author: Mercier, Judge.

text:
    A16A0280.
    MEDIA GENERAL OPERATIONS, INC. v. ST. LAWRENCE et al.
    (787 SE2d 778)
   Mercier, Judge.

This appeal is from the trial court’s judgment declaring that the sheriff and the district attorney of Chatham County are not required to release to Media General Operations, Inc. d/b/a WSAV-TV certain records under the Open Records Act, because the records sought come within the “pending prosecution” exemption to disclosure. We agree and affirm the trial court’s judgment.

On January 1, 2015, Matthew Ajibade was arrested and taken to the Chatham County Detention Center. Ajibade died at the detention center on January 1, 2015 or January 2, 2015, while he was in the custody of the Chatham County Sheriff’s Office (“CCSO”).

On January 2,2015, CCSO personnel phoned the Georgia Bureau of Investigation (GBI), requesting an investigation into Ajibade’s death; the GBI began its investigation that day. That same date, the Internal Affairs Division of the CCSO (“IAD”) began its own investigations into possible policy violations by CCSO employees in connection with the death. In all, there were three IAD investigations into Ajibade’s death. The IAD interviewed all persons involved in the incident, and the CCSO planned to “review, again, the actions of other employees that may be on the periphery of this to determine if we’re going to take additional disciplinary action.” The IAD investigations revealed criminal activity, which activity the CCSO referred to the district attorney for possible prosecution. In May 2015, after the GBI and the IAD investigations had concluded, the CCSO fired nine sheriff’s deputies for their roles in Ajibade’s death.

In June 2015, the district attorney presented a bill of indictment against two of the fired deputies and a private employee who had worked as a nurse at the detention center. The three individuals were indicted on charges that included involuntary manslaughter, aggravated assault, cruelty to an inmate, falsifying records, and making false statements to a GBI agent.

In about March and April 2015, Media General Operations, Inc. (“Media General”) submitted to the CCSO requests pursuant to the Open Records Act (OCGA § 50-18-70 etseq.) for records pertaining to Ajibade, including video footage, incident or arrest reports, and IAD investigation reports. In response, the CCSO acknowledged that cameras it owned and operated had captured images of Ajibade on the relevant dates, that the CCSO maintained and prepared the images as part of its functions, and that it acted as custodian of the images. However, the CCSO refused to provide the requested video footage, asserting that the footage was exempt under OCGA § 50-18-72 (a) (4) because the footage was in the possession of the district attorney for “use in an on-going criminal investigation.” The CCSO also refused to release the IAD investigation reports, stating that those records were exempt under the same statutory subsection (OCGA § 50-18-72 (a) (4)) because they had been provided to the district attorney. (The CCSO did not produce initial incident or arrest reports, stating that no such reports existed.) Media General renewed its request for the video footage and IAD reports, asserting that the exemption at issue does not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution (OCGA § 50-18-72 (a) (4), infra).

In May 2015, Al St. Lawrence, in his capacity as sheriff of Chatham County, and Meg Heap, in her capacity as district attorney of Chatham County, filed the underlying action for declaratory judgment against Media General, seeking a declaration that the items requested were exempt from disclosure because they were “part of an ongoing criminal investigation by the District Attorney’s Office.”

In July 2015, the trial court entered judgment in favor of the CCSO and the district attorney, finding that the records were exempt from release pursuant to OCGA § 50-18-72 (a) (4) because the prosecution was still pending. Media General appeals.

The material facts of this case are undisputed. Because the issue presented on appeal is one of statutory construction, our review is de novo. See Hardaway Co. v. Rives, 262 Ga. 631 (422 SE2d 854) (1992); Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

Our analysis begins with the following principle:

Our General Assembly has expressly declared that “public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions.” OCGA § 50-18-70 (a). To further this end, all public records are deemed subject to disclosure, “except those which by order of a court of this state or by law are specifically exempted from disclosure.” OCGA § 50-18-71 (a).

Schick v. Bd. of Regents of the Univ. System of Ga., 334 Ga. App. 425, 429 (1) (779 SE2d 452) (2015); see Howard v. Sumter Free Press, 272 Ga. 521, 521-522 (1) (531 SE2d 698) (2000).

The exemption at issue is contained in OCGA § 50-18-72 (a) (4). That subsection exempts from disclosure:

Records of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated; and provided, further, that this paragraph shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution[.]

(Emphasis supplied.)

In this case, it is undisputed that the video footage and the IAD investigation reports are public records and that the records are in the possession of the CCSO and/or, more recently, the district attorney. The sole issue on appeal is whether the records are exempt from public disclosure under the “pending prosecution” exemption set out in OCGA § 50-18-72 (a) (4). The CCSO and the district attorney posit that the records were initially exempt as part of “pending investigation[s]” of criminal activity, and that later, when those investigations concluded and the matter was referred to the district attorney’s office for prosecution, the records were exempt pursuant to the “pending prosecution” exemption. See OCGA § 50-18-72 (a) (4) (public disclosure not required of records of law enforcement/prosecution in any pending investigation or prosecution of criminal or unlawful activity); Evans v. Ga. Bureau of Investigation, 297 Ga. 318, 319 (773 SE2d 725) (2015). We hold that, under the circumstances presented in this case, the records come within the pending prosecution exemption to disclosure.

Media General contends that the first clause of the cited subsection (pertinently, that records in any pending prosecution of criminal activity are exempt from disclosure) does not control this case. OCGA § 50-18-72 (a) (4). According to Media General, its records request is governed by the final clause of that subsection, which provides that the pending prosecution exemption does not apply to records in the possession of an agency that is the subject of the pending prosecution. Id. Media General asserts that the CCSO is “an agency that is the subject of the pending prosecution” as contemplated by OCGA § 50-18-72 (a) (4), because two sheriff’s deputies and a nurse working at the detention center were indicted (and nine sheriff’s office employees were fired) for their roles in Ajibade’s death while he was an inmate in CCSO’s custody, and the employees and staff hadbeen acting in the course of their duties when the death occurred.

The CCSO and the district attorney argue, however, that the “agency” provision of the statute is inapplicable because the CCSO itself was not the subject of the pending investigation and prosecution; instead, individuals were. We agree. There is no evidence in the record that either the sheriff himself or the CCSO as a whole was the subject of the investigation or prosecution.

OCGA § 50-18-70 (b) provides in pertinent part that, “[a]s used in this article, the term: (1) ‘Agency’ shall have the same meaning as in Code Section 50-14-1.” OCGA § 50-14-1 (a) (1) (C) pertinently defines “Agency” as “[e]very department,... office,... or similar body of each . . . county ... of the state.” Thus, the term “agency” does not include the employees of the agency; had the legislature intended “agency” to include all individuals employed by the agency, it could have so provided. We note that, contrary to Media General’s position, an agency can be the subject of a criminal prosecution. See, e.g., OCGA § 16-2-22 (a) (1), (a) (2) (a corporation can be criminally prosecuted; also, distinguishing between actions of an “agent” and a “managerial official” in connection with criminal prosecution of a corporation); OCGA § 50-18-70 (b) (1) (defining “agency” under Open Records Act as including some corporations).

In our view, the correct reading of OCGA § 50-18-72 (a) (4), and the one that is most natural and reasonable, is that the term “agency” is not synonymous with “employee.” Under the circumstances of this case, the agency was not the subject of the prosecution. In fact, agency personnel requested criminal investigations of the individuals involved inAjibade’s death, conducted internal investigations of the individuals for possible violations of agency policies, fired several of those individuals, and referred the matter to the district attorney for possible prosecution.

Media General argues that the CCSO’s act of placing otherwise public records (i.e., video footage and IAD reports) into exempt files (for investigations and prosecutions) did not render those records exempt. It cites Irvin v. The Macon Telegraph Publishing Co., 253 Ga. 43 (316 SE2d 449) (1984) for the principle that “merely placing a public record into an exempt file does not make that public record exempt.” But Irvin is inapposite, as it involved requests for records of GBI investigations of state employees, which records had been placed in the employees’ (confidential) personnel files; unlike the instant case, in Irvin no criminal actions were taken against any of the employees investigated and there was no “pending prosecution.” Id. at 43.

[A]lthough exemptions from disclosure under the Open Records Act are narrowly construed, the Act obviously should not be construed in derogation of its express terms. Again, the Act contains an express exemption from disclosure for “[r]ecords of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity.” OCGA § 50-18-72 (a) (4).

Decided June 15, 2016.

Thomas & Locicero, Sarah R. Craig, for appellant.

R. Jonathan Hart, Jennifer R. Burns; FisherBroyles, LLP, R. Bates Lovett; Oliver Maner, LLP, Patrick T. O’Connor, for appellees.

Jones Day, Peter C. Canfield, Lucas W. Andrews, Meredith C. Kincaid, amici curiae.

Evans, supra at 319 (citations and punctuation omitted). The exemption upon which the CCSO and the district attorney rely expressly excludes from disclosure the records at issue here. Thus, the CCSO and the district attorney met their burden of proving that the requested records are exempt from disclosure while the prosecution is pending. Notably, as the CCSO and the district attorney concede in their appellate brief, the requested records will absolutely be subject to disclosure when the criminal prosecutions of the three defendants are no longer pending.

No basis for reversal has been shown.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

       The lawsuit named “WSAV, Inc.” as defendant. However, in the notice of appeal, appellant identifies itself as “Media General Operations, Inc. d/b/a WSAV-TV,” stating that it was “incorrectly sued in this action as ‘WSAV, Inc.’ ”

       Members of Ajibade’s family intervened in the declaratory judgment action as defendants. They are not parties to this appeal.


source: Caselaw Access Project

author: Rickman, Judge.

license: Public Domain

text:
    A16A0326.
    HAYNES v. THE STATE.
    (787 SE2d 776)
   Rickman, Judge.

Darryl Haynes was tried by a jury and convicted of abuse of an elder person and false imprisonment. On appeal, Haynes contends that the trial court erred in failing to instruct the jury on justification as to the charge of false imprisonment. F or the reasons that follow, we affirm.

On appeal, “[w]e view the evidence ... in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility but only determine if the evidence is sufficient to sustain the convictions.” (Citation omitted.) Hill v. State, 243 Ga. App. 614 (533 SE2d 779) (2000); see Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence showed that the victim, Haynes’s elderly mother, suffered from late-stage dementia and early Alzheimer’s disease. The victim resided at a nursing and rehabilitation center until Haynes discharged her from the facility. At the time he did so, he told a center worker that he needed her Medicaid funds to cover household expenses. A social worker at the center was concerned that the victim would be in an unsafe environment with Haynes, and she made a referral to adult protective services.

After her discharge from the center, a home health aide initially cared for the victim in her home three times a week but, at some point, the visits were reduced to twice a week. On one of her visits to the victim’s home, the health aide noticed bruising on the victim’s arm and observed that her arms were tied to the rails of a hospital bed with something similar to an ACE bandage. The health aide also saw bruising on the victim’s legs, inner thighs, and back. Haynes told the health aide that the victim’s bruising was caused by him “beating” her the day before, and that he beat the victim for “yanking down the curtains . . . like she used to beat me when I was a child for yanking down the curtains.” When the health aide got ready to leave, she put the victim in her wheelchair and pushed her to the front of the house for breakfast. Haynes told the health aide that she should put the victim back in the bed because he did not have time to watch her all day When the health aide left the victim’s home, she called her supervisor to report what took place on her visit.

A police supervisor responded to the victim’s home and found the victim lying in a hospital bed with her arms tied to the rails. The victim was examined by a physician who found that the victim had bruising on the left side of her chest, on both thighs, and appeared to be in pain. The doctor testified that it would be unlikely for the victim’s injuries to be caused by falling out of the bed.

Haynes testified that he restrained the victim but claimed that it was for her safety.

The grand jury returned an indictment charging Haynes with abuse of an elder person and false imprisonment. Haynes was tried by a jury and found guilty of both crimes. Haynes timely filed a motion for new trial, which was denied. It is from this order that Haynes now appeals.

Haynes contends that the trial court erred in failing to instruct the jury on justification. Relying on Tarvestad v. State, 261 Ga. 605 (409 SE2d 513) (1991), Haynes argues that the failure to give the charge was error because his sole defense to the false imprisonment charge was justification.

“Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” (Citations and punctuation omitted.) Moon v. State, 244 Ga. App. 443, 446 (3) (535 SE2d 771) (2000).

[T]his Court [has] determined that in cases where the high court found that a justification charge was appropriate, a common thread in all of the examples noted by the Supreme Court is that the actor had a duty to act in regard to others. We find it highly unlikely that, absent an immediate need for action, a justification charge would be authorized. A premise underlying all the defenses specified in OCGA § 16-3-20 is that the defendant faced circumstances created by external events that demanded prompt, if not immediate, action.

(Citations and punctuation omitted; emphasis in original.) Isenhower v. State, 324 Ga. App. 380, 384-385 (2) (750 SE2d 703) (2013).

“In Taruestad, the husband, convicted of being an habitual violator, had orally requested the charge on justification where he had been driving his pregnant wife, in labor and unable to drive, to the doctor. No other options for Tarvestad were suggested by the evidence.” Moon, 244 Ga. App. at 446 (3). In this case, by contrast, Haynes could have taken his mother back to the nursing center, called and requested assistance from the home health aide, or called 911. See generally id. (in a theft case trial court did not err in failing to give justification charge when defendant’s decision to take a truck was not the only option available to him; defendant was offered help by a bystander, which he refused, and he could have called 911); see also Isenhower, 324 Ga. App. at 384-385 (2) (in a criminal trespass case, failure to give justification charge was not error when defendant had been banned from her son’s school by her own actions and there was no evidence that her need to advocate for her son’s welfare was so immediate that she needed to go onto the school campus in violation of the ban); Odum v. State, 220 Ga. App. 263-264 (469 SE2d 394) (1996) (defendant not entitled to jury charge on justification where his own actions, in a nonemergency situation, led him to be one of three unlicensed occupants of a car when he chose to drive that car to a police roadblock).

Here, the victim was living with Haynes because of his own actions in discharging her from the nursing center. Haynes chose to be the victim’s caregiver. There is no evidence that indicates that the victim was in such immediate danger that he had to tie her to her bed instead of utilizing other options that were available to him. Thus, the trial court did not err in failing to instruct the jury on justification under these circumstances.

Decided June 15, 2016

Kevin A. Anderson, for appellant.

Robert D. James, Jr., District Attorney, Gerald Mason, Assistan t District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       Haynes was also charged with obstruction of an officer but that charge was later nolle prossed.


author: BARNES, Presiding Judge.

text:
    A16A0408.
    PITT v. THE STATE.
    (787 SE2d 782)
   BARNES, Presiding Judge.

A jury convicted Edward Pitt of two counts of child molestation and one count of aggravated child molestation, and the trial court sentenced him to thirty-five years to serve, followed by life on probation. Following the denial of his motion for new trial, Pitt appeals, contending that he was absent during a critical phase of his trial in violation of his constitutional rights to due process and a fair trial and is therefore entitled to a new trial. For the reasons that follow, we affirm.

Pitt was indicted for aggravated child molestation for placing his mouth on the sex organ of the underage victim, for child molestation for rubbing his penis on the victim’s vaginal area, and for child molestation for touching the victim with his hand on her inner thigh, buttocks, and vaginal area. Pitt had dated the victim’s mother and lived for a time with the victim, her mother, and her brother. The victim, who was eleven as of trial, testified that when she was eight or nine, Pitt had called her into her mother’s bedroom, placed his hands and mouth on her “private area,” pushed his private area into hers, and would not let her leave the room until she said aloud that nothing had happened between them. The victim testified that these incidents happened between ten to fifteen times, and she did not tell her mother about them because she was scared Pitt would hurt her or her mother. After Pitt moved out, the victim said, she had “done her best to forget everything about him,” but then heard his name during a conversation and made an outcry

During the victim’s subsequent therapy sessions, she mentioned a conversation she had had with another girl whose mother had also previously dated Pitt, and that other girl became a similar transaction witness in this case. That witness testified that when she was nine or ten, Pitt followed her into her bedroom when she went to change clothes and said he would take her for ice cream if she showed him her private parts. He flashed his penis at her, and she flashed back “really quick so he would get out of [her] room.” Then she changed clothes and they went for ice cream.

While Pitt does not challenge the sufficiency of the evidence against him, our review of the record establishes that the evidence presented to the jury was sufficient for a rational jury to determine that Pitt was guilty beyond a reasonable doubt of the offenses for which he was convicted. See Harris v. State, 333 Ga. App. 118, 119 (1) (a) (775 SE2d 602) (2015).

Pitt contends that he was denied his Georgia constitutional right to be present during all critical stages of his trial because he was absent during what he characterizes as the trial court’s “demand for an offer of proof as to the relevance of certain defense evidence.”

“Within the Georgia constitutional right to the courts [] is a criminal defendant’s right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court.” (Citations and punctuation omitted.) Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998).

The right to be present attaches at any stage of a criminal proceeding that is critical to its outcome if the defendant’s presence would contribute to the fairness of the procedure. This Court has determined that a critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way.

(Citation and punctuation omitted.) Huff v. State, 274 Ga. 110, 111 (2) (549 SE2d 370) (2001).

While denial of the corresponding federal constitutional right to be present is subject to harmless error review on appeal, a denial of the right to be present guaranteed by the Georgia Constitution is presumed to be prejudicial unless the defendant waived his right or later acquiesced to proceedings conducted in his absence. Peterson v. State, 284 Ga. 275, 278-279 (663 SE2d 164) (2008); Holsey v. State, 271 Ga. 856, 860-861 (5) (524 SE2d 473) (1999).

The six-day trial in this case began on a Monday. The State introduced twelve witnesses, including the victim, her mother, the similar transaction witness and her mother, two inmates who testified regarding disclosures Pitt made to them, law enforcement personnel, and experts in the area of child molestation, most of whom had interacted directly with the victim. The State completed its presentation of evidence at the end of the day on Wednesday and rested before the jury Thursday morning.

The defense then called a former cellmate of Pitt’s, who testified that in jail, no one would have admitted to having child molestation charges against him. The next witness was a probation officer who had been overseeing Pitt’s probation after he pled guilty to a domestic violence misdemeanor against the victim’s mother. The defense then recalled the victim’s forensic interviewer for cross-examination and played a DVD recording of the entire interview with the victim. The plan was to play the interviews with the victim and the similar transaction witness back-to-back, to highlight discrepancies, but technical difficulties arose with the courtroom’s speaker system and the audio dropped out several times while the defense played the recording of the victim’s interview. The parties unsuccessfully attempted to fix the audio problem during the lunch break, and the State provided the defense with a copy of a transcript of the interview.

After lunch, Pitt cross-examined the interviewer to fill in the gaps where the audio of the victim’s forensic interview had dropped out. Pitt then played the similar transaction witness’s forensic interview, which was easier to follow despite the continued audio problems because the State had provided copies of that transcript for the jurors in addition to the defense.

Over objection, Pitt then began to play a DVD recording of the State’s interview with the first of the two inmates who testified against Pitt, which Pitt had successfully tendered into evidence the previous day during the interrogating detective’s testimony. The sound still was not working properly, and the recording was paused while the parties tried a different hardware configuration, but the problem continued and the recording was paused again. Hoping to resolve the technical difficulties that evening after the jury was excused, Pitt shuffled his planned order of witnesses so he could continue presenting his case. A records custodian from the jail identified visitor sign-in sheets and a log book in which deputies recorded daily activities in the jail section where Pitt had been housed, although she could not explain what the entries meant; another witness identified CDs containing recorded telephone calls from the two inmates who testified against Pitt. The Cherokee County Humane Society director testified about Pitt’s community service during his probation, and a paralegal working for Pitt’s attorney testified that she had delivered a large volume of discovery material to Pitt shortly before the other two inmates offered to testify against Pitt.

The paralegal finished her testimony around 5:00 p.m., and Pitt’s next witness, a deputy sheriff, was not available to testify After an unreported bench conference, the trial court excused the jurors for the evening, directing them to return the next morning, Friday, at 8:00 a.m. Apparently at this point Pitt left the courtroom. After he left, one of his two attorneys stated that Pitt would probably want to address the court in the morning regarding his frustration over the trial’s progress and his dissatisfaction with his trial counsel. After noting that the jury would return at 8:00 a.m. ready to hear more evidence, the trial court directed Pitt’s second attorney to go talk to Pitt while the first attorney attempted to resolve the ongoing technical difficulties. Apparently the second attorney then left the courtroom to talk to Pitt while the trial court, the first attorney, and the prosecutor remained in the courtroom.

The subsequent exchange forms the basis for Pitt’s claim of constitutional error. After noting that Pitt had announced he had eleven witnesses and six of them had been heard, the trial court asked Pitt’s attorney how many other witnesses he planned to call. The attorney listed his remaining witnesses, including Pitt himself, and then sought permission to call as an additional witness “an officer on [jail] procedure to explain the jail records.” The court asked, “What’s the relevance? Make an offer of proof on these records.”

Pitt’s attorney explained that he had mistakenly thought the records custodian who had identified the logbook pages as business records would be able to explain the entries in them, but because she had been unable to do so, the attorney wanted to call a deputy who had worked inside that portion of the jail. The attorney explained that his strategy was to show through the logbook entries that the two jail “snitches” could have gone into Pitt’s cell and looked at his discovery material, which included descriptions of the crime. Having learned key details of the allegations, the snitches then could have tailored stories about what Pitt said to them to match the crimes for which he was charged, hoping to get lighter sentences in exchange for their testimony

The trial court asked for the State’s response to the defense request to call this previously-unidentified witness, and the State responded that the parties could probably draw up a stipulation regarding the logbook entries. The court concluded that the parties should talk about a possible stipulation and made no ruling on the issue. The court then asked if there were any evidentiary issues that could be resolved that evening, and the attorneys discussed the admission of the snitches’ recorded telephone conversations. The court noted that the defendant was absent from the courtroom but that they could put a final resolution of that issue on the record the next morning.

Pitt then returned to the courtroom with his second attorney, and the prosecutor left. Pitt’s counsel noted that the issue of Pitt’s satisfaction with counsel had been heard several months earlier and also addressed when the trial began. Pitt took the stand and, prompted by his attorney’s questions, addressed various concerns he had with the presentation of evidence, including the decision that had been left to him to play the recorded interviews with the victim and the similar transaction witness back-to-back to show discrepancies between them. The exchange among Pitt, his attorney, and the trial court covers 60 pages of transcript, ending at 6:30 p.m. The trial court noted that Pitt had perfected his complaints for the record and encouraged him to continue communicating with his attorneys. The prosecutor then returned to the courtroom and agreed to Pitt’s request to be allowed to call a newly-identified witness to testify regarding the jail logbook entries rather than attempt to draft a stipulation.

Whether Pitt could call a new witness at all was the issue addressed while Pitt was absent from the courtroom earlier that evening. When defense counsel brought it up, the court asked the attorney to make a proffer, then sought the prosecutor’s response, then concluded the parties should discuss the issue and did not issue a ruling then. After Pitt returned to the courtroom, the prosecutor agreed to the request to call the new witness, so the trial court was never required to rule on it.

The short portion of the trial in which Pitt was absent was not a critical phase of the proceedings. The only issue discussed was a procedural question about a witness that the court never had to resolve because it was resolved by the parties once Pitt was present in the courtroom, and thus the brief discussion was not a portion of the proceeding where Pitt had an unequivocal right to be present. See Huff, 274 Ga. at 111-112 (2) (a criminal defendant has no unequivocal right to be present during charge conference during which only legal matters were discussed, substance of which was placed on record in defendant’s presence). Further, “[gjiven that [Pitt] could not have made a meaningful contribution to the discussions about [calling the new witness], his right to be present was not violated by his absence from those discussions.” Tolbert v. State, 321 Ga. App. 637, 639 (2) (742 SE2d 152) (2013).

Decided June 15, 2016

Kilgore & Rodriguez, H. Maddox Kilgore, for appellant.

Shannon G. Wallace, District Attorney, Cliff Head, Assistant District Attorney, for appellee.

Accordingly, the trial court did not err in denying Pitt’s motion for new trial.

Judgment affirmed.

Boggs and Rickman, JJ., concur.

       Pitt was acquitted of a second count of aggravated child molestation.

       This case was tried in 2012, before the effective date of the new Evidence Code.

       Art. I, Sec. I, Par. XII of the Georgia Constitution provides: “No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”


text:
    A16A0127.
    PEAK v. THE STATE.
    (787 SE2d 792)
   Rickman, Judge.

In Peak v. State, 330 Ga. App. 528, 532 (768 SE2d 275) (2015), this Court vacated Peak’s convictions for voluntary manslaughter, aggravated assault, and two counts of firearms possession and remanded this case to the trial court “to reconsider Peak’s motion for a new trial after making an on-the-record finding of the facts and circumstances on which it relied in determining the probative value and prejudicial effect of evidence of Peak’s 1978 convictions” based upon the factors set forth in Clay v. State, 290 Ga. 822, 835 (3) (B) (725 SE2d 260) (2012). Following a hearing, the trial court issued an order specifically addressing each Clay factor and denying Peak’s motion for a new trial. It is from this order that Peak now appeals. Peak contends that the trial court erred by admitting two of his prior convictions for burglary and armed robbery, which were older than ten years, for the purpose of impeachment pursuant to former OCGA § 24-9-84.1 (b). For the reasons that follow, we affirm.

Pursuant to former OCGA § 24-9-84.1 (b), evidence of a defendant’s conviction older than ten years was only admissible if the court determined in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. A trial court must make an on-the-record finding of the specific facts and circumstances upon which it relies in determining that the probative value of a prior conviction that is more than ten years old substantially outweighs its prejudicial effect before admitting evidence of the conviction for impeachment purposes under former OCGA § 24-9-84.1 (b).

(Punctuation and footnote omitted.) Johnson v. State, 328 Ga. App. 702, 708 (3) (b) (760 SE2d 682) (2014).

“This court will not disturb a trial court’s determination regarding impeachment of a criminal defendant pursuant to former OCGA § 24-9-84.1 unless the trial court has abused its discretion.” (Footnote omitted.) Moseley v. State, 324 Ga. App. 449, 450 (751 SE2d 108) (2013).

In Clay, which was decided almost two years after the trial in this case, the Supreme Court conceded that it had “provided little guidance to the trial courts regarding what constitutes an abuse of discretion” in determining the admissibility of convictions older than ten years, and described five factors relevant to the required balancing: (1) the nature, i.e., impeachment value of the crime; (2) the time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime, so that admitting the prior conviction does not create an unacceptable risk that the jury will consider it as evidence that the defendant committed the crime for which he is on trial; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue.

(Citations and punctuation omitted.) Peak, 330 Ga. App. at 531; see Clay, 290 Ga. at 835 (3) (B).

Here, on remand, the trial court specifically addressed each Clay factor. The trial court noted:

Both felony convictions involved stealing: the armed robbery was taking money from another person using a pistol and the burglary involved entering (by stealth and sneaking into) the dwelling house of another by [sic] to take his property. The impeachment value of these offenses is high.

The trial court did not allow into evidence a third prior conviction offered by the State because the certified copy of the conviction did not include a copy of the indictment. The trial court found that, “while not allowed into evidence, the fact that [Peak] had been convicted of another felony offense (within 10 years of the offense in this case) [was] an important consideration.” Furthermore, the trial court found that “the offenses of armed robbery and burglary are so dissimilar to the offenses for which [Peak] was convicted that there [was] no risk that the jury considered it as evidence that he committed the instant offense. The intent and motive of the prior crimes are completely different.”

Decided June 16, 2016

Darel C. Mitchell, for appellant.

Stephen A. Bradley, District Attorney, Allison T. Mauldin, Assistant District Attorney, for appellee.

The trial court explained that, before deciding whether to admit the prior convictions for impeachment purposes, it had heard the entirety of the State’s case. The trial court noted that “[t]here were only two people who witnessed the assault: [Peak] and his daughter. . . . Because [Peak] had raised the defense of accident at the time of trial, the credibility of the only two eye-witnesses was crucial.” The trial court concluded that “because the credibility of [Peak] was so important to determine if this was an accidental or intentional shooting, the probative value of admitting the prior felony convictions substantially outweighed the potential prejudicial effect.” See Johnson, 328 Ga. App. at 709 (3) (b) (no abuse of discretion where the trial court considered the Clay factors and held that given the nature of the charges in the case and the fact that the credibility of the victim and defendant were central to the issues, the probative value of the conviction was substantially outweighed by any prejudicial effect); see also Frazier v. State, 336 Ga. App. 465, 469 (1) (784 SE2d 827) (2016) (physical precedent only) (no abuse of discretion where “the trial court was aware of the specific factors required by Clay and carefully considered them before permitting the introduction of the 1979 rape case for impeachment purposes”). “Under these circumstances, we find no abuse of discretion in the trial court’s admission of the prior [burglary and armed robbery] conviction[s] for impeachment purposes.” Johnson, 328 Ga. App. at 709 (3) (b).

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       “Because this case was tried before January 1, 2013, Georgia’s new Evidence Code was not applicable to Peak’s trial. SeeGa. L. 2011, pp. 99, 214, § 101. For impeachment by prior convictions under the new Evidence Code, see OCGA § 24-6-609.” Peak, 330 Ga. App. at 529 n. 1.


text:
    A16A0281.
    BLEDSON v. THE STATE.
    (787 SE2d 809)
   Rickman, Judge.

Following a jury trial, Javon Bledson was convicted of aggravated battery and three counts of aggravated assault. He argues that the evidence was insufficient to sustain his conviction as to one of the aggravated assault counts and that the trial court erred in giving the jury conflicting instructions as to whether a firearm is a deadly weapon. We disagree and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Hall v. State, 335 Ga. App. 895, 895 (783 SE2d 400) (2016).

So construed, the evidence presented at trial showed that on the evening in question, the two victims, a married couple, were walking home through a neighborhood after swimming in a nearby creek when they happened upon Bledson urinating in the woods. Bledson and the male victim got into a heated exchange after Bledson made a vulgar remark toward the male victim’s wife. Bledson appeared to send a signal on his cellular phone that resulted in at least eight people rushing outside from a nearby home.

The male victim directed his wife to call 911, but when she tried to do so, she was struck by one of the men who had rushed out of the house. Bledson struck the male victim on the back of the head with a pistol when he attempted to render aid to his wife. A massive fight ensued, and at one point the female victim was knocked unconscious. Upon seeing his incapacitated wife, the male victim broke free from the attack and attempted to drag her to safety

After pulling his wife across the street and into an adjacent alleyway while repeatedly being hit, the male victim believed for a brief period of time that the beatings had ceased. He then noticed, however, that Bledson and the other individuals had lined up in front of him and his wife “like soldiers,” and despite his pleas to let them go, Bledson announced, “you’re going to die, [expletive]Preparing for what he actually believed was to be the end of his life, the male victim laid his wife on the ground “and got ready to die.” The group again descended upon the victims, and the beatings began anew.

The attack culminated when Bledson approached the male victim, defenseless and being helped by a bystander who had come from a nearby home, and shot him in the back. Three days later, the male victim awoke in the intensive care unit of a hospital with a hole in his abdomen from the bullet’s exit wound, having undergone lifesaving surgery. He was also missing a front tooth.

Bledson was one of six people indicted for the crimes, but was tried separately from his co-defendants. During the ensuing trial, both victims testified that they recognized Bledson from a previous encounter with him, and each positively identified him prior to trial from a photographic lineup and again at trial as the man whom they saw urinating in the woods and shooting the male victim. Two additional witnesses testified that they heard the commotion from a nearby home and upon going outside to survey the scene, actually saw Bledson shoot the male victim. Both witnesses knew Bledson personally, and each had positively identified him from a photographic lineup prior to trial and identified him again at trial as the gunman. Finally, a woman testified that Bledson and his co-defendants had been attending a barbeque at her house prior to the incident, and that she both witnessed and voiced objection to Bledson’s possession of a gun in her home. She further testified that she had argued with her husband when he refused to ask Bledson to leave, and that shortly thereafter her husband instructed her to safeguard their children because a fight had erupted and “he” had a gun.

The jury convicted Bledson, and the trial court denied his motion for new trial. This appeal follows.

1. Bledson argues that the evidence was insufficient to support his conviction on one of the aggravated assault counts. Specifically, Count 4 of the indictment alleged that Bledson and several other named defendants committed an aggravated assault on the male victim “with their hands and feet, objects which when used offensively against a person did result in serious bodily injury to [the male victim]. . . Bledson contends that the State failed to prove that he personally hit the male victim with his hands or feet—as opposed to his gun—during the attack and/or failed to prove that the male victim received any injury from such an attack. We disagree.

First, the State was not required to prove that Bledson himself actually struck the male victim with his hands or feet. Rather, “[ejvery person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). To that end, a person is “concerned” in a crime if he or she “[ijntentionally aids or abets” in its commission or “[ijntentionally advises, encourages, hires, counsels, or procures another” to do so. OCGA § 16-2-20 (b) (3), (4); see Burks v. State, 268 Ga. 504 (491 SE2d 368) (1997). The evidence set forth above was more than sufficient for the jury to conclude that Bledson had done either, or both. See Johnson v. State, 188 Ga. App. 411, 412 (2) (373 SE2d 93) (1988) (affirming appellant’s aggravated assault conviction based upon his conduct of aiding his brother during the assault on the victim); see also Burks, 268 Ga. at 504.

Further, the evidence presented was sufficient for the jury to conclude that the male victim received the requisite injury As an initial matter, we note that although the crime of aggravated assault may be completed without proof of actual injury, the language used in the indictment in this case did require such proof. See OCGA § 16-5-21 (b) (2) (“A person commits the offense of aggravated assault when he or she assaults . . . [wjith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury . . .”) (emphasis supplied); Reynolds v. State, 294 Ga. App. 213, 215-216 (1) (a) (668 SE2d 846) (2008) (recognizing that when the State chooses to allege the commission of a crime using one particular statutory method— i.e., aggravated assault resulting in actual serious bodily injury—it is confined to proving that specific method). Compare Peterson v. State, 204 Ga. App. 532, 533 (1) (419 SE2d 757) (1992) (holding that a plain reading of OCGA § 16-5-21 (a) (2) allows that “the crime [of aggravated assault] is complete without proof of injury”) (citation and punctuation omitted).

Regardless, here, the evidence of injury was sufficient to sustain the challenged aggravated assault conviction. Contrary to Bledson’s assertion, the male victim did not testify that his tooth became dislodged when he was hit with a gun, nor did the evidence demand such a finding. Rather, the male victim testified the he had “no idea” how and when he lost his tooth, only that he “woke up in the hospital and [it] was gone.” While the male victim may have speculated that it resulted from the impact of the gun, the jury, which also viewed photographs showing the extent of the male victim’s injuries, was fully authorized to infer that the loss of his tooth instead resulted from the prolonged beating that he endured at the hands and feet of Bledson and/or the other co-defendants. See Wheeler v. State, 232 Ga. App. 749, 749 (503 SE2d 628) (1998) (sustaining appellant’s conviction on aggravated assault based upon evidence that the victim suffered bruising and broken teeth after a protracted beating); Lord v. State, 297 Ga. App. 88, 95 (2) (676 SE2d 404) (2009) (holding that the jury was authorized to infer from the evidence the causes of the various injuries sustained by the victim during a prolonged assault); see also Quaile v. State, 172 Ga. App. 421, 422 (1) (323 SE2d 281) (1984).

2. Bledson further contends that the trial court erred in charging the jury as to whether a firearm constitutes a deadly weapon for the purposes of aggravated assault. The trial court correctly instructed the jury that the State had the burden of proving “as a material element of aggravated assault,” whether the assault was made with a deadly weapon, and further, that the jury must resolve whether the firearm, as alleged to have been used in the indictment, “in fact, constituted a deadly weapon or in the manner that it was used, [was] likely to cause serious bodily injury” The trial court also instructed the jury, however, that “a firearm, when used as such, is a deadly weapon as a matter of law.” Bledson asserts that the latter charge confused the jury on a material issue of the case.

Because Bledson failed to object to the jury charge at trial, it is subject only to plain error review on appeal. See OCGA § 17-8-58 (b). Under that analysis, we must determine “whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.” (Citation and punctuation omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011). “If all three of these questions are answered in the affirmative, [this] [C]ourt has the discretion to reverse if the error seriously affects the fairness, integrity or public reputation of the proceedings below.” (Citation omitted.) Id. As noted by our Supreme Court, “[satisfying all four prongs of this standard is difficult, as it should be.” (Citation and punctuation omitted.) Id.

We conclude that — even assuming that the given charge was erroneous and obviously so — Bledson has made no showing that it likely affected the outcome of the proceedings or that it seriously affected the fairness, integrity, or public reputation of the trial. The overwhelming evidence showed that Bledson struck the male victim on the head with his gun at the beginning of the melee, and the male victim testified that throughout the violent and prolonged assault that followed, he recalled seeing Bledson’s handgun on more than one occasion, he actually believed that he was going to die, and even before being shot, he had been beaten to the point of “total[ defenseless [ness].” These facts established that Bledson’s handgun as used in the assault constituted a deadly weapon. See Howell v. State, 330 Ga. App. 668, 674 (2) (769 SE2d 98) (2015) (holding evidence that appellant struck the victim in the head with a handgun, which caused her to fall to the ground, bleed, and fear for her life, constituted overwhelming evidence that appellant’s handgun was used as a deadly weapon); see also Ortiz v. State, 292 Ga. App. 378, 381 (2) (665 SE2d 333) (2008) (holding that the pistol used to hit the victim and cause him to bleed and believe he was going to be killed was per se a deadly weapon).

Moreover, the jury was charged that the State bore the burden of proving that the assault was inflicted with a deadly weapon, and that it, the jury, must decide from the evidence whether the firearm as used constituted such. Under these circumstances, Bledson has failed to show that the erroneous charge likely affected the outcome of his trial. See Howell, 330 Ga. App. at 674 (2) (declining to reverse appellant’s conviction despite erroneous charge that a handgun constituted a deadly weapon per se in light of the overwhelming evidence of the manner in which the weapon was used). Compare Byrd v. State, 325 Ga. App. 24, 29 (2) (a) (752 SE2d 84) (2013) (holding that erroneous charge warranted reversal of aggravated assault conviction because there was no record evidence, i.e., degree of force used, the likelihood of serious injury, or the nature of any injuries allegedly received, to support a conclusion that the handgun was used as a deadly weapon). In light of the overwhelming evidence of Bledson’s guilt, we find that the erroneous charge also did not seriously affect the fairness, integrity or public reputation of the proceedings. See Kelly, 290 Ga. at 33 (2) (a); Howell, 330 Ga. App. at 675 (2).

Decided June 16, 2016.

Tyler R. Conklin, James C. Bonner, Jr., for appellant.

Jack Brown ing, Jr., District Attorney, Jordan L. Stover, Matthew Nestrud, Assistant District Attorneys, for appellee.

Judgment affirmed. Barnes,

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

       Bledson was also found guilty of criminal attempt to commit murder, which merged into his aggravated battery conviction for sentencing purposes, and he was acquitted of a fourth count of aggravated assault.

       See Carolina v. State, 276 Ga. App. 298, 304 (5) (a) (623 SE2d 151) (2005) (“[W]hen an indictment charges that a crime was committed in more than one permissible way-as in this case by the use of the conjunctive ‘and’-proof at trial that the crime was committed in one of the ways expressed in the indictment is sufficient to sustain the conviction.”); see also Cash v. State, 297 Ga. 859, 862 (2) (778 SE2d 785) (2015).

       To the extent that Bledson also challenges the male victim’s failure to testify specifically that he had been hit “with hands and feet,” the argument is specious. The male victim stated repeatedly that the crowd was “beating,” “hitting,” and “fighting” him and his wife, and that Bledson was the only person with a gun. The jury was authorized to conclude from this evidence that the crowd used their hands or their feet to effect the attacks. See Lowe v. State, 295 Ga. 623, 625 (1) (759 SE2d 841) (2014) (recognizing that a jury is authorized to draw reasonable inferences from the evidence presented).

       We note that Bledson did not challenge the sufficiency of the evidence as to any other count in the indictment.

       We note that Bledson was charged with criminal attempt to commit murder and aggravated battery, but not aggravated assault, based upon his act of shooting the male victim.


author: PHIPPS, Presiding Judge.

text:
    A16A0436.
    CHASE v. THE STATE.
    (787 SE2d 802)
   PHIPPS, Presiding Judge.

William Clifford Chase, Jr., was convicted in Catoosa County of impersonating a law enforcement officer. He appeals, challenging the sufficiency of the evidence supporting venue. He also argues that the trial court erred in admitting certain evidence at trial. For reasons that follow, we affirm.

1. When reviewing the sufficiency of the evidence as to venue, we “must view the evidence in the light most favorable to the verdict and inquire whether the evidence would authorize a rational trier of fact to find beyond a reasonable doubt that venue was properly laid.” So viewed, the evidence shows that in October 2012, a captain with the Catoosa County Sheriff’s Office received a request to approve a LeadsOnline account for an individual claiming to be a Catoosa County Sheriff’s Office employee. LeadsOnline is a database service used by law enforcement officers to determine whether items sold at pawn shops are stolen. Because the database contains sensitive personal information (including names, birth dates, addresses, and social security numbers of people selling to pawn shops), the service is not available to the general public. Only approved law enforcement personnel with LeadsOnline accounts and passwords have authority to access the database.

The LeadsOnline approval request included a copy of the application submitted to the search service. The application was filled out in the name of William Chase, who was identified as a major, badge number 902, with the Crime Task Force in Catoosa County The applicant provided an e-mail, telephone number, and post office box as an address. The captain was suspicious of the application for several reasons. The Catoosa County Sheriff’s Office did not have a Crime Task Force; only one individual held the rank of major; and the major’s badge number was not 902. The e-mail, post office box, and telephone number listed on the application did not correspond to the sheriff’s office. And no one employed by the sheriff’s office was named William Chase.

The captain was aware, however, of the defendant in this action, William Clifford Chase, Jr., whom he had previously investigated for stealing documents from the Catoosa County Superior Court. During that investigation, Chase had falsely told the captain that he was an investigator for a local attorney In 2008, Chase pled guilty to stealing public documents, financial identity fraud, and forgery in connection with the investigation.

Following the LeadsOnline request, officers inquired into the post office box and e-mail address listed in the application. These inquiries produced a physical address in Catoosa County for Chase, who was subsequently arrested in the county and charged with impersonating a law enforcement officer. In a recorded interview with police, which was played for the jury, Chase asserted that he had applied for an account with LeadsOnline so that he could make sure items he was considering purchasing from an acquaintance were not stolen. Although he claimed that he was only trying to keep himself out of trouble, he admitted that he had made a mistake in applying for the account and should have tried to find the information another way.

Based on the evidence presented, the jury found Chase guilty of impersonating an officer in the online application provided to Leads-Online. Chase challenges the judgment of conviction, asserting that the state offered insufficient proof of venue in Catoosa County Specifically, he claims that the record contains no evidence establishing where he was when he submitted the LeadsOnline application or communicated with the database service.

Generally, “[cjriminal actions shall be tried in the county where the crime was committed[.]” When the location of the crime cannot be determined, however, “it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” At trial, one of the investigating officers testified that he attempted to identify where Chase had created and submitted the online application, but could not pinpoint the necessary Internet Protocol (“IP”) address. The investigator further noted that even if he had been able to obtain an IP address, he might not have been able to determine the physical location from which Chase submitted the application because certain addresses — such as those associated with a laptop computer — roam. Chase’s exact location, therefore, could not be determined.

Such testimony brought this case squarely within OCGA § 17-2-2 (h), which applies “in any case [where] it cannot be determined in what county a crime was committed.” The state also presented evidence that Chase lived and was arrested in Catoosa County. Based on this evidence, the jury was authorized to find beyond a reasonable doubt that Chase might have held himself out as a law enforcement officer via the online application in Catoosa County. Proof of venue, therefore, was sufficient.

2. Chase also argues that the trial court erred in admitting into evidence a computer-generated record of his application to Leads-Online. We disagree.

The state tendered the application pursuant to the business records exception to the rule against hearsay. To authenticate the document, it used the self-authentication procedure set forth in OCGA § 24-9-902 (11), which allows a party to authenticate a business record by submitting a declaration from a records custodian certifying that it:

(A) Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of such matters; (B) Was kept in the course of the regularly conducted activity; and (C) Was made by the regularly conducted activity as a regular practice.

Following a hearing, the trial court concluded that the application fell within the business records exception and had been properly authenticated. A trial court exercises its discretion in making this type of ruling, and we will not reverse its decision absent abuse of that discretion.

(a) First, Chase claims that the state failed to notify him in writing that it planned to use the self-authentication procedure in OCGA § 24-9-902 (11). Pursuant to the statute, a party intending to use this procedure “shall provide written notice of such intention to all adverse parties.” The state did not serve Chase with separate written notice of its intent. But several days before trial, the state gave Chase an affidavit from the LeadsOnline records custodian. The affidavit was entitled “Business Records Affidavit” and contained information required for self-authentication. The state’s intent, therefore, was clear.

As we recently explained, the purpose of the notice requirement is to “give the opponent of the evidence a full opportunity to test the adequacy of the foundation set forth in the [self-authentication] declaration.” Where written notice is not given, actual notice that a party plans to utilize the self-authentication procedure may suffice. Here, Chase had actual notice before trial that the state intended to authenticate the LeadsOnline application record via a self-authentication declaration. Armed with this knowledge, he challenged the authenticity and overall admissibility of the record at a pre-trial hearing. He did not argue below — and has not demonstrated on appeal — that the lack of written notice prejudiced him in any particular way Under these circumstances, we find the notice sufficient.

(b) Chase further argues that the LeadsOnline application did not fall within the business records exception to the hearsay rule. That exception permits the admission of a business record

(A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the . . . record[.]

The LeadsOnline records custodian testified that the company had received and maintained the account application in the regular course of business and made a computer-generated record of it shortly after receipt. The custodian also asserted that the record “contain[ed] exact copies of the data received electronically and kept by LeadsOnline and [was] formatted according to standard Leads-Online procedures for maintaining and presenting data.”

According to Chase, the custodian’s testimony was insufficient because it did not establish that the document was “made by, or from information transmitted by, a person with personal knowledge and a business duty to report.” An authenticating witness, however, “does not need firsthand knowledge of the contents of the records, of their authors, or even of their preparation.” Moreover, the records custodian asserted that the application record was created pursuant to standard company procedures for presenting data. The trial court did not abuse its discretion in concluding that this testimony satisfied OCGA § 24-8-803 (6).

Chase also contends that the applicant responses contained within the application constitute hearsay that does not fall within the business records exception. The state, however, presented evidence that Chase completed the application and provided the responses at issue. Those responses, including the incriminating assertion that Chase was a law enforcement officer, constituted party admissions that were not excluded by the hearsay rule. Accordingly, the trial court properly admitted the document from LeadsOnline.

3. Finally, Chase argues that the trial court erred in admitting evidence of his prior convictions for financial identity fraud, forgery, and stealing public documents. Pursuant to OCGA § 24-4-404 (b):

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

A three-part test determines the admissibility of evidence under this Code section: “(1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; [and] (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.” A decision to admit such evidence will not be reversed absent a clear abuse of discretion.

(a) Financial identity fraud and forgery. Chase was indicted in 2007 for, among other things, committing financial identity fraud by “obtaining] the social security number that would assist [him] in accessing the financial resources of [the] victim,” and forgery by “knowingly possessing] an executor’s oath, a certain writing, in such manner that the writing purports to have been made by [the victim], another person, and did utter and deliver such writing.” In 2008, he pled guilty to and was convicted of these two crimes, both of which involved misrepresentation or using another person’s identifying information for personal advantage.

The trial court admitted copies of the 2007 indictment and Chase’s guilty pleas to financial identity fraud and forgery, finding the evidence relevant to proof of intent in this case. Chase challenges the trial court’s finding on appeal. According to Chase, the issue of intent was not in dispute here, rendering the prior crimes evidence irrelevant and inadmissible. The jury, however, heard Chase’s recorded statement to police, in which he insisted that he was not trying to impersonate an officer when he filled out the LeadsOnline application. He claimed that he simply wanted to avoid purchasing stolen merchandise. The state also presented evidence of a letter Chase wrote to one of the investigating officers, in which Chase stated that “there was never any criminal intent to deceive.”

Intent, therefore, was in issue. Furthermore, the prior criminal acts and the crime here involved a similar mental state or intent — to obtain an advantage through misrepresentation or use of someone else’s identifying information. The trial court did not abuse its discretion in determining that evidence of Chase’s 2008 convictions for financial identity fraud and forgery was relevant to intent.

Chase also claims that the trial judge failed to properly consider the prejudicial impact of this evidence under OCGA § 24-4-403, which permits exclusion of relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice^]” We recognize that the trial court did not explicitly reference the balancing test in OCGA § 24-4-403 before admitting the evidence. But Chase argued below that the potential prejudice precluded its admission, and the trial court implicitly rejected his argument.

Furthermore, “it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter.” As we have noted, OCGA § 24-4-403 offers “an extraordinary remedy that must be used sparingly because it results in the exclusion of concededly probative evidence.” In close cases, “the balance is struck in favor of admissibility.” Given the clear questions raised about Chase’s intent, his claim to police that he only requested a Leads-Online account to keep himself out of trouble, and the fact that all of these incidents involved efforts by Chase to obtain or use information through misrepresentation, the probative value of the other crimes evidence outweighed any prejudice.

(b) Stealing public documen ts. Chase also pled guilty in 2008 to stealing public documents, and the trial court admitted copies of the indictment and guilty plea relating to this conviction. To support admission of this evidence, the state represented to the trial court that Chase had stolen a public document from the superior court clerk’s office by posing as an employee of a local attorney The state argued that because the crime involved misrepresentation, it was relevant to intent in this case. The record shows, however, that the state offered no testimony at trial about how the theft occurred, and the indictment to which Chase pled guilty does not describe the crime in detail. The indictment alleged only that Chase “did steal a final disposition form of a criminal case in the Superior Court of Catoosa County, Georgia.” We question, therefore, whether evidence of this conviction shed light on Chase’s intent, knowledge, or any other relevant inquiry in this case.

Decided June 16, 2016.

William B. Mills, for appellant.

But even if the trial court erred in admitting evidence of the stealing public documents conviction, reversal is not required. “[I]t is a fundamental principle that harm as well as error must be shown for reversal.” Chase admitted to police that he had applied for an account with LeadsOnline. His application falsely indicated that he held a rank of major with a Catoosa County law enforcement agency Testimony showed that he had previously misrepresented his occupation to police. And the trial court properly admitted evidence of two prior convictions involving misrepresentation and forgery. Given this other evidence, “it is highly probable that [admission of the stealing public documents conviction] did not contribute to the verdict.” Any error in admitting evidence of the conviction, therefore, was harmless.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

Herbert E. Franklin, Jr., District Attorney, Matthew C. Brown, Assistant District Attorney, for appellee.

        Martin v. McLaughlin, 298 Ga. 44, 46, n. 3 (779 SE2d 294) (2015).

       OCGA§ 17-2-2 (a).

       OCGA§ 17-2-2 (h).

       See also Taylor v. State, 328 Ga. App. 551, 553 (1) (759 SE2d 892) (2014) (“One purpose of OCGA § 17-2-2 (h) is to provide for establishment of venue in situations in which there is some doubt as to which county was the scene of the crime.”) (citation and punctuation omitted). Compare Stockard v. State, 327 Ga. App. 184, 188 (2) (761 SE2d 351) (2014) (because state made no attempt to elicit evidence of where crime occurred, it failed to demonstrate that county in which crime occurred could not be determined).

       See Martin, supra at 46 (“[V]enue generally is a question for the jury.”).

       See OCGA § 17-2-2 (h); Drake v. State, 238 Ga. App. 584, 588 (2) (519 SE2d 692) (1999) (pursuant to OCGA § 17-2-2 (h), venue in child molestation case proper in county where victim lived and was accessible to defendant because defendant might have molested her there).

       OCGA § 24-8-803 (6).

        Hurst v. State, 285 Ga. 294, 297 (3) (676 SE2d 165) (2009).

       OCGA § 24-9-902 (11).

        Salas v. JP Morgan Chase Bank, 334 Ga. App. 274, 280 (2) (a) (779 SE2d 48) (2015) (citation and punctuation omitted).

       Id. at 279-280 (2) (a) (although defendant failed to provide written notice that it planned to use self-authentication procedure, plaintiffs were “clearly on notice” that the defendants intended to use the procedure, satisfying the statutory requirement).

       See id.

       OCGA § 24-8-803 (6).

       OCGA § 24-8-803 (6) (B).

         Matthews v. Wells Fargo Bank, 335 Ga.App. 526, 527 (782 SE2d 312) (2016) (citationand punctuation omitted).

       Id. at 527-528 (bank employee offered sufficient foundational testimony to authenticate loan records created and maintained by bank’s predecessor-in-interest; although employee lacked knowledge of how predecessor-in-interest kept its records, documents were admissible given testimony that she knew how they were prepared, they were made and kept in the regular course of business, and she had no reason to believe records were inaccurate).

       OCGA § 24-8-801 (d) (2) (A) (“Admissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is . . . [t] he party’s own statement, in either an individual or representative capacity.”); Bryant v. State, 288 Ga. 876, 888 (9) (a) (708 SE2d 362) (2011) (“[A] defendant’s incriminating statement is admissible when it constitutes an admission against the defendant’s penal interest because a defendan t ’s declaration against penal interest is the admission of a party-opponent.”) (emphasis in original).

       Chase vaguely claims on appeal that introduction of the LeadsOnline application record also “violate[d] the Confrontation Clause.” His brief, however, contains no argument or citation of authority supporting this claim, which has thus been abandoned. See Riles v. State, 321 Ga. App. 894, 900 (2) (c) (743 SE2d 552) (2013); Court of Appeals Rule 25 (c) (2).

        Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015) (citation omitted). Although Bradshaw “correctly identified the general requirements for the admission of evidence of other acts,” the Supreme Court of Georgia has recently clarified the application of those requirements in Olds v. State, 299 Ga. 65 (786 SE2d 633) (2016).

        Bradshaw, supra at 656 (3).

       See Olds, supra at 72 (Intent is “put in issue by the defendant entering a plea of not guilty.”); Silvey v. State, 335 Ga. App. 383, 387 (1) (a) (780 SE2d 708) (2015) (evidence that burglary defendant had taken part in another burglary was relevant to issue of intent where not guilty plea placed intent in issue and defendant took no affirmative steps to remove issue of intent from the case).

       See Olds, supra at 72 (“[EJvidence that an accused committed an intentional act generally is relevant to show . . . that the same defendant committed a similar act with the same sort of intent, especially when the acts were committed close in time and in similar circumstances.”) (citations omitted); United States v. Florian, 401 Fed. Appx. 476, 477-478 (11th Cir. 2010) (defendant’s prior conviction for impersonating a United States citizen was relevant to his intent in using another individual’s identity to apply for a passport).

        Wilson v. State, 336 Ga. App. 60, 63 (2) (b) (783 SE2d 662) (2016) (citation and punctuation omitted; emphasis in original).

       Id. (citation and punctuation omitted).

       Id. (citation and punctuation omitted).

       See Olds, supra at 76 (“The more strongly an issue is contested, the greater the justification for admitting other act evidence bearing on the point.”) (quoting Mueller & Kirkpatrick, Evidence § 4.21 (1995)) (footnote omitted); see also Wilson, supra at 63 (2) (b).

        Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014) (punctuation and footnote omitted).

        Edmonson v. State, 336 Ga.App. 621 (1) (785 SE2d 563) (2016) (citation and punctuation omitted).

       See id. (admission of prior criminal acts under OCGA § 24-4-404 (b) harmless when, after “considering the trial record as a whole and weighing the evidence as we would expect reasonable jurors to have done so, we are convinced that the jury would have found [the defendant] guilty . . . without the OCGA § 24-4-404 (b) evidence”) (citation and punctuation omitted). See also Gates v. State, 298 Ga. 324, 328 (3) (781 SE2d 772) (2016) (claimed error in admission of OCGA § 24-4-404 (b) evidence harmless where, given proof of defendant’s guilt, “it cannot be said that any error . . . likely affected the outcome below”).