text:
    A17A0469, A17A0692.
    DON JOHNSON BONDING COMPANY, INC. v. STATE OF GEORGIA.
    (803 SE2d 774)
   McFADDEN, Presiding Judge.

Don Johnson Bonding Company, Inc. appeals from final judgments on two criminal appearance bond forfeitures. In both cases, Don Johnson Bonding, the surety on the bonds, relies on language in OCGA § 17-6-71 (a) that directs trial courts to sign orders forfeiting bonds on the same day that the defendant fails to appear in court. We disagree. Because that language is directory, we affirm.

In January 2015 Anthony Gil Gonzalez was arrested for disorderly conduct and simple battery. Don Johnson Bonding posted a bond to secure his appearance. On January 21, 2016, the trial court entered an order directing the sheriff to arrest Gonzalez as he had failed to appear in court on January 11, 2016. It also entered an order forfeiting the bond and notifying Gonzalez and Don Johnson Bonding that it would conduct a hearing on June 27, 2016, on the issue of execution and final judgment on the forfeited bond. On July 7, 2016, the trial court entered final judgment forfeiting the bond.

In October 2015 Gonzalez was arrestedfor misdemeanor obstruction of an officer and disorderly conduct. Don Johnson Bonding again posted a bond to secure his appearance. On April 12, 2016, the trial court entered an order directing the sheriff to arrest Gonzalez as he had failed to appear in court on April 11,2016. It also entered an order forfeiting the bond and notifying Gonzalez and Don Johnson Bonding that it would conduct a hearing on August 23, 2016, on the issue of execution and final judgment on the forfeited bond. On September 20, 2016, the trial court entered final judgment forfeiting the bond. Don Johnson Bonding appeals both orders of forfeiture.

At issue is OCGA § 17-6-71 (a), which provides:

The judge shall, at the end of the court day, upon the failure of the principal to appear, forfeit the bond, issue a bench warrant for the principal’s arrest, and order an execution hearing not sooner than 120 days but not later than 150 days after such failure to appear. Notice of the execution hearing shall be served by the clerk of the court in which the bond forfeiture occurred within ten days of such failure to appear by certified mail or by electronic means as provided in Code Section 17-6-50 to the surety at the address listed on the bond or by personal service to the surety within ten days of such failure to appear at its home office or to its designated registered agent. Service shall be considered complete upon the mailing of such certified notice. Such ten-day notice shall be adhered to strictly. If notice of the execution hearing is not served as specified in this subsection, the surety shall be relieved of liability on the appearance bond.

Don Johnson Bonding argues that the plain language of the first sentence of the statute required the trial court to enter the order of forfeiture on the same day that the defendant failed to appear. Thus, it argues, the January 21, 2016 order was ten days too late and the April 12, 2016 order was one day too late.

Decided June 21, 2017

Reconsideration denied July 13, 2017.

William H. Smith III, for appellant.

Don Johnson Bonding concedes that in Easy Out Bonding v. State of Ga., 224 Ga. App. 706, 706-707 (1) (481 SE2d 834) (1997), we held that the “end of the court day” language is directory. But, it argues, since that case was decided, we have held that a 2009 amendment to the statute mandates strict compliance with the statute’s time requirements. See Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573 (707 SE2d 921) (2011).

The 2009 amendment added the last two sentences to the statute, mandating strict compliance with the time requirements for giving notice to the surety of the execution hearing on the forfeiture for the failure to appear. Ga. L. 2009, p. 688, § 2 (“Such ten-day notice shall be adhered to strictly If notice of the execution hearing is not served as specified in this subsection, the surety shall be relieved of liability on the appearance bond.”). The amendment did not alter the first sentence of OCGA § 17-6-71 (a), in which the “end of the court day” language appears. See Ga. L. 2009, p. 688, § 2.

The clear meaning of the statute as amended effective May 5, 2009, is that upon a failure to send notice of the execution hearing within ten days of the failure of the principal to appear, the surety is released and discharged of any further obligation to ensure the appearance of the principal and of any further liability on the bond.

Don Johnson Bonding Co. v. State of Ga., 309 Ga. App. 6, 8 (709 SE2d 50) (2011) (citation omitted). See also A.A. Professional Bail v. Perdue, 306 Ga. App. 72 (701 SE2d 542) (2010).

So Division 1 of Easy Out Bonding, 224 Ga. App. at 706-707, in which we held that the “end of the court day” language is directory, was not superseded by the 2009 amendment to the statute. And the rationale of that division still holds true: “Little would be gained by requiring the court to quickly issue an order [of forfeiture], which may then be ignored until service to the parties ten days later [of notice of the execution hearing on the forfeiture].” Id. at 706 (1).

Don Johnson Bonding does not dispute that it was given timely notice of the execution hearings. Consequently, the trial court did not err by entering final judgment on the forfeiture of the bonds.

Judgments affirmed.

Branch and Bethel, JJ., concur.

Robert M. Wynne, Solicitor-General, for appellee.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A17A0477.
    ODUM v. RUSSELL.
    (802 SE2d 829)
   BARNES, Presiding Judge.

Steven Douglas Odum appeals from several orders of the trial court, including an order denying his petition to modify custody and motion for contempt, an order awarding his ex-wife attorney fees and litigation expenses, and an order dismissing his initial notice of appeal. Following our review, we reverse the provisions in the final order modifying child custody We affirm the trial court’s award of attorney fees under OCGA § 19-6-2, but we vacate the trial court’s award of fees under OCGA § 19-9-3 and remand for further proceedings consistent with this opinion. We also find that Odum’s present appeal renders moot the order dismissing his initial notice of appeal.

Odum and Peggy Ann Russell were married in April 2004 and divorced in July 2008, and the original divorce decree granted them joint legal and physical custody of their minor child, who was two years old at the time of the divorce. The divorce decree further granted the parents, among other things, physical custody of the child on an alternating week-by-week basis, gave Odum final decision-making over the child’s education, gave Russell final decision-making over the child’s health-related issues, and gave both parents shared decision-making authority over the child’s extracurricular activities.

On February 10, 2014, Odum filed a petition to modify custody and child support and a motion for contempt. Odum alleged that a change in legal and physical custody of the child was warranted and in the child’s best interest based on changes in material circumstances, including that Russell had failed and refused to comply with certain terms and provisions of the divorce decree, did not consult with Odum about the child’s health and other issues, provided false and misleading information relating to the child, exhibited poor judgment in disciplining the child, and failed to properly supervise the child.

Russell filed her answer and a counterclaim, in which she alleged material changes in circumstances necessitating that she be granted final decision-making authority in “all matters relating to the minor child after consultation with [Odum],” requested that the summer custody/visitation be modified, and requested that child support be increased to reflect the substantial increase in Odum’s income. She also requested that she be awarded attorney fees and litigation expenses.

Following a hearing, and upon finding no “material change in circumstances that would authorize a change in custody or a reduction in the Mother’s parenting time,” the trial court entered an order on January 13, 2016, denying the petition to modify custody and directing that “the custody arrangements will remain the same with the parties retaining joint legal and joint physical custody.” The trial court found, however, that “parenting issues in the original divorce agreement need adjusting in the best interest of [the child].”

While finding no material change in circumstances, the trial court modified several parenting provisions of the original decree, including changing the final decision-making authority about education from the father to the mother, changing the decision-making about extracurricular activities from joint to the father, and deleting a week of the father’s custody during the summer. The order further provided that the child was to “remain in the current school district so long as the mother lives within the district, and . . . stay in the current school through her current fourth (4th) grade and through fifth (5th) grade, at which time she is to attend middle school, then high school in the same district.”

The trial court did find a substantial increase in Odum’s income since the final judgment and, adopting Russell’s child support worksheet referenced in her counterclaim, increased Odum’s monthly child support. The court found that Russell was not in contempt for violating the divorce decree and ordered that the parties undergo co-parenting counseling. The trial court directed Russell to submit her request for litigation expenses and attorney fees within 30 days of the entry of the order.

On February 11, 2016, Russell filed her application for attorney fees and litigation expenses, and on February 12, 2016, Odum filed a timely notice of appeal from the order denying his petition to modify custody. Subsequently, on February 23, 2016, Russell filed a motion to dismiss the notice of appeal, alleging that the order was not final because the motion for attorney fees and litigation expenses was pending and thus that Odum had to bring the appeal by application. Russell also sought attorney fees for having to respond to Odum’s notice of appeal.

On March 14, 2016, Odum filed a response to Russell’s February 11 request for attorney fees and litigation expenses, and on March 29, 2016, filed a response to her motion to dismiss his notice of appeal. Following a hearing on the motions, the trial court entered an order on March 31, 2016, granting Russell’s motion to dismiss Odum’s notice of appeal, and, on June 14, 2016, entered an order granting her an award of attorney fees and litigation expenses. Odum now appeals the January 13 final order, the March 31 order dismissing his notice of appeal, and the June 14 order awarding Russell attorney fees and litigation expenses.

1. Odum first contends that the trial court erred in modifying child custody because the trial court found there were no material changes in circumstances. We agree.

Once an award of child custody has been made, to change that arrangement, the trial court must determine whether there has been a material change in circumstances affecting the welfare of the child since the last custody award. Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). If so, the trial court then determines whether the child’s best interest will be served by a change in custody Todd v. Casciano, 256 Ga. App. 631, 632-633 (1) (569 SE2d 566) (2002). This Court will not interfere with a trial court’s decision “unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court’s finding, [we] will not find there was an abuse of discretion.” (Citation and punctuation omitted.) Autrey v. Autrey, 288 Ga. 283, 285 (4) (702 SE2d 878) (2010). However,

there is no precedent which would allow a trial court, absent a change in conditions affecting the welfare of the child, to modify custody. The best interest of the child should be utilized in deciding the case once a change in condition has been established. . . . While a “best interest of the child” standard applies to an initial determination of custody, it is applicable in a change of custody action only after there has been a showing of a change in condition materially affecting the child. Here the trial court determined that there had been no showing of such a change of conditions.

(Citation omitted.) Daniel v. Daniel, 250 Ga. App. 482, 484-485 (2) (552 SE2d 479) (2001) (once a divorce decree has been approved and a permanent child custody award has been entered, the test for use by the trial court in change of custody suits is whether there has been a change of condition affecting the welfare of the child). Moreover, it makes no difference that, as here, the proceeding is also one involving allegations of contempt. See Collins v. Billow, 277 Ga. 604, 605 (1) (592 SE2d 843) (2004) (a trial court lacks the authority to modify the terms of a divorce decree in a contempt proceeding).

The final divorce decree provided that Odum and Russell would have joint legal custody and further designated which parent would have the power to make decisions about the child’s education, activities, health care and religious training. See OCGA § 19-9-6 (5). Here, after finding that the “parenting issues in the original divorce agreement need adjusting,” and after expressly finding that there had been no material change in circumstances, the trial court changed the final decision-making authority over education from Odum to Russell, changed the decision-making authority over extracurricular activities from joint to Odum, and removed an extra week of custody during the summer from Odum.

Because the trial court expressly found that there had been no material change in circumstances, the trial court was not authorized to modify the original custody order by altering parental custody arrangements, which included arrangements over which parent would have final authority over certain decisions relating to the child. See OCGA § 19-9-6 (5). Accordingly, we reverse the trial court’s judgment in this respect. See Weickert v. Weickert, 268 Ga. App. 624, 627 (1) (602 SE2d 337) (2004) (noting that “a change of custody may be granted only if a new and material change in circumstances affects the child”) (citation and punctuation omitted).

We further note that, although the trial court is “expressly authorized to modify visitation rights, even on its own motion, during a contempt proceeding [pursuant to OCGA § 19-9-3 (b)],” Stewart v. Stewart, 245 Ga. App. 20, 21 (1) (537 SE2d 157) (2000), removing Odum’s extra week of custody during the summer was a modification of joint physical custody arrangements, not merely visitation, and absent a material change in circumstances, the trial court was not authorized to do so. Accordingly, the trial court’s modification of Odum’s summer custody arrangements is likewise reversed.

2. Odum also contends that the trial court erred in awarding attorney fees and litigation expenses to Russell pursuant to OCGA §§ 19-6-2 (a) and 19-9-3 (g).

We review a trial court’s decision whether to award attorney fees for an abuse of discretion. See Hoard v. Beveridge, 298 Ga. 728, 730 (2) (783 SE2d 629) (2016). Following a hearing, the trial court awarded Russell $500 in attorney fees pursuant to OCGA § 19-6-2 “for her defense of the Motion for Citation for Contempt,” and $500 in attorney fees “for [her] defense of the Petition to Modify Child Support.” The trial court also awarded Russell attorney fees and litigation expenses pursuant to OCGA § 19-9-3 “for [her] defense of the Petition to Modify Custody ... in the amount of $44,770.37 . . . payable directly to [Russell’s] attorney.”

(a) Fees awarded under OCGA § 19-6-2

As a general rule, Georgia law does not provide for the award of attorney fees even to a prevailing party unless authorized by statute or by contract. OCGA § 19-6-2 (a) authorizes attorney fees against either party, upon consideration of their financial circumstances, where the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case. . . . Georgia courts have thus approved attorney fees pursuant to OCGA § 19-6-2 when awarded as part of the expense of litigation in the original alimony and divorce proceedings, and in subsequent actions for contempt based on a party’s noncompliance with the divorce or alimony decree.

(Citation and punctuation omitted.) Cothran v. Mehosky, 286 Ga. App. 640, 641 (649 SE2d 838) (2007).

Although Odum contends that the trial court erred in awarding attorney fees under OCGA § 19-6-2 for the defense of the petition to modify child support,

[t]he statute grants discretion in awarding attorney fees whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case. The action filed by [Odum] was an action to modify [custody], an action for contempt, and an action to modify child support. The action was not purely an action for modification [of custody]. Therefore, under OCGA § 19-6-2, the award of attorney fees was in the discretion of the court.

(Citations and punctuation omitted.) McDonogh v. O’Connor, 260 Ga. 849, 849-850 (400 SE2d 310) (1991) (court had discretion to award attorney fees because action for modification of visitation and child support was joined with an action for contempt for failure to comply with the original divorce decree). Compare Cothran v. Mehosky, 286 Ga. App. at 642 (although contempt proceedings arose when the ex-wife later failed to comply with the court’s order for DNA testing, proceedings did not arise out of the original divorce case, as required by OCGA § 19-6-2 but arose instead out of the paternity and modification action).

Here, the $1,000 award to Russell under OCGA § 19-6-2 was not based solely on child support modification but also on contempt allegations that arose out of the original divorce decree; thus, the trial court’s award pursuant to OCGA § 19-6-2 was not an abuse of its discretion. Accordingly, the award of fees under OCGA § 19-6-2 is affirmed.

(b) Fees awarded under OCGA § 19-9-3

The trial court also awarded litigation expenses and attorney fees pursuant to OCGA § 19-9-3 “for [the] defense of the Petition to Modify Custody ... in the amount of $44,770.37.” However, it is unclear to what extent the trial court’s erroneous decision to modify the decision-making authority of the parents and to modify summer custody affected the award of fees under OCGA § 19-9-3. Therefore, we vacate that portion of the order awarding Russell attorney fees pursuant to OCGA § 19-9-3 and remand the case to the trial court for further proceedings consistent with this opinion.

3. Odum contends that the trial court erred in granting Russell’s motion to dismiss his initial notice of appeal. This enumeration is now moot, however, given that Odum was able to later appeal the final order and have his arguments considered on the merits, as reflected supra in Divisions 1 and 2. See Collins v. Lombard Corp., 270 Ga. 120, 121 (1) (508 SE2d 653) (1998) (“a case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights”); Richardson v. Phillips, 302 Ga. App. 305, 310 (2) (690 SE2d 918) (2010) (“Acase is considered moot if the parties’ dispute has been resolved, such that the issues involved have become academic or dead.”) (citations and punctuation omitted).

Decided June 20, 2017

Reconsideration denied July 13, 2017.

Gibson, Deal & Fletcher, James B. Deal, Sr., for appellant.

David S. Lipscomb, for appellee.

Although Odum appears to contend that the issue is not moot because he was held responsible for the legal fees and expenses associated with the dismissal of his notice of appeal, this argument is not supported by a requisite reference to the record reflecting those particular fees, and “we will not cull the record on a party’s behalf to locate information in support of the party’s argument.” Doherty v. Brown, 339 Ga. App. 567, 573 (2), n. 4 (794 SE2d 217) (2016).

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded with direction.

McMillian and Mercier, JJ., concur.

       Odum does not challenge the trial court’s finding as to the increase in child support payments in this appeal.

       “Joint legal custody” means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
      OCGA § 19-9-6 (5).

       In support of her application for award of attorney fees and litigation expenses, Russell included an itemized list of her attorney’s billed time, charges, and other expenses, with an affidavit detailing the fees. The affidavit and bills reflected that the total fees and expenses were $42,492.33, that Russell had paid $37,439.76 of the fees, and that there was an unpaid balance of $5,052.57.

       OCGA § 19-9-3 (g) provides, in pertinent part:
      Except as provided in Code Section 19-6-2, and in addition to the attorney’s fee provisions contained in Code Section 19-6-15, the judge may order reasonable attorney’s fees and expenses of litigation, experts, and the child’s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge. . . .

       We note, however, that OCGA § 5-6-34 (a) (11) provides a right of direct appeal from “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders.” Thus, the trial court’s custody order was directly appealable pursuant to OCGA § 5-6-34 (a) (11), even though the matter of attorney fees and litigation expenses was pending in the case. See Woodruff v. Choate, 334 Ga.App. 574, 576 (1) (a) (780 SE2d 25) (2015).


author: McMillian, Judge.

text:
    A17A0117.
    LAWRENCE v. THE STATE.
    (802 SE2d 859)
   McMillian, Judge.

Appellant Kendell Lawrence was convicted of armed robbery, kidnapping, rape, aggravated sodomy, and possession of a firearm during the commission of a felony, involving two successive victims on the same night. After the trial court denied Lawrence’s motion for new trial, as amended, Lawrence then filed this appeal. Finding no error, we affirm.

Lawrence began his crime spree on the evening of December 8, 2011. Sometime between 6:00 and 7:00 p.m., M. M. exited a MARTA bus on Old National Highway near her home and walked to a convenience store, where she purchased snacks using her EBT debit card. After she made her purchases, she started walking toward her neighborhood when she noticed a vehicle, which she said looked older and was “loud,” speed past her, and a short time later she noticed a man walking toward her. As the man approached her, he told her not to do anything crazy, and she heard a clicking sound, which she said sounded like a gun being cocked. The man asked her if she had money, and she told him she did not have any cash. He then blindfolded her, grabbed her arm, and walked her across the street to a vehicle where they both got into the back seat. After someone else started driving the car, they took her cell phone from her pocket, and then the person in front instructed the person next to her to have her lie down so she did.

M. M. testified that the car came to a stop about seven to ten minutes later, and she was told to exit the vehicle. M. M. remained blindfolded, but she said that it felt like she was walking through a wooded area down a gravel or dirt road. After a minute they came to a house, and the men helped her crawl through a window to get inside, where she noticed a musty smell. The men walked her upstairs where he instructed her to take off her “bottoms,” which she did. The men then took turns sexually assaulting her vaginally and orally, and M. M. testified that when one of the men put his penis in her mouth, she tasted rubber that she thought was from a condom. A short time later, the men made her use a douche and also gave her a wet washcloth so she could wash out the inside of her mouth. When she finished, she was told to get dressed.

At some point, the men also asked the victim if she had any money on her EBT card, and they took the card and her backpack. She said they helped her crawl back out the window, and they got back in the car and drove her back to the area where they had abducted her. They removed the blindfold and pointed her in the direction they wanted her to walk and told her not to look back. After she heard them driving away, she ran into a nearby business where she told them she had been robbed and asked for a phone to call police and her boyfriend. Her boyfriend and her mother arrived, and M. M. was transported to Grady, where she underwent a sexual assault examination.

Later that same night, the second victim, L. W., went to a bar where she worked to meet friends for drinks. She said it was approximately 11:00 p.m. when she arrived, and she parked in a lighted area where she sat in her car to wait on her friends. While she was waiting, she took about $600, her wallet, and credit cards and placed them in the glove box because she did not want to take them inside the bar with her.

When L. W. saw her friend’s car pull into the parking lot, she opened her car door and started to exit her vehicle. She noticed a “raggedy sounding” faded red or burnt orange older model “rodeo” or similar type vehicle pulling into the parking lot. As she was locking her car door from the outside, a man, whom she described as approximately five feet seven inches tall and brown skinned, approached her and asked for a cigarette. When she reached for a cigarette, she felt him put a gun to her side. She offered him her purse, and he told her to open the car and that he knew that she had something inside the car. He then told her to get back inside her car, and as she complied, she heard the noisy vehicle she had noticed earlier start up again. She said she was crying and her hands were still shaking so badly she could not drive, and he told her to “get it together,” or that he would kill her.

L. W. started driving, with the man giving her directions to drive to Old National Highway He also went through the glove box and took out the money she had placed there. The man then instructed L. W. to go to the ATM to withdraw money from her account with her check card, which she did.

L. W. returned to Old National Highway, and the man continued to give her directions about where to drive. After about ten minutes, they drove into a residential neighborhood where she noticed a distinctive sign, and they turned onto a dead-end road and came to a stop. The man instructed her to turn off the lights and the car, and she heard someone tapping on the passenger window next to where the man was seated. The man opened the window, and she heard him speaking to the other man, who said they should “dead her.” The men then blindfolded her. The second man, whom L. W. described as having a deeper voice, then came around to the driver’s door, opened it, took L. W. by the arm, and lifted her out of the car. She testified she felt one of the men place a gun against her back, and she could tell when they left the paved surface and began walking on something crunchy, which she saw was pine straw when she peered under her blindfold.

Eventually, she could hear a window being raised, and she was assisted in stepping through. After leading her up some stairs, they took her to a room where they told her to undress. She said that she could tell the floor in the room was carpeted and that it was damp and had an odor like it was old. The men then took turns sexually assaulting her vaginally and orally. After the men finished with her, the deeper voiced man inserted something into her vagina, and she could feel the liquid going in and running down her legs. She then heard what sounded like water being squeezed out of a wet towel, and she felt someone put the towel in her mouth and wipe out the inside of her mouth. She said that she was then cleaned front to back around her vagina and “behind.” They repeated the process, and then they helped her put on her clothes.

The softer voiced man then took L. W. back to her car, told her to count to 100, and allowed her to drive away. She drove back to the bar where she worked, found her manager there, and called 911. The police came and she was transported to the hospital, where a sexual assault examination was performed.

After she left the hospital with a male friend who had met her there, she told him that she wanted to retrace her steps to see if she could find where the men had taken her. They were able to find the place where she thought she had been taken, which turned out to be part of the Pine Tree Trail Condominium complex. There, they found that the police were already at the location based on her description of where the men had taken her. She showed police the unit where she had been taken and then took them to the room where she had been raped. She testified there were visible wet spots on the floor where she had been made to douche, and a police investigator said that the physical condition of the location was consistent with what the victim had told police, including the fact that there was no running water inside the condo.

The evidence also showed that at that time, Lawrence was living in unit 1113 of the Pine Tree Trail condominium complex with his father and father’s girlfriend, Jasmine Morgan. The evidence also showed that he owned a red Isuzu SUV, which was usually parked in front of their condo. Deantwan Allen also lived in the condominium complex with his girlfriend, Ashley McDaniel, and her family Allen and Lawrence were close friends and were often together.

McDaniel, her mother, and J asmine Morgan each testified and/or gave statements to police about the events of December 8, 2011. McDaniel’s mother testified that she was walking home from the bus stop after work when Allen and Lawrence drove by in Lawrence’s vehicle and asked her if she wanted a ride. She accepted and they dropped her off outside her condo. McDaniel confirmed that she saw Allen when she looked out the window as Lawrence was dropping off her mother around 5:00 to 6:00 p.m. She did not see Allen again until the next day

Morgan testified that on the night of December 8, 2011, she was home alone and had fallen asleep on the sofa watching television. She woke up as she heard someone come into the house and go into the kitchen. She got up and looked outside and did not see Lawrence’s red Isuzu parked in its usual spot in front of the condo, but when she went upstairs and looked, she saw it was parked farther away than normal, more up the hill. She testified that the unit next door to their unit was empty and had been so for a number of years.

In her statement to police, Morgan recalled additional details about that night, including that the person who came in used a key to enter the condo, and that she heard them go into the kitchen and then leave a short while later. She said that she asked Lawrence about it the next day, and he told her that he had given the key to Allen to come into the house. She also told police that she had seen Allen with a firearm.

L. W. later met with a Georgia Bureau of Investigation sketch artist to create a sketch of the softer voiced man who had approached her in the parking lot and abducted her. Shortly after the incident, McDaniel’s mother saw a sketch on the news that she thought might look like Allen, and McDaniel looked at it also. She testified at trial that she asked Allen about the sketch that was on television. Initially, she testified only that he told her not to worry about it and, at first, continued to deny that he said anything specific about Lawrence’s involvement, but after repeatedly being refreshed with her statement to police, McDaniel recalled telling police that Allen had told her that he got caught up in something with Lawrence, that a girl was robbed and raped, and that it was Lawrence who raped the girl.

Evidence was also presented that the forensic samples collected in the sexual assault examinations performed on L. W. failed to reveal the presence of any human male DNA, which the examiner explained could be the result of her being forced to wash or the use of condoms. Human male DNA was detected on some of the swabs obtained from M. M., though, and this DNA was subsequently found to match Allen’s profile. L. W. also identified Allen from a photographic lineup, and M. M.’s phone was found under his mattress in the condo where he lived with McDaniel. L. W. was also able to identify Lawrence’s vehicle as the one used in her abduction, and upon searching it, the police found the EBT receipt from M. M.’s purchase at the convenience store on Old National Highway

1. Lawrence first contends that the trial court erred by allowing McDaniel to testify that Allen told her that Lawrence raped the women, arguing that the statements were hearsay and not subject to the co-conspirator exception. OCGA § 24-8-801 (d) (2) (E) provides that “[ajdmissions shall not be excluded by the hearsay rule,” and defines an “admission” as including a statement offered against a party which is

[a] statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy A conspiracy need not be charged in order to make a statement admissible under this subparagraph.

The trial court found the statements Allen made to his girlfriend were made during the concealment phase of the conspiracy and that the statement was admissible even if the girlfriend who testified about Allen’s statement was not part of the conspiracy On appeal, Lawrence asserts that the exception does not apply because the trial court erroneously found that the girlfriend was a co-conspirator and, in any event, the statement was not made in furtherance of the conspiracy

We begin our analysis by considering the text of OCGA § 24-8-801 (d) (2) (E). Mahalo Investments III, LLC v. First Citizens Bank & Trust Co., Inc., 330 Ga. App. 737, 738 (769 SE2d 154) (2015). Contrary to Lawrence’s assertions, nothing in the text of the statute requires that McDaniel as the testifying witness also be a co-conspirator for the exception to apply See Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 560 (4th ed. 2016) (“In fact, Rule 801 (d) (2) (E) does not necessitate that the witness testifying to co-conspirator statements be a co-conspirator, instead only requiring that the declarant be a co-conspirator.”) Because it is undisputed that Allen was a conspirator, whether McDaniel was also a co-conspirator is not material to our analysis of whether Allen’s statement to McDaniel falls within the co-conspirator exception.

We now turn to the question of whether Allen’s statement was made in furtherance of the conspiracy. OCGA § 24-8-801 (d) (2) (E) specifically provides that statements made during and in furtherance of the conspiracy are admissible, including statements made during the concealment phase. And our Supreme Court has held that “[f]or purposes of the hearsay exception, a conspiracy is deemed to endure so long as the parties thereto attempt to conceal either the crime itself or the identity of the perpetrators.” (Citation and punctuation omitted.) Terrell v. State, 300 Ga. 81, 85-86 (2) (793 SE2d 411) (2016) (decided under former OCGA § 24-3-5).

Although Lawrence acknowledges that concealment maybe part of a conspiracy, he asserts that the particular statement was not made in furtherance of the conspiracy because Allen merely sought to assign blame to someone else for the crimes. See United States v. Blakey, 960 F2d 996 (11th Cir. 1992). However, Blakey is readily distinguishable. The co-conspirator in Blakey made the incriminating statements to the bank’s fraud investigator, which, as the Eleventh Circuit held, were made to shift the focus of the forged check investigation away from himself to the other conspirator. Id. at 999.

In contrast, Allen made the statement to his girlfriend after she became suspicious of his involvement in the crime. By attempting to minimize the extent of his involvement, Allen was trying not only to mollify his girlfriend but also to dissuade her from going to police, which in turn furthered the aim of covering up both men’s involvement in the crime. See Grimes v. State, 296 Ga. 337, 346 (2) (a) (iii) (766 SE2d 72) (2014) (“The concealment phase was ongoing because the statements in question were not made to police, the investigation was ongoing, and the other conspirators . . . were still at-large.”). It can hardly be doubted that concealing their identities was one of the primary aims of the conspiracy as demonstrated by the fact that they blindfolded the victims and took great efforts to remove any DNA from the victims’ bodies. Accordingly, Allen’s statement was properly admitted under OCGA § 24-8-801 (d) (2) (E).

2. Lawrence also contends that the trial court erred by failing to instruct the jury on the necessity of accomplice corroboration under OCGA § 24-14-8 because the only direct evidence that he committed the crimes was McDaniel’s testimony that Allen told her that Lawrence committed the rapes. Lawrence acknowledges that although he objected when the trial court indicated its refusal to give the charge at the charge conference, he did not voice any objection to the failure to charge following the trial court’s instructions to the jury, and thus the refusal to charge will be reviewed only for plain error. Merritt v. State, 292 Ga. 327, 330 (2) (737 SE2d 673) (2013) (objection at charge conference does not preserve objection to charge as subsequently given); Carruth v. State, 290 Ga. 342, 347-48 (6) (721 SE2d 80) (2012) (same); Jones v. State, 340 Ga. App. 568, 573 (4) (798 SE2d 87) (2017).

In reviewing a failure to charge for plain error, “we will reverse the trial court only if the instructional error was not affirmatively waived . . . , was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.” (Citation and punctuation omitted.) Herrington v. State, 300 Ga. 149, 151 (2) (794 SE2d 145) (2016); Ferguson v. State, 335 Ga. App. 862, 870 (3) (783 SE2d 380) (2016).

It is true that our case and statutory law plainly require a charge on corroboration when an accomplice is the only witness testifying about an inculpatory fact. And Lawrence correctly points out that our Supreme Court has specifically determined that the failure to do so may under certain circumstances constitute plain error necessitating a retrial. See Stanbury v. State, 299 Ga. 125, 129 (2) (786 SE2d 672) (2016). However, we have found no direct authority, and Lawrence has cited none, in which our appellate courts have held that an accomplice corroboration charge must be given when, as here, Allen’s statement is introduced by another witness and he does not testify at trial. And OCGA § 24-14-8, upon which the accomplice corroboration charge is based, applies by its own terms when “the only witness is an accomplice,” and thus also does not clearly answer the question of whether a corroboration charge is required under the circumstances of this case. Because it is not “obvious beyond reasonable dispute” from either controlling precedent or the clear text of a statute, we find that Lawrence has failed to establish that the trial court plainly erred by failing to give this charge. See Stanbury, 299 Ga. at 129 (2).

Decided June 23, 2017

Reconsideration denied July 14, 2017

Tyler R. Conklin, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Michael V. Snow, Assistant District Attorneys, for appellee.

3. Lastly, Lawrence argues that without the testimony concerning the hearsay statement Allen made to McDaniel about his involvement, the evidence is insufficient to support his convictions. However, as set out in Division 1, we have determined that the trial court did not err in admitting this testimony Moreover, we have independently examined and described the evidence presented at trial and find it was more than sufficient to authorize a jury to find Lawrence guilty of the crimes charged. See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Accordingly, Lawrence is not entitled to reversal on this basis.

Judgment affirmed.

Barnes, P. J., and Mercier, J., concur.

       EBT debit cards are issued to food stamp recipients.

       The wet floor was consistent with L. W. being taken to the same spot where M. M. had been raped and forced to douche and wash earlier in the evening.

       L. W. never saw the other man’s face and was unable to make any identification of him to police.

       A recording of numerous telephone conversations between Allen and McDaniel made while he was in jail were played for the jury, and during one call he also implicated Lawrence. Lawrence does not specifically and separately challenge the admission of this recording.

       A motion in limine was filed seeking a ruling on this issue prior to trial. On appeal, Lawrence does not contend that the State failed to prove that a conspiracy existed or that the conspiracy included Allen and Lawrence.

       Prior to the enactment of the new Evidence Code, Georgia’s co-conspirator exception to the hearsay rule was found in former OCGA § 24-3-5, which provided: “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.” Notably, former OCGA § 24-3-5 did not explicitly require the statement to be “in furtherance” of the conspiracy to be admitted. See Paul S. Milich, Courtroom Handbook on Georgia Evidence, Co-Conspirator’s Statements (April 2017) (“Georgia cases under the pre-2013 rule usually ignored the ‘in furtherance requirement’ that defined the exception at common law.”). Thus, caution is required before applying cases construing former OCGA § 24-3-5 in analyzing the co-conspirator exception now codified at OCGA § 24-8-801 (d) (2) (E). See Peoples v. State, 295 Ga. 44, 51 (3) n.4 (757 SE2d 646) (2014) (noting that former OCGA § 24-3-5 is broader than Federal Rule of Evidence 801 (d) (2) (E) and that our new OCGA § 24-8-801 (d) (2) (E) generally tracks the federal rule).

       In his reply brief, Lawrence cites cases in which this Court has considered evidentiary sufficiency challenges based on lack of corroboration of an accomplice’s statement that were admitted through the “third hand” testimony of other witnesses. But none of these cases plainly address the issue of whether the trial court was required to instruct the jury on the necessity of corroboration of the witness’s testimony about the accomplice’s inculpatory statement. See Adams v. State, 191 Ga. App. 16, 18 (3) (381 SE2d 69) (1989) (corroboration necessary when accomplice’s statement to police was admitted at trial out of necessity); Davis v. State, 178 Ga. App. 760, 762 (2) (344 SE2d 730) (1986) (issue was whether accomplice’s prior inconsistent statement implicating defendant was sufficiently corroborated); McCauley v. State, 177 Ga. App. 426 (1) (339 SE2d 399) (1986) (co-conspirator’s prior inconsistent statement was the only evidence linking defendant to the crime and thus reversal required when no corroborating evidence); McConnell v. State, 166 Ga. App. 530, 531 (2) (304 SE2d 733) (1983) (issue was whether prior oral statements of accomplice admitted as substantive evidence were properly corroborated). Although these cases stand for the proposition that an accomplice’s statement must be corroborated even when it comes in through the testimony of third parties, the issue of whether an accomplice corroboration charge was or should have been given was not raised or addressed. As we have explained on numerous occasions, “questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” (Citations and punctuation omitted.) Palmer v. State, 282 Ga. 466, 468 (651 SE2d 86) (2007).

       We note that our Supreme Court has recently held that “when conducting review of asserted plain error under OCGA § 17-8-58 (b), . . . whether an error is ‘clear or obvious’ is judged at the time of the appellate court’s review.” Lyman v. State, 301 Ga. 312, 317 (2) (800 SE2d 333) (2017).

       We note that although the trial court found that McDaniel may have become a co-conspirator, the trial court did not find that she was an accomplice.


author: Reese, Judge.

text:
    A17A0132, A17A0208.
    CHEROKEE FUNDING LLC et al. v. RUTH et al.; and vice versa.
    (802 SE2d 865)
   Reese, Judge.

The Appellants, Cherokee Funding LLC, Cherokee Funding II, LLC, Cherokee Funding III, LLC, and Reid Zeising (collectively, “Defendants”), appeal from the trial court’s orders denying in part and granting in part their motion to dismiss this putative class action for damages premised on violations of the Georgia Industrial Loan Act (“GILA”), and the Payday Lending Act (“PLA”). The Cross-Appellants, Kimberly Oglesby (the Plaintiff who sued individually and on behalf of others similarly situated) and Ronald Ruth (collectively, “Plaintiffs”), seek review of the same orders. For the reasons set forth infra, we affirm in Case No. A17A0208 and reverse in Case No. A17A0132.

Viewed in favor of the Plaintiffs, the record shows that Ruth and Oglesby retained attorney Michael Hostilo to represent them in personal injury lawsuits after being involved in separate unrelated vehicle accidents. During the course of Hostilo’s representation, the Defendants entered into separate “funding agreements” with Ruth and Oglesby and provided funds to them, each in a principal amount of less than $3,000. Ruth claims that when his personal injury lawsuit settled in February 2016, the Defendants sought repayment of about $84,000, which encompassed about $5,300 in principal. Oglesby claims that she borrowed around $400 from the Defendants and, when her personal injury litigation was resolved in 2014, Hostilo deducted about $1,000 to pay the Defendants for her “loans.”

The Defendants moved to dismiss the complaint for failure to state a claim, arguing that they were not subject to the PLA or the GILAbecause the “funding agreements” at issue were not “loans,” but rather were “investments” in the Plaintiffs’ litigation. After a hearing, the trial court granted in part and denied in part the Defendants’ motion, dismissing the GILA claims, but allowing the PLA claims to proceed. The Defendants filed a motion seeking a certificate of immediate review. The trial court certified its orders for immediate review. This Court granted the application for interlocutory appeal, and these appeals follow.

This Court reviews a trial court’s ruling on a motion to dismiss de novo. “A motion to dismiss for failure to state a claim should be sustained if the allegations of the complaint reveal, with certainty, that the plaintiff would not be entitled to relief under any state of provable facts asserted in support of the complaint.” With these guiding principles in mind, we turn now to the parties’ specific claims of error.

Case No. A17A0132

1. The Defendants assert that the trial court erred in denying their motion to dismiss the Plaintiffs’ PLA claim, arguing that under the rule of lenity, the PLA does not apply because the funding agreements do not constitute “loans” that are regulated by the statute. We agree.

In reviewing the statutes at issue in this appeal, we are mindful that in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” Toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” Simply put, when the language of a statute is “plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.”

The PLA prohibits “making, offering, arranging, or acting as an agent in the making of loans of $3,000.00 or less” unless permitted under certain other federal and state laws, which are delineated in the PLA. Although the PLA does not define the term “loan,” the statute applies, by its terms, to “all transactions in which funds are advanced to be repaid at a later date, notwithstanding the fact that the transaction contains one or more other elements[.]”

The PLA is a criminal statute. Thus, under the rule of lenity, it “must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted.” Further, the General Assembly lacks the power to “legislate the truth of facts” and to ‘Tind the courts by recitals of facts in a public statute.”

In the present case, the funding agreements state as follows: “[i]f Client complies with this funding agreement and recovers nothing from the legal claim, then Cherokee Funding shall receive nothing.”

The funding agreements also contain the following language:

THIS IS A NON RECOURSE TRANSACTION: This Agreement, and the obligation to pay, is speculative, and contingent upon the successful resolution of the litigation. Cherokee Funding is taking a high risk giving me[, the Client,] this Funding. I understand that there is a premium charged in doing so. I have been advised that I should not accept this Funding if I have any other alternative to meet my immediate economic needs. However, Cherokee Funding will be paid only from the Proceeds of the lawsuit, and agrees not to seek money from me[, the Client,] directly in the event the lawsuit is not successful. IF THERE IS NO RECOVERY OF PROCEEDS BY THE CLIENT, THEN CHEROKEE FUNDING SHALL RECEIVE NOTHING AND THERE IS NO ASSOCIATED OBLIGATION TO PAY THE AMOUNTS ADVANCED.

A plain reading of the quoted portion of the funding agreements demonstrates that the use of the phrase “shall receive nothing” in conjunction with “no associated obligation to pay” means that the requirement of repayment is completely contingent upon the recovery of proceeds from the related legal claims. Stated another way, if the Plaintiffs had not prevailed in their personal injury litigation, the Defendants would have received nothing.

Thus, we conclude that, based on the plain language of OCGA §§ 16-17-1 (a) and 16-17-2 (b), the funding agreements do not fall under the auspices of “loans” under the PLA. Instead of being loans that are regulated by the PLA, the funding agreements appear to be investment contracts.

An “investment contract” is not statutorily defined in Georgia. However, the United States Supreme Court has devised a test to determine if “a particular scheme is an investment contract[,]” The test is “whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.” The Supreme Court of Georgia has adopted this test.

In the present case, the funding agreements specifically state that “no part of the funding amount will be used to support, direct or maintain the legal claim or its prosecution” and that the agreements provide the Defendants with “a security interest from [the Plaintiffs].” From the language of the funding agreements, it is clear that the Defendants and the individual Plaintiffs are involved in a common venture, which is to prevail in the underlying personal injury lawsuits. However, the phrase indicating that the monies received are not to be used to fund the underlying personal injury litigation shows that the Defendants are not directly involved in the pursuit or the outcome of the individual Plaintiffs’ legal actions that the funding agreements reference.

Consequently, we find that the Defendants invested money in the outcome of the personal injury lawsuits of the Plaintiffs, with a return on the investments that were attributable to the efforts of others, namely the Plaintiffs and their counsel, which is consistent with the United States Supreme Court’s broad construction of what constitutes an investment contract. Applying the rule of lenity and strict construction, we must conclude that the funding agreements at issue are not loans and, thus, are not subject to the PLA.

Therefore, the trial court erred in denying the Defendants’ motion to dismiss the PLA claim.

Case No. A17A0208

2. The Plaintiffs argue that the trial court erred in granting the Defendants’ motion to dismiss claims based upon the GILA. We disagree.

The GILA was enacted to

provide a source of regulated loans for those who had been borrowing at usurious interest rates from loan sharks, street shylocks and wage buyers. [The] GILAapplies to all persons, defined as individuals, copartnerships, associations, corporations, and all other legal and commercial entities, engaged in the business of making loans in amounts of $3,000 or less, unless such persons are expressly exempted.

The GILA defines a “loan” as “any advance of money in an amount of $3,000.00 or less under a contract requiring repayment and any and all renewals or refinancing thereof or any part thereof.” As used in OCGA § 7-3-3 (4), the phrase, “requiring repayment” has a clear and unambiguous requirement that a loan must be repaid. This is bolstered by the General Assembly’s stated intent that,

[t]he purpose of this chapter is to authorize and provide regulation of the business of making loans of $3,000.00 or less and to bring within the regulation of this chapter and within its provisions all loans of $3,000.00 or less, whether or not made by a person organized or operating under the provisions and authority of some other statute, except those persons and loans expressly exempted by the terms of this chapter. Even though authorized by other statutes of force, such loans and the persons making them, unless expressly exempted, shall be within the operation of this chapter in accordance with its terms.

As explained in Division 1, supra, we conclude that the funding agreements are investment contracts and not loans. Unlike loans, the funding agreements do not always require repayment. Any repayment, under the funding agreements, is contingent upon the direction and time frame of the Plaintiffs’ personal injury litigation, which may be resolved through a myriad of possible outcomes, such as settlement, dismissal, summary judgment, or trial.

While the litigation funding engaged in by the Defendants, with its associated fees and charges, may legitimately be labeled financially insidious, it is the General Assembly, not this Court, which must, if it so chooses, expressly promulgate laws to regulate this activity. Because we view the funding agreements between the Plaintiffs and the Defendants as investment contracts, it was not error for the trial court to find that the GILA did not apply. Thus, the trial court properly dismissed the GILA claims.

Decided June 27, 2017

Reconsideration denied July 14, 2017

King & Spalding, Merritt E. McAlister; Hun ter, Maclean, Exley & Dunn, Bradley M. Harmon, Allan C. Galis, for Cherokee Funding LLC et al.

Karsman, McKenzie & Hart, Stanley M. Karsman, Jeremy S. McKenzie, C. Dorian Britt; Savage & Turner, Brent J. Savage, R. Bartley Turner, Kathryn H. Pinckney, for Ruth et al.

Judgment affirmed in Case No. A17A0208. Judgment reversed in Case No. Al 7A0132.

Dillard, P. J., and Bethel, J., concur.

       OCGA § 7-3-1 et seq.

       OCGA § 16-17-1 et seq.

        LaSonde v. Chase Mtg. Co., 259 Ga. App. 772, 774 (1) (577 SE2d 822) (2003).

       Michael Hostilo is not a party to this appeal.

       The record indicates that after initially receiving $1,000 from the Defendants, Ruth entered into additional funding agreements, receiving at least another $2,300 in principal.

       The record does not contain the funding agreement signed by Oglesby or any of her requests for funding from the Defendants.

       Zeising also moved to dismiss all claims against him on the ground that he was shielded from liability by the Georgia Limited Liability Company Act, OCGA § 14-11-100 et seq. The trial court converted Zeising’s motion to dismiss on this issue to a motion for summary judgment. That ruling is not at issue in the instant appeal.

        Houseboat Store v. Chris-Craft Corp., 302 Ga. App. 795 (692 SE2d 61) (2010).

        LaSonde, 259 Ga. App. at 774 (1) (citation omitted).

       In their appeal, the Defendants also appear to seek affirmation of the trial court’s ruling that the GILA does not apply. It is well settled in Georgia that appellate courts are courts of review for the correction of errors. See Alpha Nursing Svcs. v. Vickery, 319 Ga. App. 533, 537 (3), n. 6 (732 SE2d 760) (2012) (“In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling.”); see also OCGA § 5-6-40; Court of Appeals Rule 25. In their cross-appeal, the Plaintiffs have alleged in their enumeration of error that the trial court erred in finding that the GILA does not apply in this action.

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d337) (2013) (citation and punctuation omitted); accord Arby’s Restaurant Group v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012); Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013).

        Deal, 294 Ga. at 172 (1) (a) (“To that end, we must afford the statutory text its plain and ordinary meaning.” (citation and punctuation omitted)); see State v. Able, 321 Ga.App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies). . . .”).

        See Arizona v. Inter Tribal Council of Arizona, Inc., 570 U. S. 1, _ (II) (B) (133 SCt 2247, 186 LE2d 239) (2013) (“Words that can have more than one meaning are given content, however, by their surroundings.” (citation and punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”); see also Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (1) (775 SE2d 527) (2015) (“The common and customary usages of the words are important, but so is their context.” (citation and punctuation omitted)).

        Deal, 294 Ga. at 172-173 (1) (a); accord Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013).

         In the Interest of L. T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014) (punctuation and footnote omitted); accord Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011).

        Holcomb v. Long, 329 Ga. App. 515, 518 (1) (765 SE2d 687) (2014) (punctuation andfoot-note omitted); see Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

       OCGA § 16-17-2 (a).

       See generally OCGA §§ 16-17-1 through 16-17-10.

       OCGA §§ 16-17-1 (a); 16-17-2 (b). See also Clay v. Oxendine, 285 Ga. App. 50, 51 (1) (645 SE2d 553) (2007) (Generally, a payday loan has been defined as “a loan of short duration, typically two weeks, at an astronomical annual interest rate. Payday loans are the current version of salary buying or wage buying. The fees, charges, and interest on a payday loan are between 15 percent and 30 percent of the principal for a two-week loan, constituting a pretext for usury. Because the maturity date of these loans is usually set to coincide with the borrower’s next payday, the loans are often called payday loans.”) (citations and punctuation omitted).

       OCGA § 16-17-2 (d); see OCGA § 16-17-2 (b).

        Fleet Finance v. Jones, 263 Ga. 228, 231 (3) (430 SE2d 352) (1993) (citations omitted) (interpreting OCGA § 7-4-18).

        Western Sky Financial v. State of Ga., 300 Ga. 340, 345 (1) (a) (793 SE2d 357) (2016) (citations and punctuation omitted). In that case, the Supreme Court of Georgia held that the statement that payday lending “does not encompass loans that involve interstate commerce” is a legislative finding of fact that was not intended to define the limits of the PLA. Id. at 346 (1) (b) (punctuation omitted).

       See Cushing v. Cohen, 323 Ga. App. 497, 502 (1) (746 SE2d 898) (2013) (The term “investment contract” is not comprehensively defined by the Georgia Securities Act of 1973. The Georgia Securities Act of 1973 was repealed in its entirety and replaced with the Georgia Uniform Securities Act of 2008.); see also OCGA § 10-5-80 (a).

        Securities & Exchange Comm. v. Edwards, 540 U. S. 389, 393 (II) (124 SCt 892, 157 LE2d 813) (2004) (citation omitted).

       Id. (citing Securities & Exchange Comm. v. W. J. Howey Co., 328 U. S. 293, 298-299 (66 SCt 1100, 90 LE 1244) (1946) (punctuation omitted)).

       See Hicks v. State, 315 Ga. App. 779, 781-782 (1) (728 SE2d 294) (2012).

       See OCGA § 44-12-24 (“A right of action for personal torts, for legal malpractice, or for injuries arising from fraud to the assignor may not be assigned.”); American Chain & Cable Co. v. Brunson, 157 Ga.App. 833, 835 (278 SE2d 719) (1981) (It is impermissible to assign a personal injury claim in Georgia.).

       See Securities & Exchange Comm., 540 U. S. at 393 (II).

        BankWest, Inc. v. Oxendine, 266 Ga. App. 771, 772-773 (1) (598 SE2d 343) (2004) (citations and punctuation omitted).

       OCGA § 7-3-3 (4). See also Isaacson v. House, 216 Ga. 698, 702 (1) (119 SE2d 113) (1961) (The Supreme Court of Georgia has defined a loan as “the delivery by one party to, and the receipt by another party of, a sum of money upon an agreement, express or implied, to repay the sum with or without interest.”) (citation and punctuation omitted); see Golden Atlanta Site Dev. v. Tilson, 299 Ga. App. 646, 647-648 (1) (683 SE2d 166) (2009).

       OCGA § 7-3-2.

        See Deal, 294 Ga. at 174(1) (a), n. 11 (Policy arguments are for the legislature to consider. It is the duty of the judiciary to “interpret the laws as they are written.”) (citation and punctuation omitted).


author: Bethel, Judge.

text:
    A17A0209.
    GREGORY v. THE STATE.
    (803 SE2d 367)
   Bethel, Judge.

Richard Gregory appeals from the denial of his motion for a new trial following his conviction on a single count of aggravated battery for which he was sentenced to twenty years imprisonment and ordered to pay a fine. On appeal, Gregory alleges that the trial court erred by admitting into evidence and publishing to the jury a recording of a 9 -1-1 call that was placed shortly after the incident giving rise to his arrest and by admitting certain statements by a witness over the defendant’s hearsay objection. He also alleges that his trial counsel was ineffective by failing to object to the admission of the 9-1-1 call recording. Finally, he argues that the trial judge improperly commented on the evidence in the case when instructing the jury as to what it would hear when the 9-1-1 call was played in court. For the reasons set forth below, we affirm his conviction.

On appeal, the defendant “is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict.” Batten v. State, 295 Ga. 442, 443 (1) (761 SE2d 70) (2014). So viewed, shortly after midnight one evening, Karen Andrews was at the home of a friend when she placed a call to Gregory asking that he come to the house to pick her up. He arrived a few minutes later, and the two of them drove back to Andrews’ house where they spent the night.

The next afternoon, a neighbor of Andrews heard screaming outside her home. The neighbor walked out of her house and ran down the street, finding Andrews sitting on the ground. Andrews was hysterical and crying, her eye was swollen, and her face was bleeding. At that time, the neighbor also saw a man leave Andrews’ house, get into a car parked in Andrews’ driveway, and drive away. The neighbor later testified that Andrews told her that the man had beaten her up.

A few minutes later, Andrews placed a 9-1-1 call to the county police department. Andrews remained on the line with the operator until police arrived, at which time the responding officer observed injuries to her face. Following further investigation by the police, including an interview of Andrews, Gregory was arrested and charged with a single count of aggravated battery.

Before trial, Gregory moved to suppress the recording of Andrews’ 9-1-1 call. The court denied the motion but ruled that certain statements made by Andrews in the call placing Gregory’s character at issue would be redacted from the recording prior to trial.

Andrews was not available to testify at the trial, and the State did not call anyone from the 9-1-1 center to testify regarding her call. Instead, the redacted 9-1-1 recording was played before the jury in conjunction with testimony from the police officer who arrived at Andrews’ house following the call. The recording was accompanied by several documents relating to the call, including a records certification from the 9-1-1 center and a copy of the dispatch report (known as a CAD report).

Although the State had provided each of these documents and a copy of the recording to Gregory as part of pre-trial discovery, the State did not provide Gregory with separate notice of its intent to introduce the 9-1-1 recording as a business record pursuant to OCGA § 24-9-902 (11) (“Rule 902 (11)”)- Gregory did not challenge the admissibility of the recording and the documents as business records.

The trial judge, prior to playing the recording, instructed the jury that it was about to hear an audio recording of the “alleged victim” on the 9-1-1 call. Gregory made no objection to this instruction at trial. Later testimony by a police investigator indicated that Karen Andrews was the person who placed the 9-1-1 call, but this information was not shared with the jury through witness testimony before the recording of the call was played in court.

Gregory was convicted of a single count of aggravated battery The trial court denied Gregory’s motion for a new trial, and this appeal followed.

1. Gregory first asserts that the trial court erred by denying his motion to suppress the 9-1-1 recording, arguing that admission of the call violated Gregory’s Sixth Amendment right to confront the caller as a witness because at least some of the statements made on the call were testimonial in nature. Gregory also argues that the recording should have been suppressed because statements made by Andrews on the call were not admissible under any hearsay exception. For the reasons set forth below, we affirm the trial court’s denial of Gregory’s motion to suppress.

(a) In Crawford v. Washington, the United States Supreme Court held that statements made by witnesses outside the courtroom that are testimonial in nature are barred from admission into evidence by the Confrontation Clause unless the witness is unavailable at trial and the defendant had a prior opportunity to cross-examine the witness. A subsequent decision by the United States Supreme Court, Davis v. Washington, applied this principle to the admission of a victim’s 9-1-1 conversation in which she identified the defendant as her assailant. In Davis, the Supreme Court held that statements made to the 9-1-1 operator while the defendant was in the home of the caller in violation of a protective order were not testimonial. Davis, 547 U. S. at 826-828 (III) (A). The Supreme Court reasoned that statements made to the operator identifying the defendant were made while the incident was still unfolding (as opposed to a description of past events) and that the primary purpose of the colloquy with the 9-1-1 operator was to obtain police assistance to intervene in “an ongoing emergency” where physical harm to the caller was possible. Id.

As the Supreme Court of Georgia subsequently noted,

[i]n Michigan v. Bryant,[ ] the Supreme Court gave further guidance on this subject. The court referenced the “primary purpose” test, but cited additional factors to determine whether a statement was made to meet an ongoing emergency, including the nature of the emergency, the formality of the exchange, and the probable intent of the parties judged by an objective observer.

Hatley v. State, 290 Ga. 480, 485 (II) (722 SE2d 67) (2012).

Here, we agree with the trial court that the statements on the call were not testimonial in nature. The 9-1-1 call was placed several minutes after Gregory had driven away from Andrews’ house, and her statements on the call described in some detail her injuries and the incident that occurred between her and Gregory that afternoon. However, on the call, Andrews provided Gregory’s physical description, described his vehicle, identified his residence, and stated the location Andrews believed him to be driving toward after he left her house. She also indicated to the operator that she believed Gregory was sending someone to her house to kill her.

This case is closely analogous to the Supreme Court of Georgia’s decision in Thomas v. State, 284 Ga. 540, 542-545 (2) (668 SE2d 711) (2008). In Thomas, the victim was attacked by the defendant in a vehicle parked in front of her home. Id. at 541. She was found by a neighbor who placed a 9-1-1 call on her behalf in which the neighbor relayed information from the victim identifying her attacker and the source of her injuries. Id. The neighbor also provided a description of the assailant’s vehicle. Id. The Supreme Court of Georgia ruled that these statements were not testimonial, in that they were made “while the incident was still ongoing and the perpetrator was at large.” Id. at 543 (2).

Here, like in Thomas, even though the 9-1-1 call in this case was made several minutes after Gregory had fled the premises, the statements made by Andrews were not testimonial because they were made while Gregory remained at large and because they provided information that could aid authorities in his capture. We therefore affirm the trial court’s determination that statements made by Gregory in the recording were not testimonial.

(b) Gregory also argues that the trial court erred in concluding that the statements in the call were admissible as an excited utterance and under what it refers to as the “necessity exception.” From the record below, it appears that the trial court determined that the contents of the call could be admitted pursuant to OCGA § 24-8-803 (2) (“Rule 803 (2)”) as an excited utterance and pursuant to OCGA § 24-8-804 (a) (4) (“Rule 804 (a) (4)”), which applies to unavailable witnesses. Gregory, however, fails to cite to the record or draw out any authority supporting his argument on this point. Instead, he baldly asserts that the State failed to lay the proper foundation for admission of the evidence. Because of the dearth of information provided to this Court in support of this argument, pursuant to Court of Appeals Rule 25 (c) (2), we deem the argument abandoned and do not consider it here. See Slmbey v. State, 288 Ga. App. 717, 718 (655 SE2d 223) (2007) (finding abandonment of issues on appeal where appellant did not support his enumeration of error with citations to record or applicable case law).

2. Gregory next argues that the trial court erred in overruling his hearsay objection to the testimony of Karen Andrews’ neighbor regarding statements the neighbor heard Andrews make following the incident. At trial, the neighbor testified that Andrews told her that “he beat me up and... she thought he was her friend, that he was different, but that he was like all the others. He just wanted sex. And when she turned him down, he beat her up.”

Gregory objected to the admission of this testimony on hearsay grounds. The State responded that Andrews’ statements recounted by the neighbor were admissible as an excited utterance pursuant to Rule 803 (2). The trial court admitted this testimony over Gregory’s objection as an excited utterance.

An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” OCGA § 24-8-803 (2). As the Supreme Court of Georgia has explained,

[i]n order to qualify as an excited utterance, an event precipitating the statement must have been sufficiently startling to render inoperative the declarant’s normal reflective thought processes and the declarant’s statement must have been the result of a spontaneous reaction, and not the result of reflective thought.

Walthour v. State, 269 Ga. 396, 397 (2) (497 SE2d 799) (1998). Decisions by the trial court with regard to admission of evidence pursuant to a hearsay objection are reviewed for abuse of discretion. Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014).

Here, the record shows that the neighbor heard screaming outside her home which prompted her to go outside. She walked down the street and found Andrews sitting on the ground. When she came to Andrews, she found her crying and hysterical and saw that Andrews’ eye was swollen and that she was bleeding. It was at this time that Andrews made the statements to the neighbor that were recounted at trial.

Although, as Gregory argues, the record at trial does not establish the exact time line between the conclusion of Andrews’ violent encounter with Gregory and her subsequent statements to her neighbor, the neighbor’s testimony establishes both Andrews’ demeanor at the time the statements were made and the source of her distress. As the Supreme Court has discussed,

[wjhile the declarant must still be under the stress or excitement that the startling event caused, the excited utterance need not be made contemporaneously to the startling event. It is the totality of the circumstances, not simply the length of time that has passed between the event and the statement, that determines whether a hearsay statement was an excited utterance.

Robbins v. State, 300 Ga. 387, 390-391 (2) (793 SE2d 62) (2016) (citation and punctuation omitted). Moreover, “[tjestimony that the declarant appeared . . . upset, combined with a reasonable basis for emotional upset, will usually suffice for admission under the excited utterance exception.” Daniel v. State, 285 Ga. 406, 410 (6) (677 SE2d 120) (2009) (citation and punctuation omitted). Accordingly, on the record before us, we cannot say that the trial court abused its discretion in admitting Andrews’ statements to her neighbor as an excited utterance.

3. Gregory argues that his trial counsel was ineffective by failing to object to the admission of the 9-1-1 recording, the CAD report, and the business record certification on the ground that the State failed to file pre-trial notice of its intent to introduce the recording as a business record pursuant to OCGA § 24-8-803 (6) (“Rule 803 (6)”) and OCGA § 24-9-902 (11) (“Rule 902 (11)”). We disagree with this contention because Gregory cannot show a reasonable probability that the outcome of his case would have been different, had a separate notice been provided.

Rule 902 (11) provides, in relevant part:

A party intending to offer a record into evidence under this paragraph shall provide written notice of such intention to all adverse parties and shall make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge such record and declaration[.]

To establish ineffective assistance of counsel under Strickland v. Washington, the defendant must show that trial counsel’s performance was deficient and that there is a reasonable possibility that the trial result would have been different if not for the deficient performance.

In this case, without regard to his trial counsel’s performance, Gregory cannot satisfy the second prong of the Strickland analysis because he has not shown how the result of his trial would differ had he received a separate notice. Although the State admits that it did not provide Gregory with a separate document indicating its intent to introduce the documents as business records, it is not clear how Gregory was harmed by the failure to receive this notice. What is clear is that Gregory received copies of the 9-1-1 recording and its supporting documentation (which certified the recording and the CAD report as business records in compliance with Rules 803 (6) and 902 (11)) as part of pre-trial discovery. He filed a motion in limine to suppress the 9-1-1 recording and later objected that the State had not properly laid the foundation for the admission of the 9-1-1 recording into evidence.

Although Gregory’s trial counsel did not raise any objection to admission of the evidence as a business record, the State’s disclosure of the evidence and the ensuing pre-trial proceedings afforded Gregory the opportunity to raise any objections he had to the recording and its accompanying documents. We find that this satisfies Rule 902 (ll)’s broad notice requirement.

Accordingly, as Gregory cannot show that the trial court would have been likely to exclude the 9-1-1 recording had he received separate notice of the State’s intent to introduce it — or, more importantly, that his trial result would have been different had his counsel objected on the basis of the notice requirement — he has not satisfied the second prong of the Strickland analysis. We therefore agree with the trial court that Gregory has not shown ineffective assistance of counsel with respect to his trial counsel’s failure to raise the notice requirement.

4. Gregory next argues that the trial court erred in admitting the recording of the 9-1-1 call because it was not a business record and because the State failed to authenticate the caller’s voice prior to playing the recording to the jury He also argues that admission of the recording was in error because it contained hearsay Finally, Gregory maintains that his counsel was ineffective by failing to object to the admission of the recording on these bases.

(a) We agree with the trial court that Gregory did not receive ineffective assistance when his trial counsel failed to object to the admission of the 9-1-1 recording because the recording could properly be admitted as a self-authenticating business record under Rules 803 (6) and 902 (11). Here, the recording of the call was made by the county 9-1-1 center, and it was accompanied in the record by a written declaration from the 9-1-1 operations center certifying that it met the requirements of Rules 803 (6) and 902 (11). Gregory points us to no authority indicating that a recording of a 9-1-1 call by the operations center is not a record made as part of that agency’s regularly-conducted activity or that it somehow otherwise fails to meet the requirements of Rules 803 (6) and 902 (11).

Likewise, we find Gregory’s attempts to analogize 9-1-1 recordings to accident or incident reports made in anticipation of potential litigation unpersuasive. The redacted version of the 9-1-1 recording played for the jury contains no additional information other than the conversation that unfolded between Andrews and the operator. More importantly, it does not contain the verbal or written impressions of an investigator or statements by any other parties made after the incident in question that might undermine the recording’s credibility This is in contrast to the cases cited by Gregory in which a third party, unconnected to the incident in question, prepares a report which includes statements in addition to the witness’s own testimony of what occurred. Cf., e.g., Palmer v. Hoffman, 318 U. S. 109, 113-115 (I) (63 SCt 477, 87 LE 645) (1943) (finding the accident report prepared by the train company based on a later interview of the train conductor by an agent from regulatory agency was not admissible as business record, as the record was “calculated for use essentially in the court, not in the business”).

We therefore agree with the trial court that the 9-1-1 recording was admissible asa business record pursuant to Rules 803 (6) and 902 (11), and, as such, “additional extrinsic evidence of authenticity” other than the certification by the records custodian was not required. Accordingly, Gregory’s counsel was not ineffective in failing to raise an objection to the admission of the recording on that basis.

(b) Gregory’s arguments regarding admission of the 9-1-1 recording pursuant to exceptions to the hearsay rule mirror the points raised in regard to his motion to suppress, which we addressed in Division 1 (b) of this opinion, supra. As noted, we have deemed this argument abandoned pursuant to Court of Appeals Rule 25 (c) (2).

5. Gregory argues that the trial judge improperly commented on what the evidence in the case had proven when the judge instructed the jury that it would be hearing a 9-1-1 call made by “the alleged victim” in the case. We disagree.

At trial, Gregory objected to the introduction of the recording, arguing that Andrews’ voice had not been properly authenticated. The trial court overruled this objection and instructed the jury regarding the 9-1-1 recording, as follows:

[Yjou’re about to hear an audio recording of a telephone call of the alleged victim in this case. As you hear the audio recording, you will hear the interviewing 911 operator make certain statements to the alleged victim. I caution you that the declarations or statements of the 911 operator are not evidence, and you should not consider such statements as evidence, unless such statements are proven to you by other competent evidence.

Gregory did not raise any objection to the wording of this instruction at trial, but on appeal he argues that the judge’s reference to the caller as the “alleged victim” relieved the State of its affirmative burden to prove that Karen Andrews placed the 9-1-1 call. We disagree.

OCGA § 17-8-57 governs commentary by the trial court regarding the evidence before the jury and what has or has not been proven in the case. Because this case came to trial in June 2015, a prior version of this statute was in effect and provided, in relevant part:

It is error for any judge in a criminal case, during its progress ... to express or intimate his opinion as to what has or has not been proved .... Should any judge violate this Code section, the violation shall be held by the . . . Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the . . . Court of Appeals may lawfully give.

See Ga. L. 1985, p. 1190, § 1. Under this version of the statute, a judge’s commentary on the evidence constitutes plain error, and counsel’s failure to contemporaneously object to such comment, as occurred here, does not preclude appellate review. State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010).

In order to violate former OCGA § 17-8-57 and necessitate reversal, the trial court’s comments must pertain to a disputed issue of fact in the case. Gardner, 286 Ga. at 634-635. Here, we note that at no point in the entirety of these proceedings has Gregory disputed that Andrews was the alleged victim in this case. Rather than arguing that Andrews did not suffer the injuries alleged by the State, Gregory’s theory of the case was that someone else (or some cause other than a physical attack by him) was the cause of her injuries. Although Andrews’ status as the alleged victim in the case is not in dispute, Gregory invites this Court to believe that the identity of the caller is a fact at issue such that the judge’s identification of the voice on the call as that of the victim was an impermissible comment upon the evidence. We decline this invitation.

Gregory’s argument that, by identifying the caller as the alleged victim, the trial court impermissibly relieved the State of its burden to establish facts authenticating the caller’s voice is also baseless. The trial judge had already ruled on the admissibility of the recording (a ruling which did not necessitate any further action by the State to make the call admissible). See Division 4 (a), supra. Gregory cannot now attack that prior ruling by suggesting that the judge’s comment on a fact which is not in dispute — that Andrews was the alleged victim in the case or that she was the caller on the 9-1-1 recording — is an “opinion as to what has or has not been proven.” The purpose of OCGA § 17-8-57 is to prevent the trial court from invading the province of the jury, either by expressing its views on the credibility of a witness or by indicating what facts it believes have or have not been established by the evidence. Callaham v. State, 305 Ga. App. 626, 627 (1) (700 SE2d 624) (2010). In this case, neither occurred. The judge’s statement did not express an opinion as to the veracity of the statements made in the call or as to Andrews’ credibility, nor did the judge’s statement indicating that the alleged victim (which, by that point, was known by the jury to be Andrews) was the person who placed the 9-1-1 call resolve any factual dispute that would aid the jury in determining whether Gregory had committed the charged offense. The only dispute seems to have been whether the State had laid the proper evidentiary foundation in order to admit the recording. As this is a question for the judge, not the jury to resolve, OCGA § 17-8-57 does not apply. We thus find no error in these statements by the trial court.

6. Gregory finally argues that the trial court erred by publishing the redacted version of the 9-1-1 call recording to the jury Here, the record makes clear that the redactions were made at the trial court’s instruction so as to eliminate from the recording any extraneous statements made by Andrews that impermissibly addressed Gregory’s character. The Supreme Court of Georgia has made clear that, where the proper foundation for a business record has been laid and the court has deemed it admissible as such, portions of the original version of the business record containing information which the court deems to be inadmissible can be redacted at the court’s direction so that only the admissible portions are presented to the jury as evidence. See Turner v. State, 273 Ga. 340, 344 (4) (541 SE2d 641) (2001) (allowing introduction of redacted version of report where full report was deemed admissible as a business record). No additional authentication of the record, as redacted, is required. Accordingly, we find no error in the trial court’s decision to publish a redacted version of the 9-1-1 call to the jury.

Judgment affirmed.

McFadden, P. J., and Branch, J., concur.

Decided June 28, 2017

Reconsideration denied July 17, 2017

Frances C. Kuo, for appellant.

Daniel J. Porter, District Attorney, Robert D. Wolf, Assistant District Attorney, for appellee.

       This statement was admitted over the defense’s hearsay objection. The trial court ruled that Andrews’ statement to the neighbor could be admitted as an excited utterance.

       The contents of this 9-1-1 call are discussed in more detail in Division 1 (a) of this opinion.

       See OCGA § 16-5-24.

       The record indicates that Andrews passed away in December 2014 from causes unrelated to the incident giving rise to this criminal action and appeal.

       Portions of the redacted 9-1-1 call were also played to the jury as part of the State’s closing argument and again during deliberation upon request by the jury.

       At the hearing on Gregory’s motion for a new trial, the State admitted to the trial court that it did not provide separate notice to the defense that it planned to introduce the 9-1-1 recording as a business record. The State argued to the trial court that, by failing to object to introduction of the recording on that basis, Gregory had waived the notice requirement. At the same hearing, Gregory’s trial counsel indicated that he could not think of a strategic reason for why he would not have moved to exclude the recording of the 9-1-1 call pursuant to Rule 902 (11). Gregory’s trial counsel also indicated at the motion hearing that he did not have a strategic reason for failing to object to the admission of the 9-1-1 recording on the grounds that it contained inadmissible hearsay and that the State failed to authenticate the caller’s voice.

       541 U. S. 36, 53-54 (III) (B) (124 SCt 1354, 158 LE2d 177) (2004).

       547 U. S. 813, 826-827 (III) (A) (126 SCt 2266, 165 LE2d 224) (2006).

      . 562 U. S. 344, 360 (III) (A) (131 SCt 1143, 179 LE2d 93) (2011).

       Cf. Pitts v. State, 272 Ga. App. 182, 187 (2) (612 SE2d 1) (2005), where we upheld the admission of a 9-1-1 call in which the victim called the police to request that they come to her home to remove the defendant, who had broken in. This Court ruled that the victim’s statements “were made while the incident was actually in progress . . . were not made for the purpose of establishing or proving a fact regarding some past event, but for the purpose of preventing or stopping a crime as it was actually occurring.” Id. (emphasis supplied). Thomas appears to extend Pitts by suggesting that information provided by the victim that is relevant to the assailant’s capture as he flees in the immediate aftermath of a physical attack is not testimonial in nature.

       466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

       See Smart v. State, 299 Ga. 414, 423 (4) (788 SE2d 442) (2016) (applying former version of OCGA § 17-8-57 because that version of the statute was in effect at the time of defendant’s trial).

       See, e.g., Murphy v. State, 290 Ga. 459, 460-461 (2) (722 SE2d 51) (2012) (finding plain error under OCGA § 17-8-57 where trial court referred to witness as a “good detective” who used his “best efforts” in the case).

       See, e.g., Patel v. State, 282 Ga. 412, 414-415 (2) (651 SE2d 55) (2007) (finding plain error under OCGA § 17-8-57 where trial court indicated that venue was proper in the prosecuting county even though that was disputed by the defendant).

       After some brief pleasantries, the State began its opening argument in the case by saying, “The victim in this case is Karen Andrews.”