author: BARNES, Presiding Judge. BLACKWELL, Judge,

text:
    A11A0720.
    HODGES v. THE STATE.
    (714 SE2d 717)
   BARNES, Presiding Judge.

A jury convicted Mario Hodges of misdemeanor involuntary manslaughter as a lesser included offense of felony murder, aggravated assault, and possession of a firearm during the assault. Following the denial of his motion for new trial, Hodges appeals, arguing that the trial court erred by excluding evidence regarding Hodges’ state of mind when he shot the victim. Because the exclusion of this evidence was harmful error, we reverse.

We view the evidence in the light most favorable to the verdict. Early v. State, 170 Ga. App. 158, 164 (6) (316 SE2d 527) (1984). So viewed, the evidence showed that Hodges called 911, reported his location, and said he had shot a man named Rudy Turner while defending himself. Police officers were dispatched to the scene and the first officer on the scene found Hodges standing outside of his house holding a shotgun. Hodges put the gun down as directed and was placed in the back of a patrol car. Two officers went into the house and found Turner upstairs, deceased from a shotgun blast. A knife was located about six feet from Turner’s body.

The police took Hodges to be interviewed at the Crimes Against Persons Unit, and after Hodges waived his Miranda rights, two detectives took his statement. Hodges said the incident began when Turner threatened Hodges and Hodges’ daughter, and explained that he had been friends with Turner for about five years. Turner was in and out of jail and had lived with Hodges previously, but Hodges had kicked him out. Seven months before, Turner had come to Hodges’ previous apartment demanding money and the two men had gotten into a fistfight, but apparently had “patched up” their relationship after that. Turner had been staying with mutual friends when he called and asked Hodges to come pick him up because he and the friends had “gotten into a disagreement.” Hodges did so and Turner slept at Hodges’ home that night. The next day, Turner told Hodges that he wanted to collect money from various people who were in his debt, including Hodges, and became angrier as the day went on. Turner demanded that Hodges pawn a television to repay the debt Hodges owed him, then told Hodges that he was “going to get” the people who owed him money and if they failed to pay, he would “go after their relatives or the people they love.”

Hodges had a collection of weapons in his upstairs home office. Turner retrieved a “ball and chain” — a flail with spiked metal balls attached to it — from Hodges’ office and brought it downstairs, saying he could use it to go after the people who owed him money. Hodges told Turner to put the weapon away, and Turner went upstairs again. He came back downstairs with a machete and made similar comments of a threatening nature. At that point, Hodges told Turner to pack up his belongings and leave the residence.

After Turner went upstairs with the machete, Hodges retrieved a loaded pump-action shotgun and placed it near his seat in the living room. When Turner came downstairs a third time he was armed with a large Arabian knife, and Hodges testified that Turner “just snapped,” went “berserk,” and approached Hodges, who said he thought Turner meant to harm him with the weapon. Hodges shot Turner, who turned and ran up the stairs. Hodges testified that he did not think he hit Turner because if he had Turner would not have been able to run away. Hodges testified that he did not know what weapons Turner had, as “he [was] known to carry guns.” He followed Turner upstairs and shot at him a second time. Hodges testified he thought this second shot hit Turner because he fell then, and when Turner “made a move” on the floor Hodges hit him with the gun, which discharged a third time. Evidence at trial established that Hodges actually hit Turner with his first shot, which was the fatal strike, and missed him with the second and third shots.

The murder charges against Hodges were based on the first shot Hodges fired at Turner, and the two aggravated assault charges were based on the first and second shots that Hodges fired. At trial, Hodges presented a justification defense pursuant to OCGA § 16-3-21. The jury found Hodges guilty of misdemeanor involuntary manslaughter, aggravated assault based upon the second shot, and possession of a firearm during the commission of that aggravated assault.

Before trial, Hodges sought permission to introduce evidence that Turner had acted violently toward other people on several occasions, all of which Hodges had heard about before he killed Turner. Two of the three incidents involved Turner’s violent acts against the friends with whom he had been living before Hodges picked him up the evening before the shooting, and one of the incidents precipitated Turner’s departure from the friend’s house.

As to the third incident, Hodges also sought to testify that after his fight with Turner seven months before Turner died, a friend told him that Turner had shot at the friend and her daughter. Hodges argued that he should be allowed to explain his state of mind and fear for his personal safety based on his knowledge or belief that Turner committed this shooting, but the court held that Hodges’ state of mind testimony was inadmissible because Hodges did not present independent evidence that Turner had shot at the friend and her daughter.

1. On appeal, Hodges enumerates the refusal of the trial court to permit him to testify about this third act as error, contending that testimony that he believed Turner had shot at two people helped establish his state of mind when he shot Turner.

Hodges’ entire defense was justification. He wanted to testify that he shot the victim because he was afraid of him. One reason he was afraid was because, in addition to knowing about the victim’s other acts of violence, he thought the victim had shot at a woman and her daughter less than a year before. That belief, combined with the victim’s erratic behavior, explained Hodges’ state of mind. Hodges’ testimony in this regard was not hearsay, as it was not offered to prove that the victim shot these other people but to explain his conduct. It was original, admissible, competent evidence of his state of mind which went to the heart of the matter being tried.

Black’s Law Dictionary (5th Ed. 1979) defines “hearsay evidence” as “testimony in court of a statement made out of the court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” OCGA § 24-3-2 defines what is not hearsay: “When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence. This statute is applicable when “the conduct and motives of the actor are matters concerning which the truth must be found (i.e., are relevant to the issues on trial). . . .” Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982). Hodges’ conduct and motives were not just relevant to the issues being tried; they were the only issues being tried, as Hodges admitted he shot the victim. Hodges did not offer the excluded testimony to prove that the victim shot at a woman and her daughter; he offered it to explain why he responded to the victim’s show of force the way he did.

In Chandler v. State, 261 Ga. 402, 407 (3) (b) (405 SE2d 669) (1991), our Supreme Court for the first time held that a defendant who claimed justification could present evidence of prior acts of violence by a victim against third persons. In doing so, the court did not specifically address the evidence in light of establishing the defendant’s state of mind, but found persuasive Justice Weltner’s special concurrence in Lolley v. State, 259 Ga. 605, 607-610 (385 SE2d 285) (1989). In Lolley, Justice Weltner noted the general soundness, in a vacuum, of the principle that a homicide victim’s reputation for violence is irrelevant in a murder trial “because it is just as unlawful to murder a violent person as it is to murder a nonviolent person.” Id. at 608 (3) (a). But he then reasoned that, “[i]n differing circumstances, . . . evidence of the violent nature of a victim can be critically important to the discovery of truth,” and gave the following example of such a circumstance:

The town ruffian, in a drunken and enraged state, advances upon a peaceable householder and threatens him with mayhem. The householder shoots him dead, even though no other weapon was in sight, and the erstwhile assailant was several yards distant from the householder. Where the defense is justification under OCGA § 16-3-21, what a defendant “reasonably believes” may be viewed by the factfinder in the light of what the defendant knew as to the decedent’s character for violence. Logically, that knowledge is relevant, whether it was obtained by the defendant’s painful personal experience at the hands of the decedent; by his observation of violent acts committed by the decedent upon another; by hearing of other specific acts of violence by decedent that were not committed in his presence; or by knowledge of the decedent’s reputation for violence, unconnected to any specific act.

(Emphasis supplied.) Id. at 608-609. Thus, for example, evidence of a death threat against the defendant was not hearsay when it was offered to explain the defendant’s reason for purchasing a gun. Strickland v. State, 257 Ga. 230, 232 (2) (357 SE2d 85) (1987); accord Woods v. State, 269 Ga. 60, 63-64 (5) (495 SE2d 282) (1998) (evidence of victim’s reputation for violence may show that accused acted in reasonable fear). See also Sturkey v. State, 271 Ga. 572, 573 (2) (522 SE2d 463) (1999) (evidence victim threatened defendant was not hearsay because it was not offered to prove the truth of statement, but to show victim’s threatening attitude).

Cases addressing the procedures and evidence required to establish the victim’s state of mind or character or prior acts or propensity toward violence do not answer the questions in this case, as they do not address the evidence in terms of establishing the defendant’s state of mind. There is a difference between evidence offered to prove a victim’s state of mind, prior acts of violence, or reputation for violence and evidence offered to prove the defendant’s state of mind, a difference that is not clearly explained in our State’s case law, leaving the trial court’s task in ruling on these issues a difficult one.

Hodges claimed he shot the victim because he was defending himself. Under our law, Hodges was justified in using force against the victim that was likely to cause death or great bodily harm if he reasonably believed such force was necessary to defend himself against death or great bodily injury. OCGA § 16-3-21 (a). If he was only justified in using deadly force if he “reasonably believed” he had to defend himself against deadly force, he must be permitted to introduce original evidence explaining the basis for his reasonable belief. In response, the State could have fully explored the veracity of Hodges’ testimony about his state of mind through rigorous cross-examination, as it does with any other original evidence introduced by a defendant. If the defendant cannot testify about his state of mind during the incident that resulted in criminal charges against him, then our courts should explain why this exclusion comports with a defendant’s constitutional right to testify and present evidence on his own behalf.

As quoted by Justice Weltner in Lolley, Chief Justice Lumpkin wrote: “This Court stands pledged by its past history, for the abolition, to the extent of its power, of all exclusionary rules, which shut out facts from the Jury which may serve, directly or remotely, to reflect light upon the transaction upon which they are called upon to pass.” Haynes v. State, 17 Ga. 465, 484 (1855). The evidence excluded from this case was not hearsay, but original evidence which the defendant should have been allowed to introduce to explain his state of mind. Thus, the trial court erred in excluding it.

2. Further, the exclusion of this line of inquiry cannot be considered harmless. It would have explained his testimony, for example, that Turner “was known to carry guns,” which is not otherwise supported by any evidence in the record. A crucial element of Hodges’ defense was that his actions were justified, based on his reasonable state of mind. “[T]he test for harmless error is whether it is ‘highly improbable’ that the jury’s verdict would have been different if the excluded evidence had been admitted. Under these facts, it cannot be said that such a result would be ‘highly improbable.’ ” (Citation omitted.) Scott v. State, 281 Ga. 373, 377 (3) (637 SE2d 652) (2006). Accordingly, we reverse Hodges’ convictions of involuntary manslaughter, aggravated assault, and possession of a firearm during the commission of a crime.

3. Hodges’ remaining enumerations of error are moot.

Judgment reversed.

Miller, P. J., Phipps, P J., and Adams, J., concur. Ellington, C. J., and Blackwell, J., dissent. Doyle, J., dissents without opinion.

BLACKWELL, Judge,

dissenting.

The majority announces a new rule today: when a defendant claims that his killing of another was justified, he can testify about an instance in which, he says he believed, his victim had done violence to others as evidence of what the defendant was thinking when he killed the victim, notwithstanding that no competent evidence shows that the victim actually did the things that the defendant testifies about. Although this rule has some logical appeal, existing precedent of our Supreme Court rejects it, and we, therefore, should reject it too. Because the majority does not, I respectfully dissent.

The opinion of the majority conflicts with the decision of our Supreme Court in Hill v. State, 272 Ga. 805 (537 SE2d 75) (2000). In Hill, the defendant shot and killed a man who, the defendant said, appeared to be reaching for a gun. The defendant claimed justification based on self-defense, and in connection with this claim, the defendant sought leave to testify about prior acts of violence by the victim against third persons, arguing that this testimony was relevant to his state of mind at the time he killed the victim. Id. at 807 (3). The trial court disallowed this testimony, and the defendant argued on appeal that the trial court erred when it did so. The Supreme Court held, however, that the defendant’s “hearsay testimony was not competent to establish evidence of [the victim’s] prior violent acts,” and the exclusion of such testimony, therefore, was not error. Id.

The majority pays little attention to Hill, notwithstanding that it is the principal precedent on which the State relies, and I think the cursory discussion of Hill in the majority opinion makes clear that the majority misunderstands it. The majority correctly observes that cases “addressing the procedures and evidence required to establish the victim’s state of mind or character or prior acts or propensity toward violence” — as opposed to those cases involving evidence offered to show the defendant’s state of mind — “do not answer the questions in this case.” But, then, in a footnote, the majority misidentifies Hill as such a case. Hill, the majority says, “did not address directly the defendant’s ‘state of mind argument.’ ” But that is precisely the argument that the Supreme Court said it was addressing in Hill: “Hill argues that the trial court erred in refusing to allow him to testify concerning [the victim]’s prior violent acts against third parties, maintaining that his testimony was relevant to his state of mind at the time of the shooting.” Id. at 807 (3). A decision of our Supreme Court deserves more careful consideration than the majority gives Hill.

To my knowledge, the Supreme Court has never overruled or disavowed its decision in Hill, and “we are constitutionally bound by the decisions of our own Supreme Court.” Williamson v. Ward, 192 Ga. App. 857, 858 (1) (386 SE2d 727) (1989); see also State v. Smith, 308 Ga. App. 345, 352 (1), n. 21 (707 SE2d 560) (2011). Perhaps Hill is unsound, but that is for the Supreme Court, not this Court, to decide. Hill involved testimony offered by the defendant for the same purpose as the testimony that Hodges offered in this case. Because Hill is not distinguishable from this case, this Court is bound to reject the claim that the court below abused its discretion when it refused to permit Hodges to testify that he had been informed that his victim had shot at two other people.

The refusal of the majority to decide this case consistent with Hill has the potential, of course, to cause confusion in the law. A trial judge faced with a similar issue will wonder whether she should follow this decision or the decision of the Supreme Court in Hill. Perhaps our Supreme Court will grant review in this case and resolve the uncertainty the majority has created. If it does not, a trial judge can find the right answer to her question in our Constitution: “The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.” Ga. Const., Art. VI, Sec. V, Par. Ill (emphasis supplied). Because we ought not, however, create this uncertainty in the first place, I respectfully dissent.

I am authorized to state that Chief Judge Ellington joins in this dissent.

Decided July 14, 2011

Lee W. Fitzpatrick, for appellant.

Patrick H. Head, District Attorney, Jason R. Samuels, Anna G. Cross, Assistant District Attorneys, for appellee.

       The jury found Hodges not guilty of malice murder, a second count of aggravated assault and a related weapons charge, and the trial court granted a directed verdict on a drug possession and two additional weapons charges.

       E.g., Owens v. State, 270 Ga. 199, 201 (2) (509 SE2d 905) (1998); Laster v. State, 268 Ga. 172, 173-174 (2) (486 SE2d 153) (1997); Jones v. State, 265 Ga. 138, 141 (4) (454 SE2d 482) (1995); Grano v. State, 265 Ga. 346 (3) (455 SE2d 582) (1995).

       E.g., in Render v. State, 288 Ga. 420, 423 (2) (a) (704 SE2d 767) (2011), the defendant conceded the inadmissibility of evidence about the victim’s specific bad acts under Chandler, but argued that the evidence was otherwise admissible to show his state of mind when he shot the victim. Instead of addressing that issue directly, the court held, “[A]s for the jury being informed of Render’s allegedly fearful state of mind with regard to [the victim], Render’s attorney was able to elicit testimony from Render on the stand about his belief that the victim was dangerous.” The court in Hill v. State, 272 Ga. 805, 807 (3) (537 SE2d 75) (2000), similarly did not address directly the defendant’s “state of mind argument,” holding that “[t]o the extent that Hill’s complaint is that he should have been permitted to testify to [the victim’s] reputation for violence,” the testimony was inadmissible because there was no evidence the victim was the aggressor.

       The Supreme Court recently had an opportunity to disapprove Hill, but it did not do so. See Render v. State, 288 Ga. 420 (704 SE2d 767) (2011).

       Another implication of today’s decision is that defendants now can put prior bad acts of the victim before the jury without satisfying the procedural protections imposed by Chandler v. State, 261 Ga. 402 (405 SE2d 669) (1991), and its progeny, including notice to the prosecution. See, e.g., Render, 288 Ga. at 422 (2) (a); Owens v. State, 270 Ga. 199, 202 (2) (509 SE2d 905) (1998); Laster v. State, 268 Ga. 172, 174 (2) (486 SE2d 153) (1997). Whether we should permit trial of the victim by ambush is something we should leave to the Supreme Court.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A11A1389.
    WARD v. THE STATE.
    (714 SE2d 731)
   McFadden, Judge.

Kentral Ward appeals from the trial court’s order dismissing his out-of-time motion to withdraw his guilty plea. Because the trial court properly found that it lacked jurisdiction to consider the motion, we affirm.

On October 14, 2009, Ward pled guilty in Rockdale County Superior Court to one count of armed robbery. He was sentenced as a recidivist to fourteen years in confinement, followed by six years on probation. Over one year later, on October 26, 2010, he filed an “Extraordinary Motion to Withdraw Guilty Plea,” claiming that he did not knowingly and voluntarily plead guilty and that the underlying indictment was flawed. The trial court dismissed the motion for lack of jurisdiction. We find no error.

“[I]t is well settled that a trial court does not have jurisdiction to entertain a motion to withdraw a guilty plea filed after the term of court in which the defendant was sentenced under the plea.” Smith v. State, 283 Ga. 376 (659 SE2d 380) (2008). After the term of court has expired, a defendant’s only means for withdrawing a guilty plea is through habeas corpus proceedings. See id. at 376, n. 1; Henry v. State, 269 Ga. 851, 853 (2) (507 SE2d 419) (1998). Ward pled guilty and was sentenced during Rockdale County’s October 2009 term of court. A new term of court began on the first Monday of January 2010. See OCGA § 15-6-3 (32.1). Clearly, therefore, Ward filed his October 26, 2010 motion outside the term of court in which he was sentenced.

On appeal, Ward suggests that his sentence is void and thus challengeable at any time. See Colson v. State, 310 Ga. App. 221 (712 SE2d 520) (2011). His argument, however, does not raise a proper void sentence claim. As we recently explained, “[a] sentence is void if the court imposes punishment that the law does not allow.” Id. Ward contends that his sentence is void because he involuntarily entered his guilty plea after the State “misinformed [him] about one of the critical elements of the charge against him.” Such argument relates to the validity of his conviction, not his sentence, and thus cannot support a void sentence claim. See Reed v. State, 296 Ga. App. 366, 367 (1) (674 SE2d 406) (2009); Battle v. State, 235 Ga. App. 101, 102 (508 SE2d 467) (1998). Moreover, Ward’s 20-year sentence falls within the statutory limits. See OCGA § 16-8-41 (b). The sentence, therefore, is not void. Colson, supra (“[W]hen the sentence imposed falls within the statutory range of punishment, the sentence is not void.”).

Decided July 14, 2011

Kentral Ward, pro se.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

The trial court lacked jurisdiction to consider Ward’s out-of-time motion to withdraw his guilty plea. Accordingly, it properly dismissed the motion. See Smith, supra; Colson, supra.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


author: Mikell, Judge.

text:
    A11A0842.
    LEWIS v. THE STATE.
    (714 SE2d 732)
   Mikell, Judge.

Following trial on a six-count indictment, Torrie Antoine Lewis was convicted of armed robbery and burglary and acquitted of aggravated assault and three counts of possession of a firearm during the commission of a crime. On appeal from the denial of his motion for new trial, Lewis asserts that the state failed to prove his guilt beyond a reasonable doubt and that the trial court erred in admitting into evidence the statements of his co-conspirator, Feandre Loggins. Discerning no error, we affirm.

1. Lewis essentially argues that the evidence is weak and thus does not support his conviction of armed robbery and burglary. The strength of the evidence, however, is not the relevant issue.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sítate’s case, we must uphold the jury’s verdict.

So viewed, the evidence shows that at 11:00 p.m. on March 18, 2009, Steven McNutt lay in bed listening to music through his headphones. There were no lights on in the house. After getting up to put away his headphones, McNutt opened his bedroom door and encountered a man, later identified as Lewis, holding a pistol. Lewis’s face was partially obscured by a shirt. Lewis demanded money, pulled back the slide in the gun and pointed it at McNutt, who retrieved his wallet and showed Lewis that there was no cash in it. A second assailant then entered the room and assured McNutt that he would not be hurt. The second man took McNutt’s cell phone, then told him to kneel down by the bed and put his face down. After the second man left McNutt’s room, McNutt heard a commotion in the hallway, followed by “Torrance, Torrance, let’s go.” The assailants left the house, and McNutt went downstairs. He saw that the front door had been kicked in so violently that the wood frame splintered and the knob gouged a hole in the wall. McNutt also saw that a television was missing. McNutt identified Lewis in court as the man who held the gun on him.

Lewis gave a statement to police admitting that he entered the house; that McNutt spoke to him; that Loggins and another man, Quameik Aziz, pushed in the door and took the television; and that Lewis ran out the door after talking to McNutt. Lewis and Loggins made incriminating statements to Shuntivia Campbell, who gave a recorded statement to Athens-Clarke County Police detective Charles Ivey. Campbell testified at trial but contradicted her recorded statement, and it was introduced through Ivey’s testimony. According to Ivey, Campbell stated that she was driving Lewis and Loggins home one day in late March when they asked her to stop at a house, which they identified, to “pick up a TV” Campbell told them that she wanted “nothing to do with that,” and she took them home. Later, she returned and saw the police at the house that they had identified. Lewis and Loggins told Campbell that they had just “hit a lick.” They stated that they kicked in the door, saw a man, pointed a gun at his head, and went through his wallet. Lewis stated that he was carrying the gun, and he showed it to Campbell. The men told her that they hid the TV in the bushes, retrieved it later, and sold it to someone. They also stated that they took the man’s cell phone and that they had covered their faces with their arms.

In challenging the sufficiency of the evidence, Lewis cites the absence of forensic evidence tying him to the crime and McNutt’s inability to identify him from a photographic array shortly after the robbery was committed. But an appellate court does not weigh the evidence or determine witness credibility. Rather, “the relevant question is 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.” An armed robbery occurs when a person, with intent to commit theft, takes property of another from the person or the immediate presence of another by use of an offensive weapon. A person commits burglary when, “without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another.” Here, Lewis’s statement admitting entry into the home, his statement to Campbell, the victim’s in-court identification of him as the armed robber, and the victim’s testimony that he overheard one of the robbers calling Lewis “Torrance” provided ample evidence to support his conviction of armed robbery and burglary beyond a reasonable doubt.

2. Lewis next contends that the trial court erred in admitting statements attributed to Loggins, including that Lewis possessed a gun and that the men “hit a lick,” under OCGA § 24-3-5, the exception to the hearsay rule for declarations of a co-conspirator, because there was no evidence of a conspiracy between Lewis and Loggins. We disagree.

Statements made by a co-conspirator during the pendency of a criminal project, including the concealment phase, are admissible against all other co-conspirators. To render an out-of-court statement admissible under OCGA § 24-3-5, the state must make a prima facie showing of the existence of the conspiracy, without regard to the declarations of the co-conspirator, in order to admit his out-of-court declarations. The trial judge may admit testimony by co-conspirators before the conspiracy has been proved, provided its existence is ultimately shown at trial. The question of the existence of a conspiracy is ultimately for the jury to determine. ... In order to prove a conspiracy, the state may rely upon direct or circumstantial evidence.

Here, contrary to Lewis’s contention, evidence independent of Loggins’s declarations to Campbell authorized the jury to infer the existence of a conspiracy. The jury heard Campbell’s statement that she drove Lewis and Loggins to the victim’s home before the crime was committed and that she observed them at the scene of the crime afterward, while the police were there. Campbell also testified that she told Lewis and Loggins, “ya’ll are stupid, you’re going to get in trouble anyway not having your face covered trying to rob somebody.” Campbell’s observations of Lewis and statements to him are not hearsay, as “anything seen or heard by a witness in the presence of the defendant is admissible and does not constitute hearsay. And, where a witness testifies as to what he or she told another person, it is not hearsay.” Moreover, the jury heard Lewis’s statement that he went to the victim’s house with Loggins and Aziz because the victim owed Aziz money. “Presence, companionship, and conduct before and after the commission of the alleged offenses may be considered by the jury and are circumstances which may give rise to an inference of the existence of a conspiracy.” The circumstances described above permitted the jury to find that a conspiracy existed without regard to the hearsay declarations of co-conspirator Loggins. The trial court did not abuse its discretion in allowing his statements in evidence.

3. Finally, Lewis argues that the trial court erred in charging the jury on the law of conspiracy because no conspiracy existed. This enumeration of error fails because we have decided that the evidence authorized the jury’s determination that a conspiracy existed.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

Decided July 15, 2011.

Ryan J. Swingle, for appellant.

Kenneth W. Mauldin, District Attorney, David T. Lock, Assistant District Attorney, for appellee.

       Lewis and Loggins were indicted jointly but were not tried together.

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

       (Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       Id.

       (Punctuation, footnote and emphasis omitted.) Scott v. State, 297 Ga. App. 577, 579 (677 SE2d 755) (2009).

       OCGA § 16-8-41 (a).

       OCGA § 16-7-1 (a).

        Jackson, supra.

       OCGA § 24-3-5 provides: “After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.”

       (Punctuation and footnotes omitted.) Dickerson v. State, 280 Ga. App. 29, 31-32 (1) (a) (633 SE2d 367) (2006); accord White v. State, 308 Ga. App. 38, 39-40 (1) (706 SE2d 570) (2011).

       (Footnotes omitted.) English v. State, 288 Ga. App. 436, 440 (2) (654 SE2d 150) (2007).

       See Livingston v. State, 271 Ga. 714, 719 (3) (524 SE2d 222) (1999) (defendant’s statements to cellmate showed he was involved with others in committing felony murder).

       (Punctuation and footnote omitted.) Dickerson, supra.


author: MlKELL, Judge.

text:
    A11A0865.
    A11A0866.
    CLARK v. THE STATE. FLOURNOY v. THE STATE.
    (714 SE2d 736)
   MlKELL, Judge.

Donrico Marquez Clark and Anwar Akeem Flournoy were tried together and found guilty by a jury of aggravated assault with intent to rob and possession of a firearm during the commission of a crime. They were both acquitted of armed robbery. Clark, in Case No. A11A0865, and Flournoy, in Case No. A11A0866, appeal their convictions and the denial of their motions for new trial, challenging the sufficiency of the evidence. Because the charges arose from the same set of facts and because Clark and Flournoy were jointly indicted and tried, we have consolidated their separate appeals for disposition in this single opinion. Finding no error, we affirm in both cases.

Clark and Flournoy each raise the same enumerations of error, asserting that the jury verdict was contrary to the evidence and that the state failed to prove guilt beyond a reasonable doubt. “When the general grounds are asserted, as here, only the sufficiency of the evidence can be considered,’’ and we apply the following standard of review:

On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses,

and we determine only if the evidence adduced at trial was sufficient for a rational trier of fact to find the defendant guilty of the offenses charged beyond a reasonable doubt. Moreover,

conflicts in the testimony of witnesses, including the [sltate’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, the jury’s verdict will be upheld.

Properly construed, the record reflects that on July 31, 2009, the victim, Nicinor Ortiz Mejia, was accosted at his mailbox by two individuals, one of whom pointed a gun at the victim’s stomach with one hand and with his other hand took “stuff’ from the victim’s pocket. The other assailant pushed the victim, so that he fell backwards onto a tire filled with concrete, injuring his head. The victim described the weapon held by his assailant in some detail. The state adduced the testimony of several witnesses who testified that while they were driving past the scene, they observed the attack, pulled over, and gave chase to the two attackers. One of these witnesses testified that the assailants were trying to take something out of the victim’s pocket; another testified that she saw one of the attackers going through the victim’s pockets. The attackers then fled together into nearby woods; and within seconds, four witnesses heard a sound like a gunshot coming from the direction where the attackers entered the woods. Shortly afterward, Clark and Flournoy were arrested after they were discovered hiding in a nearby shed, and the victim identified them as his attackers. At that time, the victim identified Clark as the individual who threatened him with the handgun; at trial, however, the victim testified that it was Flournoy who held the gun during the attack.

Clark did not testify at trial. Flournoy testified and admitted that on July 31, 2009, he and Clark had an altercation with the victim because of an earlier traffic incident; that during this altercation Clark pushed the victim down so that he hit his head; that Flournoy and Clark then “took off running”; and that he and Clark hid together in a shed in the area. Flournoy denied taking anything from Ortiz Mejia and also denied that either he or Clark were in possession of a gun.

Under OCGA § 16-5-20 (a), a person commits the offense of simple assault when he either “(1) [attempts to commit a violent injury to the person of another; or (2) [cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-21 (a) (1) provides that a person commits the felony of aggravated assault if he commits assault “[w]ith intent ... to rob.” Count 2 of the indictment charged Clark and Flournoy with aggravated assault, in that they “did unlawfully . . . assault the person of Nicanor [sic] Ortiz Mejia, with intent to rob [him].” The testimony of multiple witnesses showed that Clark and Flournoy attacked the victim and that one of the assailants pushed the victim down so violently that he suffered injuries to his head. In his testimony, Flournoy corroborated the victim’s identification of Clark and Flournoy as his assailants and also corroborated the victim’s testimony that the two defendants were acting together. The victim and at least two other witnesses testified that Clark and Flournoy were rifling through the victim’s pockets; and the victim testified that during the attack, one of his assailants pointed a firearm at his stomach. The fact that the witnesses’ testimony differed in some respects does not provide grounds for reversal of the defendants’ convictions. “Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.” The factfinder in this case, the jury, found against the defendants.

Clark and Flournoy argue, without citing authority, that insufficient evidence supports their convictions because the victim was the only witness who saw the weapon and the victim’s testimony was conflicting as to which defendant had actual possession of the firearm. This argument is without merit. The testimony of the victim, by itself, is legally sufficient to establish that Clark and Flournoy assaulted the victim with intent to rob and that at least one of the defendants was in possession of a firearm. Under OCGA § 16-11-106 (b), “[a]ny person who shall have on or within arm’s reach of his . . . person a firearm . . . during the commission of . . . [a]ny crime against or involving the person of another . . . and which crime is a felony, commits a felony.” Because aggravated assault is a felony, the victim’s testimony is sufficient to authorize the jury to conclude that the defendants were guilty beyond a reasonable doubt of possession of a firearm during the commission of a felony.

Decided July 15, 2011.

Daniel R. Partain, for appellants.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

Clark and Flournoy point to the conflicting testimony of the victim as to which assailant was in actual possession of the firearm. However, under OCGA § 16-2-20 (a), “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” Thus, which of the two defendants actually held the weapon was not material, as long as the jury found that one defendant held the firearm and the two acted in concert.

[W]here a party has committed [aggravated assault] and possession of a firearm during commission of a felony, an accomplice who is concerned in the commission of those crimes under OCGA § 16-2-20 is likewise guilty of both offenses, notwithstanding the fact that the accomplice did not have actual possession of the firearm.

Therefore, under the standard set forth in Jackson, the evidence adduced at trial was sufficient to authorize the jury to find Clark and Flournoy guilty beyond a reasonable doubt of aggravated assault with intent to rob and of possession of a firearm during the commission of a felony.

Judgments affirmed.

Smith, P. J., and Dillard, J., concur.

       Clark was also indicted for possession of a firearm by a convicted felon. This count, which was not presented to the jury at trial, was dead-docketed after the trial.

       (Citation omitted.) Knox v. State, 254 Ga. App. 870, 871 (564 SE2d 225) (2002). Accord Cobble v. State, 297 Ga. App. 423 (1) (677 SE2d 439) (2009).

       (Footnote omitted.) Moore v. State, 254 Ga. App. 134 (561 SE2d 454) (2002). Accord Daniels v. State, 306 Ga. App. 577, 578 (703 SE2d 41) (2010).

        Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004), citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Punctuation omitted.) Williams v. State, 287 Ga. 199, 200 (695 SE2d 246) (2010), citing Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

       (Citation omitted.) Odett v. State, 273 Ga. 353-354 (1) (541 SE2d 29) (2001). Accord White v. State, 308 Ga. App. 38, 41 (2) (706 SE2d 570) (2011).

       See OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact”).

       OCGA § 16-11-106 (b) (1).

       See OCGA §§ 16-1-3 (5) (defining “felony” to include a crime punishable by imprisonment for more than 12 months) and 16-5-21 (b) (aggravated assault punishable by imprisonment for not less than one nor more than twenty years).

       See Tesfaye v. State, 275 Ga. 439-440 (1) (569 SE2d 849) (2002) (where accomplice carried firearm during robbery, evidence was sufficient to convict defendant of armed robbery and possession of a firearm during the commission of a crime, as a party to the crime under OCGA § 16-2-20).

       (Citation omitted.) Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323) (1991). Accord Johnson v. State, 299 Ga. App. 706, 710 (1) (d) (683 SE2d 659) (2009).

       Supra.


author: Ellington, Chief Judge.

text:
    A10A2054, A10A2055.
    CITY OF ATLANTA v. CITY OF COLLEGE PARK et al.; and vice versa.
    (715 SE2d 158)
   Ellington, Chief Judge.

In this declaratory judgment action pending in the Superior Court of Fulton County, the City of Atlanta and the City of College Park each claim the right to tax businesses that operate in the parts of the Hartsfield-Jackson Atlanta International Airport that lie within the city limits of College Park. After a hearing on the parties’ cross-motions for partial summary judgment, the trial court determined that only College Park is authorized to levy, assess, and collect an occupation tax on businesses operating at the airport within its city limits. The trial court also determined that only College Park is authorized to impose and collect taxes on the sale, storage, and distribution of alcoholic beverages at the airport within its city limits. Accordingly, the trial court granted a declaratory judgment in favor of College Park on these issues. The trial court determined, however, that Atlanta is a local authority that is statutorily exempt from liability for any occupation tax for its proprietary business operations within College Park’s city limits. Accordingly, the trial court granted a declaratory judgment in favor of Atlanta on this issue. In Case No. A10A2054, Atlanta appeals the trial court’s rulings regarding College Park’s authority to collect alcoholic beverage and occupation taxes on activities at the airport, and, in Case No. A10A2055, College Park cross-appeals the trial court’s determination that Atlanta is exempt from any occupation tax for its proprietary activities. In Case No. A10A2054, for the reasons explained below, we affirm in part (see Division 1, infra) and vacate in part (see Division 3, infra). In Case No. A10A2055, we reverse in part (see Division 2, infra).

The following facts are undisputed. In 1969, College Park conveyed land to Atlanta, in connection with Atlanta’s expansion of the airport, which it owns and operates. The cities agreed, in Section 18 of that contract, as follows:

With respect to any and all buildings and structures located or constructed on property of the Atlanta Airport, exclusive jurisdiction over the issuance of permits, the collection of license and occupation taxes and fees, the inspection of properties, the enforcement of building codes and fire codes, and all similar matters shall vest in the City of Atlanta. Personal property, inventory and leasehold interest in property lying within the corporate limits of the City of College Park and belonging to parties other than the City of Atlanta, however, shall be subject to reasonable ad valorem tax by the City of College Park, to the extent permitted by law.

Thereafter, Atlanta collected an occupation tax, which is a local tax on professional and business activities, from the rental car companies and other businesses that operated on airport property located in College Park.

In 2007, College Park reviewed the issue of its authority to collect occupation and alcoholic beverage taxes and concluded that it is the sole proper authority to levy and collect these taxes within its city limits. College Park notified Atlanta that it intended to begin assessing and collecting an occupation tax from businesses operating at the airport in College Park, including from the City of Atlanta itself for revenues generated from its proprietary operations at the airport. After College Park notified a few of the affected businesses about the tax, Atlanta filed suit against College Park and its city manager in his official capacity, seeking a declaratory judgment, an injunction, and other relief.

On the issue of the occupation tax, Atlanta, in Count 1 of its complaint, as amended, asked the trial court to declare

that the 1969 Agreement controls the collection of occupation taxes from businesses operating in the portion of the Airport located within the corporate boundaries of College Park and that College Park’s attempt to collect occupation taxes from these businesses constitutes a violation of the terms of the 1969 Agreement.!]

In Count 1 of College Park’s counterclaim, it asked the court to declare, instead, that it is “the proper authority for the assessment and collection of occupation taxes on businesses operating in the portion of the Airport located within the corporate limits of the City of College Park[,]” that portions of the 1969 Agreement are “illegal, unenforceable, of no current legal [e]ffect[,] and not binding upon the parties[,]” and that “Section 7-105 (f) of the Charter for the City of Atlanta[] ... is unconstitutional, illegal[,] and unenforceable.” In Count 3, College Park asked the court to declare that “Atlanta is subject to College Park’s occupation tax on [Atlanta’s] proprietary operations at the Airport that occur within the corporate limits of College Park.”

On the issue of alcoholic beverage taxes, College Park asked the court to declare, in Count 6 of its counterclaim, that it “is the sole legitimate authority for the levying and collection of all taxes related to the sale, storage, or distribution of alcoholic beverages in the portions of [the Airport] that are within the corporate limits of the City of College Park.”

On the issue of the occupation tax, the trial court determined that the 1969 Agreement is unenforceable to the extent it purports to authorize Atlanta to collect taxes outside of its territorial limits. In addition, the trial court concluded that Section 7-105 (f) of Atlanta’s charter is unconstitutional to the extent it purports to remove from College Park the authority to collect an occupation tax from businesses within its city limits but located on airport property. Based on these conclusions, the trial court declared that only College Park is authorized to levy, assess, and collect an occupation tax from businesses operating at the airport within its city limits. The trial court granted partial summary judgment in favor of College Park on Count 1 of its counterclaim and on Counts 1 and 4 of Atlanta’s amended complaint, and denied Atlanta’s corresponding motion for partial summary judgment. The trial court determined, however, that Atlanta is a “local authority” and, therefore, that it is statutorily exempt from liability to College Park for any occupation tax for its (Atlanta’s) proprietary business operations. Accordingly, the trial court granted partial summary judgment in favor of Atlanta on Count 3 of College Park’s counterclaim and denied College Park’s motion for partial summary judgment on that issue.

On the issue of alcoholic beverage taxes, the trial court determined that only College Park is authorized to impose and collect taxes on the sale, storage, and distribution of alcoholic beverages at the airport within its city limits. The trial court granted partial summary judgment in favor of College Park on Count 6 of its counterclaim. The court ordered Atlanta to “refund amounts collected in error” for the years 2007 through 2010.

1. Atlanta contends that the tried court erred in ruling that the 1969 Agreement is unenforceable and in ruling that only College Park is authorized to levy, assess, and collect an occupation tax from businesses operating at the airport within its city limits. We review the record de novo to determine whether the undisputed facts warrant summary judgment on this issue.

(a) Under Georgia law, a municipal corporation can exercise the power of taxation only to the extent the power to do so is “plainly and unmistakably granted by the State[.]” (Citations omitted.) City of Atlanta v. Gower, 216 Ga. 368, 370 (116 SE2d 738) (1960). “[T]he burden is upon every political subdivision of the State which demands taxes from the people to show authority to exercise [the power of taxation] in the manner in which it has been imposed by a valid law of this State.” (Citations omitted.) Id. Georgia’s Constitution specifies that, generally, such a grant of the power of taxation by a local government shall be by the “Constitution or by general law.” Ga. Const. of 1983, Art. IX, Sec. IV, Par. I (a). The General Assembly adopted such a general law regarding the so-called “occupation tax,” providing, in pertinent part, that

the governing authority of each municipal corporation is authorized but not required to provide by local ordinance or resolution for the levy, assessment, and collection of occupation tax on those businesses and practitioners of professions and occupations which have one or more locations or offices within the corporate limits [of the municipality],

OCGA § 48-13-6 (b). By its plain terms, OCGA § 48-13-6 (b) authorizes a municipality to collect an occupation tax only on businesses and practitioners located within its city limits.

Despite this statutory language, Atlanta contends that it is authorized by the 1969 Agreement to collect an occupation tax on professional or business activities that are conducted at the airport even though the activities occur within College Park’s city limits. A contract between municipalities, however, is not a general law. We find no basis for concluding that such a contract can vest the governing authority of a municipality with the power of extraterritorial taxation. See Ga. Const. of 1983, Art. IX, Sec. IV, Par. I (b) (2) (In the absence of a general law, a municipal governing authority may levy and collect taxes and fees only within the corporate limits of the municipality.). We conclude, therefore, that, to the extent the 1969 Agreement purported to vest in Atlanta the authority to collect an occupation tax on businesses located within College Park’s city limits, the contract is unenforceable. Because Atlanta has not identified any constitutional provision or general law that authorizes it to levy, assess, and collect an occupation tax on businesses and practitioners that are not located in its city limits, Atlanta failed to carry its burden of showing that it has any authority to require businesses to pay it an occupation tax for their activities at the airport that are conducted within College Park’s city limits. Although we have not adopted the trial court’s analysis in its entirety, therefore, we agree that Atlanta lacks authority to collect an occupation tax on professional or business activities within College Park’s city limits. Thus, we affirm the trial court’s ruling on the cities’ respective motions for partial summary judgment on this issue.

(b) Having determined that Atlanta lacks authority to collect an occupation tax on professional or business activities within College Park’s city limits, we turn to the issue of whether College Park has authority to collect an occupation tax from businesses and practitioners operating at the airport. It is undisputed that College Park provided by local ordinance for the levy, assessment, and collection of an occupation tax on businesses and practitioners operating within its city limits. Thus, as Atlanta concedes, College Park has the general authority to collect such a tax under OCGA § 48-13-6 (b).

We note that College Park’s plan to collect an occupation tax from airport businesses operating within its city limits conflicts with Atlanta’s charter, which provides that no municipality or town other than Atlanta can collect an occupation tax for the operation of businesses at the airport. See n. 4, supra. The General Assembly did not, however, in a separate act, amend College Park’s charter to provide a corresponding limitation on College Park’s exercise of the power of taxation under OCGA § 48-13-6 (b). “It is not competent for the General Assembly in one act to amend, repeal, or modify the charters of two separate and distinct municipal corporations, and to attempt to do so causes the act to refer to more than one subject-matter” in violation of Georgia’s Constitution. (Citations omitted.) Schneider v. City of Folkston, 207 Ga. 434, 435 (1) (a) (62 SE2d 177) (1950). Thus, we conclude that Section 7-105 (f) of Atlanta’s charter is ineffective to the extent it purports to divest College Park of the authority to levy, assess, and collect an occupation tax on those businesses and practitioners operating at the airport and within its city limits. See also OCGA § 48-13-6 (b) (“This article supersedes any provision of local law or city charter authorizing such taxes.”).

Apart from Section 18 of the 1969 Agreement, which is unenforceable for the reasons explained above, nothing in the record shows that College Park granted an exemption from the tax to airport businesses pursuant to any ordinance or other binding mechanism. We conclude, therefore, that College Park (and only College Park) is authorized to levy, assess, and collect an occupation tax from businesses and practitioners at the airport that are located within its city limits, to the extent consistent with Ga. Const, of 1983, Art. IX, Sec. IV Par. I, OCGA § 48-13-6 (b), other applicable statutes, and its own charter, ordinances, and regulations. Accordingly, the trial court did not err in granting partial summary judgment in favor of College Park and against Atlanta on Count 1 of College Park’s counterclaim and on Counts 1 and 4 of Atlanta’s amended complaint.

2. College Park contends that the trial court erred in determining that Atlanta is a local authority that is statutorily exempt from liability to College Park for any occupation tax for its (Atlanta’s) proprietary business operations. We agree.

Under OCGA § 48-13-13 (5), “LIJocal governments are not authorized to . . . [l]evy any occupation tax, regulatory fee, or administrative fee on any state or local authority[.]” The question presented in this case is whether Atlanta is a “local authority” within the meaning of that statute, such that College Park is prohibited from taxing it. The statute does not define “state or local authority,” however, and, therefore, the threshold issue is whether the term is plain and unequivocal or whether it is ambiguous. If the General Assembly uses “plain and unequivocal language” in a statute, interpretation of the words used or other judicial construction of the statute is both unnecessary and forbidden. Sawnee Elec. Membership Corp. v. Ga. Public Svc. Comm., 273 Ga. 702, 705 (544 SE2d 158) (2001). Thus, when a statute is “plain and susceptible of but one natural and reasonable construction,” a court must simply follow the literal language of the statute, unless doing so would “lead[ ] to absurd or wholly impracticable consequences[.]” (Punctuation and footnote omitted.) Carolina Tobacco Co. v. Baker, 295 Ga. App. 115, 119 (1) (670 SE2d 811) (2008). See also Judicial Council of Ga. v. Brown & Gallo, LLC, 288 Ga. 294, 297 (702 SE2d 894) (2010) (“[T]he ‘golden rule’ of statutory construction requires [courts] to follow the literal language of [a] statute unless it produces contradiction, absurdity, or such an inconvenience as to insure that the legislature meant something else.”) (citation and punctuation omitted).

In the Georgia Code, the term “local authorities” is used in some contexts to refer to municipalities or counties, that is, units of local government which are political divisions of the state and which have traditional powers of sovereignty such as taxation. The term “authority” is used in other contexts, however, to refer to an agency of such a local government that carries out certain functions on behalf of one or more local governments, for example, a local hospital or housing authority. We conclude, therefore, that the term “local authority” in the context of OCGA § 48-13-13 (5) is ambiguous.

“Where the language of a statute is capable of more than one meaning, we construe the statute so as to carry out the legislative intent.” (Citation omitted.) Judicial Council of Ga. v. Brown & Gallo, LLC, 288 Ga. at 297. The “cardinal rule” of statutory construction is “to ascertain the legislative intent and purpose in enacting the law[ ] and then to give it that construction which will effectuate the legislative intent and purpose.” (Citation and punctuation omitted.) Sawnee Elec. Membership Corp. v. Ga. Public Svc. Comm., 273 Ga. at 704. See also OCGA § 1-3-1 (a) (“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.”). In interpreting OCGA § 48-13-13 (5), certain principles of statutory construction are particularly helpful. A court should consider one statute in the context of other related statutes, reading all related statutes together “so as to ascertain the legislative [intent] and give effect thereto.” (Citation and punctuation omitted.) Goldberg v. State, 282 Ga. 542, 546 (651 SE2d 667) (2007). Similarly, “in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.” (Citation and punctuation omitted.) Footstar, Inc. v. Liberty Mut. Ins. Co., 281 Ga. 448, 450 (637 SE2d 692) (2006).

OCGA § 48-13-13, in addition to the prohibition of occupation taxes on a “local authority” that is at issue here, provides several other limitations on the levy of such a tax. Examining the statute as a whole, in this Code section, the General Assembly uses the phrase “local governments” to refer to municipalities and counties (the bodies that are authorized to levy, assess, and collect an occupation tax). This suggests that when the General Assembly selected a different phrase, “local authority,” in subpart 5 of that Code section, it was not referring to municipalities and counties but to some different category.

Similarly, throughout Chapter 13 of the Revenue and Taxation Code, which concerns “Specific, Business, and Occupation Taxes,” the General Assembly uses the phrase “local government(s)” when a provision addresses the taxing authority of municipalities, counties, or both. In this vein, we note that OCGA § 48-13-51, which concerns the permissible uses of revenue generated by an excise tax on hotel rooms and other accommodations, repeatedly refers to “a facility owned or operated by a local government or local authority for convention and trade show purposes or any other similar or related purposes.” There would be no need to say “a local government or local authority” if the term “local authority” includes, as Atlanta contends, a municipality or other local government. Rather, use of the phrase shows that the General Assembly views a local government (that is, a county or municipality) and a local authority as distinct categories.

In addition, although the General Assembly never defined a “local authority” in the Revenue and Taxation Code, it did define a “state authority” in that Code. In the Article providing for an excise tax on hotel rooms and other accommodations, “state authority” shall mean “an authority created by state law which serves a state-wide function, including, but not limited to, the Geo. L. Smith II Georgia World Congress Center Authority.” OCGA § 48-13-50.2 (5). A “state authority” shall not mean, however,

an authority created for support of a local government or a local purpose or function and shall not include authorities such as area planning and development commissions and any organizational entities they may create, regional commissions and any organizational entities they may create, or local water and sewer authorities.

Id. This suggests that a “local authority” means an agency created by one or more local governments to carry out certain discrete governmental functions for a local purpose.

Finally, although the General Assembly never defined a “local authority” in the Revenue and Taxation Code, it did define a “local authority” in Georgia’s Local Government Code, as follows:

[T]he term “local authority” means an instrumentality of one or more local governments created to fulfill a specialized public purpose or any other legally created organization that has authority to issue debt for a public purpose independent of a county or municipality, regardless of name; provided, however, that the term “local authority” does not include a state authority. A local authority may have been created by local constitutional amendment, general statute, or local law.

OCGA § 36-80-17 (contracts for utility services provided by a local utility authority).

Having considered all of the foregoing, we conclude that, in enacting OCGA § 48-13-13, the General Assembly did not intend the term “local authority” in subpart (5) to refer to a local government corporation, that is, a municipality or a county, but only to a local authority in the narrower sense discussed above. OCGA § 48-13-13 (5), therefore, does not prohibit one municipality from levying, assessing, and collecting an occupation tax from another municipality that conducts proprietary (non-governmental) revenue-generating activities within the geographical corporate limits of the first municipality. Consequently, the trial court erred in granting partial summary judgment in favor of Atlanta on Count 3 of College Park’s counterclaim and in denying College Park’s motion for partial summary judgment on this issue.

3. Atlanta contends that there was no dispute regarding whether only College Park is authorized to impose and collect taxes on the sale, storage, and distribution of alcoholic beverages at the airport within its city limits. Atlanta contends that the trial court therefore issued an impermissible advisory opinion when it granted College Park’s request for a declaratory judgment to that effect. We agree.

To support a petition for a declaratory judgment,

[t]he plaintiff must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest. A declaratory judgment may not be granted in the absence of a justiciable controversy.

(Citations and punctuation omitted.) Chattahoochee Bancorp v. Roberts, 203 Ga. App. 405, 406 (416 SE2d 875) (1992). See also OCGA § 9-4-2 (a) (authorizing the superior courts “[i]n cases of actual controversy ... to declare rights and other legal relations of any interested party petitioning for such declaration”).

It is well settled that, for a controversy to justify the making of a declaration, it must include a right claimed by one party and denied by the other, and not merely a question as to the abstract meaning or validity of a statute. There can be no justiciable controversy unless there are interested parties asserting adverse claims upon a state of facts which have accrued.

(Citation, punctuation and footnote omitted.) East Beach Properties v. Taylor, 250 Ga. App. 798, 802 (552 SE2d 103) (2001). “Where the party seeking declaratory judgment does not show it is in a position of uncertainty as to an alleged right, the dismissal of a declaratory judgment is proper to avoid issuance of an advisory opinion.” (Citation and punctuation omitted.) U. S. A. Gas v. Whitfield County, 298 Ga. App. 851, 853-854 (1) (681 SE2d 658) (2009).

In responding to College Park’s motion for partial summary judgment on this issue, Atlanta conceded that, under Georgia’s Alcoholic Beverages Code, only College Park is authorized to impose and collect taxes on the sale, storage, and distribution of alcoholic beverages at the airport within its city limits. Pretermitting whether College Park showed that, on one or more occasions, a taxpayer that owed alcoholic beverage taxes to College Park may have mistakenly paid the taxes to Atlanta, College Park failed to show that it was in a position of uncertainty or insecurity regarding its authority to impose and collect such taxes. Similarly, pretermit-ting whether College Park has authority, whether by assignment or otherwise, to seek any refund on behalf of taxpayers who are not parties to this litigation, Atlanta conceded that it must refund any alcoholic beverage taxes that it received in error for the sale, storage, and distribution of alcohol in portions of the airport located within the corporate boundaries of College Park. Accordingly, College Park failed to show that there was any justiciable controversy on this issue. The trial court’s ruling on these issues was advisory, therefore, and we vacate the declaratory judgment in College Park’s favor on Count 6 of its counterclaim. Effingham County Bd. of Commrs. v. Effingham County Indus. Dev. Auth., 286 Ga. App. 748, 750-751 (650 SE2d 274) (2007). Upon remand, the trial court shall enter judgment dismissing this claim. Id.

Decided June 23, 2011

Reconsideration denied July 18, 2011

Michael S. Fineman, Hunton & Williams, Matthew J. Calvert, Cherie A. Phears, for appellant.

Fincher, Denmark & Williams, Steven M. Fincher, Winston A. Denmark, Michael J. Williams, Emilia C. Walker, L’Erin F. Barnes, for appellee.

Judgments affirmed in part, reversed in part, and vacated in part, and case remanded.

Andrews and Doyle, JJ., concur.

       The Supreme Court of Georgia determined that the constitutionality of a law or ordinance has not been drawn into question on appeal and, therefore, that subject matter jurisdiction over these appeals lies with this Court.

       OCGA § 48-13-5 (4) (defining an occupation tax as “a tax levied on persons, partnerships, corporations, or other entities for engaging in an occupation, profession, or business and enacted by a local government as a revenue-raising ordinance or resolution”).

       In Count 4, Atlanta sought damages for College Park’s alleged breach of the contract.

       Section 7-105 (f) of Atlanta’s charter provides that no municipality or town other than Atlanta shall have any authority, although the land may be located within the other municipality’s or town’s limits, to charge or exact any license fees or occupation taxes for the operation by the City of Atlanta of a landing field therein or for the operation or conduct of any business or occupation thereon. Ga. L. 1996, pp. 4469, 4547-4548.

       The trial court reserved for later determination the remaining issues that were raised in the pleadings.

       In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
      (Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

       (a) Except as otherwise provided in [Ga. Const. of 1983, Art. IX, Sec. IV, Par. 1], the governing authority of any county, municipality, or combination thereof may exercise the power of taxation as authorized by this Constitution or by general law.
      (b) In the absence of a general law: . . .
      (2) Municipal governing authorities may be authorized by local law to levy and collect taxes and fees in the corporate limits of the municipalities.
      Ga. Const. of 1983, Art. IX, Sec. IV, Par. 1.

       The General Assembly also authorized counties to levy, assess, and collect an occupation tax, but only on businesses and practitioners that have locations or offices within the unincorporated part of the county. OCGA § 48-13-6 (a).

       See also Garr v. E. W. Banks Co., 206 Ga. 831 (1) (59 SE2d 400) (1950) (“The right of taxation is a sovereign right — inalienable, indestructible — is the life of the State, and rightfully belongs to the people in all Republican governments, and neither the General Assembly, nor any, nor all other departments of the Government established by this Constitution, shall ever have the authority to irrevocably give, grant, limit, or restrain this right; and all laws, grants, contracts, and all other acts, whatsoever, by said government, or any department thereof, to affect any of these purposes, shall be, and are hereby, declared to be null and void, for every purpose whatsoever; and said right of taxation shall always be under the complete control of, and revocable by, the State, notwithstanding any gift, grant or contract, whatsoever, by the General Assembly. The power to tax corporations and corporate property, shall not be surrendered or suspended by any contract, or grant to which the State shall be a party.”) (quoting Ga. Const. of 1945, Art. VII, Sec. I, Par. I) (punctuation omitted).

       We note that Atlanta argued at length that the 1969 Agreement is not prohibited by OCGA § 36-30-3, which provides that “[o]ne [city] council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government.” Because the 1969 Agreement is unenforceable to the extent it purports to authorize Atlanta to levy, assess, and collect an extraterritorial tax, however, as we have explained, this argument presents no basis for reversing the trial court’s ruling on this issue.

       We note that Atlanta “does not, and has not[,) claimed that [Section 7-105 (f) of its city charter, see n. 4, supra,] independently vests Atlanta with the right to collect occupation taxes at the airport. For purposes of this appeal, [Atlanta contends,] the issue of collection of occupation taxes requires an analysis of the 1969 Agreement and nothing more.” Further, we note that a city charter is a local law, not a general law. See Charles R. Sheppard, Handbook on Georgia Practice with Forms, § 3-3 (2010-2011 ed.).

       “A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.” (Citation and punctuation omitted.) La Quinta Inns v. Leech, 289 Ga. App. 812, 819 (2) (658 SE2d 637) (2008).

       See Ga. Const. of 1983, Art. III, Sec. V, Par. III (“No bill shall pass which refers to more than one subject matter or contains matter different from what is expressed in the title thereof.”), formerly Ga. Const. of 1976, Art. III, Sec. VII, Par. IV; Ga. Const. of 1945, Art. III, Sec. VII, Par. VIII.

       We note that some businesses and practitioners with multiple locations at the airport may owe an occupation tax to both Atlanta and College Park. See OCGA § 48-13-14 (allocation of gross receipts for occupation tax purposes for businesses and practitioners with locations or offices situated in more than one jurisdiction).

       Under Georgia law, when Atlanta acts in its capacity as a lessor at the airport for the purpose of obtaining revenue, it is acting in a proprietary capacity and not carrying out a governmental function. See Clayton County Bd. of Tax Assessors v. City of Atlanta, 286 Ga. App. 193, 197, 201-203 (3), (4) (648 SE2d 701) (2007) (The City of Atlanta, which owned a convention center in Clayton County and in turn leased the property to the City of College Park, was not exempt from the county’s ad valorem tax on the basis that it had bought the property from the tax-exempt College Park Business and Industrial Development Authority. Nor was the city exempt under OCGA § 48-5-41 (a) (1) (B) on the basis that its use of the property was for a governmental or public purpose, because the city acted solely in its proprietary capacity “as a regular commercial entity” for the purpose of generating profit for the city.) (citation and punctuation omitted); Caroway v. City of Atlanta, 85 Ga. App. 792, 795-798 (1) (70 SE2d 126) (1952) (The City of Atlanta, which leased out portions of its municipal airport passenger terminal building for the purpose of obtaining revenue, was engaged in a proprietary function and, therefore, was subject to liability as a premises owner.); see also OCGA § 48-5-4 (Except as prohibited by federal law, “all property owned or possessed in this state by a corporation organized under the laws of the United States or owned or possessed by an agency of the United States engaged in this state in proprietary, as distinguished from governmental, activities shall be subject to ad valorem taxation in this state at the same rate and in the same manner as the property of private corporations owning property in this state and engaged in similar businesses.”).

       See, e.g., Akin v. Hardison, 245 Ga. 57, 58-59 (262 SE2d 814) (1980) (For purposes of former Code Aim. § 68A-1503 (currently OCGA § 40-6-372), which authorizes “[bocal authorities” by ordinance to adopt en masse the Uniform Rules of the Road, a municipality is a local authority.); OCGA §§ 40-5-53 (b) (requiring every court in each county of this state that has jurisdiction over traffic offenses under state law “or any other law of this state or ordinance adopted by a local authority” to forward to the Department of Driver Services any suspended driver’s license); 40-6-374 (form for adopting Uniform Rules of the Road that equates “[l]ocal authorities” with municipalities or counties); see also Ga. Const. of 1983, Art. IX, Sec. I, Par. I (“Each county shall be a body corporate and politic with such governing authority and with such powers and limitations as are provided in this Constitution and as provided by law.”); Ga. Const. of 1983, Art. IX, Sec. II, Pars. I (conferring home rule for counties); II (authorizing the General Assembly to provide for self-government for municipalities); Ga. Const. of 1983, Art. IX, Sec. IV, Par. I (authorizing the governing authority of any county, municipality, or combination thereof to exercise the power of taxation as authorized by the Constitution, by general law, or by local law with certain limitation.); Peacock v. Ga. Municipal Assn., 247 Ga. 740, 742 (2) (279 SE2d 434) (1981) (The taxing power of a municipality is generally set out in its charter, subject to limitations and preemptions imposed by the Constitution and by general law.).

        Cox Enterprises v. Carroll City/County Hosp. Auth., 247 Ga. 39, 43-45 (273 SE2d 841) (1981) (A city-county hospital authority, which carried out essential governmental functions delegated to it by the city and county that created it, was a distinct corporate entity from those local governments and lacked some of the attributes of sovereignty, such as the power to tax.); Hawes v. Lockheed Aircraft Corp., 118 Ga. App. 222, 223 (162 SE2d 896) (1968) (An “authority” is “an agency of one or more participating governmental units created by statute for the specific purpose of having delegated to it certain functions governmental in character” and “is not a political subdivision unless recited to be so in the pertinent constitutional or statutory instruments creating it.”) (citations, punctuation and emphasis omitted); Richmond County Hosp. Auth. v. McLain, 112 Ga. App. 209, 210-212 (144 SE2d 565) (1965) (accord).

       See, e.g., OCGA §§ 48-13-5 (4) (defining “[ofccupation tax”); 48-13-7 (taxation of businesses and practitioners of professions and occupations with no location or office in Georgia); 48-13-9 (regulatory fees); 48-13-10 (criteria for classification of businesses and practitioners when calculating occupation tax); 48-13-11 (criteria which may not be used for classification of businesses and practitioners when calculating occupation tax); 48-13-14 (allocation of gross receipts for occupation tax purposes); 48-13-21 (collection of penalties and interest on delinquent occupation tax); 48-13-26 (executions for delinquent occupation tax); 48-13-50 (authority to levy an excise tax on hotel rooms and other accommodations)..

       See, e.g., OCGA § 48-13-51 (a) (3), (a) (3.4), (a) (3.7), (a) (4), (a) (5) (A) (i).

       See also OCGA §§ 48-8-14 (a) (noting that the term “state agency” does not include a county, a municipality, or a local or regional governmental authority); 48-8-111 (a) (1) (D) (distinguishing among the county, municipalities within a special tax district, and local authorities within the district, for purposes of a county special purpose local option sales tax).

       See Wright v. Fulton County, 169 Ga. 354, 364 (4) (150 SE 262) (1929) (Fulton County was subject to an occupation tax imposed by the State for the county’s proprietary operation of selling motor fuels.).

       We note that the issue of whether any other exemption may apply to any of Atlanta’s specific proprietary activities has not yet been considered by the trial court and, therefore, is not ripe for appellate review.

       OCGA § 3-8-1 (e) provides:
      The county or municipality authorized by law to impose and collect taxes on the sale, storage, and distribution of alcoholic beverages at the airport may impose and collect such taxes, unaffected by this Code section; and the county or municipality owning or operating, or both, the airport shall not impose or collect such taxes. The proceeds of the taxes which the county and the municipality are authorized by law to impose and collect on the sale, storage, and distribution of alcoholic beverages at the airport shall be equally divided between the county and the municipality.


author: McFADDEN, Judge. Andrews, Judge,

text:
    A11A0247.
    SAYE v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY.
    (714 SE2d 614)
   McFADDEN, Judge.

William Saye sued Provident Life and Accident Insurance Company (“Provident”) for breach of an insurance contract and bad faith failure to pay benefits. The trial court bifurcated the two claims, with the expectation that trial would proceed on bad faith only if Saye first prevailed on the contract issue. The jury ultimately rejected Saye’s breach of contract claim, and the trial court entered judgment for Provident.

On appeal, Saye argues that the trial court erred in bifurcating the proceedings. But the trial court was responsible for managing the trial, and that ruling was within its broad discretion. Saye argues that the trial court erred in granting Provident’s motion in limine to exclude bad-faith evidence from the first phase of the trial. But the trial court is tasked with determining relevance, and that ruling was within its broad discretion. Saye also argues that the trial court erred in allowing Provident to violate the in limine ruling, but the rulings as to those claimed violations were likewise within the trial court’s discretion. Finally, Saye argues that the trial court erred in admitting a recording of a telephone conversation between Saye and a claims representative. We agree with Saye that the recording did not fall within the business records exception to the hearsay rule and that admitting it was harmful error. We therefore reverse.

Many of the underlying facts are not in dispute. Saye is a laparoscopic surgeon who, throughout a lengthy career, performed thousands of procedures with small, hand-held instruments. During the 1990s, Saye began experiencing pain and losing dexterity in his right hand due to a condition known as “Dupuytren’s contracture.” The condition worsened, and in 2001, at the age of 62, Saye stopped performing surgery and sought disability benefits.

At the time, Saye had three disability insurance policies with Provident. Each policy drew a distinction between disability resulting from injury and disability resulting from sickness. Under all three policies, Saye was entitled to monthly disability payments for life if he suffered a total disability caused by injury. If sickness caused the disability, however, his benefits extended only until he reached the age of 65 under two policies and for a total of forty-two months under the third.

Shortly before he turned 65, Saye received notification that his benefits would soon terminate pursuant to the “sickness” provision of his insurance policies. Saye objected, asserting that his disability resulted from an injury, rather than a sickness. Specifically, he claimed that his repetitive use of hand-held surgical devices over many years caused his condition.

When Provident denied his request for extended benefits, Saye filed suit, alleging that the insurer breached his insurance contracts, acted in bad faith by denying further coverage, and engaged in other tortious conduct. Saye eventually narrowed his claims against Provident to breach of contract and bad faith, with the breach of contract issue focused on whether he had suffered an injury entitling him to lifetime disability benefits or a sickness carrying limited coverage under the policies. Prior to trial, the trial court noted that if the jury found that Saye’s condition was a sickness, his claim that Provident acted in bad faith by denying him lifetime benefits necessarily failed and did not require jury resolution. Concluding that the case could best be managed through bifurcation, the trial court decided that the parties would try the “simple contract case” regarding coverage first, then conduct a separate trial on bad faith if necessary.

Following a multi-day trial, the jury was asked to determine whether Saye’s disability was caused by injury, sickness, or a combination of injury and sickness. The jury found that it resulted from sickness, thus ending his claim for lifetime disability payments. The trial court entered judgment for Provident and denied Saye’s motion for new trial. This appeal followed.

1. Saye argues that the trial court erred in bifurcating the breach of contract and bad faith claims. We disagree. Under OCGA § 9-11-42 (b), a trial court, “in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim.” The court has broad discretion in managing a trial, and its decision to bifurcate issues or claims will not be disturbed absent a manifest abuse of discretion. Cantrell v. Northeast Ga. Med. Center, 235 Ga. App. 365, 368 (1) (b) (508 SE2d 716) (1998).

No such abuse occurred here. The record shows that the trial court discussed bifurcation with the parties prior to trial, and Saye’s counsel agreed that “all of the bad faith in the world . . . [made] no difference” if Saye was not entitled to benefits under the policies past the age of 65. Noting the difficulties of managing a potentially complex and convoluted case, as well as the prejudice Provident might suffer if bad faith evidence tainted the coverage question, the trial court concluded that the coverage issue should be tried first, followed, if necessary, by the bad faith claim.

On appeal, Saye suggests that OCGA § 33-4-6 precludes a court from bifurcating breach of contract and bad faith claims against an insurer because, in his view, the statute contemplates that such claims be brought in “a single action.” Even if a single action is required, however, nothing in this case violates the requirement. Saye brought his claims against Provident in a single civil action, and they were resolved in that action, albeit through a bifurcated proceeding.

Moreover, the trial court was authorized to conclude, after extensive discussion with the parties, that bifurcation was appropriate in this case. Without dispute, coverage turned on whether Saye’s debilitating condition arose from an injury or sickness. And the discrete coverage issue had to be resolved first because, as even Saye’s counsel conceded, bad faith was irrelevant absent coverage. Given this logical break in proof, the possibility that bad faith evidence might taint the jury’s consideration of coverage, and the trial court’s need to manage a potentially complex case involving far reaching bad faith allegations, the trial court properly elected to bifurcate the claims. See Cantrell, supra.

2. Saye contends that the trial court erred in granting Provident’s motion in limine to exclude all evidence of bad faith and claims handling from the coverage trial. In Georgia, however, evidence that is unrelated to the questions presented to the jury must be excluded as irrelevant. See OCGA § 24-2-1. A trial court is tasked with determining relevance, and its ruling will be upheld on appeal absent an abuse of discretion. See Ahmed v. Clark, 301 Ga. App. 426, 428-429 (688 SE2d 361) (2009); Murphy v. Varner, 292 Ga. App. 747, 749 (2) (666 SE2d 53) (2008).

The trial court informed the parties that, during the coverage trial phase, they would not be allowed to “go into anything else in front of the jury other than the coverage issue.” It noted that the parties could give jurors context by describing how the disability claim and the litigation arose. But it found that issues regarding Provident’s handling of the claim and whether it abided by its claims manual related to bad faith, not coverage, and thus could not be addressed by either party during the coverage phase.

We find no error. Saye argues that the trial court wrongfully excluded critical claims-related information. The trial court, however, reasonably concluded that information involving bad faith and whether Provident acted appropriately with respect to claims administration exceeded the scope of the coverage issues. Accordingly, the trial court properly granted Provident’s motion in limine. See Murphy, supra.

3. Saye also argues that the trial court erred in allowing Provident to violate this in limine ruling. As proof of the violation, Saye points to several situations in which Provident argued or submitted evidence that he did not claim his disability arose from injury until after his benefits were terminated under the sickness clause. He also cites to Provident’s assertion during opening and closing statements that it fulfilled its obligations to him and paid all money owed under the insurance contracts.

Again, we find no error. Evidence relating to how Saye characterized his own condition was relevant to whether the condition arose from an injury or a sickness. And although Provident’s assertion that Saye received payment under the policy potentially touched on claims handling, it also gave the jury context for how the disability claim and the litigation arose. The trial court thus concluded that its in limine ruling had not been violated. The trial court had discretion in this regard, and Saye has not shown any abuse. See Lillard v. Owens, 281 Ga. 619, 622 (2) (641 SE2d 511) (2007); Yarborough v. State, 183 Ga. App. 198, 200 (3) (358 SE2d 484) (1987).

4. The record shows, however, that the trial court erroneously admitted hearsay at trial. Provident offered into evidence a document that it had generated reflecting a telephone conversation between one of its claims representatives and Saye. According to the document, the representative asked Saye: “Is your disability the result of an accident or sickness?” and Saye responded, “sickness.” Provident tendered the document as evidence of an inconsistent statement, asserting that Saye had previously testified that he never told Provident that his disability was a “sickness.” The claims representative did not testify about the conversation or Saye’s alleged statement, and Provident relied solely on the document to present evidence of the statement. Saye objected to the document’s admission, characterizing it as hearsay and noting that the trial court had previously found it to be hearsay. But the trial court concluded, after a lengthy discussion with the parties, that it fell within the business records exception to the hearsay rule. It thus admitted the document over Saye’s objection.

The business records exception extends to documents made in the regular course of business. See OCGA § 24-3-14 (b). To fall within the exception, however, a document must be “a memorandum or record of any act, transaction, occurrence, or event.” Id. As explained by our Supreme Court, the contents of a conversation are “not an act, transaction, occurrence, or event.” Mitchell v. State, 254 Ga. 353, 355 (5) (a) (329 SE2d 481) (1985). The document at issue here was nothing more than a record of a conversation between a Provident employee and Saye. The business records exception, therefore, does not apply. See id.; see also Bailey v. Edmundson, 280 Ga. 528, 533 (4) (630 SE2d 396) (2006) (business records exception does not apply to record of telephone conversation); Griffin v. Bankston, 302 Ga. App. 647, 653 (2) (691 SE2d 229) (2009) (telephone conversation memorialized in insurance file does not fall within business records exception).

On appeal, Provident argues that Saye did not sufficiently raise a hearsay objection below. Saye, however, clearly objected to admission of the document, characterizing its contents as hearsay, and the trial court ruled on the hearsay issue. Saye’s objection was sufficient to preserve his hearsay argument on appeal. Compare Holloway v. State, 278 Ga. App. 709, 713 (4) (629 SE2d 447) (2006) (“To preserve an objection upon a specific ground for appeal, the objection on that specific ground must be made at trial, or else it is waived.”).

Provident also contends that Saye acquiesced in the document’s admission because he declined the trial court’s offer to redact certain statements from it. The record shows that the parties and the court discussed the admissibility of the document at length, focusing on the “accident or sickness” question and response. Saye’s counsel argued that the document was inadmissible, and the trial court eventually rejected that challenge. It then offered to redact various portions of the document that did not relate to the “accident or sickness” exchange. Saye’s counsel turned down that offer, stating: “Just let it in. Just do the whole thing.”

Counsel’s statement must be viewed in context. He did not acquiesce in the admissibility of the document or the “accident or sickness” exchange. He clearly objected to that evidence. His objection having been overruled, he rejected only the trial court’s offer to redact other portions of the document. To find acquiescence or induced error here misconstrues counsel’s statement.

Finally, Provident argues that Saye’s “sickness” comment was admissible as a prior inconsistent statement. But the comment is contained within a hearsay document and only comes into evidence if the document is, itself, admissible. See Bailey, supra. Accordingly, because the document does not constitute a business record admissible under OCGA § 24-3-14, the trial court erred in admitting it. See Mitchell, supra; Bailey, supra; Griffin, supra.

Having determined that the document was inadmissible, we now turn to whether the trial court’s error in admitting it was harmful. Characterizing the error as harmless, Provident argues — and the dissent agrees — that Saye’s alleged statement that his condition is a “sickness” was cumulative of other evidence properly admitted at trial. It is true that “[t]he admission of hearsay is harmless when it is cumulative of legally admissible evidence showing the same fact.” DeGolyer v. Green Tree Servicing, 291 Ga. App. 444, 450 (5) (a) (662 SE2d 141) (2008).

But the alleged fact shown by the item of evidence at issue is that Saye described his own condition as resulting from a “sickness.” There is no properly admitted evidence showing that alleged fact. There is evidence that Saye’s treating physician characterized the condition as a disease and as not arising out of employment. Such evidence was certainly relevant. But contrary to the dissent, such evidence is very different from an admission by Saye himself. There is also evidence that, while benefits were being paid, Saye never described his condition as an “injury” and that he did not object when Provident first informed him that his claim fell under the “sickness” provision. Again, such evidence was relevant but very different from an affirmative admission by Saye himself that his condition is a sickness.

The ultimate issue at trial was whether Saye’s disability resulted from a sickness or from an injury. The alleged fact shown by the item of evidence at issue here is that Saye himself admitted that his condition is a sickness. That distinction is essential to this harmless error analysis. The dissent obscures that distinction, particularly by its reference to “the critical issue.”

Provident offered nonhearsay evidence that a sickness caused the disability. Saye, however, presented competing proof, including expert testimony, that his condition arose from injury. The evidence was not overwhelming either way, and the jury was required to resolve the factual dispute. In the midst of this competing proof, the jury was told through inadmissible hearsay that Saye, who is himself a medical doctor, had referred to his own condition as a sickness. Given that this hearsay evidence went directly to the ultimate issue before the jury, we cannot conclude that its erroneous admission was harmless. See Bagnell v. Ford Motor Co., 297 Ga. App. 835, 839 (2) (678 SE2d 489) (2009). Accordingly, we reverse.

Judgment reversed.

Smith, P. J., Barnes, P. J., Phipps, P. J., and Mikell, J., concur. Andrews and Dillard, JJ., dissent.

Andrews, Judge,

dissenting.

This voluminous record, culminating in the trial court’s entry of judgment on the jury’s verdict in favor of defendant Provident, contains substantial evidence that Saye’s condition was the genetically derived sickness known as Dupuytren’s contracture, and not an occupationally induced injury. In light of this record, any error in the erroneous admission of one document containing Saye’s admission that he suffered from a “sickness” was cumulative and therefore harmless. Even if we were to consider the issue to be Saye’s admission concerning his condition rather than the condition itself, moreover, this was cumulative given other evidence that throughout the several years during which he collected over $16,000 a month in disability payments, he and Provident repeatedly agreed that his condition was indeed a “sickness.” I therefore respectfully dissent to Division 4 of the majority opinion and to its reversal of the trial court’s entry of judgment on the jury’s verdict.

As the majority itself states, the issue before this jury was a simple one: “whether Saye’s disability was caused by injury, sickness, or a combination of injury and sickness.” (p. 75). This jury was shown detailed evidence that (a) Dupuytren’s contracture is a genetic condition (Saye’s mother also suffered from it); (b) that it predominantly affects white men of Scandinavian or Northern European descent (like Saye); (c) it typically develops in the fifth decade of life (Saye was 53 or 54 years old when he first experienced symptoms); and (d) it affects either or both hands, without regard to which is dominant (Saye’s case began in his right hand but soon developed in his left as well). In short, there was abundant evidence before this jury, apart from any statement or admission Saye may have made to this effect, to support its determination that Saye’s disability was caused by a hereditary disease rather than a job injury.

In light of this extensive evidence that Saye suffered a sickness rather than an injury, a one-word confirmation of this conclusion in response to a telephone representative’s question was cumulative, and any error arising from its admission harmless. Smith v. Stacey, 281 Ga. 601, 601-602 (642 SE2d 28) (2007) (any error arising from admission of hearsay evidence was harmless because “cumulative of legally admissible evidence showing the same fact”). The majority’s assertion to the contrary — that the fact at issue here is whether “Saye himself admitted that his condition is a sickness” (p. 79) — wrongly conflates a lawyer’s dispute over the admissibility of a single piece of evidence into the ultimate factual issue properly before this jury.

Finally, and even if we were to accept the majority’s characterization of Saye’s admission as the critical issue, the record shows that throughout the years during which he collected over $16,000 a month in disability payments, either Saye or his physician denied that his condition was job-related, characterized it as the “disease” known as “Dupuytren’s contracture” and never objected to Provident’s characterization of it in the same way. Only on June 9, 2004, five days after he was notified that he had received his last check, did Saye claim for the first time that his condition was caused not by sickness, but by “repetitive hand motion, vibration, and muscle strain experienced during his career as a surgeon.”

Decided June 24, 2011

Reconsideration denied July 18, 2011

Harris, Penn & Lowry, Jeffrey R. Harris, Darren W. Penn, Stephen G. Lowry, Jed D. Mantón, for appellant.

Smith, Moore & Leatherwood, H. Sanders Carter, Jr., Nikole M. Crow, for appellee.

Because of any new trial’s risk and cost, our law has long insisted that a party seeking a new trial “must show harm as well as error to prevail on appeal.” Great Western Bank v. Davis, 203 Ga. App. 473, 475 (3) (416 SE2d 899) (1992) (no reversible error where contents of document put into evidence through testimony but document not allowed). There is no reasonable justification for the majority’s voiding of a jury’s verdict after a trial resulting in more than a thousand pages of transcript alone. I therefore dissent.

I am authorized to state that Judge Dillard joins in this dissent.