In ordinary usage, the term “capable” is generally understood to mean having the present ability necessary to complete a required task. See American Heritage Dictionary of the English Language, https://ahdictionary.com/word/search.html?q=capable (“capable” means, inter alia, “[hjaving the ability required for a specific task or accomplishment; . . . [permitting an action to be performed”); Merriam-Webster’s Online Dictionary, http://www.merriamwebster.com/dictionary/capable (“capable” means “having attributes (as physical or mental power) required for performance or accomplishment”).

Decided March 11, 2015

Burkey Law Firm, Frederick D. Burkey, for appellants.

Scrudder, Bass, Quillian, Horlock, Taylor & Lazarus, Matthew P. Lazarus, David C. Rhodes, for appellee.

Looking at other provisions of the Georgia Motor Carrier Act, it is clear that the legislature did not intend for the term “capable” as used in OCGA § 40-1-100 (12) (B) (vii) to refer to a vehicle’s design. Notably, other parts of the Georgia Motor Carrier Act categorize vehicles based on their designed, rather than actual, seating capacity. See OCGA §§ 40-1-100 (5) (defining “corporate sponsored vanpool” as those vehicles that, among other requirements, are “designed to carry not more than 15 passengers including the driver”); 40-1-151 (4) (defining “limousine” as any motor vehicle that “meets the manufacturer’s specifications for a luxury limousine with a designed seating capacity for no more than ten passengers. . . .”). Reading the Motor Carrier Act in whole, it is clear that the definition of the term “capable” under OCGA § 40-1-100 (12) (B) (vii) is based on the vehicle’s actual seating capacity, not its initially designed capacity.

Applying the ordinary meaning of the term “capable” to the circumstances in this case, the undisputed evidence showed that the van could only transport one wheelchair and three ambulatory passengers. Therefore, notwithstanding its initial design, the van at issue in this case was not capable of transporting more than ten passengers.

Since the undisputed evidence showed that the van in question was used exclusively to transport individuals to receive medical care, and was not capable of transporting more than ten persons, the van was not a motor carrier pursuant to OCGA § 40-1-100 (12) (B) (vii). Accordingly, the trial court properly determined that National Union could not be sued directly under OCGA § 40-1-112 (c).

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       Southeastrans and its other insurer are not parties to the appeal.

       The direct action statute in effect at the time of the accident was codified at former OCGA § 46-7-12. See Ga. L. 2012, p. 580, § 16. Although we generally apply the statute in effect at the time of the incident and will not apply an amended statute retroactively unless the statute’s language imperatively requires it, see Belcher v. Bremer, 253 Ga. App. 745, 746 (1) (560 SE2d 324) (2002), we refer to the direct action statute now in effect, which contains identical pertinent language, for purposes of clarity since the parties and the trial court cite the current statute.


author: McFADDEN, Judge.

text:
    A14A2347.
    HAJI v. THE STATE.
    (769 SE2d 811)
   McFADDEN, Judge.

We granted discretionary review of the trial court’s order revoking Terrell Haji’s probation. Haji argues that the revocation order should be reversed because the order did not state the basis for the revocation, the trial court based the revocation on a ground not alleged in the revocation petition, and the evidence did not authorize revocation. The record makes clear, however, that the trial court based the revocation on his finding, by a preponderance of the evidence, that while on probation Haji committed the offense of cruelty to children, a ground alleged in the revocation petition. Because the evidence supported that finding, we find no error and affirm.

1. Facts and procedural history.

In 2007, Haji pleaded guilty to several counts of operating a chop shop and theft by receiving, and he received a probated ten-year sentence. One of the terms of his probation was that he not violate any criminal laws. On August 27, 2013, the state petitioned the trial court to revoke Haji’s probation, alleging that he had committed several criminal offenses, including cruelty to children.

After a hearing on the revocation petition at which the trial court found by a preponderance of the evidence that Haji had committed the offense of cruelty to children, the trial court entered an order revoking Haji’s probation and requiring him to serve two years in confinement. Haji obtained discretionary appellate review of this ruling.

2. Basis for revocation.

Haji argues that the trial court did not state in his written order the basis for the revocation. See generally State v. Brinson, 248 Ga. 380, 380-381 (1) (283 SE2d 463) (1981) (discussing requirement that factfinder provide a written statement of reasons for revoking probation). He also argues that the trial court revoked his probation for a reason not alleged in the revocation petition. See Dillard v. State, 319 Ga. App. 299, 300 (735 SE2d 297) (2012) (judgment based upon offense not charged in petition for revocation must be reversed); Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367) (1980) (same). Neither argument has merit.

The trial court did not specify the basis for revocation in his written order. But “[w]e are not constrained to read the revocation order in isolation. ‘From the record, both the defendant and the appellate court can ascertain the basis for revocation of the defendant’s probation.’ ” Henderson v. State, 167 Ga. App. 808, 809 (1) (307 SE2d 704) (1983) (quoting Brinson, supra, 148 Ga. at 381 (1)). At the revocation hearing, the trial court expressly found that Haji was in violation of his probation because he committed the offense of cruelty to children, which was one of the grounds for revocation alleged in the petition. The transcript of this hearing is sufficient written record for us to determine the ground upon which the trial court revoked Haji’s probation. Smallwood v. State, 163 Ga. App. 140, 141 (1) (293 SE2d 15) (1982).

3. Sufficiency of the evidence to authorize revocation.

Haji claims that the evidence was insufficient to support the state’s claim that he violated a condition of his probated sentence by committing a crime while he was on probation.

Pursuant to OCGA § 42-8-34.1 (b), a court may revoke any part of a probated sentence if the evidence produced at the revocation hearing establishes a violation of the conditions of probation by a preponderance of the evidence. This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.

Geter v. State, 300 Ga. App. 396 (685 SE2d 342) (2009) (citation and punctuation omitted). “Accordingly, if admissible evidence is presented in support of the allegations regarding revocation of probation, this [c]ourt will affirm.” Brown v. State, 294 Ga. App. 1, 3 (2) (668 SE2d 490) (2008) (citation and punctuation omitted).

As discussed above, the trial court found by a preponderance of the evidence that Haji had committed the offense of cruelty to children. That offense is committed, among other ways, when a person “maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-5-70 (b). The record contains admissible evidence supporting the allegation that Haji committed this offense.

Pertinently, evidence presented at the revocation hearing showed that, when Haji’s daughter T. H. was four and five years old, Haji frequently disciplined her by whipping her arms and back with a belt or stick and then locking her in a dark closet for up to ten minutes. This occurred over 30 times. T. H. was afraid of the dark, and she would beat on the closet door and scream and cry to be released from the closet. When, moved by the girl’s distress, other family members tried to release her from the closet, Haji would prevent them from doing so by yelling at them, blocking the closet door, and hitting them or shoving them away.

When T. H. was six, Haji and T. H.’s mother became involved in a dispute over her custody, and T. H. learned that she was going to have to spend time with Haji pursuant to a court order. T. H. had a “full-blown panic attack” upon learning this. Two days before Haji’s visitation was due to begin, T. H. went into a closet and attempted to hang herself with a belt. When her mother found her, T. H. told her mother that “she just wanted to go with God, she didn’t want her daddy to hurt her no more.” At the probation revocation hearing, T. H. testified that she put the belt around her neck because she was scared of Haji. T. H.’s mother took her to a children’s hospital. There, social workers called for T. H. to have an “urgent psychiatric evaluation” and she was questioned outside her mother’s presence. Based on that evaluation, T. H. was admitted to a psychiatric hospital where she spent five days in treatment.

Decided March 11, 2015.

Mignott Law Group, Marsha W. Mignott, for appellant.

In light of that evidence, whether T. H. experienced cruel or excessive pain, whether that pain was maliciously caused by Haji, and whether Haji’s acts fell within the realm of reasonable discipline, see OCGA § 16-3-20 (3) (permitting reasonable parental discipline to be claimed as defense to prosecution for any crime based on that conduct), were questions for the factfinder. See Tabb v. State, 313 Ga. App. 852, 855 (1) (723 SE2d 295) (2012) (criminal intent with regard to crime of cruelty to children may be inferred from conduct before, during and after crime); Sims v. State, 234 Ga. App. 678, 679-680 (1) (a) (597 SE2d 845) (1998) (law does not set bright line definition of what constitutes “cruel” or “excessive” pain but leaves that determination to factfinder); Hopkins v. State, 209 Ga. App. 376, 377 (1) (434 SE2d 74) (1993) (rejecting defendant’s argument that evidence of cruelty to children was insufficient because his actions fell within “normal discipline,” holding that this argument “fail[ed] to take into account that the determination of what is cruel or excessive physical or mental pain is to be made by the jury”) (citations omitted); Allen v. State, 174 Ga. App. 206, 208 (3) (329 SE2d 586) (1985) (implicit in definition of crime of cruelty to children is element of unreasonableness); McGahee v. State, 170 Ga. App. 227, 227-228 (1), (2) (316 SE2d 832) (1984) (finding evidence sufficient to support defendant’s conviction for cruelty to children despite her claim that she did not intend to hurt child whom she was punishing, and noting that intention with which act is done was peculiarly a jury question and that deliberate intent and malice may be shown from consequences of defendant’s act). Although on appeal Haji challenges the credibility of several of the hearing witnesses, “[i]n a probation revocation, issues of witness credibility are reserved for the [trial] court.” Boatner v. State, 312 Ga. App. 147, 150 (3) (717 SE2d 727) (2011).

The evidence recited above authorized the trial court to find by a preponderance of the evidence that Haji committed the offense of cruelty to children by maliciously causing T. H. cruel or excessive physical or mental pain. The trial court did not err in revoking Haji’s probation.

Judgment affirmed.

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

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.


author: MCFADDEN, Judge.

text:
    A14A1721.
    CARVER v. THE STATE.
    (769 SE2d 722)
   MCFADDEN, Judge.

After a jury trial, Billy Jim Carver was convicted of one count of aggravated child molestation, two counts of child molestation, and one count of exhibiting pornography to a minor. Carver appeals, arguing that the trial court erred by refusing to allow him to ask a particular question during voir dire, but we find that the court did not abuse his discretion. Carver also argues that the trial court erred by refusing to allow him to call a witness who, he contends, could have been the perpetrator, but that ruling was also within the scope of the trial court’s discretion. Finally Carver argues that the trial court should have merged the aggravated child molestation and child molestation convictions, but because the convictions were based on separate and distinct acts, the trial court did not err in failing to merge them. We therefore affirm.

1. Facts.

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

Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013) (citation omitted).

Viewed in this light, the evidence showed that in the summer of 2008, Carver occasionally babysat the male victim, who was eight years old at the time. At first, Carver talked to the victim about sex. Then he showed the victim pornographic movies. This escalated to Carver masturbating the boy, having the boy masturbate him, performing oral sex on the boy, having the boy perform oral sex on him, penetrating the boy anally, and having the boy penetrate him anally. The evidence, including the testimony of the victim who was 12 years old at the time of trial, was sufficient to support the convictions.

2. Voir dire.

Carver argues that the trial court impermissibly limited his questioning of potential jurors during voir dire. Defense counsel sought to ask, “Do any of you think children lack the worldly knowledge to bring this kind of allegation?” The state objected on the ground that the question concerned the credibility of a witness, and the court sustained the objection.

To obtain reversal on this ground, Carver’s burden is high:

Since there is often a fine line between asking potential jurors how they would decide the case and questions that merely seek to expose bias or prejudice, the scope of the voir dire examination, of necessity, must be left to the sound discretion of the trial court. And this [cjourt does not interfere with such discretion absent manifest abuse.

Collins v. State, 310 Ga. App. 613, 620 (5) (714 SE2d 249) (2011) (citation omitted). Further, “no question should require a response from a juror which might amount to a prejudgment of the case.” McKee v. State, 275 Ga. App. 646, 647 (2) (621 SE2d 611) (2005) (citation omitted).

Carver argues that the question sought to “ascertain preexisting leanings or beliefs of potential jurors,” not prejudge witness credibility. However, the potential jurors’ answer to the question whether they “think children lack the worldly knowledge to bring this kind of allegation,” relates directly to their determination of whether the child victim’s allegations were believable, and thus, whether the victim was credible. The trial court did not manifestly abuse his discretion in disallowing the question. Ganas v. State, 245 Ga. App. 645, 647-648 (2) (537 SE2d 758) (2000) (court did not abuse discretion in disallowing questions about the credibility of witnesses based on their status).

3. Refusal to allow Carver to call a witness.

Carver argues that the trial court erred by refusing to allow him to call a particular witness whom he alleged could have been the perpetrator. The court allowed Carver to make a proffer, during which the witness testified that he and the victim’s father are friends; that the victim spent the night at his house a few times after 2011; and that in 1998, when the witness was 19 years old, he pled guilty to statutory rape of a 15-year-old girl.

Under Georgia law,

a defendant is entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant is tried. However, the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must directly connect the other person with the corpus delicti, or show that the other person has recently committed a crime of the same or similar nature.

Decided February 10, 2015

Reconsideration denied March 12, 2015

Woodall v. State, 294 Ga. 624, 632-633 (8) (754 SE2d 335) (2014) (citation omitted). “Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible.” Bradford v. State, 204 Ga. App. 568, 569 (420 SE2d 4) (1992) (citation and punctuation omitted).

We discern no abuse of discretion here. The evidence that, in 1998, when he was 19 years old, the potential witness pled guilty to the statutory rape of a 15-year-old girl does not suggest an inference that he was the man who committed the acts against the victim, an eight-year-old boy, in 2008. “There is simply no logical connection between the acts of [the witness committing statutory rape of a female] and the direct hands-on same-sex child molestation of [the victim ten years later].” Snider v. State, 304 Ga. App. 64, 70 (3) (695 SE2d 383) (2010). Consequently, the trial court did not abuse his discretion in disallowing this evidence.

4. Merger.

Carver argues that the trial court should have merged his aggravated child molestation and child molestation convictions because they arose from a continuous course of conduct. Carver “ignores the language of the indictment, which based each count on different conduct.” Young v. State, 327 Ga. App. 852, 861 (6) (a) (761 SE2d 801) (2014). Carver was convicted of Count 2 of the indictment, which charged him with aggravated child molestation for performing anal intercourse on the victim; Count 5, which charged him with child molestation for having the victim stroke Carver’s penis; and Count 6, which charged him with child molestation for showing the victim pornographic movies. Since each of the counts was for a separate and distinct crime, they did not merge for purposes of sentencing. Smith v. State, 320 Ga. App. 408, 413 (2) (a) (740 SE2d 174) (2013).

Judgment affirmed.

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

Brimberry, Kaplan & Brimberry, Mark D. Brimberry, William J. Carswell, for appellant.

Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellee.


text:
    A14A1764.
    CHYNOWETH v. THE STATE.
    (768 SE2d 536)
   Boggs, Judge.

A jury found John Steven Chynoweth guilty on one count each of riot in a penal institution and felony obstruction of a law enforcement officer. Following the denial of his amended motion for new trial, Chynoweth appeals, asserting multiple claims of error. We affirm his convictions, but we vacate the sentence and remand this case for resentencing.

Construed in favor of the verdict, the evidence showed that on March 15, 2012, two detention officers removed Chynoweth from his jail cell to transport him for a “bond hearing inside the jail.” The first officer, Officer Pimentel, instructed Chynoweth to place his hands on a table so that the officer could place chain restraints on him. When the officer reached around Chynoweth “to grab ahold of the chains ... to chain him up, . . . Chynoweth turns very quickly, brings a hook, swings at [him].” Chynoweth took a swing at the officer in a “fast manner,” “turned very quickly .... He’s bringing a hand. He’s punching. He’s making a punching motion as he is turning full speed, full body put into it,” and used a “[c]losed fist.” As Chynoweth did so, the officer “ducked his punch.” The second officer then grabbed Chynoweth and took him to the ground. Chynoweth struggled and fought with the officers, but was eventually subdued after being tased twice.

Officer Pimentel testified that a few months after the incident, he encountered Chynoweth again and told him: “there is no grudge. There is [sic] no hard feelings for what happened. And I just told him that, you know, as easy as we can make this for the rest of our time and we all go home safe ... you know, well, let’s work it to that goal.” He explained that Chynoweth agreed with him and said, “Sorry for what happened.”

The State sought to admit, and the trial court allowed, evidence of a subsequent act to show Chynoweth’s intent and the absence of mistake or fact. In the subsequent act, an inmate testified that on July 1, 2013 (more than two months prior to trial) he and a second inmate entered a holding cell occupied by Chynoweth. Chynoweth engaged in conversation with the two men, but after some time, the first inmate noticed that Chynoweth “sort of leaned forward and looked past me, and he made direct comments to [the second inmate].” The second inmate also noticed that Chynoweth “just really didn’t acknowledge [the first inmate] much.” Suddenly, Chynoweth came across the cell and attacked the first inmate. The inmate testified:

He was in my face with his hands around my neck, headbutting me, and hurling me to the floor____I looked up and saw him glaring down at me. And I asked him, What in the world happened? What is this all about? And he just glared at me. Really, his teeth were gritting, and he said, [b]lackb[.....]d.

After the second inmate picked him up from the floor, the first inmate began to adjust his glasses when Chynoweth came “through the air again, the same thing, and I am down on the floor.” The second inmate then began kneeing or kicking Chynoweth in an effort to protect the first inmate.

Testimony was presented that in February 2012, a month prior to the incident with the officers, Chynoweth had overdosed on methamphetamine and was psychotic. There was also evidence that after Chynoweth was tased by the officers on March 16,2012, he was taken for a medical examination, after which he was prescribed anti-psychotic medication. He was then sent to a mental health facility, where on March 28, 2012, a forensic psychologist concluded that Chynoweth required inpatient hospitalization.

Before trial, Chynoweth requested jury instructions on “lack of mental capacity,” “defense of delusional compulsion,” and “mentally ill.” The trial court instructed the jury on “voluntary intoxication,” “insanity at time of commission of offense,” “insanity at time of act,” “mentally ill at time of alleged act,” and “mentally retarded.” The jury found Chynoweth guilty of both riot in a penal institution and felony obstruction of an officer, and the trial court merged the obstruction conviction with the riot conviction and sentenced him to 20 years to serve.

1. Chynoweth contends that the evidence was insufficient to sustain his conviction for riot in a penal institution. Specifically, he argues that there was no evidence that he committed an act in a tumultuous manner. The indictment charged Chynoweth with “committing] an act in a violent and tumultuous manner, to wit: swing his fist at Officer ... Pimentel.” But OCGA § 16-10-56 (a) provides: “Any person legally confined to any penal institution of this state or of any political subdivision of this state who commits an unlawful act of violence or any other act in a violent or tumultuous manner commits the offense of riot in a penal institution.” (Emphasis supplied.) As we have previously held:

When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. It is sufficient for the State to show that a crime was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.

(Citations, punctuation and footnote omitted.) Slinkard v. State, 259 Ga. App. 755, 759-760 (2) (577 SE2d 825) (2003). Chynoweth could therefore be convicted if the evidence showed that he committed an act in a violent manner or in a tumultuous manner. The evidence presented, that Chynoweth swung his fist at Officer Pimentel, was sufficient to sustain his conviction for riot in a penal institution for committing an act in a violent manner under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). See Strapp v. State, 326 Ga. App. 264, 265 (1) (a) (756 SE2d 333) (2014). Chynoweth’s argument here, with regard to a lack of evidence of an act committed in a tumultuous manner, is therefore unavailing.

2. Chynoweth argues that he should have been sentenced to the lesser penalty of between one and five years for felony obstruction. As the Supreme Court of Georgia has explained:

The Supreme Court of the United States has referred to the rule of lenity “as a sort of‘junior version of the vagueness doctrine,’ ” which requires fair warning as to what conduct is proscribed. The rule of lenity applies when a statute, or statutes, establishes, or establish, different punishments for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment. However, the rule does not apply when the statutory provisions are unambiguous. The rule of lenity is a rule of construction that is applied only when an ambiguity still exists after having applied the traditional canons of statutory construction.

(Citations and punctuation omitted.) McNair v. State, 293 Ga. 282, 283-284 (745 SE2d 646) (2013). Chynoweth’s act of swinging his fist at the deputy satisfied the elements of both riot in a penal institution, OCGA § 16-10-56 (a), and obstruction of a law enforcement officer by offering violence, OCGA § 16-10-24 (b), both felonies. The punishment for riot in a penal institution is from one to twenty years, OCGA § 16-10-56 (b), while the punishment for felony obstruction is from one to five years, OCGA § 16-10-24 (b), and the trial court sentenced Chynoweth to 20 years to serve after merging the obstruction conviction into the riot conviction.

OCGA § 16-10-56 (a) prohibits an unlawful act of violence or any other act committed in a violent or tumultuous manner while confined to a penal institution, while OCGA § 16-10-24 (b) prohibits knowingly and willfully resisting or opposing any law enforcement officer in the discharge of his duties by offering or doing violence. Riot prohibits the above-described acts against anyone generally, not only law enforcement officers, while obstruction can occur outside of a penal institution and involves acts of violence against law enforcement officers only. These two statutes do not define the same offense and are unambiguous. See Banta v. State, 281 Ga. 615, 617-618 (2) (642 SE2d 51) (2007). Because “the two defined crimes do not address the same criminal conduct, there is no ambiguity created by different punishments being set forth for the same crime, and the rule of lenity does not apply.” Id. at 618 (2); see Snow v. State, 318 Ga. App. 131, 134-135 (2) (733 SE2d 428) (2012); compare McNair v. State, 326 Ga. App. 516, 521-522 (757 SE2d 141) (2014) (neither financial transaction theft nor identity theft, as charged, requires proof of any fact the other does not; because statutes provide different grades of punishment for same criminal act, defendant entitled to rule of lenity).

“Nevertheless, as set forth in Hulett v. State, 296 Ga. 49, 54 (2) (766 SE2d 1) (2014), if this Court notices a merger error in an appeal we may correct the error even if it was not raised on appeal. [Cit.]” Grissom v. State, 296 Ga. 406 (1) (768 SE2d 494) (2015). Felony obstruction does not merge with riot in a penal institution because each crime is established by proof of different facts. See id. (merger applies where “conviction for one of the offenses is established by proof of the same or less than all facts required to establish the other crime pursuant to OCGA § 16-1-6 (1)”). The trial court therefore erred in merging the felony obstruction conviction into the riot in a penal institution conviction. Regardless of the lengthy sentence originally imposed, we are nevertheless constrained to vacate Chynoweth’s sentence and remand this case for resentencing. See Hulett, supra, 296 Ga. at 54 (2) (“The merger issues that this Court decides sua sponte typically result in vacated convictions and sentences and thus are favorable to the defendant.”).

3. Chynoweth contends that the trial court erred in allowing the evidence of his unprovoked attack on a cellmate that occurred more than two months prior to trial. Because this case was tried after January 1, 2013, Georgia’s new Evidence Code applies here. See Ga. L. 2011, p. 99, § 101.

The new Code adopted, in large measure, the Federal Rules of Evidence, and its sections are comparable to corresponding federal rules. Because of this similarity, it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.

(Citation, punctuation and footnotes omitted.) Jones v. State, 326 Ga. App. 658, 660 (1) (757 SE2d 261) (2014), cert. granted, 2014 Ga. LEXIS 706.

The record reveals that the trial court allowed this evidence for the purpose of showing Chynoweth’s intent and the absence of mistake or accident. These are permissible purposes under OCGA § 24-4-404 (b) (evidence of other crimes or acts admissible for “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”).

The Eleventh Circuit utilizes a three-part test for evidence of other crimes or acts to be admissible pursuant to Federal Rule of Evidence 404 (b): (1) it must be relevant to an issue other than the defendant’s character; (2) there must be sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the act(s) in question; and (3) the probative value of the evidence cannot be substantially outweighed by undue prejudice, and the evidence must satisfy Federal Rule of Evidence 403.

(Citations, punctuation and footnote omitted.) Jones, supra, 326 Ga. App. at 660.

Atrial court’s ruling to admit evidence of a similar transaction is reviewed under an abuse of discretion standard, but factual findings are accepted unless clearly erroneous. Accordingly, we will not disturb the findings on the issue of si milarity or connection of similar transaction evidence unless the finding is clearly erroneous.

(Citations and punctuation omitted.) Jordan v. State, 328 Ga. App. 462, 466 (3) (762 SE2d 157) (2014).

Chynoweth argues that the subsequent act served only “to show a general propensity for violence.” The trial court found that the act was “relevant to the issue of intent, particularly with the notice of intent to raise the defense of insanity.” “The relevance of other crimes evidence to intent is determined by comparing the defendant’s state of mind in committing both the extrinsic and charged offenses. Where the state of mind required for both offenses is the same, the extrinsic crime is relevant to the charged offense.” (Citations and punctuation omitted.) United States v. Zapata, 139 F3d 1355, 1358 (11th Cir. 1998). The question is “whether intent is an issue in the case.” Paul S. Milich, Ga. Rules of Evidence, § 11:13, p. 320 (2014-2015). As Professor Milich explains, “The test is to ask: under the facts of the case, is there any danger that a rational jury could find that although the defendant committed the objective, charged acts, he did not intend to do so?” (Emphasis in original.) Id. at 321.

While Chynoweth asserts that the defense of insanity “never materialized,” there was evidence presented that he had earlier been prescribed antipsychotic medication, overdosed on methamphetamine, and had been sent to a mental health facility for evaluation. And he requested jury instructions concerning lack of mental capacity and mentally ill, while the trial court gave various instructions on mental illness and insanity. This was sufficient to raise an issue concerning his state of mind, and it created a danger that a jury could have concluded that while he committed the charged act, he did not intend to do so. See Milich, supra at 321. Intent is therefore at issue in this case. Zapata, supra, 139 F3d at 1358. The subsequent act of attacking a cellmate without warning is therefore probative of his criminal intent in the crime charged, and the trial court did not err in allowing it for that purpose. Id.

4. Chynoweth argues that the trial court erred in failing to charge misdemeanor obstruction (obstructing or hindering a law enforcement officer in the lawful discharge of his duties), as a lesser included offense of felony obstruction (knowingly and willfully resisting, obstructing or opposing a law enforcement officer in the lawful discharge of his duties by offering or doing violence). OCGA § 16-10-24 (a) and (b). “While misdemeanor obstruction is a lesser included offense of felony obstruction, where the evidence shows completion of the greater offense, it is not necessary for the court to charge on a lesser included offense.” (Citations and punctuation omitted.) White v. State, 310 Ga. App. 386, 390-391 (3) (714 SE2d 31) (2011). Both officers testified that Chynoweth aggressively and quickly made a punching motion with a closed fist at Officer Pimentel, and then began to struggle with and fight the officers as they attempted to transport him from the jail. Because this evidence showed the completion of the offense of felony obstruction — resisting, obstructing or opposing a law enforcement officer in the discharge of his official duties by offering or doing violence — the trial court was not required to instruct the jury on the lesser included offense of misdemeanor obstruction. See Carlson v. State, 329 Ga. App. 309, 312 (3) (764 SE2d 890) (2014); White, supra.

Decided February 11, 2015

Reconsideration denied March 12, 2015

Michael R. McCarthy, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

Judgment affirmed, sentence vacated, and case remanded for re-sentencing.

Barnes, P. J., and Branch, J., concur.

       Prior to trial, Chynoweth’s former counsel filed a “notice of intent to raise issue of insanity, mental illness or mental retardation.”

       Although the trial court also ruled that the subsequent act was admissible to show absence of mistake or accident, see OCGA § 24-4-404 (b), we make no ruling here with regard to whether such ruling was proper. And we reject Chynoweth’s assertion that the subsequent act should not have been admitted because of the racial epithet he used toward the inmate victim. See Greene v. State, 274 Ga. 220, 221 (2) (552 SE2d 834) (2001).


author: ANDREWS, Presiding Judge.

text:
    A14A2033.
    WILLIAMS v. PAULEY et al.
    (768 SE2d 546)
   ANDREWS, Presiding Judge.

Carl Pauley was killed when the vehicle he was driving collided with a horse that strayed onto Highway 27 in Floyd County. Pauley’s surviving spouse, Christine Pauley, acting individually and as administratrix of her husband’s estate, brought wrongful death and survival claims against David Williams, a police officer employed by the Floyd County Police Department. Ms. Pauley’s suit was brought against Officer Williams in his individual capacity, and sought to impose personal liability on Officer Williams on the basis that, while acting as a police officer responding to the stray horse on the highway, he negligently failed to remove the horse from the highway, and that this negligence caused the fatal accident. Asserting “official immunity’ from these claims, Officer Williams moved for summary judgment, the trial court denied the motion, and Officer Williams appeals. For the following reasons, we find the suit was barred by “official immunity,” and reverse.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

Cameron v. Lang, 274 Ga. 122, 123 (549 SE2d 341) (2001) (citations and punctuation omitted); Gilbert v. Richardson, 264 Ga. 744, 750-753 (452 SE2d 476) (1994). Official immunity, which usually is a question of law, is an entitlement not to stand trial rather than a mere defense to liability. Cameron, 274 Ga. at 124. Thus, as a county law enforcement officer, Officer Williams is entitled to official immunity for the negligent performance of discretionary acts within the scope of his authority as an officer; he may be personally liable if he negligently performed a ministerial act or acted with actual malice or an intent to injure when performing a discretionary act. Cameron, 274 Ga. at 125-126; Phillips v. Hanse, 281 Ga. 133, 133 (637 SE2d 11) (2006). Because Ms. Pauley does not claim that Officer Williams acted with actual malice or an intent to injure, the issue is whether the alleged negligence involved discretionary or ministerial action.

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.

Banks v. Happoldt, 271 Ga. App. 146, 149 (608 SE2d 741) (2004) (citations and punctuation omitted).

The record shows that, on the morning of the fatal accident, Officer Williams responded to a Floyd County 911 call that a horse was loose on Highway 27. The officer’s police cruiser was equipped with a video camera that was activated and recorded events and time. After arriving on the scene, the officer located the horse in the median of the highway at about 4:38 a.m. The officer left the scene briefly, returned at about 4:57 a.m., spotted the horse in the roadway, and followed the horse in his cruiser with blue lights activated for a few minutes until about 5:00 a.m. The officer testified that every time he got near the horse in his cruiser the horse “took off.” At about 5:03 a.m., the officer exited his cruiser, approached the horse on foot, and was able to get hold of the horse by its halter. The horse was wearing a halter without a lead rope. At about 5:05 a.m., the officer walked back to the cruiser leading the horse by the halter. At that point, with the horse in the median of the highway, the officer called police dispatch, and reported to his supervisor that he was having difficulty controlling the horse, was concerned about leaving the horse because it might run into the road, and asked for advice. The officer’s supervisor told him that, if he left the horse, he should first lead the horse as far off the roadway as he could. The officer testified that he did what the supervisor said and led the horse off the roadway. But at about 5:13 a.m., the cruiser’s video camera showed the officer walking back to the cruiser with the horse following behind him.

The officer explained in deposition testimony what was happening with the horse at that point:

Q: And then at 5:13 you’re coming back into the camera’s view, the horse is following you but you don’t have him by the halter anymore?
A: No, sir.
Q: He’s just following you?
A: Yes, sir.
Q: And then at 5:14 you make the comment I’ll be right back. I mean, I guess you’re talking to the horse, you’re trying to keep him . . .
A: Yes, sir.
Q:... under control. And then you entered your vehicle, the blue lights went off and you leave the scene at 5:14?
A: Yes, sir.
Q: And the horse was in the median at that point?
A: Yes, sir.
Q: And he wasn’t attached to anything?
A: No, sir.

After leaving the horse at the scene, the officer arrived at about 5:15 a.m. in his cruiser at a nearby gas station where he went “[t]o try to get some help or a rope or something.” But the gas station was closed. A few minutes later at about 5:24 a.m. police dispatch reported the fatal collision between Mr. Pauley’s vehicle and the horse. Officer Williams answered additional questions at his deposition about his decision to leave the horse at the scene, and what he did after first seeking help at the gas station.

Q: [W]ould you agree with me that if you would have continued to maintain control of the horse that the accident wouldn’t have happened?
A: No.
Q: And why is that?
A: Because I didn’t have control of the horse.
Q: You had him by the halter?
A: A 1500 pound horse. I’m a 250 pound guy.
Q: But you’d already found that you were able to lead the horse by the halter, correct?
A: That didn’t guarantee he was going to stay that way.
Q: But you also left him at some point and he actually followed you, so he wasn’t shy of you at some point. Would you agree?
A: I don’t know.
Q: Did you do any kind of gesture or anything to make him follow you or did he just follow you back because he’d developed a comfort level with you or what?
A: When he came back onto the road I said (witness makes noise) come on, because I didn’t want to leave him in the road. I wanted to get him back in the median. . . .
Q: [Ojnce you left the horse — I guess I’m trying to understand. What did you do to continue in pursuit of the call involving the horse?
A: I had gone down to a house located near the bridge, near the .. . farm gate, to try to locate an owner or someone who could take control of the horse.
Q: And that was during the eight minutes between [leaving the horse and the accident report]?
A: Yes, sir.

The record shows that there were no protocols or instructions of any kind that the police department used to guide officers in how to deal with straying horses or other livestock that posed a hazard.

The trial court denied Officer Williams’s motion for summary judgment ruling that “[a] genuine issue of material fact exists ... on whether or not Officer Williams attempted to take action or simply took no action at all”; therefore a “factual dispute regarding Officer Williams’[s] actions the morning of the incident should first be resolved by a jury before the Court can determine if official immunity applies.” We find no factual dispute in the record regarding actions taken or not taken by Officer Williams. The undisputed facts show that, when the officer arrived at the scene and found the stray horse on or adjacent to the roadway, he attempted to move the horse away from the roadway; called his supervisor to report difficulty controlling the horse and asked for advice; attempted to follow the supervisor’s instructions to move the horse away from the roadway; was still unable to keep the horse away from the roadway; decided he needed help to take control of the horse; and left the horse in the median of the roadway as he drove from the scene to seek help. Whether these actions were negligent, and whether they caused or contributed to the fatal collision with the horse, is not the issue before this Court. In determining whether Officer Williams was entitled to official immunity from claims that his negligence caused the accident, the issue is whether the officer’s actions were discretionary or ministerial.

“The determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis.” Davis v. Effingham County Bd. of Commrs., 328 Ga. App. 579, 584-585 (760 SE2d 9) (2014) (citation and punctuation omitted). We conclude that Officer Williams’s actions in attempting to take control of and remove the stray horse from the highway were discretionary because they called for the officer to exercise personal deliberation and judgment to reach reasoned conclusions about how to accomplish a task for which there were no specific directions. This was not a ministerial task that called merely for the execution of a simple, specific duty, or which could be accomplished by simply complying with clear and definite procedures or instructions. Roper v. Greenway, 294 Ga. 112, 114-115 (751 SE2d 351) (2013). Moreover, the statutory mandate in OCGA § 4-3-4 (a), which provides that “[i]t shall be the duty of the sheriff, his deputies, or any other county law enforcement officer to impound livestock found to be running at large or straying,” does not require a contrary conclusion. “[A] statutorily-mandated action is not necessarily the equivalent of a ministerial act that deprives the actor of official immunity if done negligently.” Todd v. Brooks, 292 Ga. App. 329, 331 (665 SE2d 11) (2008) (citation and punctuation omitted). The fact that OCGA § 4-3-4 (a) required Officer Williams to impound the straying horse, and he failed to take control of and impound the horse, did not render his actions ministerial. Id. OCGA § 4-3-4 (a) contains no specific instructions or procedures for impounding livestock, and, as set forth above, the means of taking control of the horse and impounding it clearly required Officer Williams’s deliberation and judgment. It follows that the officer’s actions in attempting to comply with OCGA § 4-3-4 (a) were discretionary, and he was entitled to official immunity from a claim that he negligently failed to comply with the statutory duty to impound the horse. Todd, 292 Ga. App. at 331; Murphy v. Bajjani, 282 Ga. 197, 199-200 (647 SE2d 54) (2007). The trial court erred by denying Officer Williams’s motion for summary judgment.

Decided February 18, 2015

Reconsideration denied March 12, 2015

Womack, Gottlieb & Rodham, Ronald R. Womack, Steven M. Rodham, McRae, Stegall, Peek, Harman, Smith & Manning, Thomas H. Manning, for appellant.

Perrotta & Cahn, Robert W. Lamb, for appellees.

Judgment reversed.

McFadden and Ray, JJ., concur.


author: MCMILLIAN, Judge.

text:
    A14A1726.
    JOHNSON v. THE STATE.
    (770 SE2d 236)
   MCMILLIAN, Judge.

Carl Desmond Johnson appeals after a Gwinnett County jury convicted him of the offense of armed robbery. Johnson argues that the trial court erred in not allowing him to introduce evidence that he had pled guilty to robbery by intimidation in connection with two other robberies in DeKalb County, as support for his defense that he did not have a gun in the Gwinnett County robbery. He also asserts that the evidence was insufficient to support his conviction. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence at trial showed that Ann Kelley was working as a bank teller in Norcross on June 26,2010, when Johnson came to her window and handed her a note stating, “This is not a game.” He was wearing loose fitting clothes, sunglasses, and a baseball cap, and he was talking on his cell phone, while at the same time talking to Kelley. Johnson was very specific about the denominations he wanted, and, placing his hand on his hip, he told Kelley to look forward, and not to look at anyone else, or she would be shot. Johnson kept urging Kelley to “hurry up.” Kelley never saw a gun, but the t-shirt Johnson was wearing was long and extended below where he had placed his hand. From Johnson’s verbal threat and the way he was standing, Kelley thought she was going to be shot if she did not hurry and give him the money. Kelley demonstrated for the jury how Johnson was standing that day. After she put money in the bag Johnson handed her, he left the bank.

Cheryl King, a teller at a DeKalb County bank, testified that three days later, on June 29,2010, Johnson, again wearing a baseball hat and sunglasses and talking on his cell phone, handed her a note that read, “This is a robbery.” From Johnson’s gestures, which included patting his hip, she believed that he had a gun, and she put money in the plastic bag he handed her. King also demonstrated these gestures to the jury.

Other evidence will be set forth below as necessary to address Johnson’s specific claims of error.

1. We first address Johnson’s argument that the evidence was insufficient to support his conviction.

OCGA § 16-8-41 (a) provides that “[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” Here, Johnson’s counsel admitted in opening statement that he committed the robbery in this case, but he asserted that Johnson did not use a gun or any other weapon in the crime and thus should not be convicted of armed robbery.

Johnson contends that the evidence did not support a finding that he used a weapon in this case because Kelley testified that she never saw a weapon. However, it is well settled that “circumstantial evidence is sufficient to establish the use of a weapon or device appearing to be a weapon, and a conviction for armed robbery may be sustained even though the weapon or article used was neither seen nor accurately described by the victim.” (Citations and punctuation omitted.) Bryson v. State, 316 Ga. App. 512, 515 (1) (729 SE2d 631) (2012). Under such circumstances, “[t]he question is whether the defendant’s acts created a reasonable apprehension on the part of the [victim] that an offensive weapon was being used, regardless of whether the [victim] actually saw the weapon.” (Citation and punctuation omitted.) Smith v. State, 274 Ga. App. 568, 570 (1) (a) (618 SE2d 182) (2005). Nevertheless, “a conviction may not be sustained absent some physical manifestation of a weapon or some evidence from which the presence of a weapon may be inferred.” (Citation and punctuation omitted.) Fluellen v. State, 284 Ga. App. 584, 585 (644 SE2d 486) (2007).

Here, Kelley testified that Johnson threatened that he was going to shoot her, and his stance, with a hand at his hip, made her believe that he would follow through on that threat. Moreover, King testified that three days later, another note from Johnson and his gestures, including patting his hip, made her believe that he had a gun when he robbed the DeKalb County bank where she worked.

We find that this evidence was sufficient to authorize a rational trier of fact to find Johnson guilty beyond a reasonable doubt of robbing the Gwinnett County bank by use of a gun, “or any replica, article, or device having the appearance of such weapon,” and thus to find him guilty of armed robbery under OCGA § 16-8-41 (a). See Joyner v. State, 278 Ga. App. 60, 60-61 (1) (628 SE2d 186) (2006) (upholding armed robbery conviction where victim testified that she believed the defendant had a gun because of the way he held his hand inside his jacket, which she demonstrated for the jury, and that she was frightened and gave him the cash from her register drawer); Marlin v. State, 273 Ga. App. 856, 858-859 (2) (616 SE2d 176) (2005) (upholding armed robbery conviction where defendant had his hand under his shirt and handed victim a note in which he claimed to have a gun, and victim believed he had a gun); Prins v. State, 246 Ga. App. 585, 587 (1) (539 SE2d 236) (2000) (affirming armed robbery conviction where defendant’s note to the victim “clearly and boldly” recited that he had a gun and would kill her, and one of his hands was not visible to the victim during the robbery), disapproved on other grounds by Miller v. State, 285 Ga. 285, 286-287, n. 1 (676 SE2d 173) (2009); Maddox v. State, 238 Ga. App. 598, 598 (1) (521 SE2d 581) (1999) (“[threatening to shoot a victim while keeping a hand concealed shows the weapon element of armed robbery”).

2. Johnson also contends that the trial court erred by refusing to allow him to present evidence of his plea to the DeKalb County robberies.

A DeKalb County grand jury indicted Johnson with armed robbery in connection with the incident involving King and, in the same indictment, charged him with robbery by intimidation in connection with a third robbery at another DeKalb County bank on July 8,2012. Johnson sought to introduce a certified copy of his plea to that indictment, which indicated that he pled guilty to two counts of robbery by intimidation, a lesser included offense to armed robbery. OCGA § 16-8-41 (a). Johnson also wanted to testify that DeKalb County charged him with robbery by intimidation as to one crime and allowed him to plead down to robbery by intimidation in the other in order to create an inference that he did not use a gun in any of the robberies.

The prosecutor argued, however, that Johnson sought and received first-offender treatment for his DeKalb County convictions, which prevented the State from introducing a copy of his plea and conviction into evidence, requiring that the prosecution prove their similar transaction through the victim’s live testimony. He asserted that Johnson improperly wanted it both ways, to receive the protection offered by first-offender treatment, which prevented the State from using the conviction against him, while at the same time using the plea for his own advantage to support his defense in this case.

The trial court was not persuaded by the State’s first-offender argument but found that the “real stumbling block” to the admission of Johnson’s DeKalb County plea was that “prosecutors make deals all the time for a variety of reasons.” As the trial court explained, “Who knows what was going on in the mind of that courtroom prosecutor on that particular day?” Although the trial court stated that it would allow Johnson to testify that he was charged with armed robbery in connection with the first DeKalb County robbery and robbery by intimidation on the second, the court would not allow Johnson to take “the next step” and say that he entered a plea of robbery by intimidation to each crime. In light of the trial court’s ruling, Johnson chose not to testify.

“Under Georgia law, the admission of evidence rests in the trial court’s sound discretion, and evidence should be admitted if it is admissible for any legitimate purpose.” (Citation and punctuation omitted.) Rosandich v. State, 289 Ga.App. 170, 171 (1) (657 SE2d 255) (2008). At the time of Johnson’s trial, the Georgia rule favored admission of any relevant evidence, and relevant evidence was defined as that which “[renders] the desired inference more probable than it would be without the evidence.” (Citation and punctuation omitted.) Smith v. State, 255 Ga. 685, 686 (2) (341 SE2d 451) (1986). See also Sprouse v. State, 242 Ga. 831, 833 (3) (252 SE2d 173) (1979); Patterson v. State, 233 Ga. 724, 725 (1) (213 SE2d 612) (1975). However, Georgia law also clearly provided that “[irrelevant matter should be excluded.” Former OCGA § 24-2-1.

Under the circumstances here, we cannot say that the trial court abused its discretion in determining that evidence of Johnson’s plea was not admissible. As the United States Supreme Court has found, “[p]lea bargaining flows from ‘the mutuality of advantage’ to defendants and prosecutors, each with his own reasons for wanting to avoid trial.” (Citation omitted.) Bordenkircher v. Hayes, 434 U.S. 357, 363 (IV) (98 SCt 663, 54 LE2d 604) (1978). Therefore, the plea bargain struck between Johnson and DeKalb County may have been based on any number of reasons. The reasoning behind the plea does not appear on the face of the document itself, and Johnson would not have been able to testify as to the prosecutor’s reasons for accepting his plea, leaving the jury to speculate why the deal was struck. Thus, evidence regarding Johnson’s plea would not have made Johnson’s desired inference — that he did not use a gun during the Gwinnett County robbery — any more probable than it would have been without the evidence. See Dawson v. State, 283 Ga. 315, 316-317 (2) (658 SE2d 755) (2008) (proffered evidence that a third party committed a crime must raise reasonable inference of the defendant’s innocence and directly link the other person to the crime, but it “cannot raise the mere speculation” that someone else committed the crime; “it must do more than raise a conjectural inference”) (citations and punctuation omitted); Boatman v. State, 272 Ga. 139, 140-141 (2) (527 SE2d 560) (2000) (trial court did not err in excluding evidence merely offering speculation or conjecture that a third party could have been involved in the crimes at issue); Chastain v. State, 255 Ga. 723, 725 (342 SE2d 678) (1986) (reversing conviction for tampering with the evidence where any inferences drawn from evidence at trial as to how the knife reached the victim’s hand were mere speculation).

Decided March 12, 2015

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

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

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

       Although Johnson’s identity was not known at the time of the robberies, he was ultimately identified from an anonymous tip after photos from one of the DeKalb County robberies were released to the media. Additionally, Cheryl King, a DeKalb County bank teller, identified him at trial as the man who had robbed her.

       Johnson told investigators that after researching the subject on the Internet, he believed that he could not be convicted of armed robbery if he did not use a weapon during the crime.

       See Davis v. State, 269 Ga. 276, 277-279 (2) (496 SE2d 699) (1998) (“first offender’s guilty plea does not constitute a ‘conviction’ as that term is defined in the Criminal Code of Georgia (OCGA § 16-1-3 (4)),” and thus a guilty plea to an offense for which a defendant received first-offender treatment is not admissible into evidence).

       Johnson was tried in 2012, and Georgia’s former Evidence Code applies to his trial. See Ga. L. 2011, p. 99, § 2. Our new Code defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it wouldhe without the evidence.” OCGA § 24-4-401.

       Former OCGA § 24-2-1 provided: “Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.”

       At the time of Johnson’s trial, Georgia law provided that “[hjearsay testimony [was] not only inadmissible but wholly without probative value, and its introduction without objection [did] not give it any weight or force whatever in establishing a fact.” (Citations and punctuation omitted.) Jackson v. State, 306 Ga. App. 33, 36 (1) (701 SE2d 481) (2010).