text:
    A12A0705.
    GREENWAY v. NORTHSIDE HOSPITAL, INC. et al.
    (730 SE2d 742)
   Boggs, Judge.

Mitchell Greenway appeals from the trial court’s order granting summary judgment to Northside Hospital (“Northside”), Sheriff Ted Paxton, Deputy Terry Roper, and NALAA Corporation (“NALAA”). He contends genuine issues of material fact exist with regard to the liability of each appellee for the euthanasia of his dogs while he was admitted as a patient at Northside. For the reasons explained below, we affirm the trial court’s grant of summary judgment to Sheriff Paxton and reverse the trial court’s grant of summary judgment to Deputy Roper, Northside, and NALAA.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant or denial of summary judgment, we apply a de novo standard of review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

So viewed, the record shows that Mitchell Greenway was taken to Northside by ambulance on January 19, 2007. Greenway recalled telling emergency personnel that his “dogs are in the back yard, they will be fine.” His neighbor, Donald Green, talked with EMT and police personnel in Greenway’s home and told them that he “would look after the dogs. . . .” According to Green, he “had an understanding” with Greenway that he “would help [Greenway] take car e of these two dogs whenever he needed me.” After Greenway left for the hospital, Green immediately fed and watered the dogs and observed that “they never approached their food in a manner one would associate with starving dogs.”

Greenway testified that when he arrived at the hospital emergency room, he “didn’t know what was going on. I didn’t know, you know, where I was. My space orientation was not good. I didn’t know, just didn’t know what was going on.” He recalled “total chaos,” and a nurse saying “he’s not going to make it” because his blood pressure was so low. At some point, a patient advocate met with him in the emergency department and asked whether someone else was at his home, and Greenway “said no, except my two dogs.” He believed the first mention of his dogs was after the patient advocate arrived. He denied asking anyone to call county officials about his dogs and “didn’t understand why the patient advocate would even have called anybody.” He explained that he was “out of it” and did not know how much time passed before deputies came into the room with a patient advocate. Greenway was “baffled why the police were even there.” He thought three deputies in uniform came into the room, but it “may have only been two and they just kept going around.” Greenway testified that “the whole room was full of people.”

The deputies asked Greenway to sign a form, but no one could find his glasses. Greenway testified that he “is almost totally blind without [his] glasses,” and explained that he needs them to read. He refused to sign the form because he could not read it without his glasses. He asked that it be read to him and someone said “they couldn’t read it to me, by law.” Greenway testified that he repeatedly said, “I’m not signing this form until somebody tells me what the h**l what it is I’m signing.”

According to Greenway, the nurses and a doctor told him, in the presence of the deputies and the patient advocate, the purpose of the form was that if he “did die, then [his] dogs would go to the Humane Society.” The doctor told him that Forsyth County has a policy that you can get your animals back within seven days. Greenway claimed that “[t]hey found out later that it’s actually 10 days.” Greenway could not recall the deputies correcting information provided to him by hospital personnel and he believed they were present when the statements were made. The only thing he could recall the deputy saying was “[j]ust sign the damn form.” He recalled a doctor telling the deputies “either get this form signed or get out of here because you’re not sterile.” Greenway testified that the doctor also told him “sign the form to get these guys out of here.”

Greenway testified that he could not believe he was being asked to sign the document “when I was so out of it,” and admitted that he ultimately signed it without reading the entire document. He was able to read the large type words “Owner Release Form” at the top of the form and acknowledged that someone told him the reason he was giving up ownership was his medical condition. Greenway testified that his signature is the only thing written by him on the form.

Based on information provided to him in the emergency room, Greenway testified that he believed his animals were going to the Humane Society and that, if he lived, he would be able to get them back within seven to ten days. At another point in his deposition, Greenway testified that the “[o]nly reason I turned over the dogs is because they told me I was dying.” He explained that he understood his animals were going to the Humane Society and that he would never have signed the form if he had known they would be taken to the pound.

According to Greenway, the only actions he could recall being taken by the deputies in the emergency room were: (1) ordering him to sign the release and (2) placing a big “X” beside the line where he needed to sign. He believes they said other things to him, but he does not “remember what all they said.”

At some point after he signed the form, Greenway received his glasses. He read the form, discovered that his animals could be euthanized, and “bells, whistles and everything went off” in his mind. Before he could do anything about what he had signed, he was sedated. When he woke up in a regular hospital room, he talked with the charge nurse about getting his dogs back. After she made some inquiries, she returned with tears in her eyes and informed Green-way that his dogs had already been euthanized.

Greenway testified that he holds the patient advocate responsible for the death of his dogs because the patient advocate contacted the police. He also testified that when the medical personnel volunteered information about the seven to ten day time period in which he could seek the return of his dogs, he expected them to provide him with correct information.

While the deputies and hospital personnel provided very different accounts of their interaction with Greenway, we must view the facts in the light most favorable to Greenway, the nonmovant, and we therefore summarize only portions of their deposition testimony. Northside’s patient registration clerk testified that she completed admission paperwork for Greenway and wrote “unable to sign” on his admission paperwork. Although she could not recall the specific reason he did not sign the paperwork, she acknowledged that it was possible he was unable to communicate with her.

Northside’s patient relations representative, Jeffrey Hancock, testified that he was called by a nurse, Nickie Stockel, who informed him that “[s]he had a patient in the emergency room who was concerned about the welfare of his pets and wanted to know if [he] could come over to the room.” When Hancock arrived, Stockel “introduced [him] to Mr. Greenway, told [him] what was going on, and said, do you think that we should call Animal Control or the Humane Society and see if there’s some way they could help.” Hancock did not recall Greenway saying anything about not having fed his dogs. According to Hancock, Greenway denied having any friends or family or neighbors who could take care of the dogs. Hancock acknowledged that he did not look for any emergency contact information in Greenway’s hospital records.

Hancock testified that he did not “know what the exact relationship is between Animal Control and Humane Society. The first point of contact is generally Animal Control.” At the time he talked with Stockel, he thought that “the Forsyth County Animal Control and the Forsyth County Humane Society [were] the same organization.” During his deposition, he repeatedly misspoke and said Humane Society when he intended to refer to Animal Control, and he admitted several times that he did not know if they were the same organization.

After his first meeting with Stockel and Greenway in the emergency room, Hancock returned to his office and called Forsyth County Animal Control. He admitted that Greenway never asked him to call Animal Control after their first meeting. After several conversations with Greenway and Animal Control about different options available to Greenway, Hancock “advised [Greenway] that the only option for Animal Control at this point was to pick the dogs up and for them to be turned over to Animal Control permanently.” He believed he said “Animal Control” to Greenway, but admitted that he “can’t say for sure.” When Greenway “said he did not want to do that,” Hancock left the emergency room. A short time later, Stockel called and told him Greenway had changed his mind and wanted “to turn the dogs over to Animal Control.” Hancock testified that he did not know what would happen to the dogs after they were permanently turned over to Animal Control.

Stockel testified that Greenway was not lucid when he first came into the emergency room, explaining that “[h]e would talk, and then he would go back out and then he would talk.” According to Stockel, Greenway was concerned about his dogs and whether he had fed them, asked to speak to Hancock “for emotional support,” and asked Hancock to call the Humane Society to make sure his dogs were alive. She was certain that Greenway used the words Humane Society, not Animal Control. But, according to Stockel, the Humane Society and Animal Control are one entity.

Stockel testified that no one from the sheriff’s department spoke with Greenway; she testified that “[t]he Humane Society, Officer Roper” spoke with Greenway about his dogs. She explained that she normally asks who is coming into one of her patient’s rooms and testified that Deputy Roper told her, “my name is Officer Roper, I work with the Humane Society.” Her notes in Greenway’s medical chart “reflect that Officer Roper worked for the Humane Society.” She admitted that she was not familiar with the document signed by Greenway.

Deputy Roper testified that he does not know what happens to any animal after they are turned over to the shelter or whether they typically survive. He admitted that he does not normally tell a person signing a release that there is a possibility their dog might be put to sleep unless “they specifically ask me.” Instead, he “tell[s] them there’s a chance they’re adopted and there’s a chance they won’t be adopted.” He recalled Greenway “being reluctant that he didn’t want to release his animals,” but denied that Greenway refused to sign the release. He admitted telling Greenway that if he did not have friends or relatives who could care for the animals and could not afford to pay for their care in a shelter or with a vet, “the only other option is the owner release to the shelter so someone can take care of his animals.” He also told Greenway “[t]here has to be something that had to be done. We couldn’t just let the animals stay home by themselves without food and water.”

The record shows that after Deputy Roper obtained the signed release from Greenway, he and Deputy Rogers went to Greenway’s home where they found the dogs in the back yard. Deputy Roper testified that he did not notice whether food and water was available to the dogs, but the dogs appeared to be in good shape. A sheriff’s department “field activity record” states that “[w]ith signed receipt, we entered house and obtained dogs. Took to shelter 1 male and 1 female yellow lab and released to shelter.” This report makes no mention of any aggressive behavior by the dogs, and Deputy Roper did not testify that the dogs were aggressive when he picked them up.

Deputy Rogers did not speak with Greenway at the hospital and did not recall many details of the day. He nonetheless testified that he believed there were two dogs at Greenway’s house, “and I believe the dogs were aggressive toward the officer. That’s all I really remember.” He did not “recall a lot of detail, but I recall as we approached the fence, of course, the dogs were coming at us aggressively. It appeared that the other officer wasn’t able to get control of them by himself.”

Defendant NALAA operated the County Animal Control facility through a contract with Forsyth County. It took possession of the animals on January 19,2007 after they were delivered by the sheriff’s department, along with the release signed by Greenway. This release states:

I, the undersigned, do hereby certify that I am the owner or duly authorized agent for the owner, of animal described above, that I do hereby give Forsyth County Animal Control, their agents, staff, or representatives full and complete authority to destroy and dispose of said animal in a humane manner and hereby release Forsyth County Animal Control from any and all liability for so destroying the said animal.
I understand the said animal may be euthanized (put to sleep) immediately upon my release of animal to Forsyth County Animal Control, if not considered adoptable because of health reasons, temperament, animal’s age, lack of space, or if the animal has bitten someone or another animal, or has a history of biting, or any other reason.
If you have carefully read the information above, and your animal(s) has not bitten a human or another animal within the last ten (10) days or has a history of biting, and you have owned the animal for thirty days or more, you may want to consider the various rescue groups available.

NALAA was also provided with a document releasing the dogs from the sheriff’s office to them stating: “This animal may be adopted or [e]uthanized as deemed necessary by the Animal Shelter Operator.”

On January 22, 2007, three days after Greenway signed the release, NALAA “euthanized both of the animals pursuant to the authority given to the Shelter by Forsyth County.” Before euthanizing Greenway’s dogs, “[t]he shelter observed that the animals were extremely aggressive and out of control, including, but not limited to slamming their bodies into the front doors of their runs, and it appearing that the animals were going to seriously injure themselves or people. . . .”

Greenway’s neighbor, Green, provided an affidavit in which he averred that he called the “county pound” and “spoke with a young lady who worked there.” He explained that he had to leave on a business trip, but would provide them with $100 to pay for boarding and food for Greenway’s dogs and would pay more money if necessary. He told the woman “over and over again that those dogs were not to be euthanized under any circumstances.” The lady responded “that they ‘would take real good care of the dogs.’ She said that [Green] should not worry about their safety, since they would be given plenty of food, water, and love. [Green] was told there was no need for [him] to provide any financial support for them to take care of [Greenway]’s dogs.” Green promised “that if they needed more money, [his] wife would bring the money since [he] was leaving on a business trip.”

When Green returned from his business trip, he learned the dogs had been euthanized and that the director of the pound, Mrs. Orr, had not been informed of his offer of $100 to ensure that Greenway’s dogs would not be euthanized. According to Green, Mrs. Orr admitted that the dogs would “probably not” have been euthanized if she had learned about Green’s conversation with the woman on the phone.

Greenway subsequently filed a suit against Northside, Forsyth County, and Dr. Lanier Orr DMV d/b/a Orr Animal Hospital. He subsequently obtained the trial court’s permission to add Sheriff Ted Paxton and Deputy Terry Roper as defendants, and the trial court’s order granting the motion to add them as parties notes that “Forsyth County is no longer a defendant in this case.” NALAA Corporation was subsequently substituted as a defendant in the place of Lanier Orr, DMV d/b/a Orr Animal Hospital.

Following discovery, all defendants moved for summary judgment. In his response to Northside’s motion for summary judgment, Greenway asserted an ordinary negligence theory of recovery against the hospital in both his written brief and during the hearing on Northside’s motion. The trial court granted the summary judgment motions of all defendants. It concluded that Northside could not be held liable under an ordinary negligence theory of liability because: (1) Greenway had not asserted negligence in his complaint or amended complaint and (2) he could not establish proximate cause resulting from Northside’s negligence even if he had asserted a negligence claim.

1. Greenway contends the trial court erred by granting summary judgment in favor of Sheriff Paxton and Deputy Roper based upon their immunity from suit for discretionary acts. It appears from his brief that Greenway is asserting that Deputy Roper can be held liable for ministerial acts, that no immunity exists for discretionary acts performed with malice by Deputy Roper, and that Sheriff Paxton should be held vicariously liable for the conduct of Deputy Roper.

Whether a government official is entitled to official immunity is a question of law for the court to determine. Glass v. Gates, 311 Ga. App. 563, 575 (2) (716 SE2d 611) (2011).

The doctrine of official immunity offers public officers and employees limited protection from suit in their personal capacity. Official 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.

(Citations, punctuation and footnote omitted.) Todd v. Brooks, 292 Ga. App. 329, 330 (1) (665 SE2d 11) (2008). “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.” (Citation and punctuation omitted.) Vann v. Finley, 313 Ga. App. 153, 159 (1) (721 SE2d 156) (2011).

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 discretipnary act, however, 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.

Todd, supra, 292 Ga. App. at 330 (1). “Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task.” (Citation, punctuation and footnote omitted.) Barnard v. Turner County, 306 Ga. App. 235, 238 (1) (701 SE2d 859) (2010).

(a) Greenway contends that Deputy Roper’s acts were ministerial based upon Deputy Roper’s alleged testimony that “all his actions in regard to this situation were following the policy of Sheriff Paxton.” A review of the deposition testimony cited by Greenway shows that Deputy Roper testified that he had conversations with police supervisors after the incident and he was informed that his actions were “within policy.” Deputy Roper also testified that he made the decision, on his own and as a matter of his own discretion, to provide the release form to Greenway to sign. There is no evidence that Deputy Roper was ordered or obligated to seek Greenway’s signature on the release form. Based upon these facts, the trial court properly concluded Deputy Roper’s “decision to ask [Greenway] to sign the release for his two dogs” was “discretionary” and one which required “Deputy Roper to exercise personal deliberation and judgment.” See Todd, supra, 292 Ga. App. at 330-331 (1) (officer’s decision to shoot bull during attempted impound discretionary act).

This is not the end of our analysis, however, as Greenway’s complaint against Deputy Roper is not based solely upon Deputy Roper’s decision to ask Greenway to sign the form — instead it also focuses upon the manner in which Deputy Roper executed that decision. In this case, Deputy Roper’s act of handing the form to Greenway and asking him to sign it was ministerial; it was a “simple, absolute, and definite [act] . . . requiring merely the execution of a specific duty.” (Citation, punctuation and footnote omitted.) Todd, supra, 292 Ga. App. at 330 (1). The allegations that Deputy Roper exercised poor judgment in carrying out that act do not make the act the type of discretionary act protected by official immunity; they merely support an inference of negligence. See Hicks v. McGee, 289 Ga. 573, 577 (1) (713 SE2d 841) (2011) (“The fact that appellants failed to [correctly perform a ministerial duty] cannot serve to change the nature of the [act] in any manner.”). Greenway’s assertions that Deputy Roper told him, “Just sign this d**n form,” and that Deputy Roper did so when he was “out of it” and “under medication” create genuine issues of material fact as to whether he breached a ministerial duty. The trial court therefore erred by granting summary judgment in Deputy Roper’s favor based upon official immunity.

(b) Having found issues of fact precluding summary judgment in favor of Deputy Roper, we must now determine whether Sheriff Paxton may be held vicariously liable for Deputy Roper’s conduct under the doctrine of respondeat superior. A sheriff may be held liable for a deputy’s negligence only to the extent the county has waived sovereign immunity. Seay v. Cleveland, 270 Ga. 64, 65 (1) (508 SE2d 159) (1998); Gilbert v. Richardson, 264 Ga. 744,753-754 (7) (452 SE2d 476) (1994). A county’s sovereign immunity “may only be waived by a legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.” (Citations, punctuation and footnote omitted.) Smith v. Chatham County, 264 Ga. App. 566, 567 (1) (591 SE2d 388) (2003). “A waiver of sovereign immunity must be established by the party seeking to benefit from the waiver.” (Citation and footnote omitted.) Id. In this case, Greenway points to no applicable statute waiving the county’s sovereign immunity and has consequently failed to meet his burden. We therefore affirm the trial court’s grant of summary judgment in favor of Sheriff Paxton.

2. Greenway asserts the trial court erred in granting summary judgment in favor of Northside because genuine issues of fact exist with regard to Northside’s liability for ordinary negligence. Although Greenway’s complaint and amended complaints did not assert a negligence theory of recovery, we may consider it because it is raised by the evidence before us, Greenway argued it below, and the trial court ruled upon it. See Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 386 (1) (b), n. 14 (649 SE2d 779) (2007); DeLoach v. Foremost Ins. Co., 147 Ga. App. 124, 125 (1) (A) (248 SE2d 193) (1978).

In order to recover against the hospital for ordinary negligence, Greenway must show: “(1) a legal duty to conform to a standard of conduct; (2) a breach of this duty; (3) a causal connection between the conduct and the resulting injury; and (4) damage. . . .” Pattman v. Mann, 307 Ga. App. 413, 417 (701 SE2d 232) (2010). In this case, in analyzing the hospital’s duty of care, we must consider whether Northside voluntarily undertook a duty for which it may be held liable. Osowski v. Smith, 262 Ga. App. 538, 540 (1) (586 SE2d 71) (2003).

[0]ne who undertakes to do an act or perform a service for another has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous, and he was not under any obligation to do such act or perform such service, or there was no consideration for the promise or undertaking sufficient to support an action ex contractu based thereon. When one undertakes an act that he has no duty to perform and another person reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care. The person assuming such responsibility may be held liable for negligently performing the duties so assumed.

(Citations and punctuation omitted.) Id.

In this case, genuine issues of material fact exist as to whether Northside voluntarily undertook a duty to help Greenway ensure the safety of his dogs during his hospitalization, to provide advice about the effect of the release he signed, to advise him about the entity employing Deputy Roper, and to advise him about which entity would be taking custody of his dogs if he signed the release. Questions of fact also exist as to whether Northside negligently performed any duties so assumed by its conduct in calling Animal Control instead of the Humane Society and providing inaccurate information to Greenway about Deputy Roper’s employment, the entity which would take custody of his dogs, and the effect of the release.

Northside contends that, even if it did breach a duty owed to Greenway, “the property damages at issue are simply too remote from any conduct attributable to the hospital to support any recovery against it.” It asserts “multiple intervening actions” preclude a finding that any negligence on its part proximately caused the death of his dogs.

“The question of proximate cause is usually reserved for the jury and can be decided on summary judgment only in plain and indisputable cases.” (Citation and punctuation omitted.) Vann, supra, 313 Ga. App. at 161 (2). Summary judgment should not be granted on the issue of proximate cause unless “reasonable persons could not differ as to both the relevant facts and the evaluative application of legal standards (such as the legal concept of foreseeability) to the facts.” (Citation and punctuation omitted.) Id.

It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act or omission of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury.

(Citation omitted.) Textile Rubber & Chemical Co. v. Thermo-Flex Technologies, 308 Ga. App. 89, 98 (2) (c) (706 SE2d 728) (2011). But,

if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.

Cotton v. Smith, 310 Ga. App. 428, 440-441 (3) (714 SE2d 55) (2011).

In this case, the evidence presented, when viewed in favor of Greenway, presents a jury issue on whether the euthanization of Greenway’s dogs was a reasonably foreseeable consequence of North-side’s conduct in seeking the assistance of Animal Control, as opposed to the Humane Society, in addition to its conduct in providing inaccurate information to Greenway about the effect of the release, Deputy Roper’s employment, and the entity which would take custody of his dogs. See Cotton, supra, 310 Ga. App. at 440-441 (3) (holding jury issue existed as to whether school’s conduct in releasing student to unauthorized person was proximate cause of her subsequent molestation by this person); Daniel v. Bank South Corp., 183 Ga. App. 274, 276-277 (358 SE2d 664) (1987) (finding jury issue as to whether bankruptcy and foreclosure damages were proximately caused by bank’s failure to provide accurate credit information to another lender from whom the plaintiff sought a loan for his real estate activities). The owner release form signed by Greenway expressly provided that Greenway’s dogs could be euthanized and issues of fact exist as to whether the hospital’s employees made representations to Greenway about the content and effect of the waiver form before Greenway signed it.

Northside also asserts that a judicial admission made by Green-way mandates summary judgment in its favor on the issue of proximate cause. In a brief filed in opposition to Sheriff Paxton and Deputy Roper’s motion for summary judgment, Greenway contended: “Officer Roper lied to [his] attending nurse and said he was with the Humane Society. The Plaintiff believed Officer Roper’s lies and this was the sole reason that he signed the release.” This statement in Greenway’s brief does not alter the proximate cause analysis with respect to Northside because it is not inconsistent with his deposition testimony that hospital personnel informed him that his animals would be going to the Humane Society. Greenway’s brief does not contain an admission that Deputy Roper lied directly to Greenway, but instead asserts that Deputy Roper lied to the nurse. This assertion is consistent with Stockel’s testimony that the officer told her that he was with the Humane Society. Because issues of fact exist as to whether hospital personnel told Greenway about Deputy Roper’s alleged employment with the Humane Society and issues of fact exist as to whether they may have miscommunicated or misunderstood Deputy Roper’s employment affiliation, the statement in Greenway’s brief does not mandate summary judgment in favor of the hospital on the issue of proximate cause.

3. In his remaining enumeration of error, Greenway asserts the trial court erred by granting summary judgment in favor of NALAA, the private entity operating the Forsyth County Animal Control shelter on behalf of the county. In his complaint, Greenway alleged an agreement had been reached between his neighbor, Green, and a representative answering the phone on behalf of the pound operated by Dr. Orr. In opposition to NALAA’s summary judgment motion, Greenway submitted an affidavit from Green outlining the agreement Green had reached with a woman working at the pound for the safe-keeping of Greenway’s dogs. During the summary judgment motion hearing, Greenway also relied upon this agreement to oppose NALAA’s motion for summary judgment.

Although inartfully pled and argued both below and here on appeal, Greenway’s pleadings appear to assert a claim for promissory estoppel. Under the doctrine of promissory estoppel a “promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” OCGA § 13-3-44 (a). “Promissory estoppel is an equitable doctrine designed to prevent the intricacies and details of the law from frustrating the ends of justice.” (Citation, punctuation and footnote omitted.) Sun-Pacific Enterprises v. Girardot, 251 Ga. App. 101, 106 (2) (553 SE2d 638) (2001). The elements of promissory estoppel are:

(1) the defendant made a promise or promises; (2) the defendant should have reasonably expected the plaintiffs to rely on such promise; (3) the plaintiffs relied on such promise to their detriment; and (4) an injustice can only be avoided by the enforcement of the promise, because as a result of the reliance, plaintiffs changed their position to their detriment by surrendering, forgoing, or rendering a valuable right.

Decided July 31, 2012

McFarland & McFarland, Robert P. McFarland, for appellant.

(Citation omitted.) Rental Equip. Group v. Maci, LLC, 263 Ga. App. 155, 157 (1) (b) (587 SE2d 364) (2003).

In this case, the following facts create genuine issues with regard to Greenway’s promissory estoppel claim: Greenway and his neighbor Green “had an understanding that [Green] would help him take care of [the] dogs whenever... needed”; Greenway heard his neighbor assure him that he would “take good care of your dogs” before he was transported to the hospital; Green “told the police and EMT’s that [he] would look after the dogs”; Green contacted the county pound on Greenway’s behalf and obtained a promise that the dogs would not be euthanized; and Green left on a business trip and took no further action to protect the dogs’ safety in reliance upon this promise.

While the releases provided to NALAA may have authorized it to euthanize Greenway’s dogs, it was also authorized to subsequently enter into a promise not to do so. And, Greenway, as a principal, would be entitled to damages suffered as a result of representations made to his authorized agent acting on his behalf to protect the well-being of his dogs.After construing every inference in favor of the nonmovant from the record before us, we conclude that genuine issues of material fact exist as to whether NALAA can be held liable for the euthanization of Greenway’s dogs based upon the theory of promissory estoppel. We must therefore reverse the trial court’s grant of summary judgment in NALAA’s favor.

Judgment affirmed in part and reversed in part.

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

Temple, Strickland, Dinges & Schwartz, William D. Temple, Scrudder, Bass, Quillian, Horlock, Taylor & Lazarus, Matthew P. Lazarus, Rodney W. Hood, Trisha L. Lewis, Jarrard& Davis, Thomas R. Mondelli, for appellees.

       As a result of a work injury in 2001, Greenway is totally disabled, receives social security benefits, and takes numerous medications to manage his pain, anxiety, and difficulty sleeping.

       Hancock admitted that he almost said Humane Society instead of Animal Control in this quoted sentence.

       In a previous ruling on Northside’s motion to dismiss Greenway’s complaint for failing to attach an expert affidavit, the trial court ruled that Greenway was “not seeking to recover for professional malpractice.”

       Greenway’s complaint consists of 125 numbered paragraphs with a general prayer for relief at the end. While the caption states it is a “Complaint for Cruelty to Animal, Trespass, Deprivation of Personalty, Interference with Chattel, Invasion of Privacy, and Punitive Damages,” the body of the complaint contains no counts or theories of recovery. The facts alleged in the complaint fall within the elements of a promissory estoppel claim, and it is clear that Greenway seeks to recover damages from NALAA based upon the promise it made to his neighbor and agent, Green. Greenway asserted that this promise precluded summary judgment in NALAA’s favor in his written brief below and during the summary judgment hearing, and he also relies upon it in his brief to this court. “[CJomplaints and other pleadings should be construed as to do substantial justice, that is, liberally in favor of the pleader.” (Citation and punctuation omitted.) Dudley v. Wachovia Bank, 290 Ga. App. 220, 225 (2) (659 SE2d 658) (2008). “The well established rule in Georgia is that, under our system of notice pleading, the substance, rather than the nomenclature, of legal pleadings determines their nature. [Cit.]” Cotton v. Fed. Land Bank &c., 246 Ga. 188, 191 (269 SE2d 422) (1980).

       Mrs. Orr’s subsequent statement that the promise would have been honored had she been aware of it supports an inference that the employee was authorized to make such a promise on behalf of NALAA.

       The release signed by Greenway did not include a merger clause or a prohibition against subsequent oral amendments.

       See OCGA § 10-6-1 (“The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.”); OCGA § 10-6-53 (“The form in which the agent acts is immaterial; if the principal’s name is disclosed and the agent professes to act for him, it will be held to be the act of the principal.”); OCGA § 10-6-58 (“Notice to the agent of any matter connected with his agency shall be notice to the principal.”); OCGA § 10-6-62 (“The principal shall have advantage of his agent’s contracts in the same manner as he shall be bound by them, so far as they come within the scope of his agency.”).


source: Caselaw Access Project

author: Barnes, Presiding Judge.

license: Public Domain

text:
    A12A1325.
    ROBERTS v. THE STATE.
    (730 SE2d 753)
   Barnes, Presiding Judge.

A jury convicted Terry Nelson Roberts of armed robbery, theft by taking a motor vehicle, possession of a firearm during the commission of a felony, and, in a bifurcated trial, possession of a firearm by a convicted felon. The trial court denied his motion for new trial. On appeal, Roberts challenges the sufficiency of the evidence and contends that his trial counsel rendered ineffective assistance. We conclude that the evidence was sufficient to sustain the convictions, and that Roberts cannot show that he was prejudiced by his counsel’s alleged deficient performance. Accordingly, we affirm.

On appeal from a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict. Vadde v. State, 296 Ga. App. 405 (674 SE2d 323) (2009). So viewed, the evidence showed that the victim owned two convenience stores in Chatham County. Around midnight on December 4, 2008, the victim closed one of his stores for the night and drove to his second store. The victim planned to close the second store and place the money from the cash registers into the store’s safe.

One of the victim’s employees rode with him to the second store. The victim parked in front of the store and went inside while his employee remained in the car. After placing the money from the registers into the safe, the victim went back to the front door to lock it for the night. The victim locked the door and was preparing to get inside his car when two men approached him from behind. One of the men hit the victim in the head with a gun, ordered him to open the front door, and said, “Hurry up. Give all the money. Give all the money.” The victim unlocked the door, and the gunman forced him to go inside and retrieve the money from the safe.

While the gunman was accosting the victim, the other suspect approached the employee who had remained in the car and said, “Give me the money. Give me the money.” The employee opened the passenger door, ran toward the gasoline pumps, and called 911 from his cell phone as the suspect was searching the car. A few minutes later, the employee saw the gunman come out of the store and get inside the victim’s car with the other suspect. The two suspects drove off.

The police arrived at the store, and an investigation ensued. Although the gunman’s face had been covered with a bandana, the victim recognized his voice, his distinctive walk, and the heavy gold chain he was wearing. Based on these characteristics, the victim identified the gunman as Roberts, who had been a customer at both of the victim’s stores since he was about eight years old. The detective . assigned to the case prepared a photographic lineup, and the victim identified Roberts as the gunman.

Although the victim’s employee also had not seen the faces of the suspects, he noted that one of them was wearing a green jacket with a unique logo on it. The employee recognized the jacket as one he had seen worn by a frequent customer known as “A. K.,” whom the employee later identified as Roberts.

Based upon the information received from the victim and his employee, the detective applied for and obtained a search warrant for Roberts’s residence. During the search, the police found a green jacket with a unique logo matching the description given by the victim’s employee. Additionally, the police located the victim’s car that had been stolen, and Roberts’s fingerprint was found on the driver’s side door.

At the subsequent trial, the victim and his employee testified to the events as previously discussed. The State also called the detective assigned to the case, the officer who lifted the fingerprint from the victim’s car, and the expert latent print examiner who matched the fingerprint to Roberts. Additionally, the State introduced into evidence the green jacket with the unique logo seized during execution of the search warrant, as well as the recording of a surveillance video from the store. Roberts chose not to testify, but he presented the testimony of his stepfather, who claimed that Roberts did not live at the residence where the search warrant had been executed.

Upon hearing all of the testimony and seeing the surveillance video, the jury found Roberts guilty of armed robbery, theft by taking a motor vehicle, and possession of a firearm during the commission of a felony. Following the guilty verdict on those offenses, the State introduced, without objection, certified records reflecting that Roberts had previously been convicted of aggravated assault, and the jury found him guilty of possession of a firearm by a convicted felon. Roberts moved for a new trial, asserting that his trial counsel had been ineffective. The trial court denied the motion, resulting in this appeal.

1. Contrary to Roberts’s assertion on appeal, the combined evidence set out above was sufficient to authorize a rational jury to find him guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). “Questions concerning the weight of the evidence and credibility of the witnesses were for the jury to decide.” Johnson v. State, 289 Ga. App. 206, 208 (656 SE2d 861) (2008).

2. Roberts contends that his trial counsel provided ineffective assistance. To succeed on an ineffective assistance of counsel claim under the test enunciated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), “[Roberts] must prove 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.” Johnson v. State, 281 Ga. 770, 771 (2) (642 SE2d 827) (2007). If Roberts cannot establish one of the prongs of the Strickland test, he cannot succeed on his ineffective assistance claim, and we need not examine the other prong. Id. at 771-772 (2).

(a) Roberts first contends that his trial counsel was defective in his representation because he did not move for a mistrial or seek a curative instruction when the victim’s employee testified that Roberts was nicknamed “A. K.” because he talked frequently about AK-47s. His counsel did object to the testimony, and after a sidebar, the trial court directed the State to rephrase the question that had been asked to the employee. Roberts contends that the employee’s explanation of how he got his nickname impermissibly placed his character in issue and should have led his trial counsel to go beyond his objection and seek a mistrial or curative instruction.

We need not resolve whether trial counsel’s failure to move for a mistrial or ask for a curative instruction constituted deficient performance, because Roberts cannot demonstrate that the alleged deficiency was so prejudicial to his defense that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different. The fact that Roberts talked a lot about AK-47s said nothing about his prior arrests, convictions, or criminal history or about whether he committed the crimes at issue. And our Supreme Court has held that gun ownership and the custom of carrying a gun do not by themselves suggest bad character. See Davis v. State, 272 Ga. 327, 329 (2) (528 SE2d 800) (2000). The same is true where the testimony at issue reflects more generally that the accused is a gun enthusiast. Accordingly, Roberts cannot show that the introduction of the employee’s testimony regarding how he got his nickname prejudiced him, and, as a result, cannot prevail on his ineffective assistance claim. See generally Watkins v. State, 289 Ga. 359, 362-363 (3) (b) (711 SE2d 655) (2011); Johnson, 281 Ga. at 771-772 (2) (b).

Decided August 2, 2012.

Phillips & Roberts, Amanda R. Roberts, for appellant.

Larry Chisolm, District Attorney, Nathanael E. Wright, Assistant District Attorney, for appellee.

(b) Roberts further contends that his trial counsel was defective in his representation because he did not secure the presence of one of the police officers involved in the case to testify at trial. However,

where a defendant contends that trial counsel was ineffective in failing to call a witness to testify on his behalf, he must call the witness to testify at the motion for new trial hearing or present some legally acceptable substitute in order to show that, if the witness had testified, there is a reasonable probability the outcome of the trial would have been different.

Jones v. State, 290 Ga. 576, 579 (3) (722 SE2d 853) (2012), citing Dickens v. State, 280 Ga. 320, 323 (2) (627 SE2d 587) (2006). Roberts offered no competent evidence at the hearing on his motion for new trial as to what the officer’s testimony would have been had he taken the stand at trial. Consequently, he cannot establish that there is a reasonable probability that the outcome of trial would have been different if the officer had testified, and thus cannot show that he received ineffective assistance from his trial counsel. See id.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Roberts was acquitted of aggravated assault and hijacking a motor vehicle.

       Mere reference to a defendant’s nickname does not, in and of itself, place the character of the defendant in issue. See Burtts v. State, 269 Ga. 402, 402-403 (2) (499 SE2d 326) (1998); Gresham v. State, 265 Ga. 730, 732 (3) (462 SE2d 370) (1995). But, the employee’s testimony went further and provided an explanation for how Roberts got his nickname.


author: Ellington, Chief Judge.

text:
    A12A1508.
    HALL COUNTY BOARD OF TAX ASSESSORS v. NORTHEAST GEORGIA HEALTH SYSTEM, INC.
    (730 SE2d 715)
   Ellington, Chief Judge.

Pursuant to a granted application for an interlocutory appeal, the Hall County Board of Tax Assessors (“the Board”) challenges an order of the Superior Court of Hall County that gave the Northeast Georgia Health System, Inc. (“NGHS”) leave to litigate the issues of the value of certain property and the uniformity of the tax digest in this de novo tax appeal. Because NGHS failed to present the issues of value and uniformity to the Hall County Board of Equalization (“BOE”) for consideration in the underlying administrative tax matter, the superior court lacked subject matter jurisdiction to consider them. Consequently, we must reverse.

The record shows that, in 2009, NGHS applied to the Board for an exemption from ad valorem taxation on a 119.52-acre tract of land upon which it had constructed a medical office building. A tax appraiser determined that the building and associated improvements occupied approximately 13 acres of the tract. After reviewing NGHS’s request, the Board granted tax exempt status to the “improvements and 15 acres of land.” The Board concluded that the remaining 104.52 acres of undeveloped land “will remain taxable until bona fide improvements are built in the future.” Thereafter, the Board issued a new notice of tax assessment for the non-exempt 104.52 acres. There is no evidence in the record demonstrating that the proportionate value of the non-exempt property was different than under the previous assessment. NGHS appealed the decision to the BOE, contending that the Board erred in granting tax exempt status to only 15 acres of land instead of the entire tract.

The BOE affirmed the Board’s decision, finding “no change” and that “[t]he amount of exempt [acreage] stays the same.” Although the BOE’s standard, pre-printed order contained a pro-forma statement that the ‘Value Established by the Hall Count [y] Board of Assessors Meets all standards for Value and Uniformity as prescribed by law[,]” the BOE’s members and secretary testified before the superior court that matters of valuation and uniformity were neither raised by NGHS nor decided by the BOE and that the pro-forma language in the order was included in error. The only matter litigated and decided by the BOE was NGHS’s effort “to get a tax-free status on some vacant property.” NGHS appealed the decision of the BOE to the Superior Court of Hall County. In its notice of appeal, NGHS listed as additional grounds for appeal both value and uniformity. The Board filed a motion with the superior court to preclude consideration of those issues but on appeal, however, after a hearing, the court entered an order allowing NGHS to litigate the issues of value and uniformity.

In Camp v. Boggs, 240 Ga. 127 (239 SE2d 530) (1977), the Supreme Court of Georgia addressed whether an “appellant may raise the issue of uniformity for the first time in an appeal to the superior court.” Id. at 127-128 (1). The Court held that “only those decisions of the Board of Equalization on questions presented to it or incident thereto may be relitigated in the superior court.” (Citation omitted.) Id. at 128 (1) (Because appellant raised only a question of value before the Board of Equalization, she could not raise a new claim of uniformity for the first time on appeal to the superior court.). See also Mundy v. Clayton County Tax Assessors, 146 Ga. App. 473 (2) (246 SE2d 479) (1978) (accord); DeKalb County Bd. of Tax Assessors v. Kendall, Inc., 164 Ga. App. 374, 375-376 (2) (295 SE2d 345) (1982) (physical precedent only) (accord). This rule is consistent with the general requirement that litigants exhaust their administrative remedies before pursuing judicial action. See, e.g., Chatham County Bd. of Assessors v. Jepson, 261 Ga. App. 771, 771-772 (1) (584 SE2d 22) (2003) (“[T]ax questions should be resolved first at the local level through the appeal procedures created specifically for that purpose.”) (footnote omitted).

In this case, there has only been one issue litigated since NGHS filed its initial application with the Board: Whether and to what extent the 119.52-acre tract was exempt from ad valorem taxation. NGHS did not dispute value and uniformity before the Board or the BOE, nor was it necessary to address such issues to resolve the question of the tract’s eligibility for an ad valorem tax exemption. The resolution of this matter appears to turn on the construction of the applicable exemption, which the parties agree may be found in OCGA § 48-5-41 (a) (5), and its application to the facts of this case. Consequently, the appeal before the superior court is limited to this issue, and the court is precluded from addressing issues pertaining to value and uniformity.

Decided July 17, 2012

Reconsideration denied August 3, 2012

Stewart, Melvin & Frost, Nancy L. Richardson, Frank Armstrong III, Rustin L. Smith, for appellant.

Whelchel, Dunlap, Jarrad & Walker, Madeline S. Wirt, for appellee.

NGHS also argues, however, that it may litigate value and uniformity in the superior court because the Board, through its conduct, waived its right to appeal those issues to the BOE and agreed to bring them before the superior court pursuant to OCGA § 48-5-311 (g) (1). That Code section provides: “By mutual written agreement, the taxpayer and the county board of tax assessors may waive an appeal to the county board of equalization and initiate an appeal under this subsection.” Id. NGHS’s argument is without merit because value and uniformity have never been litigated before the Board; hence, there was no Board decision concerning value and uniformity that could have been appealed to the BOE. Consequently, there was no appeal to the BOE on those issues that could have been waived by mutual agreement and initiated, instead, in the superior court, pursuant to the statute.

Judgment reversed.

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

       That Code section provides:
      (A) All property of nonprofit hospitals used in connection with their operation when the hospitals have no stockholders, have no income or profit which is distributed to or for the benefit of any private person, and are subject to the laws of this state regulating nonprofit or charitable corporations;
      (B) Property exempted pursuant to this paragraph shall not include property of a nonprofit hospital held primarily for investment purposes or used for purposes unrelated to: (i) Providing of patient care; (ii) Providing and delivery of health care services; or (iii) Training and education of physicians, nurses, and other health care personnel[.]

       Specifically, NGHS argues that the Board, by certifying the initial appeal without objection, by allegedly negotiating with NGHS concerning the issues of valuation and uniformity, and by not objecting to NGHS’s interlocutory appeal from the trial court’s order denying its motion for summary judgment, waived its right to have those issues brought before the Board of Equalization.


text:
    A12A1118.
    LEWIS v. THE STATE.
    (730 SE2d 757)
   Barnes, Presiding Judge.

Following the denial of his motion to suppress, Christopher Maurice Lewis was convicted of possession of cocaine with intent to distribute and obstruction of a law enforcement officer in a stipulated bench trial. On appeal from the judgment of conviction, Lewis contends that the trial court erred in denying his motion to suppress because narcotics investigators improperly restrained him without a sufficient basis for believing that he had drug contraband on his person. Consequently, Lewis maintains that the drugs that the investigators seized from him were fruit of the poisonous tree and should have been suppressed. We disagree and affirm.

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. Further, 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. However, when evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

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

Viewed in the light most favorable to the trial court’s ruling, the evidence showed that Richmond County narcotics investigators were patrolling a known drug area when they noticed Lewis walking down the middle of the street with his back to them. Lewis turned around, saw the investigators, and continued to proceed down the street. As the investigators got closer to Lewis in their patrol car, he again turned around and looked at them. Lewis then reached into his left jacket pocket, retrieved a small clear plastic bag, and placed the bag in his mouth as he continued to walk away from the investigators.

Once Lewis placed the baggie in his mouth, one of the investigators exited from the patrol car and approached Lewis to conduct a field interview. Lewis refused to answer any of the investigator’s questions, keeping his eyes averted and his mouth tightly closed. As the investigator continued to ask questions, Lewis began chewing on the baggie.

The investigator placed him in a neck restraint to prevent him from destroying what the investigator believed was evidence of illegal narcotics. According to the investigator, the restraint maneuver was not a choke hold; rather, the maneuver involved placing his arm near Lewis’s jaw line to prevent him from chewing or swallowing what was in his mouth. Lewis began to struggle with the investigator in an effort to break free, and the investigator told him to stop struggling and spit out what was in his mouth. During the struggle, the second investigator realized that Lewis had a razor blade in his left hand, and he approached Lewis and restrained his left arm. After ultimately subduing Lewis, the investigators were able to recover a clear plastic bag containing 2.0 grams of crack cocaine from his mouth.

At the hearing on the motion to suppress, the investigator who had attempted to conduct the field interview of Lewis testified to the events as set above. The investigator noted that he approached Lewis to conduct a field interview only after observing him remove the clear plastic baggie from his pocket and place it in his mouth. According to the investigator, his experience in the narcotics unit led him to believe that Lewis’s act of placing a plastic baggie in his mouth was “indicative of . . . someone possibly in possession of illegal narcotics or attempting to conceal or destroy evidence.” The investigator also explained that he used the neck restraint once Lewis started chewing the baggie because, in his experience, that type of behavior was “typical of. . . people try[ing] to conceal narcotics.”

After hearing the investigator’s testimony, the trial court denied Lewis’s motion to suppress the crack cocaine seized from his person. The case proceeded to a bench trial on stipulated facts, and the trial court found Lewis guilty of possession of cocaine with intent to distribute and obstruction of a law enforcement officer. This appeal followed in which Lewis challenges the denial of his motion to suppress.

United States Supreme Court holdings sculpt out, at least theoretically, 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.

(Citation omitted.) Walker v. State, 314 Ga. App. 67, 69-70 (1) (722 SE2d 887) (2012).

At the hearing on his motion to suppress, Lewis conceded that the investigator’s attempt to field interview him was a first-tier detention, but he argued that the investigator escalated the encounter by placing him in the neck restraint and ordering him to spit out what was in his mouth. In denying the motion to suppress, the trial court treated the investigator’s actions as escalating the encounter to a second-tier detention and found that the investigator had reasonable suspicion to support his actions.

The trial court erred in finding that the investigator only escalated the encounter to a second-tier detention by using the neck restraint maneuver and ordering Lewis to spit out what was in his mouth. As part of a valid second-tier detention, an officer is authorized to conduct a pat-down of a suspect’s outer clothing for weapons, if there are particular facts from which he can reasonably infer that the suspect is armed and dangerous. See Jones v. State, 314 Ga. App. 247, 251 (2) (723 SE2d 697) (2012); Shoemaker v. State, 292 Ga. App. 97, 99 (1) (663 SE2d 423) (2008). But a more intrusive search of a person escalates the encounter and requires a showing of probable cause. See Lindsey v. State, 282 Ga. App. 644, 649 (639 SE2d 584) (2006); Barraco v. State, 244 Ga. App. 849, 851 (2) (a) (537 SE2d 114) (2000). See also Florida v. Royer, 460 U. S. 491, 499 (II) (103 SC 1319, 75 LE2d 229) (1983) (“Detentions may be ‘investigative’ yet violative of the Fourth Amendment absent probable cause. In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person....”).

By placing Lewis in a neck restraint and ordering him to spit out the baggie, the investigator escalated the encounter to a third-tier detention requiring a showing of probable cause. See Merriweather v. State, 228 Ga. App. 246, 247 (1) (491 SE2d 467) (1997) (treating search of suspect’s mouth as a third-tier detention requiring a showing of probable cause). The trial court thus erred in treating the encounter as a second-tier detention requiring only a showing of reasonable suspicion. Nevertheless, “even if the trial court’s asserted ground for denying a motion to suppress ... is erroneous, we will affirm the ruling if it is ‘right for any reason.’ ” (Citations omitted.) Walker, 314 Ga. App. at 67 (1). That is the situation here, because the uncontroverted record shows that the investigator had the requisite probable cause to support his actions.

Probable cause exists when the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent person to believe that a crime has been committed and that the person or property to be searched possesses or contains material which offends the law.

Barraco, 244 Ga. App. at 851 (2), n. 2. “Probable cause is a commonsense, nontechnical concept that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,” and the test requires merely a probability, not a certainty, of criminal misconduct. Higdon v. State, 261 Ga. App. 729, 733 (a) (583 SE2d 556) (2003). See Barraco, 244 Ga. App. at 851-852 (2), n. 2. Furthermore, probable cause is measured by examining the totality of the circumstances, and those circumstances include the inferences drawn by an officer based on his own experience. Higdon, 261 Ga. App. at 733-734 (a).

In the present case, the narcotics investigator observed Lewis make a series of furtive attempts at concealing the clear plastic baggie — which the investigator, based on his experience, believed contained drug contraband — from placing the baggie in his mouth to attempting to chew it up while the investigator sought to question him.

Observation of what reasonably appear to be furtive gestures is a factor which may properly be taken into account in determining whether probable cause exists. Thus, if the police see a person in possession of a highly suspicious object or some object which is not identifiable but which because of other circumstances is reasonably suspected to be contraband, and then observe that person make an apparent attempt to conceal that object from police view, probable cause is then present.

(Punctuation omitted.) Brown v. State, 269 Ga. 830, 832 (2) (504 SE2d 443) (1998), quoting 2 Wayne R. LaFave, Search and Seizure (3rd ed.), § 3.6 (d), pp. 318-319. This case fits squarely into the scenario outlined in Brown, and, therefore, we conclude that the investigator had probable cause to restrain Lewis and order him to spit out the baggie. See Merriweather, 228 Ga. App. at 247 (2) (probable cause existed to search defendant’s mouth, where at an intersection known for drug activity, officer saw defendant place paper towel in his mouth while turning away from a stopped vehicle; officer stopped suspect to ask him what was in his mouth; defendant made no reply and then began chewing on what was in his mouth; and officer testified that, in his experience, “drug dealers often operate in the manner he observed defendant operating”).

Additionally, we point out that the neck restraint used by the investigator in an effort to have Lewis spit out the baggie of suspected drugs was not unreasonable under the Fourth Amendment. In Sanders v. State, 247 Ga. App. 170, 172 (543 SE2d 452) (2000), in which the police officer applied pressure to the suspect’s jaw line to force him to spit out a small plastic baggie, we stated that “[a] criminal suspect does not have a right to destroy evidence [,] and the police are authorized to use reasonable but not excessive force in preventing the destruction or concealment of evidence.” (Footnote omitted.) We discussed other cases involving similar facts, noting that

Decided August 6, 2012.

David R. Brunk, for appellant.

R. Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

[i]n Merriweather[, 228 Ga. App. at 248 (3),] this Court sanctioned the use of the Heimlich maneuver to remove suspected contraband after the defendant swallowed it. In Beck v. State, [216 Ga. App. 532, 534-536 (1) (455 SE2d 110) (1995),] the police officer sprayed a chemical irritant into the suspect’s eyes when he refused to spit a bag out of his mouth. This Court did not find unreasonable the use of the spray or the subsequent order, after Beck swallowed the bag, that he provide a urine sample and have his stomach pumped.

(Footnotes omitted.) Sanders, 247 Ga. App. at 172. We reasoned that applying force to the suspect’s jaw line was not unreasonable, given that the use of the Heimlich maneuver in Merriweather and the stomach pump in Beck, where the suspects actually swallowed the contraband, was not considered to be unreasonable. Id. Consequently, in light of Sanders and the other precedent discussed in that opinion, the investigator’s application of a neck restraint maneuver was reasonable under the circumstances.

For these combined reasons, while the trial court’s asserted ground for denying Lewis’s motion to suppress was erroneous, the court’s ultimate conclusion that the investigator acted in a manner consistent with the Fourth Amendment was correct. We therefore affirm the trial court’s order denying Lewis’s motion to suppress the drugs seized from his person.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       To the extent that Lewis argues in his appellate brief that the investigator’s initial encounter with him constituted a second-tier detention, his argument will not be considered because it was not raised during argument on the motion to suppress below. See Locher v. State, 293 Ga. App. 67, 68-69 (1) (666 SE2d 468) (2008).


author: Dillard, Judge.

text:
    A12A1469.
    PENDLETON v. THE STATE.
    (731 SE2d 75)
   Dillard, Judge.

Following a trial by jury, Brandon Deon Pendleton was convicted on four counts of aggravated child molestation. On appeal, Pendleton contends that the trial court erred by denying a motion to suppress a custodial statement to law enforcement and that the evidence was insufficient to sustain his convictions. For the reasons set forth infra, we affirm Pendleton’s convictions.

Viewed in the light most favorable to the verdict, the record reflects that Pendleton was a foster child who moved in with the victim’s family so that he could remain in the same high school after his prior foster family moved to another county. Thus, in the spring of 2008, when Pendleton was 18, he moved in with his new family, with whom he had become acquainted because they lived in the same neighborhood.

Despite his new parents’ efforts to become a foster family and to treat him as one of their own children, Pendleton exhibited violent behavior in the household and engaged in physical altercations with the victim, 12-year-old A. L. The family eventually sought to have Pendleton removed from the home due to these problems. But before that could take place, A. L. disclosed to his mother that Pendleton had sexually molested him on two different occasions.

A. L.’s outcry occurred after his younger cousin reported that A. L. had made inappropriate sexual contact with him. Although A. L. initially denied that he had himself been molested, when confronted a second time about having inappropriate contact with his cousin, A. L. began to cry and disclosed that Pendleton had on two occasions engaged in oral sodomy with him and had forced him to do the same, and that Pendleton attempted anal sodomy with him on one occasion.

Thereafter, A. L. underwent a forensic interview, and Pendleton was arrested by law enforcement and interviewed, during which he denied having sexual contact with A. L. Pendleton was convicted by a jury on four counts of aggravated child molestation. This appeal follows.

At the outset, we note that on appeal of Pendleton’s criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and Pendleton “no longer enjoys a presumption of innocence.” And we neither weigh the evidence nor assess witness credibility, “which are tasks that fall within the exclusive province of the jury.” With these guiding principles in mind, we turn now to Pendleton’s enumerations of error.

1. Pendleton first contends that the trial court erred by denying his motion to suppress the custodial statement he made to police when that statement was not made knowingly and voluntarily. We disagree.

The question of whether a waiver of rights and a subsequent statement are knowing and voluntary “depends on the totality of the circumstances.” And we will affirm a trial court’s “factual determinations and credibility findings related to the admissibility of statements unless they are clearly erroneous.” Nevertheless, when “controlling facts are not in dispute, such as those facts discernible from a videotape, our review is de novo.”

The trial court, in a summary order, found that Pendleton was in custody at the time of the interview, that he was properly advised of his Miranda rights, and that the statement was voluntary. On appeal, Pendleton argues that the totality of the circumstances shows that his statement was not freely and voluntarily given because, at the motion-to-suppress hearing, the testifying officer could not recall advising Pendleton of the charges against him, taking any breaks, or offering food or drink. Additionally, Pendleton, who was in the twelfth grade at the time, became emotional at one point during the interview, which lasted between two and three hours. Nevertheless, we disagree with Pendleton that the totality of the circumstances presents a statement not freely and voluntarily given.

Our review of the record shows that Pendleton was nineteen-years-old and in the twelfth grade at the time of the interview; was under arrest; was not handcuffed or otherwise restrained during the interview; was aware that he was being questioned with regard to A. L.’s allegations of molestation; understood that allegations of molestation were serious; was not under the influence of drugs or alcohol; was advised of his Miranda rights within the first few minutes, waived those rights, and signed a form confirming same; was allowed breaks during the course of the interview and offered something to drink; was not threatened or made any promises by the officers; remained cooperative and open to answering questions during the duration of the interview, and was detailed and clear in doing so. Throughout the interview, Pendleton denied molesting A. L. and spent the majority of the time describing his sexual encounters with males and females, including A. L.’s older sister (who was over the age of 16). This evidence authorizes the conclusion that Pendleton “made a knowing, intelligent, and voluntary decision to speak with the detective[s] and give his oral statements.”

2. Pendleton next contends that the evidence was insufficient to sustain his convictions for aggravated child molestation. We disagree.

A person commits the offense of aggravated child molestation when he or she “commits an offense of child molestation... which ... involves an act of sodomy.” Pendleton was indicted for aggravated child molestation in that he placed “his mouth on the sex organ of the child” on two occasions, placed “his sex organ in the mouth of the child,” and placed “his sex organ in the anus of the child.” In addition to presenting the testimony of a cellmate to whom Pendleton made a detailed “jail-house confession” to the charged offenses of aggravated child molestation (bragging that he would never be convicted and expressing a desire to kill certain members of his foster family with a nail gun), the State presented other evidence of guilt.

As to the two counts regarding forcing A. L. to perform oral sex on Pendleton, the State presented sufficient evidence when A. L. testified that Pendleton had forced him to do so on two different occasions. This testimony was corroborated by his mother’s testimony concerning A. L.’s outcry regarding same, by the videotaped forensic interview in which A. L. repeated the allegations, and by A. L.’s description that Pendleton shaved his pubic hair, which Pendleton confirmed in the interview with law enforcement.

As to the count regarding Pendleton performing oral sex on A. L., although A. L. did not testify to this at trial, the State presented sufficient evidence when his mother testified that A. L. told her that Pendleton put his mouth on A. L.’s penis, and by the videotaped forensic interview in which A. L. described how Pendleton performed oral sex on him. Indeed, any inconsistencies between the victim’s trial testimony and his out-of-court statements “were issues of witness credibility that were solely within the province of the jury and play no part in this Court’s sufficiency of the evidence review.”

Decided August 7, 2012.

Patrick G. Longhi, for appellant.

Garry T. Moss, District Attorney, Cliff Head, Wallace W. Rogers, Jr., Assistant District Attorneys, for appellee.

Finally, as to the count regarding Pendleton’s act of placing his penis in A. L.’s anus, the evidence was sufficient when the State presented testimony by A. L. that Pendleton attempted anal sodomy, which was corroborated by the mother’s testimony and by the forensic interview. Although there was no medical evidence of penetration and A. L. testified to being unsure of whether penetration occurred, the State was not required to prove penetration to present sufficient evidence on this count.

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

Judgment affirmed.

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

        See, e.g., DeLong v. State, 310 Ga. App. 518, 518 (714 SE2d 98) (2011).

       A. L. testified that he did so because he feared that Pendleton would hurt him.

        Id. at 519-20.

        Id. at 520 (punctuation omitted).

        Powers v. State, 314 Ga. App. 733, 735 (2) (725 SE2d 848) (2012) (punctuation omitted).

        Id.

        Boyd v. State, 315 Ga. App. 256, 257 (1) (726 SE2d 746) (2012) (punctuation omitted).

        Ellis v. State, 316 Ga. App. 352, 359 (3) (729 SE2d 492) (2012).

       OCGA § 16-6-4 (c).

       See OCGA § 24-4-8 (“The testimony of a single witness is generally sufficientto establish a fact.”); see also Obeginski v. State, 313 Ga. App. 567, 569 (1) (722 SE2d 162) (2012) (sufficient evidence when defendant engaged in oral sex with victim).

        See OCGA § 24-3-16 (“A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”). Cf. Lipscomb v. State, 315 Ga. App. 437, 440 (1) (727 SE2d 221) (2012) (victim’s claim that defendant’s genitals were exposed to her was corroborated by description of defendant’s penis and photographic evidence of same).

        See OCGA § 24-3-16.

        Lopez v. State, 291 Ga. App. 210, 212 (1) (661 SE2d 618) (2008) (punctuation omitted); see also Hargrave v. State, 311 Ga. App. 852, 856-57 (2) (717 SE2d 485) (2011).

        See OCGA § 24-4-8.

        See Smith v. State, 210 Ga. App. 634, 636 (2) (c) (437 SE2d 333) (1993) (sufficient evidence of aggravated child molestation when forensic interview and outcry witnesses revealed that defendant attempted to anally sodomize the victim).

        See Adams v. State, 299 Ga. App. 39, 42 (2) (681 SE2d 725) (2009) (“[P]enetration is not a required element of either child molestation or aggravated child molestation ....”); see also id. at 40 (1) (“Penetration is not an element of sodomy or aggravated sodomy . . . .”).


author: Adams, Judge.

text:
    A12A0811.
    HAYNES v. THE STATE.
    (731 SE2d 83)
   Adams, Judge.

Stephen Haynes was convicted by a jury on eight counts of sexual exploitation of children. The trial court denied his motion for new trial, and he filed the present appeal. We now affirm Haynes’ conviction, but remand for resentencing as more fully set forth below.

1. Haynes first challenges the sufficiency of the evidence to support his conviction, arguing that the State failed to prove that he had knowledge of the child pornography images stored on his computer.

Haynes was charged pursuant to OCGA § 16-12-100 (b) (8), which makes it unlawful “for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.” In Barton v. State, 286 Ga. App. 49, 50 (1) (648 SE2d 660) (2007) we reversed the defendant’s conviction for sexual exploitation because the evidence was insufficient to show that he was aware that images of child pornography were stored in his computer’s temporary (cache) file folders. Id. at 52. Citing Bar ton, Haynes argues his conviction must likewise be reversed. However, unlike Barton, in which the evidence established only that the images of child pornography had been downloaded automatically and stored in the defendant’s cache folders, in the case at bar the evidence showed that the files containing the child pornography found on Haynes’ computer had been intentionally moved or downloaded to his computer and that the files had been modified on various dates, all actions which indicated that the files did not come to be on Haynes’ computer in some passive way. Further, the evidence showed that Haynes told the officers when they arrived at his residence that he had a computer located in his bedroom beside his bed, and it was on this computer that the images were found. Haynes also admitted to the officers that he shared files on the Internet using certain file-sharing programs, including the program used to download the images of child pornography. Although Haynes denied that he viewed child pornography on his computer, the resolution of issues of credibility and conflicting evidence was for the jury, not this Court, to resolve. Our review indicates that the evidence presented at trial in this case was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); thus Haynes’ challenge to the sufficiency of the evidence is unavailing. Dickerson v. State, 304 Ga. App. 762, 765-766 (2) (697 SE2d 874) (2010).

2. Citing State v. Kramer, 260 Ga.App. 546 (580 SE2d 314) (2003) (physical precedent only), Haynes next argues that the trial court erred by denying his motion to suppress the evidence of child pornography seized from his computer because a search warrant executed at his residence was overly broad and failed to particularly describe the items to be searched. However, Kramer, in which one judge concurred in the judgment only, is not binding authority. Court of Appeals Rule 33 (a). Further, in that case we affirmed the trial court’s suppression of the videotapes seized pursuant to a warrant that authorized the seizure of “VHS videotapes” used, inter alia, in the crime of child molestation because there was absolutely no evidence that the victim was exposed to any of the videotapes. Id. at 548. McIntyre v. State, 311 Ga. App. 173, 175-176 (2) (a) (715 SE2d 431) (2011). Thus, Kramer is not controlling here.

Decided August 8, 2012.

Gregory A. Hicks, Amanda R. Gaddis, for appellant.

Garry T. Moss, District Attorney, Cliff Head, Lara A. Snow, Assistant District Attorneys, for appellee.

And, as to the particularity with which the items were described, we have held on numerous occasions that “ ‘[w]hen circumstances make an exact description of instrumentalities a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking.’... Butler v. State, 130 Ga. App. 469, 473 (2) (203 SE2d 558) (1973).” Smith v. State, 274 Ga. App. 106, 110 (3) (616 SE2d 868) (2005) (“warrants general description of items evidencing ‘child molestation and sexual exploitation of children in violation of OCGA § 16-12-100.2’ was sufficient”). Applying that test here, we find the description of the items relating to the charge of sexual exploitation of children was sufficient.

Further, even assuming without deciding that the warrant in this case was overly broad because it authorized the seizure of images that could, as Haynes argues, “be irrelevant to a sexual exploitation of minors investigation,” there is nothing to indicate that a broader seizure in fact occurred and thus nothing to indicate any harm. Indeed, where a search as it was actually conducted is lawful, “ ‘it is not rendered invalid merely because the warrant pursuant to which it was made was overbroadQ’ [Butler v. State, 130 Ga. App. 469, 474 (2) (203 SE2d 558) (1973).]” Jones v. State, 313 Ga. App. 590, 594 (2) (722 SE2d 202) (2012).

3. Citing the recent Supreme Court case of Hedden v. State, 288 Ga. 871 (708 SE2d 287) (2011), Haynes argues that the trial court erred by determining that it had no discretion, pursuant to OCGA § 17-10-6.2 (c), to deviate from the mandatory minimum sentencing provisions set forth in OCGA § 17-10-6.2 (b). The State concedes, and we agree, that Hedden is controlling here and that, therefore, Haynes’ sentence must be vacated and the case remanded for resentencing. E.g., Hatcher v. State, 314 Ga. App. 836 (726 SE2d 117) (2012); Tindell v. State, 314 Ga. App. 91, 92 (722 SE2d 921) (2012).

Judgment affirmed, sentence vacated and case remanded with direction.

Barnes, P. J., and McFadden, J., concur.


author: Miller, Judge.

text:
    A12A0935.
    MERCADO v. THE STATE.
    (731 SE2d 85)
   Miller, Judge.

Following a jury trial, Luis Antonio Mercado was convicted of trafficking in methamphetamine (OCGA § 16-13-31 (e)). Mercado appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion for a directed verdict of acquittal. Finding no error, we affirm.

We review the denial of a motion for directed verdict of acquittal under the same standard we apply to a challenge to the sufficiency of the evidence. Under that standard, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citation and punctuation omitted.) Tabb v. State, 313 Ga. App. 852, 854 (1) (723 SE2d 295) (2012).

So viewed, the evidence shows that Mercado was driving his grandmother’s vehicle on the night he picked up his co-defendant in Norcross. When he picked her up, the co-defendant asked Mercado if he was “riding dirty,” meaning whether he was driving with narcotics or other contraband in the vehicle. As he was driving, Mercado was pulled over by a police officer for failure to maintain a lane. During the traffic stop, the officer observed furtive movements inside the vehicle; saw Mercado’s co-defendant trying to push a purse and bag under the passenger seat; noticed that Mercado and the co-defendant were extremely nervous; and detected a strong odor of methamphetamine coming from inside the vehicle. During questioning, Mercado and his co-defendant both stated that they were traveling to Birmingham, Alabama, but they gave conflicting statements about the duration of their trip. Based on these observations, the officer suspected that Mercado was involved in criminal activity. The officer asked for and received Mercado’s consent to search the vehicle. During his search, the officer found a “brick” of methamphetamine weighing 442.25 grams on the floorboard of the back seat of the vehicle. Mercado and his co-defendant were arrested, charged, and convicted of trafficking in methamphetamine.

On appeal, Mercado contends that the trial court erroneously denied his motion for a directed verdict because the evidence did not eliminate all other reasonable hypotheses of innocence. Mercado argues that since the vehicle belonged to his grandmother and he was traveling with a passenger, others had equal access to the vehicle where the methamphetamine was found. His contention is without merit.

Pursuant to OCGA § 16-13-31 (e), trafficking in methamphetamine is committed when “[a]ny person who knowingly sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine[.]” Therefore, mere possession of a trafficking amount is sufficient to sustain a conviction for the crime of trafficking in methamphetamine. See Navarro v. State, 293 Ga. App. 329, 331 (667 SE2d 125) (2008).

Under Georgia law, the possession required for a conviction for drug trafficking does not mean that [Mercado] had to be holding the contraband in his hand or have it physically on his person. Rather, because [Mercado] was driving the vehicle where the methamphetamine was found, at the time it was found, a presumption arose that he possessed the same.

(Citations and punctuation omitted.) Id. However,

this presumption is rebuttable by evidence of equal access. And in this context, evidence showing that a person or persons other than the owner or driver of the automobile had equal access to the contraband found in the automobile may or will, depending on the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver.

(Punctuation and footnotes omitted.) Johnson v. State, 268 Ga. App. 808, 809-810 (602 SE2d 840) (2004). “Whether the evidence of equal access was sufficient to rebut any inference of possession is a question properly left to the jury.” (Citation and punctuation omitted.) Id. at 810, n. 5.

Here, although Mercado’s grandmother owned the vehicle, there is no evidence establishing that she, or anyone other than Mercado and the co-defendant, had recent access to the vehicle. Cf. Turner v. State, 276 Ga. App. 381, 382 (623 SE2d 216) (2005) (“[I]n the case of an automobile found containing contraband, no presumption arises that the driver ... is in possession of the contraband, where there is any competent evidence that persons other than the accused have had access to or control of the vehicle for a period of time prior to the discovery of the contraband.”) (emphasis supplied). Consequently, as the driver of the vehicle, Mercado was presumed to have possession of the methamphetamine in the vehicle. See Navarro, supra, 293 Ga. App. at 331. Contrary to his arguments otherwise, the fact that Mercado’s grandmother owned the car was insufficient, by itself, to entitle Mercado to a directed verdict of acquittal. Id.

Decided August 8, 2012.

Mary Erickson, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

Moreover, because Mercado and his co-defendant were jointly charged with the offense of trafficking in methamphetamine, the State was not required to show that Mercado was in sole constructive possession of the drugs. See Cochran v. State, 300 Ga. App. 92, 94 (1) (a) (684 SE2d 136) (2009). Rather, the State could establish the element of possession by showing that Mercado and his co-defendant were in joint constructive possession of the contraband. Id. at 94-95 (1) (a); Martinez v. State, 303 Ga.App. 71, 73 (1) (69 2SE2d 737) (2010) (“A defendant’s joint constructive possession of contraband with another will sustain a conviction.”) (citations omitted). The fact that his co-defendant may have had equal access to the methamphetamine may have inculpated the co-defendant, but such evidence did not automatically exculpate Mercado. See Navarro, supra, 293 Ga. App. at 331. In light of the evidence, including the strong odor of methamphetamine emanating from the vehicle and his co-defendant’s concern that Mercado may have been “riding dirty,” the jury was authorized to reject Mercado’s equal access defense and find that he was in knowing, joint constructive possession of the drugs found in the car he was driving. See id.; Waters v. State, 280 Ga. App. 566, 567-568 (634 SE2d 508) (2006) (evidence was sufficient to support conviction for trafficking methamphetamine based on joint constructive possession with a co-defendant where both occupants charged with possession and drugs were found under passenger’s seat of vehicle driven by defendant, even though vehicle did not belong to defendant). Therefore, the trial court did not err in denying Mercado’s motion for a directed verdict of acquittal.

Judgment affirmed.

Mikell, P. J., and Ray, J., concur.

       The officer also found two smaller quantities of methamphetamine weighing a total of 5.02 grams and a methamphetamine pipe inside the co-defendant’s purse and bag.


text:
    A12A1424.
    CHANDLER v. THE STATE.
    (731 SE2d 88)
   Miller, Judge.

Following a jury trial, Tommy Chandler was convicted of two counts of sale of cocaine (OCGA § 16-13-30 (b)). Chandler filed a motion for new trial, which the trial court denied. On appeal, Chandler contends that the trial court erred in failing to grant his pretrial motion to reveal the identity of the State’s confidential informant. Finding no error, we affirm.

Viewed in the light most favorable to the jury verdict, the evidence shows that in early 2009, the Barrow County Sheriff’s Office (“BCSO”) conducted a large scale investigation of drug sales in the City of Winder. On March 11, 2009, a BCSO investigating officer drove a confidential informant (the “Cl”) to a grocery store parking lot to make a controlled buy from a suspected drug dealer known as “Smiley.” The investigating officer saw “Smiley,” whom he later identified as Chandler, arrive in a green vehicle and park about ten feet away from where the investigating officer and the Cl were waiting in an undercover vehicle. The investigating officer remained in the vehicle and observed as the Cl walked over to Chandler and engaged in the drug transaction. The Cl gave Chandler $50 in exchange for approximately 6.6 grams of crack cocaine. The investigating officer had equipped the Cl with an audio transmitter, which allowed a nearby surveillance team to hear and record the conversation between the Cl and Chandler.

About two weeks later, the investigating officer arranged for the Cl to make another controlled drug buy from Chandler. Upon arriving at the prearranged meeting place — an apartment complex in close proximity to where the first drug transaction had occurred — the investigating officer saw Chandler waiting outside. The Cl got out of the undercover vehicle, walked over to Chandler, and exchanged money for less than one gram of crack cocaine. This second transaction was also recorded in audio. Following this second transaction, Chandler was arrested and charged with two counts of sale of cocaine.

Prior to trial, Chandler presented an oral motion to compel the State to reveal the identity of the Cl. Following a hearing on the motion, the trial court denied the same, finding that Chandler had failed to make a prima facie showing for disclosure of the Cl’s identity.

At trial, the State presented the investigating officer’s testimony that during the two controlled cocaine transactions, he was in close proximity to Chandler when Chandler sold crack cocaine to the CI. The State also introduced and played audio recordings of both transactions. In his defense, Chandler denied any knowledge of or involvement in the drug sales. Chandler admitted to being known as “Smiley,” but stated that several people in the area resembled him. Chandler also admitted to living in the apartment complexes where the second drug transaction occurred. Following the presentation of evidence, Chandler was convicted of both counts of sale of cocaine.

On appeal, Chandler contends that the trial court erred in failing to grant his pretrial motion to compel the State to disclose the identity of the CL Chandler argues that since there was a conflict in testimony as to the identity of the individual who sold crack cocaine to the Cl, the CLs testimony was material to his defense. We disagree.

[T]he government’s privilege to withhold from disclosure the identity of a confidential informant is limited by the underlying purpose of the privilege itself and the fundamental requirements of fairness.... [W]here the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.... The resolution of each case, accordingly, depends on the particular circumstances involved, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

(Citation and punctuation omitted.) Grant v. State, 230 Ga. App. 330, 331 (1) (496 SE2d 325) (1998).

For purposes of determining whether the State must reveal the identity of the confidential informant, the trial court must conduct a two-step hearing: Initially, the trial court should hear evidence to determine: (a) that the confidential informant is an alleged informer-witness or informer-participant whose testimony appears to be material to the defense on the issue of guilt or punishment; (b) that the testimony for the prosecution and the defense is or will be in conflict; and (c) that the confidential informant was the only available witness who could amplify or contradict the testimony of these witnesses. If the threshold is met, the trial court must conduct an in-camera hearing of the confidential informant’s testimony.

(Punctuation and footnotes omitted.) Hernandez v. State, 291 Ga. App. 562, 569 (3) (662 SE2d 325) (2008). “The appellate court, in determining the propriety of disclosing the identity of an informant, may consider all relevant evidence contained in pretrial, trial, and post-trial proceedings.” (Citation omitted.) Id. at 568 (3), n. 20.

Decided August 8, 2012.

W. McCall Calhoun, Jr., for appellant.

J. Bradley Smith, District Attorney, Samuel E. Skelton, Assistant District Attorney, for appellee.

Here, to the extent Chandler wished to call the Cl merely to impeach the Cl or the investigating officer’s testimony, disclosure of the Cl’s identity was not required. See Black v. State, 154 Ga. App. 441, 442 (2) (268 SE2d 724) (1980). While Chandler also asserts that the Cl was the only witness who could amplify or refute any conflicting testimony regarding his participation in the offense, his claim is without merit. The State’s evidence showed that the investigating officer engaged in visual surveillance throughout the controlled buy operations and clearly observed Chandler when he sold drugs to the Cl. Chandler admitted that he was known as “Smiley,” and that he lived in the apartment complexes where the second drug transaction took place and which was near the location of the first drug transaction. Although Chandler suggested that the investigating officer could have confused Chandler with several individuals in his neighborhood resembling him, the audiotape recording of the transaction enabled the jury to compare the voices heard in the recording to Chandler’s voice when he testified at trial. Consequently, the audiotape recording was a key factor in diminishing the need for the Cl to amplify or refute any conflicting testimony. Cf. McClarity v. State, 234 Ga. App. 348, 352-353 (3) (d) (506 SE2d 392) (1998) (holding that videotape recording of drug transaction was the key factor weighing against the need to reveal the Cl’s identity, since the objective evidence diminished the need for the Cl to testify). Accordingly, the trial court did not err in refusing to require the State to reveal the identity of the CL

Judgment affirmed.

Mikell, P. J., and Ray, J., concur.

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