text:
    A12A0481, A12A0482.
    CARRIER CORPORATION v. ROLLINS, INC.; and vice versa.
    (730 SE2d 103)
   MlKELL, Presiding Judge.

These companion cases arise from a dispute in which Rollins, Inc., sued Carrier Corporation alleging damages for breach of contract and other claims related to Carrier’s agreement to install a more than $2 million heating, ventilation, and air-conditioning (“HVAC”) system at Rollins’s headquarters. Carrier counterclaimed for unpaid invoices. The case went to trial, and the jury awarded Rollins $350,000 on its claims and awarded Carrier $88,000 on its counterclaim. Both parties appealed, and the cases have been consolidated for our review. In Case No. A12A0481, Carrier alleges that the trial court erred in denying its motions for a directed verdict; refusing to give certain jury charges; and awarding sanctions for Carrier’s failure to comply with discovery orders. In Case No. A12A0482, Rollins appeals from the judgment against it on Carrier’s counterclaims, alleging that the trial court erred in its award of prejudgment interest. We affirm in Case No. A12A0481 and reverse in Case No. A12A0482.

“A jury verdict, after approval by the trial court, and the judgment thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law.”

Viewed in the light most favorable to the jury’s verdict, the record reflects that Rollins entered into several contracts with Carrier for the installation of a HVAC system at Rollins’s corporate headquarters. Among those contracts were a March 11,2005,11-phase “Heating, Ventilation and Air Conditioning Renovation Plan” (the “HVAC contract” or “the contract”) and a March 9, 2005, letter agreement. that sets forth items and services to be included in Carrier’s bid on the project. The HVAC system installed pursuant to the HVAC contract never functioned properly, with the result that Rollins’s headquarters building was as cold as a “meat locker” in one area and hot as “an oven” in another. Deficiencies included “significant temperature variations” in the chairman’s office, “lack of sufficient return air out of the space,” and a lack of heat in the winter so severe that Rollins’s approximately 300 employees used more than 100 personal space heaters at their desks to stay warm. Despite Carrier’s attempts at correction, the problems persisted. When Rollins, after paying more than $2 million for the system, eventually refused to pay additional Carrier invoices of about $61,000, Carrier sent notice that it was leaving the job effective December 2008. Rollins then hired another contractor to finish the work at an estimated cost of $702,000. Rollins filed this breach of contract action, and Carrier counterclaimed for the unpaid invoices.

Case No. A12A0481

1. On appeal, Carrier argues that the trial court erred in denying its motion for a directed verdict because Rollins’s complaint was filed outside of the HVAC contract’s one-year limitation period.

A trial court may grant a motion for directed verdict “only when no conflict exists in the evidence and the evidence presented, with all reasonable inferences therefrom, demands a particular verdict.” On appellate review of the denial of a motion for directed verdict, “we construe the evidence in the light most favorable to the verdict and resolve any doubts or ambiguities in favor of the verdict.” We review the trial court’s denial of a motion for a directed verdict using the “any evidence” standard.

The HVAC contract provides that “[a]ny suits arising from the performance or non-performance of this Agreement, whether based upon contract, negligence, strict liability or otherwise, shall be brought within one (1) year from the date the claim arose.”

Rollins filed an arbitration claim on February 17, 2009, and filed the complaint in this case on March 30, 2009. Carrier argues that although the term “the date the claim arose” is not defined in the HVAC contract, the time should be measured from the date of “substantial completion” of construction, which occurred about two years before Rollins filed suit. Specifically, Carrier argues that substantial completion occurred in March 2007, when its installation personnel left the job site, and that, therefore, Rollins’s complaint was time-barred.

Rollins counters that its action was not time-barred because Carrier personnel continued to work at Rollins’s headquarters, attempting to assess and fix the malfunctioning system, through at least December 2008, when Carrier sent its notice of termination. Rollins further argues that “substantial completion” is a statutory, rather than contractual, concept, that the term does not appear in the HVAC contract, and that it therefore has no bearing on the issue of the contractual limitation.

Pursuant to the terms and conditions of the contract, Carrier agreed to provide Rollins with a “complete operational system” , and further agreed that its “scope of work will include incidental work that is not specifically described but is required for a complete operational system .” The contract also provided that “[a]ny deficiencies that are identified by the owner’s representative will be corrected before final system acceptance can be approved.” While the record contains evidence that malfunctions occurred in a number of the phases of the contract, counsel for Carrier admitted at trial that Rollins never accepted the phase covering the executive areas of the building. The contract provides that suit must be brought within one year of “the date the claim arose.” Thus, the issue before us is, when did Rollins’s claim against Carrier arise?

“When the question is raised as to whether an action is barred by a statute of limitations, the true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.” Generally, “a cause of action for breach of a construction contract accrues upon the project’s substantial completion.” In the case sub judice, however, the contract does not contain the term “substantial completion,” instead referring to a “complete operational system.”

Evidence supports the jury’s conclusion that Rollins’s HVAC system was not a complete operational system because, for example, Rollins never accepted the phase of the contract covering its executive suites. Rollins’s senior vice president, Michael Knottek, who signed the contract with Carrier, testified that there were “constantly problems with the thermostats in the executive area, where they would not maintain the setpoints.” He further testified that when the rooftop unit in the executive meeting room turned on, the lights would dim in the board meeting room next door to the point where Knottek had to have a Carrier technician on-site to fix problems every time a board meeting occurred. Knottek also testified that executives and other workers had to be temporarily relocated to other parts of the building while problems were being fixed, and that rooftop cooling units, when examined by an outside consultant, were found to be undersized. Asked if there were ever a month where the system functioned as a “complete operational system,” Knottek responded, “No.”

Bruce Burdon, general manager for Carrier’s commercial business, also testified that the system was not complete: “We were at the final stages of completion of the project, and we were ... in the executive area.” In a letter to one of Rollins’s executives dated September 24, 2008, Burdon proposed a plan of action and acknowledged problems with “system reliability associated with the control sequencing of the backup system,” and the need to “maintain set point at all times.” Another letter from Burdon to Knottek dated November 14, 2008, and referring to the September 24, 2008 letter, lists action items that have been “completed” and requests payment of invoices.

Rollins, which already had paid more than $2 million to Carrier, refused to pay $61,000 in invoices, arguing the system was still not complete or functional.

Burdon’s testimony proved that the system was only in the “final stages of completion” and not, per se, complete. Further, Carrier’s own letters mentioned above acknowledge that the system was not, in its view, “complete” prior to November 2008. Moreover, Rollins did not accept the executive phase of the project, and Carrier continued to work until terminating its relationship with Rollins in December 2008. Until that time, Rollins could not have maintained a successful cause of action, as Carrier still was performing on the contract. Given that Rollins sought arbitration on February 17,2009, and filed suit on March 30, 2009, it filed suit within the limitation period, and the trial court did not err in denying Carrier’s motion for a directed verdict on this ground.

2. Carrier argues that the trial court erred in refusing to give its requested jury instruction regarding the date of “substantial completion” of the project, and in refusing to charge the jury on the contract’s one-year period of limitation.

“In reviewing an allegedly erroneous jury instruction, we apply the ‘plain legal error’ standard of review.”

It is well established that jury instructions must be read and considered as a whole in determining whether the charge contained error. Moreover, a trial court does not err in refusing to give a requested charge that is not legally accurate and adjusted to the evidence. A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence.

Carrier’s requested charge, in pertinent part, was:

[W]hen a contract has a contractual period of limitations, like the one (1) year found in the March 11,2005 contract, the Plaintiff cannot recover for any cause of action based on the contract that it did not bring within the contractually prescribed period.... The period of limitation on a construction contract commences on the date the work was substantially complete. I charge you that substantial completion is defined as the date when construction was sufficiently completed, in accordance with the contract ... , so that the owner could occupy the project for the use for which it was intended.

As set out in Division 1, “substantial completion” is not a term present in the HVAC contract. Where a contract’s terms are plain and unambiguous, we are precluded from inserting new terms or provisions. Further, as the evidence makes clear, Rollins was forced to relocate employees and executives temporarily, because the temperatures in portions of its building were not properly controlled, meaning that Rollins could not “occupy the project for the use for which it was intended.” Given these facts, a charge in the form Carrier requested would be neither perfect in form nor adjusted to the evidence. We discern no reversible error.

3. Carrier contends that the trial court erred in denying its motion for a directed verdict on Rollins’s claim for damages for breach of written warranty. Carrier argues that under the HVAC contract, “obligations to repair, replace, or issue credit for any defective parts, components or service shall be Customer’s exclusive remedy,” and that Rollins failed to provide written notice of any defective parts that Carrier refused to replace or otherwise correct.

The general verdict form used by the jury, however, conflates the issues of breach of contract and breach of warranty. This court will not speculate on the findings of fact supporting a jury’s verdict. The trial court’s judgment was correct as rendered, and the verdict of $350,000 is not illegal on its face. Carrier does not allege that it requested special findings or that it objected to the verdict form, and it has “therefore waived any complaint of deficiency in the verdict.”

4. Carrier next alleges that the trial court erred in refusing to give a requested jury charge based on Kent v. Hunt & Assocs. and two other cases. The requested charge provided that if the jury found that Carrier had

fully complied with its obligation under the contract, both as to the materials used and the manner of doing the work, then [Carrier] is not to be accountable for unsatisfactory results____ [W]here a construction contract provides that work shall be performed in accordance with certain details and specification, mutually agreed upon by both parties, and the work is done in compliance with the terms of that contract, the Plaintiff cannot recover.

On appeal, Carrier argues that the court erred in failing to give the requested charge because three engineers testified that the HVAC system was installed in a workmanlike manner as called for in the contract.

A court is not required to “instruct in the exact language of a request, even though the request may be correct as an abstract principle of law which is directly applicable to a material issue.” Here, the trial court charged the jury, in pertinent part, that “[performance of a contract, to be effectual, must be substantially in compliance with the spirit and the letter of the contract... [and] there is implied in every contract for work or services a duty to perform it skillfully and carefully.” This instruction adequately explains the law given in the proposed charge. Further, Carrier has not shown that the outcome would have been different had the jury been given its requested instruction, and therefore, any error was harmless.

5. In its final enumeration, Carrier alleges that the trial court erred in awarding attorney fees as sanctions for Carrier’s failure, despite court orders, to produce its president, Geraud Darnis, for deposition. For the reasons that follow, we affirm.

“Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.”

On December 2, 2010, the trial court issued a joint scheduling order providing that “the following depositions must be taken on or by January 10, 2011 [:] . . . [Geraud] Darnis.” Rollins then noticed Darnis’s deposition, but Carrier moved for a protective order, alleging that Darnis had no direct knowledge of the litigation. The court denied the motion, and the day before the scheduled deposition, Carrier e-mailed Rollins objecting to the date and promising to provide alternate dates. As a result, Rollins withdrew the deposition notice. Carrier then filed a motion for reconsideration. Carrier did not provide alternate dates, so while that motion was pending, Rollins noticed a videotape deposition of Darnis for January 3, 2011. Carrier moved to stay, objecting to the date. The trial court denied Carrier’s motion for reconsideration. Carrier then filed another motion for a protective order, again objecting to the deposition date. Carrier did not produce Darnis for the noticed January 3, 2011, deposition. On March 25, 2011, after a hearing, the trial court denied Carrier’s outstanding motion for a protective order, ordered Carrier to produce Darnis, and awarded attorney fees as sanctions under OCGA§ 9-11-37 (b) (2).

(a) Carrier argues that an award of sanctions under OCGA § 9-11-37 (b) must be preceded by either the grant of a motion to compel under OCGA § 9-11-37 (a) or an order limiting the parameters of the deposition under OCGA § 9-11-26 (c) following the denial of a motion for a protective order. Here, neither type of order was entered. While it is true that sanctions under OCGA § 9-11-37 (b) comprise a two-step process, the steps are not as rigidly defined as Carrier suggests. Carrier relies upon Joel v. Duet Holdings, but, even there, this court found no merit in the argument that in the absence of a motion to compel, imposition of sanctions was erroneous:

The general scheme of OCGA § 9-11-37 ... is that ordinarily sanctions can be applied only for a failure to comply with an order of the court. Thus when the discovery procedure itself requires a court order or permits an order[,] failure to obey the order can be punished immediately by any of the sanctions listed in Rule 37 (b).

This court has upheld sanctions in instances where a party has violated orders, including discovery scheduling orders, other than those pursuant to OCGA§ 9-11-37 (a) or § 9-11-26 (c). Although in those limited instances, the party’s discovery violations were more egregious than here, so were the sanctions imposed; therefore, the same principles apply. Carrier further argues that the trial court had not ruled on its objection to the deposition date prior to imposing sanctions, but that argument is unavailing. Where the trial court has jurisdiction to issue an order, as here, and an outstanding order exists — even if that order is erroneous, unlike in the case at bar — the order must be obeyed.

(b) Carrier contends that it should not be required to pay attorney fees because it opposed the deposition on the basis that Darnis had no relevant personal knowledge of the case. OCGA § 9-11-37 (b) (2) provides that in lieu of or in addition to other sanctions permitted by the statute, “the court shall require the party failing to obey the order ... to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” Given the trial court’s denial of Carrier’s motions, it clearly did not find the failure “substantially justified.” Further, since no transcript of the sanctions hearing appears in the record before us, “we must assume the trial court’s action would be supported by the record.”

(c) Finally, Carrier contends that the amount awarded as attorney fees and expenses, $19,247.86, is excessive, because sanctions should be calculated only from January 3,2011, the date Darnis failed to appear for his last scheduled deposition, rather than the first noticed deposition. We disagree.

The measure of recovery under OCGA § 9-11-37 (b) is “reasonable expenses, including attorney’s fees, caused by the failure” to obey court orders. In support of its argument, Carrier cites Cohen v. Nudelman, which is inapposite. There, unlike in the case sub judice, the trial court failed to disclose the legal basis for its sanctions and the order itself indicated that the fee award did not relate solely to the expenses of the motion to compel. Here, the trial court’s order specifically indicates that it is based on OCGA § 9-11-37 (b); that the court reviewed the relevant billings; and that the sanctions relate not just to the original discovery order, but to the prior orders dating back to the first noticed deposition on December 17, 2010. Accordingly, we find no abuse of discretion.

Case No. A12A0482

6. Rollins appeals from the judgment entered on the jury’s verdict in favor of Carrier on its counterclaim for unpaid invoices, urging in two related enumerations of error that the trial court erred in granting Carrier prejudgment interest at 18 percent pursuant to OCGA § 7-4-16. Finding error, we reverse.

OCGA §7-4-16 provides that “[t]he owner of a commercial account may charge interest on that portion of a commercial account which has been due and payable for 30 days or more at a rate not in excess of IV2 percent per month [18 percent per annum].” However, “[i]t is the law of this State that a recovery of pre-judgment interest pursuant to OCGA § 7-4-16 requires a pre-trial invocation of the applicability of that provision.”

Carrier posits that OCGA § 7-4-16 was invoked because Rollins’s portion of the pretrial order mentions the statute. Carrier also argues that it invoked the statute because its invoices to Rollins state: “Carrier reserves the right to assess interests [sic] at the maximum rate allowable by law on amounts past due.” We disagree.

In the instant case, Rollins’s mention of OCGA § 7-4-16 in the pretrial order appears under the heading “[s]pecial authorities relied upon by [Rollins] relating to peculiar evidentiary or other legal questions.” Carrier’s corresponding section in the pretrial order makes no mention of the statute. Carrier’s damages section in the pretrial order requests only unspecified “prejudgment and postjudgment interest,” listing no specific interest rate. Further, Carrier’s counterclaim and two amended counterclaims all ask only for “interest at the legal rate.” OCGA § 7-4-2 (a) (1) (A) provides that “[t]he legal rate of interest shall be 7 percent per annum” unless otherwise established by contract. Carrier’s invoices do not specify a rate of interest accruing, as OCGA § 7-4-16 contemplates, when accounts are 30 days or more past due.

We have consistently held that “the request must specify the interest rate sought.” We have found that awards of interest under OCGA § 7-4-16 are appropriate where the exact rate of interest sought is specified in a contract, agreement, or invoice, or in a section of the pretrial order which specifically indicates which party seeks the interest; or where the aforementioned documents specifically referenced the statute.

Decided July 5, 2012.

Hall, Booth, Smith & Slover, James H. Fisher II, Denise W. Spitalnick, Joel L. McKie, for appellant.

Further, where the rate of interest sought is ambiguous, an award of the maximum rate is not authorized. In Spears, the plaintiff’s complaint sought

“interest as allowed by Georgia law for commercial accounts” as part of its prayer for relief. By doing so, [the plaintiff] invoked OCGA § 7-4-16, but it did not specify the exact rate ... it was not clear whether [the plaintiff] was seeking 1.5 percent interest per month, the maximum allowable rate for commercial accounts, or some lesser rate which also would have been proper under the statute. In the absence of such specificity, the trial court erred in entering judgment against [the defendant] for the maximum rate.

We find similar ambiguity here. Carrier’s invoices do not specify OCGA§ 7-4-16; do not define the interest sought as that applicable to commercial accounts; and do not list a specific rate of interest. This ambiguity is further exacerbated by Carrier’s specific requests for interest at the “legal rate” (7 percent) in its counterclaims. “If the rate allowed under OCGA § 7-4-16 is sought before trial, the trial court is authorized to grant prejudgment interest at that rate.” If the specific rate, in this instance 18 percent per annum, is not sought, it cannot be granted.

As we have not granted a retrial based on Carrier’s appeal, we need not address Rollins’s other enumeration of error.

7. We reverse and remand in Case No. A12A0482 to the trial court for proceedings not inconsistent with this opinion.

Judgment affirmed in Case No. A12A0481. Judgment reversed and case remanded in Case No. A12A0482.

Miller and Blackwell, JJ., concur.

Bodker, Ramsey, Andrews, Winograd & Wildstein, Harry J. Win-ograd, Jessica J. Harper, for appellee.

       (Punctuation and footnote omitted.) Defusco v. Free, 287 Ga.App. 313, 316 (651 SE2d 458) (2007).

        Horan v. Pirkle, 197 Ga.App. 151, 153 (2) (397 SE2d 734) (1990).

       Rollins argues that this letter agreement, which contains no period of limitation, means the HVAC contract’s one-year period of limitation does not apply, and instead is governed by OCGA § 9-3-24’s six-year statutory period of limitation. However, this letter predates the March 11, 2005, HVAC contract. “[W]here parties enter into a final contract^] all prior negotiations, understandings, and agreements on the same subject are merged into the final contract, and are accordingly extinguished.” (Citations and punctuation omitted.) Wallace v. Bock, 279 Ga. 744, 745 (1) (620 SE2d 820) (2005).

       (Citation omitted.) Clarendon Nat. Ins. Co. v. Johnson, 293 Ga. App. 103, 104 (666 SE2d 567) (2008).

       (Citation omitted.) Id.

        F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).

       While OCGA § 9-3-24 provides that “[a]ll actions upon simple contracts in writing shall be brought within six years after the same become due and payable,” it is well settled that limitation clauses reducing the time permitted to assert claims from six years to one year are enforceable. Southern Telecom v. Level 3 Communications, 295 Ga. App. 268, 273 (2) (671 SE2d 283) (2008).

       (Emphasis supplied.)

       (Emphasis supplied.)

       See Golden Peanut Co. v. Bass, 249 Ga. App. 224, 228 (1) (547 SE2d 637) (2001) (whole court) (statements of counsel during trial may be regarded as admissions in judicio).

       (Citation and punctuation omitted.) Wallace, supra at 747 (2).

       (Citations omitted.) Perkins v. M&M Office Holdings, 303 Ga. App. 770, 774 (695 SE2d 82) (2010).

       (Citation, punctuation and footnote omitted.) Horton v. Hendrix, 291 Ga. App. 416, 418 (1) (662 SE2d 227) (2008).

       (Footnote omitted; emphasis in original.) Johnson v. Leibel, 307 Ga. App. 32, 41 (4) (703 SE2d 702) (2010).

       (Emphasis supplied.)

       See Mull v. Mickey’s Lumber &c., 218 Ga. App. 343, 346 (2) (461 SE2d 270) (1995) (courts may not revise contract terms while professing to construe them); Tuzman v. Leventhal, 174 Ga. App. 297, 300 (329 SE2d 610) (1985) (“This court may not create a modification of the plain terms of a contract hy judicial fiat and then reverse a judgment on the basis of the court’s own creation”).

        Alternative Health Care Systems v. McCown, 237 Ga. App. 355, 357 (2) (b) (514 SE2d 691) (1999).

       (Citations omitted.) Id.

       165 Ga. App. 169, 170 (3) (299 SE2d 123) (1983).

        Bettis v. Comfort Control, 115 Ga. App. 104 (153 SE2d 678) (1967); Bd. of Drainage Commrs. &c. v. Williams, 34 Ga. App. 731, 735 (131 SE 911) (1925).

       (Emphasis supplied.)

       (Citation and punctuation omitted.) Harper v. Samples, 164 Ga. App. 511, 514-515 (5), (6) (298 SE2d 29) (1982).

       See Golden Peanut Co., supra at 227 (1).

        See Buford-Clairmont Co. v. RadioShack Corp., 275 Ga. App. 802, 806 (4) (622 SE2d 14) (2005) (a party must show that trial court’s refusal to give a requested charge was both erroneous and harmful).

       (Punctuation and footnote omitted.) Mott v. Southeast Permanente Med. Group, 274 Ga. App. 622, 623 (2) (617 SE2d 598) (2005).

       (Emphasis supplied.)

        Wills v. McAuley, 166 Ga. App. 4, 5-6 (2) (303 SE2d 26) (1983) (absent order to compel discovery pursuant to OCGA§ 9-11-37 (a), imposition of sanctions not authorized under OCGA § 9-11-37 (b) (formerly Code Ann. § 81A-137 (a) and (b)).

        Joel v. Duet Holdings, 181 Ga. App. 705, 707 (353 SE2d 548) (1987) (sanctions allowed under OCGA § 9-11-37 (b)ifthe trial court has previously denied a motion for a protective order and ordered discovery under OCGA § 9-11-26 (c)).

       Id. at 706.

       (Citation and punctuation omitted; emphasis supplied.) Id. at 706-707.

       See Gropper v. STO Corp., 276 Ga. App. 272, 275-276 (1) (623 SE2d 175) (2005) (sanction of dismissal upheld even absent motion to compel, where party’s latest violation of discovery deadline order followed a long pattern of violating discovery orders); see also Santora v. American Combustion, 225 Ga. App. 771, 773 (1) (b) (485 SE2d 34) (1997) (sanction of dismissal authorized where party violated order setting discovery deadline and where party’s violation of order requiring identification of privileged documents, which party concealed, was found equivalent to violation of motion to compel).

        Ga. Cash America v. Strong, 286 Ga. App. 405, 414 (5) (a) (649 SE2d 548) (2007).

       (Emphasis supplied.)

       (Citation and punctuation omitted.) City of Atlanta v. Paulk, 274 Ga. App. 10, 13 (1) (616 SE2d 210) (2005).

       2 69 Ga. App. 517 (604 SE2d 580) (2004).

       Id. at 523 (5).

       Because we conclude that the sanctions at issue were within the discretion of the trial court under OCGA § 9-11-37 (b), we need not address Carrier’s argument as to OCGA § 9-11-37 (d).

       (Citations omitted; emphasis supplied.) Gold Kist Peanuts v. Alberson, 178 Ga. App. 253, 256 (2) (342 SE2d 694) (1986).

       (Citations omitted.) Spears v. Allied Engineering Assocs., 186 Ga. App. 878, 879 (2) (368 SE2d 818) (1988).

        Scovill Fasteners v. Northern Metals, 303 Ga. App. 246, 252-253 (3) (692 SE2d 840) (2010) (prejudgment interest authorized under OCGA § 7-4-16 where claimant’s invoices and complaint sought 18 percent per annum); Owens v. McGee & Oxford, 238 Ga. App. 497, 499 (1) (c) (518 SE2d 699) (1999) (contract provided for interest at IV2 percent per month); Kroger Co. v. U. S. Foodservice of Atlanta, 270 Ga. App. 525, 532 (4) (607 SE2d 177) (2004) (consolidated pretrial order “plainly indicated” which party sought prejudgment interest “pursuant to OCGA § 7-4-16 at the rate of 1.5% per month”).

       Supra.

       (Citation omitted; emphasis supplied.) Id. at 879 (2).

       (Citations omitted; emphasis supplied.) Id. at 878 (2).

       Although attorneys for both parties stipulated that the trial court would decide the applicable rate of interest on any amounts awarded to Carrier, we have held that “notwithstanding the seeming breadth of the stipulation, it cannot be construed in such a manner as to fix or change the law.” (Citations and punctuation omitted.) GoldKist Peanuts, supra at 256 (2).


source: Caselaw Access Project

author: MlKELL, Presiding Judge.

license: Public Domain

text:
    A12A0678.
    DECOSTAR INDUSTRIES, INC. et al. v. JUAREZ.
    (730 SE2d 120)
   MlKELL, Presiding Judge.

Decostar Industries, Inc., and American Zurich Insurance Company c/o Gallagher-Bassett Services, Inc. (collectively “Decostar”), filed a discretionary appeal of the trial court’s order reversing a decision of the Appellate Division of the State Board of Workers’ Compensation (the “Board”) in the employer’s favor. Decostar contends that the trial court applied the wrong standard of review. Finding error, we reverse.

In reviewing a workers’ compensation award, this Court must construe the evidence in the light most favorable to the party prevailing before the appellate division. The findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and neither the superior court nor this Court may substitute itself as a factfinding body in lieu of the State Board.

“So long as there is some evidence to support the State Board’s decision, . . . judges lack authority to set aside an award based on disagreement with the Board’s conclusions.” However, “[t]he question of whether the superior court applied the correct legal standard in evaluating the evidence... is one of law, which we review de novo.”

The record reflects that Sonia Juarez began working on Deco-star’s production line in 2006. Her duties included moving automotive bumpers weighing approximately fifteen pounds from the floor to a chest-level bench; using a blade to cut two holes in them; sanding them; placing them at a separate work station; and later placing them into a mold. In August 2009, Juarez began to experience pain in her right shoulder and arm, and reported it to her employer. Because Decostar did not offer medical treatment, she saw her own general practice physician, Dr. Gonzalez, who referred her to an orthopedist, Dr. Anthony Colpini. She complained to Dr. Colpini of neck and bilateral shoulder pain. An MRI showed, among other things, “mild to moderate bilateral C5-C6 [vertebra] neural foraminal stenosis” involving a neural issue which Dr. Colpini believed was causing Juarez’s pain. He also diagnosed her with, among other things, tendinosis, shoulder impingement, and a pre-existing fusion of her C6-C7 vertebra. He opined that this fusion may have made her problems at the C5-C6 vertebra worse. Colpini also deposed that Juarez told him she had previously had tendonitis and surgery on her left shoulder. Another physician surgically removed a lipoma from Juarez’s right shoulder in October 2009. Dr. Colpini on January 20, 2010, placed Juarez on work restrictions. He concluded that Juarez’s injuries, while not caused by her work, were aggravated by her job duties.

Juarez resigned on April 13, 2010, because of the injury to her right shoulder. Juarez saw Dr. Robert Karsch on May 10, 2010, and again on June 17, 2010. After an MRI, he diagnosed her with, among other things, rotator cuff tendinopathy and impingement syndrome, finding that the direct cause of her shoulder injury and pain was the repetitive nature of her job, as opposed to being an aggravation of a pre-existing condition, as Dr. Colpini had opined. After an independent review of the medical records, Dr. Duncan Wells on behalf of Juarez issued an opinion agreeing with Dr. Karsch that Juarez’s injuries were a direct result of her job duties.

After a hearing, a Board administrative law judge (“ALJ”) concluded that Juarez aggravated a long-standing right shoulder condition by performing her repetitive job duties; that she was not entitled to temporary total disability benefits from the date of her resignation because light-duty work remained available to her; that she was not entitled to change her treating physician from Dr. Colpini to Dr. Karsch; and that Decostar was only responsible for MRI expenses. Juarez appealed, and the Board’s Appellate Division adopted the ALJ’s decision. Juarez then appealed to the superior court, which, after a hearing, found in her favor, reversing the findings of the Board’s Appellate Division. The trial court concluded that because the record contained “absolutely no evidence that Employee suffered from any pre-existing medical condition or impairment prior to working for Employer, the State Board should have ruled that Employee suffered a new injury rather than an aggravation of a pre-existing condition”; that the Board erred in refusing to make Dr. Karsch the treating physician; and that Decostar was responsible for expenses incurred after May 10, 2010. We granted Decostar’s discretionary appeal.

1. Decostar argues that the trial court’s decision to designate the claim as a new injury rather than an aggravation of a pre-existing injury results from its improper reinterpretation of evidence and misapplication of the standard of review. We agree.

Although the opinions of Dr. Colpini, in viewing the injury as an aggravation of a pre-existing condition, differed from the opinions of Drs. Karsch and Wells, who viewed this as a new injury, the Board was entitled to believe Dr. Colpini. The record contains ample evidence, including, among other things, Dr. Colpini’s testimony about his observations and diagnoses related to Juarez’s pre-existing conditions in both her shoulders and her neck, as well as medical records dating back to 2003, to support the ALJ’s finding of an aggravation to a pre-existing injury.

“[Determinations of credibility and the weight of testimony are for theÁLJ and appellate division, not for... [the] reviewing court.” The ALJ is free to believe the testimony of one witness over that of other witnesses. The ALJ in the case sub judice chose to believe Dr. Colpini although his testimony was contradicted by other evidence.

Because courts reviewing a decision of the Appellate Division are not authorized to weigh the evidence in the first instance or substitute their own findings of fact for those of the Appellate Division, the superior court had no authority to interfere with the decision of the Appellate Division.

The ALJ and Appellate Division were authorized to conclude that Juarez had a pre-existing condition that was aggravated by her job duties. Thus, the trial court erred when it found that the record contains “no evidence” that Juarez suffered from medical conditions that predate her work for Decostar. We reverse.

Decided July 5, 2012.

2. Decostar argues that the superior court misapplied the standard of review and usurped the Board’s decision-making authority when it remanded the case, designating Dr. Karsch as the new, authorized treating physician and finding that Decostar should pay Juarez’s medical expenses incurred after May 10, 2010.

A superior court properly reviews the Board’s decision on a request for a change in physicians by considering whether the Board acted arbitrarily or in excess of its powers. The Board denied Juarez’s request to change her physician to Dr. Karsch, instead authorizing Dr. Colpini to continue to provide medical treatment. We find error, as the Board’s decision was neither arbitrary nor capricious given that the Board chose to believe Dr. Colpini’s diagnosis as opposed to Dr. Karsch’s, as discussed in Division 1.

Juarez argues on appeal that Dr. Karsch became her treating physician as soon as the complaint became compensable and thus the Board “erroneously never recognized Dr. Karsch as the authorized treating physician.” She also argues that the Board lacked the authority to change her treating physician from Dr. Karsch to Dr. Colpini in that the written notice and response procedures mandated by OCGA § 34-9-200 (b) were not followed.

These arguments are unavailing, as Juarez did not raise before the Board’s Appellate Division either the issue of written notice and response or the allegation that the Board erred in never recognizing that Dr. Karsch had been her treating physician. Rather, she argued to the Board’s Appellate Division only that Dr. Karsch “should be named as Employee’s authorized treating physician going for-mar d.” “Issues not raised to the [B]oard cannot be considered on appeal.” As Dr. Karsch is not Juarez’s treating physician, and in light of our findings in Division 1, it follows that his bills may not be reimbursed. We reverse.

Judgment reversed.

Miller and Blackwell, JJ., concur.

Jerry W. Cain, Jr., for appellants.

Smith, Wallis & Scott, Kenneth A. Smith, Joseph W. Brown II, for appellee.

       (Footnotes omitted.) Laurens County Bd. of Ed. v. Dewberry, 296 Ga. App. 204, 205-206 (674 SE2d 73) (2009).

       (Citations and punctuation omitted.) Lowndes County Bd. of Commrs. v. Connell, 305 Ga. App. 844-845 (701 SE2d 227) (2010).

       (Citation and punctuation omitted.) Bonus Stores v. Hensley, 309 Ga. App. 129, 133 (2) (710 SE2d 201) (2011).

       Decostar says it first received notice of Juarez’s injuries on January 20, 2010, although Juarez says she reported them to her employer in October 2009.

       (Citation omitted.) Metro Interiors v. Cox, 218 Ga. App. 396, 398 (461 SE2d 570) (1995).

       See Parham v. Swift Transp. Co., 292 Ga. App. 53,56 (663 SE2d 769) (2008); YKK (USA), Inc. v. Patterson, 287 Ga. App. 537, 539 (2) (652 SE2d 187) (2007) (the Board may determine the weight and credit to be given to the opinions of physician witnesses, and may resolve fact issues arising from evidentiary conflicts).

       (Citation omitted.) Ga. Mountain Excavation v. Dobbins, 309 Ga. App. 155, 157 (710 SE2d 205) (2011).

        Franchise Enterprises v. Sullivan, 190 Ga. App. 767, 769 (1) (380 SE2d 68) (1989).

       (Emphasis supplied.)

       Juarez provides no citations to the record indicating that she raised these issues before the Board. “We have repeatedly held that it is not the function of this court to cull the record on behalf of a party.” (Punctuation and footnote omitted.) Reid v. Ga. Bldg. Auth., 283 Ga. App. 413 (641 SE2d 642) (2007).

       (Emphasis supplied.)

       (Citations omitted.) Dart Container Corp. v. Jones, 209 Ga. App. 331, 332 (433 SE2d 417) (1993).


text:
    A12A0734.
    GARREN v. GARREN.
    (730 SE2d 123)
   MlKELL, Presiding Judge.

Dorothy Garren appeals from the superior court’s reversal of an award of year’s support after the death of her husband. She contends that the superior court erred in denying her motions for dismissal and for summary adjudication, as well as challenges the superior court’s jurisdiction to reverse the grant of year’s support. Finding that the superior court was without jurisdiction to reverse the award of year’s support, we reverse.

In 2007, Ralph Garren died testate, leaving his wife, Dorothy, and several adult children, including a son, Rick Garren. Dorothy filed a petition for year’s support in Fannin County Probate Court. Although Rick did not file an objection with the Probate Court clerk’s office, he later testified that he sent a copy of a handwritten letter signed by himself and his mother, Dorothy, to the probate judge’s chambers seeking to withdraw the petition for year’s support. This letter was not filed with the probate court and is not part of the record. The probate court entered a final order, awarding the property sought in petition, which included approximately six acres of property. Rick appealed this award to the Fannin County Superior Court, and the case was transferred on June 12, 2009.

In the superior court, Dorothy filed a motion for summary judgment and a motion to dismiss the appeal, arguing that because Rick had not contested the petition in the probate court, he was not allowed to contest it before the superior court. The superior court denied both motions, finding that an issue of material fact existed as to whether Rick had properly filed an objection in the probate court. The case then proceeded to a bench trial, where the superior court found that the letter had not been properly filed with the probate court, but then set aside the award of year’s support based upon Dorothy’s failure to provide evidence as to an appropriate amount to be awarded as year’s support.

1. We first consider the contention that Dorothy was entitled to summary judgment on her petition for year’s support. After the denial of the motion for a summary judgment, the case came before the superior court for an evidentiary bench trial. “After verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” Accordingly, this enumeration is without merit.

2. Dorothy next contends that the superior court erred in denying her motion to dismiss the appeal because Rick did not file a valid objection to her petition before the probate court. We disagree.

Dorothy’s argument that Rick’s failure to file a pleading in the probate court leaves him without standing to appeal the probate court’s decision is without merit. “[0]ne becomes a party to a probate court proceeding with standing to appeal the ruling in that proceeding if one is served with notice of the proceeding, even if no pleading is filed.” The record shows that Rick was served with notice of Dorothy’s petition prior to the probate court’s award of year’s support and was an interested party as the sole beneficiary of Ralph’s will. Thus, he was a party to the proceeding and had standing to bring the appeal for de novo review to the superior court.

Dorothy next contends that Rick’s failure to file a valid objection before the probate court meant that the superior court did not have jurisdiction over the issues resolved on appeal. On appeal from the decision of a probate court, the superior court conducts a de novo investigation of the probate court’s proceedings, and in doing so, will consider the records from the probate court, as well as other competent evidence which may not have been presented to the probate court. It is clear that the superior court may consider new evidence not related to issues raised before the probate court. However, there appears to be a conflict in our case law regarding whether the superior court is restricted on appeal to considering only those issues presented before the probate court. In Yancey v. Hall, our Supreme Court held that “the jurisdiction of the superior court on appeal would be limited to the merits of [the issues presented before the probate court].” In so ruling, our Supreme Court implicitly overruled this Court’s earlier opinion in Barmore v. Himebaugh to the extent that this Court stated that “de novo appeals to the superior court are not limited to issues raised in the probate court.”

In the present case, the only issue before the probate court was whether or not an objection was made after the publication of notice of Dorothy’s petition for year’s support. OCGA § 53-3-7 (a) provides that “[i]f no objection is made after the publication of the notice, or, if made, is disallowed or withdrawn, the probate court shall enter an order setting aside as year’s support the property applied for in the petition.” (Emphasis supplied.) Without such objection, the probate court was not required to evaluate whether Dorothy was entitled to year’s support or what would constitute a sufficient year’s support. Rather, the statute mandates the probate court to enter an award setting aside the property applied for in year’s support. However, because the superior court found an issue of material fact existed as to whether an objection was properly filed before the probate court, an issue properly within the superior court’s jurisdiction, its failure to grant Dorothy’s motion to dismiss was not in error.

3. Dorothy contends that the superior court erred in setting aside the probate court’s award of year’s support, arguing that because she did not have to submit evidence showing the amount necessary for year’s support before the probate court, she should not have to present that evidence before the superior court. We agree.

An appeal taken from the probate court to superior court comes up de novo where the issues are tried anew as if no trial had been had. “It is not the province of the superior court on such an appeal to review and affirm ..., but to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.” All competent evidence may be introduced in the superior court whether or not it was submitted before the probate court.

Decided July 5, 2012.

William L. Reilly, for appellant.

Janna D. Akins, Daniel J. Davenport, for appellee.

As stated in Division 2, the only issue properly before the superior court on appeal was whether or not an objection had been made to Dorothy’s petition for year’s support. After hearing Rick’s testimony regarding the objection letter he sent to the probate court judge, the trial court concluded that the letter had not been properly filed before the probate court. Because the superior court found that no objection had been made to the petition for year’s support, it erred in placing the burden of proof to show the amount sufficient for year’s support upon Dorothy. The language of OCGA § 53-3-7 (c) indicates that the petitioner shoulders this burden of proof only once an objection has been made. Accordingly, we find that the superior court erred in setting aside the year’s support award for failure to provide evidence regarding the amount sufficient to constitute year’s support.

Judgment reversed.

Miller and Blackwell, JJ., concur.

       To avoid confusion, the Garrens will hereinafter be identified by their first names.

       OCGA § 53-3-7 (a) provides: “If no objection is made after the publication of the notice, or, if made, is disallowed or withdrawn, the probate court shall enter an order setting aside as year’s support the property applied for in the petition.”

       (Citation and punctuation omitted.) Kicklighter v. Woodward, 267 Ga. 157, 162 (4) (476 SE2d 248) (1996).

       (Citation omitted.) Bruce v. McMullen, 199 Ga. App. 239, 240 (404 SE2d 620) (1991).

       OCGA § 5-3-29; Batten v. Batten, 182 Ga. App. 442 (1) (356 SE2d 228) (1987).

        Barmore v. Himebaugh, 200 Ga. App. 868 (410 SE2d 46) (1991).

       265 Ga. 466 (458 SE2d 121) (1995).

       (Citation omitted.) Id. at 467 (1).

       Supra.

       (Citation omitted.) Id.

       Only after an objection is made must the probate court consider the following factors in determining the appropriate award of year’s support:
      (1) The support available to the individual for whom the property is to be set apart from sources other than year’s support, including but not limited to the principal of any separate estate and the income and earning capacity of that individual; (2)
      The solvency of the estate; and (3) Such other relevant criteria as the court deems equitable and proper.
      OCGA§ 53-3-7 (c).

       OCGA § 5-3-29; Knowles v. Knowles, 125 Ga. App. 642, 645 (1) (188 SE2d 800) (1972).

       (Citation and punctuation omitted.) Id.

        Lee v. Wainwright, 256 Ga. 478, 479 (350 SE2d 238) (1986).

       If objection is made to the amount or nature of the property proposed to be set aside as year’s support, the court shall... [take] into consideration the following: (1) The support available to the individual for whom the property is to be set apart from sources other than year’s support... (2) The solvency of the estate; and (3) Such other relevant criteria as the court deems equitable and proper. The petitioner for year’s support shall have the burden of proof in showing the amount necessary for year’s support.


author: McFadden, Judge.

text:
    A12A0758.
    IN THE INTEREST OF N. M., a child.
    (730 SE2d 127)
   McFadden, Judge.

N. M., a juvenile, appeals from the order of disposition imposed after his probation was revoked for the second time. He argues that the trial court erred by relying on a provision of the designated felony statute — a provision that was repealed after his original act of delinquency — as authority to impose a period of restrictive custody following the revocation of probation. We conclude that the juvenile court could impose an order of disposition that was appropriate under the law at the time of the original act of delinquency for which the juvenile court imposed probation. We therefore affirm.

On May 4, 2010, the state filed a petition of delinquency alleging that on April 21, 2010, N. M. brought a knife to his middle school. The petition alleged that, had N. M. been an adult, his conduct would have constituted the crime of possession of a weapon on school property. See OCGA § 16-11-127.1. Under the version of OCGA § 15-11-63 in effect at the time, possession of a weapon on school property was a “designated felony.” See OCGA § 15-11-63 (a) (2) (B) (iv) (2010). If a child commits an act of delinquency that is a designated felony, the juvenile court may place the child in restrictive custody. OCGA § 15-11-63 (b), (e). Effective May 25, 2010, however, the legislature removed a single act of carrying a weapon on school property from the list of designated felonies. Ga. L. 2010, p. 463, § 1.

N. M. admitted carrying a knife to school. On May 25, 2010, the juvenile court adjudicated N. M. delinquent and entered an order of disposition. Although the juvenile court was authorized to place N. M. in restrictive custody under the designated felony statute, the court determined that it was not necessary to commit N. M. and instead placed him on probation “until further Order of this Court or by operation of law.” See Widner v. State, 280 Ga. 675, 677 (2) (631 SE2d 675) (2006) (“It has long been the law in this [s]tate that, in general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission.”) (citation and punctuation omitted).

In June 2011, the juvenile court revoked the order of disposition, finding, among other things, that N. M. had violated the terms of probation. The juvenile court entered a new order of disposition, committing N. M. to a youth detention center for 30 days.

In August 2011, the state filed a petition to again revoke N. M.’s probation for his failure to complete a graduated sanctions program. After conducting a hearing, the juvenile court revoked N. M.’s probation and entered an order of disposition confining him to restrictive custody for 18 months pursuant to the designated felony statute and committing him to the custody of the Department of Juvenile Justice for five years or until he reaches the age of 21. N. M. filed this appeal, arguing that the juvenile court could not enter a disposition under the designated felony statute because the behavior that resulted in his adjudication of delinquency, the single act of possessing a weapon on school property, was not a designated felony under the version of OCGA § 15-11-63 that existed at the time of his revocation.

1. We first address our jurisdiction over N. M.’s direct appeal. See In the Interest of J. L. K., 302 Ga. App. 844 (1) (691 SE2d 892) (2010). Under OCGA § 5-6-35 (a) (5) and (d), “[a]ppeals from orders revoking probation” are discretionary and require that an application be filed with the clerk of the appropriate court within 30 days of the date of the entry of the revocation order. Todd v. State, 236 Ga. App. 757, 758 (513 SE2d 287) (1999). But in many respects, “juvenile probation revocation proceedings are not analogous to adult probation revocation proceedings.” In re B. C., 169 Ga. App. 200, 201 (311 SE2d 857) (1983). For example, in adult criminal cases a violation of probation usually results in the activation of a previously imposed sentence because, on probation, the defendant is “merely serving his sentence outside the confines of prison.” State v. Wiley, 233 Ga. 316, 318 (210 SE2d 790) (1974). In juvenile cases a probation violation results in a new disposition, usually imposing probation or even confinement, since there is generally no suspended term of confinement in juvenile cases imposing probation. Moreover,

[t]he Juvenile Court Code establishes a unique court system for the protection and rehabilitation of children under 17 years of age. The General Assembly has provided that the Title shall be liberally construed to effectuate its purpose. The provisions of the Juvenile Court Code dealing with the commencement of proceedings, the petition, the modification or vacation of orders, and other matters, indicate a legislative intent to make it a court with its own distinctive rules of procedure.

(Citations omitted.) English v. Milby, 233 Ga. 7, 9 (1) (209 SE2d 603) (1974) (holding the Civil Practice Act does not apply to cases in juvenile court).

Keeping these principles in mind, we hold that OCGA § 5-6-35 (a) (5) and (d) do not apply to appeals from orders revoking juveniles’ probation. Disobeying the terms of probation is a delinquent act. In the Interest of B. Q. L. E., 297 Ga. App. 273, 274 (1) (a) (676 SE2d 742) (2009). Once the juvenile court has found a child to be delinquent because of the commission of a delinquent act, it must enter an order of disposition. OCGA § 15-11-65 (a). And orders of disposition are final judgments, directly appealable under OCGA§ 5-6-34 (a) (1). See M. K. H. v. State, 132 Ga. App. 143, 144 (207 SE2d 645) (1974). For these reasons, we conclude that an order of disposition entered upon the revocation of a juvenile’s probation is directly appealable.

2. N. M. argues that the revocation of a juvenile’s probation is a new action, and accordingly, the juvenile court must impose a disposition in accordance with the law as it exists at the time of revocation, not at the time of the juvenile’s behavior for which he was originally adjudicated delinquent. This necessarily means that he argues that the purpose of the order of disposition for the probation violation is to sanction the probation violation. The crux of this case, therefore, is whether the order of disposition entered upon the revocation of N. M.’s probation should be considered a sanction for the original act of delinquency, in which case the repeal of OCGA § 15-11-63 (a) (2) (B) (iv) (2010) would have no effect, or for the violation of probation, in which case N. M. would not be subject to the repealed OCGA § 15-11-63 (a) (2) (B) (iv) (2010).

Although juvenile court proceedings are not criminal proceedings and an adjudication of delinquency is not a criminal conviction, OCGA § 15-11-72, we nonetheless recognize the quasi-criminal aspects of juvenile law, M. J. W. v. State, 133 Ga. App. 350, 353 (2) (210 SE2d 842) (1974), and we often look to criminal cases for guidance. See, e.g., In the Interest of D. C., 307 Ga. App. 542, 543, n. 5 (705 SE2d 313) (2011) (citing Pinkston v. State, 277 Ga. App. 432, 433 (2) (626 SE2d 626) (2006) and Bynum v. State, 300 Ga. App. 163, 168 (7) (684 SE2d 330) (2009), regarding the timing of raising an ineffective assistance of counsel claim); In re B. C., 169 Ga. App. at 202 (citing Lester v. Foster, 207 Ga. 596, 597 (63 SE2d 402) (1951), for the proposition that a juvenile court may not revoke probation sua sponte, and Scott v. State, 131 Ga. App. 504 (206 SE2d 137) (1974), regarding due process concerns).

In the criminal context, it is clear that postrevocation penalties relate to the original offense. Johnson v. United States, 529 U. S. 694, 700-701 (II) (A) (120 SC 1795, 146 LE2d 727) (2000). Applying this principle in Postell v. Humphrey, 278 Ga. 651 (604 SE2d 517) (2004), the Supreme Court of Georgia rejected our implicit holding in Jones v. State, 260 Ga. App. 401 (579 SE2d 827) (2003), that probation revocation is a punishment for the new offense of violating the conditions of supervised release.

In the juvenile context, we have addressed a similar issue arising from a double jeopardy challenge to the revocation of a juvenile’s probation. In In the Interest of B. N. D., 185 Ga. App. 906 (366 SE2d 187) (1988), we held that revoking probation that had been imposed for the designated felony of aggravated assault and imposing restrictive custody did not violate double jeopardy concerns even though the juvenile already had been subjected to probation for the aggravated assault. We held that “it is permissible to subject probation violators to the sentence which might have originally been imposed upon them in lieu of probation. . . .” (Citation omitted.) Id. at 907. We observed that the original disposition order, like N. M.’s original disposition order, imposed probation “until further order” of the court. Id. at 908. In other words, we linked the order of disposition entered upon revocation of probation to the original offense.

The juvenile code’s probation revocation provision is found in the paragraph concerning the juvenile court’s authority to modify its dispositions, implying that revocation results in the modification of the original order of disposition, not a new proceeding. “The cardinal rule of statutory construction is to seek the intent of the [ljegislature, and language in one part of a statute must be construed in the light of the legislative intent as found in the statute as a whole.” (Citation and punctuation omitted.) Fair v. State, 288 Ga. 244, 252 (2) (702 SE2d 420) (2010). OCGA § 15-11-40 (b) provides in its entirety:

An order of the [juvenile] court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child, except an order committing a delinquent child to the Department of Juvenile Justice, after the child has been transferred to the physical custody of the Department of Juvenile Justice, or an order of dismissal. An order granting probation to a child found to be delinquent or unruly may be revoked on the ground that the conditions of probation have not been observed.

This suggests that the revocation of a disposition order for violation of the terms of probation presents to the juvenile court the issue of whether there should be a change in the form or course of rehabilitation that previously had been ordered because of the prior adjudication of delinquency.

Relying on K. E. S. v. State, 134 Ga. App. 843 (216 SE2d 670) (1975), N. M. argues that revocation of a juvenile’s probation is a new action, and accordingly, the law as it exists at the time of revocation must be applied. In K. E. S., we held that “a hearing in juvenile court seeking termination of probation must be treated as a delinquency trial,” and therefore a juvenile is entitled to certain protections during the revocation proceeding, such as the right to counsel. Id. at 846-847 (1) (A). We did not hold that probation revocations are new proceedings.

On the other hand, we have held that before a juvenile court can revoke probation, a petition for revocation must be filed; a delinquency petition alleging a probation violation is not sufficient to revoke a juvenile’s probation imposed for his previous adjudication of delinquency. In the Interest of T. F., 314 Ga. App. 606 (724 SE2d 892) (2012); In the Interest of B. S. L., 200 Ga. App. 170, 171 (407 SE2d 123) (1991); In re B. C., 169 Ga. App. at 201-202 (“[B]efore a juvenile court may revoke an order granting probation, a petition must be filed requesting such relief.”). But when “a probation revocation petition [is] filed . . . , then the juvenile court [is] authorized to enter a dispositional order pursuant to [the designated felony statute] if the original [delinquent act is] shown to be a designated felony act.” (Punctuation omitted; emphasis in original.) In the Interest of B. S. L., 200 Ga. App. at 171. We conclude that a dispositional order imposed upon the revocation of probation relates to the original delinquent act.

Decided July 5, 2012.

Megan R. Pulsts, Lisamarie N. Bristol, Stephen M. Reba, for appellant.

Layla H. Zon, District Attorney, Vanessa C. Webber, Assistant District Attorney, for appellee.

We observe that to adopt N. M.’s position could create ex post facto concerns. Among other things, an ex post facto law inflicts “a greater punishment than was permitted by the law in effect at the time of the commission of the offense.” Hamm v. Ray, 272 Ga. 659 (1) (531 SE2d 91) (2000). If the legislature had amended the designated felony statute to increase the consequences of committing a designated felony, N. M. could not have been sanctioned under the law so amended. In Johnson, 529 U. S. at 700 (II) (A), the United States Supreme Court described the view espoused by N. M. as having the potential of raising “serious constitutional questions” and observed that “[t]reating postrevocation sanctions as part of the penalty for the initial offense . . . avoids these difficulties.”

We acknowledge that in adult criminal cases a violation of probation usually results in the activation of a previously imposed sentence because on probation, the defendant is “merely serving his sentence outside the confines of prison.” State v. Wiley, supra, 233 Ga. at 318. In contrast, in juvenile cases a probation violation usually results in a new imposition of probation or even confinement. Even with these differences, the better view is to treat the revocation of a juvenile’s probation as analogous to the revocation of probation in the criminal justice system, in that the new order of disposition is a sanction for the original offense for which the juvenile was adjudicated delinquent. See United States v. J. W. T., 368 F3d 994, 995-996 (II) (8th Cir. 2004); State ex rel. C. V., 990 A2d 640, 649-650 (III) (A) (N.J. 2010); In re O’Neal, 585 SE2d 478, 481 (N.C. App. 2003).

Judgment affirmed.

Barnes, R J., and Adams, J., concur.


author: Adams, Judge.

text:
    A12A0425.
    WHITMAN v. THE STATE.
    (729 SE2d 409)
   Adams, Judge.

Ricky Lane Whitman appeals following his conviction on one count of misdemeanor theft by receiving. As his sole enumeration of error, Whitman asserts that the trial court erred in allowing the State to admit similar transaction evidence of a similar pending theft charge. He asserts that the admission of this evidence deprived him of his constitutional right to testify at the trial in this case by endangering his right to remain silent with regard to the similar transaction. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, the evidence at trial showed that on or about 3:00 p.m. on September 23, 2010, Steve Mullen returned home to discover that his lawn mower and tiller were missing from his front yard. Noticing a rusty wheelbarrow in the lot next door, Mullen suspected that someone collecting scrap had taken his property to sell at PSC Metals, a scrap yard approximately one mile down the street. Mullen went directly to PSC to inquire about the missing equipment. There, employees located Mullen’s lawn mower and tiller in a pile of scrap. Based upon interviews with PSC employees, PSC paperwork signed by Whitman, and still surveillance photographs showing scrap being unloaded from Whitman’s blue station wagon, police arrested Whitman.

The State also introduced, over objection, similar transaction evidence, in which the victim identified Whitman as the man he caught on May 10,2011 at a nearby recycling center attempting to sell property stolen from him the same day. The State proffered this evidence for the purpose of showing intent, bent of mind, identification and course of conduct, and the trial court admitted the evidence for the limited purposes of showing intent and course of conduct.

The defense presented evidence from Whitman’s fiancée, who testified that the materials taken to PSC on September 23,2010 were from a yard Whitman and she were cleaning and did not include Mullen’s lawn mower and tiller. Whitman chose not to testify in his own defense.

Under Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), before admitting similar transaction evidence,

the trial court must determine that the State has affirmatively shown that: (1) the State seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.

(Citations omitted.) Harvey v. State, 284 Ga. 8, 8-9 (2) (660 SE2d 528) (2008). Our Supreme Court recently approved the following statement setting out two separate standards for appellate courts to apply in reviewing a trial court’s admission of similar transaction evidence:

When reviewing the trial court’s factual findings regarding whether the state satisfied the three-prong test mandated by Williams, we apply the “clearly erroneous” standard. The decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.

(Citations and punctuation omitted.) Reed v. State, 291 Ga. 10 (3) (727 SE2d 112) (2012).

Whitman does not contend that the May 10, 2011 transaction failed to meet the Williams three-prong test. He concedes that the transaction is similar to the one in this case, and he does not argue that it was introduced for an improper purpose or that the evidence was insufficient to show that he committed that offense. And this Court has consistently held that similar transactions which occur after the charge for which a defendant is being tried, such as the transaction in this case, are admissible so long as the State demonstrates that the transactions satisfy the Williams test. Whitehead v. State, 287 Ga. 242, 249 (3) (695 SE2d 255) (2010) (same “test applies whether the similar transaction occurred before or, as here, after the charged crimes”); Ayiteyfio v. State, 308 Ga. App. 286, 290 (707 SE2d 186) (2011); Scott v. State, 219 Ga. App. 906, 908 (3) (467 SE2d 348) (1996). Moreover, “[i]t is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible.” (Citation and punctuation omitted.) Hill v. State, 298 Ga. App. 677, 680 (2) (680 SE2d 702) (2009). See also Robinson v. State, 312 Ga. App. 736, 752 (5) (719 SE2d 601) (2011) (concluding that details of prior arrest were admissible as similar transaction evidence where such involved circumstances similar to those giving rise to defendant’s theft charges); Woods v. State, 275 Ga. App. 340, 342 (1) (a) (620 SE2d 609) (2005) (same).

Rather, Whitman argues that the trial court erred in admitting the evidence because he contends that it presented him with an untenable choice: he could either assert his Sixth Amendment right to testify in his own defense in this case, thus endangering his Fifth Amendment right to remain silent in connection with the pending charge in the similar transaction, or he could waive his right to testify in this case in order to preserve his Fifth Amendment rights in the other matter. In other words, Whitman is challenging “the improper impact that the admission of a similar transaction from a pending case had on his Fifth and Sixth Amendment Rights at a jury trial under the U. S. Constitution.” (Emphasis supplied.) Accordingly, under Reed, we apply an abuse of discretion standard to Whitman’s argument.

It is true that “[a] defendant in a criminal case who voluntarily testifies in his own behalf, waives completely his privilege under the Fifth Amendment.” (Citation and punctuation omitted.) Carter v. State, 161 Ga. App. 734, 736 (3) (288 SE2d 749) (1982).

[W]hen a defendant voluntarily takes the stand in his own behalf and testifies as to his guilt or innocence as to a particular offense, his waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination maybe inconvenient or embarrassing. His voluntary offer of testimony upon any fact is a waiver as to all other relevant facts because of the necessary connection between all.

(Footnote omitted.) Braswell v. State, 245 Ga. App. 602, 605 (6) (a) (538 SE2d 492) (2000). See also Hubbard v. State, 173 Ga. App. 127, 129 (7) (325 SE2d 799) (1984). Clearly, therefore, if Whitman had chosen to testify in his own defense, he would have waived all Fifth Amendment rights with regard to the crime alleged in this case. But even if a defendant’s decision to testify also subjects him to potential cross-examination regarding properly admitted similar transaction evidence, it does not follow that Whitman’s testimony regarding the crime alleged in this case would have resulted in the waiver of his Fifth Amendment rights with regard to the pending charges alleged in the similar transaction.

In Georgia, “[a] party, though introduced as a witness in his own behalf, may, upon cross-examination as to matters not voluntarily testified about on his direct examination, decline to give testimony which would tend to criminate him. ...” (Citations omitted.) Bishop v. Bishop, 157 Ga. 408 (1) (121 SE 305) (1924). See also Ga. Const. of 1983, Art. I, Sec. I, Par. XVI; OCGA § 24-9-27 (a). A witness, therefore, may assert a privilege against self-incrimination with respect to matters that “were wholly collateral to and unrelated to her testimony in chief, and w[ere] with respect to separate transactions, in no way shown by her testimony to be connected with the crime with which the defendant here was charged.” Smith v. State, 225 Ga. 328, 331 (7) (168 SE2d 587) (1969) (holding that trial court need not strike entirety of prosecution witness’s testimony where witness asserted privilege as to collateral matter), cert, denied, Smith v. Georgia, 396 U. S. 1045 (90 SC 695, 24 LE2d 689) (1970), rehearing denied, 397 U. S. 970 (90 SC 1000, 25 LE2d 264) (1970).

The right against self-incrimination is retained as to collateral matters, therefore, so long as the defendant does not somehow waive that right in his direct examination. Thus, Whitman’s waiver of his Fifth Amendment rights as to the charge in this case would not have automatically resulted in a waiver of his right to remain silent in connection with the similar transaction. Although that evidence was deemed admissible for the limited purpose of establishing intent and course of conduct, the two incidents involved two distinct transactions, with different victims, different property, and different scrap yards, and the events occurred almost eight months apart. As the judge explained to the jury in his limiting instruction regarding the similar transaction, Whitman was on trial only for the offense in this case; he was not on trial “for any other related or connected — or other acts.” If Whitman had confined his testimony to the facts in this case, his Fifth Amendment rights as to the similar transaction should not have been impacted. Cf. Myers v. State, 256 Ga. App. 135, 141 (2) (567 SE2d 742) (2002) (Georgia case law indicates that “a witness may assert the privilege [against self-incrimination] regarding ‘purely collateral matters’ and still testify about events directly relevant to the guilt of the accused.”); Buford v. State, 162 Ga. App. 498, 501 (8) (291 SE2d 256) (1982) (where defendant admitted participation in crime and identified witness as a participant, defendant suffered no prejudice from witness’s refusal on Fifth Amendment grounds to testify regarding collateral matter of the other participants’ names).

Of course, if he had chosen to testify, Whitman would have run the risk of inadvertently opening the door to questioning about his May 2011 arrest, but that risk would have existed even if the trial court had excluded the similar transaction evidence. See, e.g., Green v. State, 298 Ga. App. 17, 25-26 (7) (679 SE2d 348) (2009) (defendant’s prior arrest record admissible where defense opened door on the same specific subject); Parker v. State, 169 Ga. App. 557 (1) (313 SE2d 751) (1984) (state was entitled to question defendant about his prior arrests in order to impeach defendant’s testimony that “[he had] never been in a situation . . . dealing with the law”).

Although Whitman may have faced a difficult choice in deciding whether to testify, it is well settled that

[t]he criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.... [T]he threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.

(Citations and punctuation omitted.) Chaffin v. Stynchcombe, 412 U. S. 17, 32 (93 SC 1977, 36 LE2d 714) (1973). A defendant’s decision to testify on his own behalf necessarily involves an assessment of many factors, including the potential risk of self-incrimination. See Brooks v. Tennessee, 406 U. S. 605, 607-608 (92 SC 1891, 32 LE2d 358) (1972). But this difficult tactical decision does not necessarily “transmute a matter of trial tactics into an issue of constitutional significance.” United States v. Masters, 840 F2d 587, 590-591 (8th Cir. 1988) (holding that accepted practice allowing trial judge to delay ruling on motion in limine until after defendant testified did not violate defendant’s Sixth Amendment right to testify in his own defense).

Whitman cites no authority to support his argument that adverse evidence must be excluded because its admission might impact a defendant’s decision to testify. To the contrary, even if Whitman was “forced to choose between asserting a defense based upon his own testimony or remaining silent, [that is] a choice that is inherent in any defendant’s decision whether to testify or not, and that does not violate a defendant’s constitutional rights.” United States v. Wright, 88 Fed. Appx. 30, 31 (5th Cir. 2004); Williams v. Florida, 399 U. S. 78, 83-84 (90 SC 1893, 26 LE2d 446) (1970). See also United States v. Hung Thien Ly, 646 F3d 1307, 1314-1315 (11th Cir. 2011) (“the right to testify is the right to choose between the competing rights of testifying and remaining silent”); State v. Perkins, 271 Conn. 218, 243-244 (B) (856 A2d 917) (2004) (“a defendant must always choose between standing on his constitutional right to remain silent and taking the stand in presenting his defense”); People v. Caro, 46 Cal.3d 1035, 1056 (761 P2d 680) (1988), overruled on another ground, People v. Whitt, 51 Cal.3d 620, 657, n. 29 (798 P2d 849) (1990) (choice between Fifth Amendment rights as to similar transactions and Sixth Amendment right to testify “is permissible under the federal Constitution”).

Decided June 1, 2012

Reconsideration denied July 6, 2012

Robert C. Rutledge, for appellant.

Leigh E. Patterson, District Attorney, Suhirjahaan S. Morehead, Assistant District Attorney, for appellee.

Accordingly, we find no abuse of discretion in the trial court’s admission of the similar transaction evidence.

Judgment affirmed.

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

       The Supreme Court concluded that the “ ‘abuse of discretion’ standard is different from and not quite as deferential as the ‘clearly erroneous’ [or ‘any evidence’] test.” Reed v. State, 291 Ga. 10 (3) (727 SE2d 112) (2012).

       “The right to testify on one’s own behalf at a criminal trial [actually] has sources in several provisions of the Constitution” including the Sixth Amendment. Rock v. Arkansas, 483 U. S. 44, 51-52 (107 SC 2704, 97 LE2d 37) (1987).

       The State asserts that Whitman’s argument is speculative because he did not state his reason for not testifying on the record. But this factor does not prevent our review of Whitman’s argument because the trial court ruled on the issue below. See New Jersey v. Portash, 440 U. S. 450, 453-455 (II) (A) (99 SC 1292, 59 LE2d 501) (1979) (court considered whether trial court erred in holding State could use defendant’s grand jury testimony pursuant to immunity agreement to impeach him at a later trial even though defendant did not testify and thus arguably suffered no harm from trial court’s ruling). Here, the court ruled, after characterizing Whitman’s constitutional argument as “interesting,” by stating that he would not “go with” the argument and instead allowing the State to introduce the similar transaction evidence.

       See Johnson v. State, 270 Ga. 234, 237 (3) (507 SE2d 737) (1998) (“in Georgia, the scope of cross-examination is not generally limited to what was covered on direct”) (Citation omitted.).

       “This privilege against self-incrimination extends not only to those answers that would in themselves support a conviction, but also to answers creating a ‘real and appreciable’ danger of establishing a link in the chain of evidence needed to prosecute.” (Citations omitted.) In re Tidwell, 279 Ga. App. 734, 743 (5) (632 SE2d 690) (2006). When a witness invokes the privilege,
      the trial court [first] must determine if the answers could incriminate the witness. If so, then the decision whether it might must be left to the witness. On the other hand, where the trial court determines that the answers could not incriminate the witness, he must testify (or be subject to the court’s sanction). It is for the court to decide if the danger of incrimination is “real and appreciable.”
      (Citations and punctuation omitted; emphasis in original.) Id.

       We note that our Supreme Court has limited the exercise of the privilege set out in OCGA § 24-9-27 in cases where the testimony tends only to bring infamy, disgrace or public contempt upon a witness or his family, as follows:
      In Brooks v. State, 233 Ga. 524 (2) (212 SE2d 355) (1975), this court construed the foregoing testimonial privilege, in accordance with the great weight of authority, to require the witness to answer questions tending to bring infamy, disgrace or public contempt upon himself or his family, if the proposed evidence is material to the issues in the case; it is only where the proposed answer has no effect on the case except to impair the witness’ credibility that the witness may fall back on the privilege.

        Brown v. State, 242 Ga. 536, 538-539 (3) (250 SE2d 438) (1978). But this limitation does not extend to Whitman’s constitutional right to remain silent. And although the General Assembly has repealed OCGA § 24-9-27 effective January 1,2013, a modified version of the statute, which retains language prohibiting forced self-incrimination, will be in effect as of that date and codified as OCGA § 24-5-505 under the new evidence code. Ga. L. 2011, p. 99, § 2.

       Moreover, we note that Whitman’s decision not to testify did not deprive him of his ability to present evidence in support of his defense as his fiancée testified that the property Whitman and she brought to PSC that day came from somewhere other than the victim’s house and did not include the stolen property.

       Compare Simmons v. United, States, 390 U. S. 377, 391-394 (88 SC 967, 19 LE2d 1247) (1968) (court may not compel a defendant to give up his right to remain silent by testifying at a Fourth Amendment right proceeding).


author: Miller, Judge.

text:
    A10A0972.
    SARIF et al. v. NOVARE GROUP, INC. et al.
    (730 SE2d 150)
    Decided July 6, 2012.

      Weinstock & Scavo, Wallace H. Ehrenclou, James R. Fletcher II, for appellants.

      Troutman Sanders, William N. Withrow, Jr., Thomas E. Reilly, Brian P. Watt, for appellees.
   Miller, Judge.

In Novare Group v. Sarif, 290 Ga. 186 (718 SE2d 304) (2011), the Supreme Court of Georgia reversed the judgment of this Court in Sarif v. Novare Group, 306 Ga. App. 741 (703 SE2d 348) (2010). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment vacated.

Phipps, P. J., and McFadden, J., concur.


author: BARNES, Presiding Judge.

text:
    A12A0564.
    McGEE v. THE STATE.
    (730 SE2d 131)
   BARNES, Presiding Judge.

Sanyo Walter McGee appeals his conviction for trafficking in cocaine and his sentence of life imprisonment. He challenges the sufficiency of the evidence to support his conviction, maintains that the trial court made several errors in its charge and recharge to the jury, and contends that the trial court erred in sentencing him to life in prison as a recidivist. While the evidence was sufficient to support McGee’s conviction, the trial court erred in its response to a jury question regarding the knowledge requirement of the trafficking statute. As discussed below, we conclude that the trial court’s response may have led the jury to incorrectly substitute criminal negligence for the knowledge requirement in rendering its verdict, and we cannot say that the erroneous response was harmless. Accordingly, we reverse McGee’s conviction and remand the case for a new trial.

1. McGee first argues that the evidence was insufficient to support his conviction for trafficking in cocaine. We disagree.

In reviewing the sufficiency of the evidence to support a conviction, we must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Able v. State, 312 Ga. App. 252, 252 (1) (718 SE2d 96) (2011).

Viewed in the light most favorable to the prosecution, the evidence showed that on October 30, 2009, an undercover special agent with the Fayette County Tactical Narcotics Team agreed to meet a person named “Mike” and purchase two ounces of cocaine from him for $1,900. Under the terms of the drug deal, the agent would meet Mike, who would be driving a blue Chrysler 300, in a grocery store parking lot in Fayette County. Other agents forming a surveillance team would be stationed nearby and would move in and secure the scene once the deal was completed.

After arriving at the parking lot and waiting for an hour without having any contact from Mike, the undercover agent and other members of the surveillance team left the parking lot. However, shortly after leaving, the agent received another phone call from Mike, and he returned to the parking lot to complete the drug transaction. The surveillance team waited in another car in the parking lot to watch the transaction take place.

When the agent returned to the parking lot, he saw a blue Chrysler 300 occupied only by the driver. He observed the driver walk over to the passenger side of a dark Chevrolet HHR that was parked in a nearby aisle of the parking lot. Less than a minute later, the driver returned to the Chrysler 300. At that time, the agent received a phone call telling him to approach the Chrysler 300, and he then got out of his own car and went over to the Chrysler 300 to complete the drug transaction.

Once he approached the Chrysler 300, the undercover agent confirmed that the driver inside the car was named “Mike,” paid him the cash, and received the quantity of cocaine. After the transaction took place, Mike again exited from the Chrysler 300 and walked back over to the passenger side of the Chevrolet HHR parked nearby. At that point, the surveillance team moved in and apprehended Mike, who had sold the agent the cocaine, and McGee, who was sitting in the passenger seat of the Chevrolet HHR.

McGee was handcuffed and advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). McGee chose to speak with one of the members of the surveillance team, explaining that he was present in the parking lot “to make sure my boy didn’t get robbed.” He denied having the cocaine prior to the sale and denied having any weapons. No drugs or drug money was found on McGee or in the Chevrolet HHR in the search conducted after his arrest.

A forensic chemist at the state crime lab tested the suspected narcotics obtained from Mike as part of the drug transaction. The substance was confirmed as cocaine with a weight of 54.31 grams and a purity of 12.4 percent.

McGee and Mike were jointly indicted for the crime of trafficking in cocaine but were not tried together. At McGee’s trial, the State called, among other witnesses, the undercover narcotics agent who completed the drug transaction with Mike, the member of the surveillance team who spoke with McGee after his arrest, and the forensic chemist who tested the suspected cocaine. McGee, who represented himself, did not testify or call any defense witnesses. At the conclusion of the trial, the jury found McGee guilty of the charged offense. The trial court sentenced McGee to life in prison as a recidivist. This appeal followed.

Under OCGA § 16-13-31 (a) (1), a person commits the offense of trafficking in cocaine when he “is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine.” Thus, the trafficking statute requires the State to prove (1) that the defendant possessed a substance, (2) that the substance was cocaine or a mixture with a purity of 10 percent or more of cocaine, (3) that the quantity of the substance was 28 grams or more, and (4) that the defendant did so knowingly. Harrison v. State, 309 Ga. App. 454, 456 (2) (711 SE2d 35) (2011).

As to the statutory requirement that the defendant possess the substance, evidence that the defendant had joint constructive possession of the cocaine with another is sufficient to sustain the trafficking conviction. S ee Martinez v. State, 314 Ga. App. 551, 552 (1) (724 SE2d 851) (2012). “A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” (Citation omitted.) White v. State, 313 Ga. App. 605, 606 (1) (722 SE2d 198) (2012).

As to the knowledge requirement of the trafficking statute, the State must prove “that the defendant knew that he possessed a substance and knew that the substance contained some amount of cocaine.” Harrison, 309 Ga. App. at 456 (2). See Barr v. State, 302 Ga. App. 60, 61-62 (1) (690 SE2d 643) (2010); Cleveland v. State, 218 Ga. App. 661, 663 (1) (463 SE2d 36) (1995). In contrast, the statute does not require that the State prove that the defendant knew the purity or weight of the substance. See Harrison, 309 Ga. App. at 456 (2); Barr, 302 Ga. App. at 61-62 (1); Cleveland, 218 Ga. App. at 663 (l).

Furthermore, even if a defendant does not directly commit the trafficking offense, he is a party to the crime if he intentionally aids or abets in its commission. See OCGA § 16-2-20 (b) (3); Martinez, 314 Ga. App. at 552 (1).

A defendant’s presence, companionship, and conduct before and after the offense are circumstances from which his participation in the criminal intent may be inferred. A defendant will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the defendant is prosecuted. If the totality of circumstantial evidence is sufficient to connect the defendant with the possession of the drugs, the conviction will be sustained, even though there is evidence to authorize a contrary finding.

(Citation and punctuation omitted.) Martinez, 314 Ga. App. at 553 (!)•

Applying these principles to the case-at-hand, we conclude that the evidence outlined above was sufficient to enable a rational trier of fact to find McGee guilty beyond a reasonable doubt of trafficking in cocaine. Jackson, 443 U. S. at 319 (III) (B). The testimony regarding the drug seller Mike’s contact with McGee in the parking lot immediately before and after the drug transaction, combined with McGee’s statement to the surveillance team member, entitled the jury to reasonably infer that, at a minimum, McGee served as a lookout and was present to provide security for Mike during the transaction. “Acting as a lookout for a person who is committing a crime authorizes a conviction for that crime.” Dixon v. State, 277 Ga. App. 656, 659 (627 SE2d 406) (2006). See also Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980) (jury entitled to find that defendant was party to the crime when the defendant “was observed in a position which authorized the inference that he was standing as a lookout”). The evidence, therefore, was sufficient to sustain McGee’s conviction.

McGee nevertheless contends that the State failed to exclude every reasonable hypothesis except that of his guilt as required by OCGA § 24-4-6. But (Punctuation and footnotes omitted.) Ferrell v. State, 312 Ga. App. 122, 125 (1) (717 SE2d 705) (2011). Contrary to McGee’s contention, we conclude that, based upon the evidence presented by the State in this case, decisions regarding the reasonableness of hypotheses were properly left for the jury to resolve.

[i]t is the jury’s role to resolve evidentiary conflicts, determine witness credibility, and decide the reasonableness of hypotheses based upon the circumstantial evidence. Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

2. McGee contends that the trial court erred in its response to a jury question pertaining to the knowledge requirement of the trafficking statute. We agree.

In its initial charge, the trial court instructed the jury on the statutory definition of trafficking in cocaine, see OCGA § 16-13-31 (a) (1), but the court did not define “knowingly” as that term is used in the trafficking statute. Later, during its deliberations, the jury returned a note inquiring, “Does the defendant have to know what crime is being committed to be a party to that crime?” (Emphasis in original.) In response to the jury’s question, the trial court responded,

The short answer to that is no. As far as to know what specific crime is being committed, the defendant — the State would have to prove, however, that the defendant knew, or should have known, what prohibited conduct was being committed.

(Emphasis supplied.) McGee objected to the trial court’s response to the jury’s question, arguing that “you actually have to know what a person is doing to be a party to it.” The trial court noted McGee’s objection for the record but made no correction to its response to the jury’s question.

The trial court’s response to the jury’s question was an incorrect statement of the knowledge requirement imposed by the trafficking statute. As explained in Division 1, to convict a defendant of trafficking in cocaine, the State must prove “that the defendant knew that he possessed a substance and knew that the substance contained some amount of cocaine.” Harrison, 309 Ga. App. at 456 (2). See Barr, 302 Ga. App. at 61-62 (1); Cleveland, 218 Ga. App. at 663 (1). Furthermore, the conviction of a defendant as an aider and abettor and thus party to the crime requires proof that he “had knowledge of the intended crime and shared in the criminal intent of the principal actor.” (Footnote omitted.) Ratana v. State, 297 Ga. App. 747, 749 (678 SE2d 193) (2009). The trial court’s response, however, erroneously informed the jury that McGee could be found guilty of trafficking in cocaine upon a showing of mere criminal negligence rather than proof of guilty knowledge.

“Fundamental to any criminal case tried to a jury is the jury’s understanding of the essential elements of the crimes charged in order to determine whether the [S]tate has met its burden of proof beyond a reasonable doubt.” Coney v. State, 290 Ga. App. 364, 369 (1) (659 SE2d 768) (2008). And “[a]ll charging errors are presumed to be prejudicial unless the record shows them to be harmless.” (Punctuation and footnote omitted.) Williamson v. State, 300 Ga. App. 538, 550 (6) (685 SE2d 784) (2009). Error in a jury charge is harmless only if “there is no reasonable probability that it misled the jury or permitted a defendant’s conviction on an erroneous theory.” (Citation and punctuation omitted.) Able, 312 Ga. App. at 257 (2).

Viewing the trial court’s charge as a whole, combined with the court’s response to the jury’s question, we conclude that there is a reasonable probability that the erroneous response may have misled or confused the jury regarding what the State was required to prove. While the evidence was sufficient for the jury to find that McGee had knowledge of and shared in the criminal intent to possess the cocaine that Mike sold to the undercover agent, the evidence on this point was not overwhelming. Given the evidence presented, the jury could have found that McGee knew that Mike was involved in some type of dangerous transaction and agreed to protect him from being robbed, but did not specifically know that Mike possessed cocaine as part of that transaction or share in his criminal intent to possess it. It follows that the jury could have convicted McGee on the erroneous theory that he should have known that Mike possessed cocaine in agreeing to protect him from being robbed.

Accordingly, we cannot say that the trial court’s erroneous response to the jury regarding the knowledge requirement was harmless. We therefore must reverse McGee’s conviction and remand the case for a new trial. See Dunagan v. State, 269 Ga. 590, 594-595 (3) (502 SE2d 726) (1998) (trial court’s charge that improperly substituted criminal negligence for criminal intent as an element of the crime of aggravated assault constituted reversible error); Cadle v. State, 271 Ga. App. 595, 597-598 (2) (610 SE2d 574) (2005) (trial court’s responses to jury questions constituted reversible error, where responses indicated that criminal negligence rather than criminal intent could support conviction); Jackson v. State, 205 Ga. App. 513, 514-515 (3) (422 SE2d 673) (1992) (misstatement injury charge regarding essential element of criminal intent required new trial on charge of possession of cocaine with intent to distribute); Tift v. State, 133 Ga. App. 455, 456-457 (2) (211 SE2d 409) (1974) (failure to charge jury on “knowledgeable possession” constituted reversible error in drug possession case).

3. McGee enumerates several additional alleged errors relating to other jury instructions given by the trial court. We decline to address the alleged errors because they are unlikely to recur on retrial of the case. Likewise, McGee’s enumerations of error pertaining to his sentence are moot and need not be addressed in light of our decision to reverse his conviction and remand for a new trial.

Decided July 6, 2012.

William A. Adams, Jr., for appellant.

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

Judgment reversed and case remanded for new trial.

Adams and McFadden, JJ., concur.

       In Harrison, we questioned whether Barr and Cleveland were correct in concluding that the knowledge requirement did not apply to the purity and weight of the substance. See Harrison, 309 Ga. App. at 456-457 (2). Nevertheless, we declined to revisit our precedent on the issue because any error in the jury instruction forming the basis for the appeal in Harrison was harmless in light of the evidence establishing the defendant’s guilt of the trafficking offense. See id. at 458-459 (2) OA See also Wilson v. State, 312 Ga. App. 166, 169 (2), n. 2 (718 SE2d 31) (2011) (discussing Harrison). Likewise, we decline to revisit our precedent in the context of the current appeal, given that McGee has not challenged that precedent and, in fact, concedes in his appellate brief that it is unnecessary to revisit whether the knowledge requirement should apply to the purity and weight of the substance in resolving the issues raised here. We note, however, that our Supreme Court recently granted certiorari in Wilson (Case No. S12C0370, decided March 19,2012), a case involving a conviction for trafficking in marijuana under OCGA § 16-13-31 (c), a provision similar to the cocaine trafficking provision at issue in this case. See OCGA § 16-13-31 (a) (1). Notably, our Supreme Court granted certiorari to address whether the State is required to prove that the defendant had knowledge of the weight of the marijuana that was in his possession to sustain his conviction for trafficking in marijuana.

       OCGA§ 24-4-6 provides: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”