author: PHIPPS, Presiding Judge.

text:
    A10A1965.
    LEE v. THE STATE.
    (708 SE2d 633)
   PHIPPS, Presiding Judge.

After a jury trial, Victor Lee was convicted of aggravated assault, armed robbery, and concealing the death of another person, in connection with the shooting death of Gerald Stinson. The trial court denied Lee’s motion for new trial. Lee appeals, arguing that the court erred in certain evidentiary rulings and in denying him the opportunity to present evidence in support of claims of ineffective assistance of counsel raised in an amendment to the motion for new trial. We find no reversible error in the court’s evidentiary rulings, and we affirm the judgment of conviction. We find, however, that the court erred in denying Lee the opportunity to present evidence on the ineffective assistance of counsel claims; thus, as to the order denying Lee’s motion for new trial, we vacate that part of the order which addresses the ineffective assistance of counsel claims raised in the amendment to the new trial motion; and we remand this case for further proceedings not inconsistent herewith.

The shooting occurred on July 16, 2005. State’s witness Jonas Blue (having pleaded guilty to various charges arising from the shooting) testified at trial as follows. At the time of the shooting, he lived in a house with Lee, Lee’s mother, and other members of Lee’s family. A few days before the shooting, Blue arranged for Stinson to purchase computer parts from Lee. Lee and Blue discussed the anticipated sale, and Lee told Blue that he wanted to rob Stinson. Blue called Stinson on July 16 to schedule a meeting at Lee’s house later that day. Lee then told Blue that he also planned to kill Stinson.

Blue testified that when Stinson arrived at the house, the three went upstairs to Lee’s bedroom. While Stinson was examining the computer parts, Lee tried to shoot him, but his gun jammed. Lee handed the gun to Blue. Stinson “rushed” toward Blue, who twice hit him in the head with the gun. Stinson stumbled backward and then ran down the stairs. Lee grabbed the gun from Blue and pursued Stinson. Lee shot Stinson in the back of the head.

Blue further testified that he and Lee cleaned the scene. The two placed Stinson’s body in a blanket in the back of Stinson’s truck. Blue then left the house. Shortly thereafter, Lee called Blue using a cell phone that he had taken from Stinson, and he asked what he should do with Stinson’s truck; Blue responded: “[J]ust get rid of it.” Later that day, Blue saw Lee with a gun that had belonged to Stinson. The day after the shooting, Blue and Lee left town; while out of town, Blue also used Stinson’s cell phone.

A friend of Stinson’s testified that he had planned to meet Stinson the evening of July 16, 2005. When Stinson failed to appear, the friend tried to call him but got no response. Another witness, Stinson’s roommate, testified that he last saw Stinson around 5:00 p.m. on July 16. The roommate also testified that Stinson owned a Glock firearm that he usually carried with him; the gun was missing from their apartment the following day.

On July 17, 2005, law enforcement officers discovered Stinson’s body in his abandoned truck, which was parked on the main road leading into the subdivision where Lee lived. An inquiry into Stinson’s cell phone records caused police to focus their investigation on Lee. While Lee was out of town, officers searched his house pursuant to a warrant. In Lee’s bedroom, under his mattress, they discovered the keys to Stinson’s truck and a “survival knife” that Stinson’s business partner later identified as very similar to one he had seen in Stinson’s possession. While at Lee’s house, the officers also obtained from Lee’s mother three firearm magazines that Stinson’s business partner later identified as belonging to Stinson.

Approximately one year later, after obtaining a statement from Blue that the shooting occurred at Lee’s house, police searched the house again. They found no forensic evidence connecting Lee with the crime or showing that his house was the crime scene, and no weapon connecting Lee with the shooting.

1. The state moved in limine to exclude, as irrelevant, evidence of Lee’s age. Lee responded that the evidence was relevant to whether Blue was a “master mind or a leader to someone of such young age.” The court stated, “What I’ve heard is there may be some relevance as to the respective age between the two co-defendants,” and held that Lee could present evidence, if such existed, that Blue was older than Lee. The court, however, excluded evidence “as to the specifics of [Lee’s] age and the specifics with regard to the age of [Blue],” for the reason that: “[W]e heard from one potential juror yesterday that she was feeling very sympathetic in relationship to the apparent youth of [Lee] and sympathy has no bearing in this trial from a legal perspective.”

Assuming, arguendo, that the evidence of specific ages was relevant to the case, any error in the exclusion of the evidence does not require reversal. Although Lee was limited from introducing evidence of the specific ages of himself and Blue, the court held that it would allow other evidence of an age difference between them. Lee, however, did not present any such evidence. Moreover, the record does not reveal the age difference between the two — be it a few months or several decades. Accordingly, this court has no basis upon which to assess whether Lee was harmed by the exclusion of the evidence of their specific ages. Under these circumstances, Lee has not shown that there was any reasonable probability that the exclusion of the evidence contributed to the verdict.

2. Lee argues that the court erred by allowing into evidence an improper reference to his character, without his first having placed his character in issue. Over Lee’s objection, the court permitted a witness to testify that she saw Lee with a medium-sized pistol on July 15, 2005. On cross-examination, Lee attempted to impeach this witness with her prior inconsistent statement that she had not seen Lee with a gun. The court then allowed the witness to testify, over Lee’s objection, that she had seen the gun when Lee pulled it out while in a group of people at a shopping mall. Although the prosecutor argued to the court that “a medium[-]sized handgun . . . is the exact size gun that. . . Blue says that [Lee] killed [Stinson] with, and the projectile that was found in [Stinson] is a medium caliber bullet,” no forensic evidence was presented that the gun seen by the witness was the gun with which Stinson was shot.

In general, evidence of a criminal defendant’s bad character is not admissible unless the defendant first puts his character in issue. The state contends that the witness’s testimony was not evidence of Lee’s bad character, on the ground that gun ownership and the custom of carrying a gun do not, by themselves, impute bad character. The jury, however, was presented with more than simply evidence that Lee owned or carried a gun; the witness testified that Lee — whose youth the jury could observe — had pulled out the gun while in a group of people at a shopping mall. This testimony imputed bad character to Lee.

Although we give great deference to a trial court’s factual finding that a defendant placed his own character into evidence, so as to allow the introduction of evidence of bad character, the record does not show that the court in this case made such a finding, nor does it contain evidence to support such a finding. Rather, the court admitted the bad character evidence after defense counsel had inquired into how police had procured the witness’s statement. But that inquiry had no bearing on Lee’s character; thus, the court abused its discretion in ruling that, through such questioning, defense counsel had opened the door to the bad character evidence. Under these circumstances, the trial court erred in allowing testimony that Lee had been seen pulling out a gun at a shopping mall.

This error, however, is harmless. There was overwhelming evidence of Lee’s guilt — namely Blue’s testimony implicating Lee in the crimes; evidence that, shortly after the shooting, items belonging to Stinson were seen in Lee’s possession or found in his house (including some of Stinson’s belongings found under Lee’s mattress); and evidence that Lee used Stinson’s cell phone on the evening of the shooting. In light of this evidence, Lee has not shown that there was any reasonable probability that the admission of the bad character testimony contributed to the verdict.

3. Lee argues that the trial court erred in denying him the opportunity to present evidence in support of claims of ineffective assistance of counsel that he raised in an amendment to his motion for new trial. Instead, the trial court dismissed the claims raised in the amendment as exceeding the scope of an earlier restriction that the court had placed upon Lee regarding amending his motion for new trial. The record shows, however, that at the time the court issued the limitation on amending the motion for new trial, Lee was represented by counsel who later determined that he had a conflict of interest. Although the state argued that Lee’s prior counsel did not in fact have a conflict of interest, the trial court was authorized to accept counsel’s representation as to the conflict, and the court in fact accepted that representation.

When conflict-free counsel appeared in the case and informed the court that Lee might want to raise additional issues in the motion for new trial, the court stated that it would continue the case, gave Lee ten days in which to make supplemental filings, and indicated that at a future hearing it would allow Lee’s new counsel to present additional evidence. Lee filed an amendment to his motion for new trial within the time period set by the court, raising additional claims of ineffective assistance of counsel. At a subsequent hearing on the motion, however, the trial court indicated that it would not consider the additional claims.

A criminal defendant has a constitutional right to representation by conflict-free counsel through which to raise claims of ineffective assistance of trial counsel in a motion for new trial. Moreover, a party may amend a motion for new trial at any time before the ruling thereon. Lee first raised his ineffective assistance claims through conflict-free counsel when he filed the amendment to his motion for new trial in November 2009. He was entitled to a hearing on the merits of those claims. The trial court, however, expressly stated at the outset of the motion for new trial hearing that it would not consider the claims raised in the amendment. Under these circumstances, the court’s failure to consider the claims was error. Accordingly, we vacate that part of the order denying the motion for new trial that concerns the claims raised in Lee’s amendment to the motion, and we remand the case for an eviden-tiary hearing on those claims, or for other proceedings not inconsistent with this opinion.

Decided March 24, 2011.

Jimmonique R. S. Rodgers, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded.

Miller, P. J., and McFadden, J., concur.

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-8-41 (a).

       OCGA § 16-10-31.

       The record shows that, outside the jury’s presence during the trial, the trial court asked Lee his age, and Lee stated that he was 19 years old. This occurred in November 2008, more than three years after the July 2005 shooting.

       In his appellate brief, Lee provides no record citation for Blue’s age, and we have found no reference in the record to how old Blue was at the time of the shooting.

       See Manley v. State, 287 Ga. 338, 343 (2) (698 SE2d 301) (2010) (court’s error in summarily excluding evidence of a witness’s parole status was harmless where defendants were allowed to explore the possibility of the witness’s bias in other ways).

       See Williams v. State, 279 Ga. App. 388, 389 (631 SE2d 417) (2006) (it is the defendant’s duty on appeal to show error and harm by the record).

       See Manley, supra.

        Donaldson v. State, 279 Ga. App. 407 (1) (631 SE2d 443) (2006); see OCGA § 24-2-2.

       See Sweet v. State, 278 Ga. 320, 325 (7) (602 SE2d 603) (2004).

       See generally OCGA § 16-11-132 (b) (persons under the age of 18 are not lawfully allowed to possess or have control of a handgun except in limited circumstances).

        See Moon v. State, 202 Ga. App. 500, 501 (2) (414 SE2d 721) (1992) (witness’s testimony that defendant not only had a reputation for carrying a gun but also for shooting the gun placed the defendant’s general character in issue).

       See Donaldson, supra at 407-408 (1).

       Compare id. at 409 (where the only conceivable purpose of defense counsel’s questions was to elicit testimony concerning defendant’s character, trial court did not err in holding state could introduce rebuttal evidence on the same subject).

       See Moon, supra at 501-502.

       See Sharpe v. State, 288 Ga. 565, 567 (4) (707 SE2d 338) (2011) (erroneous admission of bad character evidence was harmless in light of overwhelming evidence of defendant’s guilt); Carson v. State, 285 Ga. 337, 340 (5) (676 SE2d 207) (2009) (evidence implicating defendant’s character was harmless given strength of evidence against him).

        See Holloway v. Arkansas, 435 U. S. 475, 485-487 (II) (98 SC 1173, 55 LE2d 426) (1978); Wilson v. State, 257 Ga. 352, 353 (359 SE2d 661) (1987).

       See Garland v. State, 283 Ga. 201, 205 (657 SE2d 842) (2008).

       OCGA § 5-5-40 (b); Swint v. State, 279 Ga. App. 777, 778 (1) (632 SE2d 712) (2006).

        Shockley v. State, 230 Ga. 869 (199 SE2d 791) (1973); Cooper v. State, 249 Ga. App. 881-882 (549 SE2d 829) (2001).

       See OCGA § 5-5-40 (b); Cooper, supra at 882; Swint, supra.

       See Cooper, supra.


source: Caselaw Access Project

author: Dillard, Judge. BARNES, Presiding Judge,

license: Public Domain

text:
    A10A1992.
    FORRESTER et al. v. GEORGIA DEPARTMENT OF HUMAN SERVICES.
    (708 SE2d 660)
   Dillard, Judge.

Tonya Forrester, Phyllis Charnley, and Stefanie Phillips brought suit against the Georgia Department of Human Services (“DHS”) following their termination from the Dawson County Department of Family and Children Services (“DFCS”), claiming that they were dismissed for reporting the unlawful conduct of another employee in violation of Georgia’s whistle-blower statute. DHS was granted summary judgment on these claims, which Forrester, Charnley, and Phillips now appeal. For the reasons noted infra, we affirm the trial court’s grant of summary judgment in favor of DHS.

Viewed in the light most favorable to the nonmovant appellants, the record shows that Forrester, Charnley, and Phillips (collectively “appellants”) were employees at Dawson County DFCS, and that Forrester supervised Charnley and Phillips. During their tenure with DFCS, the appellants became friends, and Forrester even vacationed with Charnley on one occasion. This otherwise positive work environment, however, was hampered by the troubling behavior of Forrester’s co-supervisor, Samantha Delong.

Delong was a longtime employee of DFCS who, for one reason or another, was chronically absent from the office. Beginning in 2005, Forrester complained to Dawson County DFCS Director Amanda Morgan about Delong’s many absences, “venting [her] frustrations” about having to do the job of two people and speculating that Delong was someone who “doctor shopped” for prescription pain medication. And when Morgan left to become a DFCS regional director in 2006, Forrester approached the new director of Dawson DFCS, Dorothy Gore, about Delong’s chronic absenteeism and alleged “doctor shopping” for pain medication. After Gore left Dawson DFCS in 2007 (after being placed on administrative leave during the investigation discussed infra), Jill Rice became the interim director. And while a new interim director provided Forrester with yet another opportunity to vent about Delong, Forrester claims that she never had a “formal” conversation with Rice about Delong because, according to Forrester, Rice was already well aware of Delong’s problems (having previously supervised Delong in another county). Nevertheless, in June 2007, Forrester did contact Rice to inform her that (1) Delong was intoxicated at work; (2) the employees were concerned she might drive while impaired; and (3) on the few occasions when Delong did come to work, she generally did so while under the influence of prescription drugs. In response to Forrester’s concerns, Rice took action against Delong by personally keeping up with her use of leave and, eventually, depleting it when necessary. But the revolving door continued at Dawson, and in October 2007, Rice left the office and John Wilson became the next interim director. In Forrester’s own words, she thereafter began “venting” to Wilson about Delong’s disturbing conduct. And throughout this entire time period, while Forrester was complaining to her superiors, Charnley and Phillips were making similar complaints to her about Delong’s on-the-job actions/inactions.

In the early summer of 2007, while appellants were raising their concerns about Delong, allegations arose that then-Dawson Director Gore forced DFCS clients to use a friend’s counseling service, which then triggered an investigation by the Office of Investigative Services (“OIS”). Judy Blackwell was assigned to handle the Gore investigation by OIS, and during the course of this investigation she was advised of issues that certain employees had with Delong, Forrester, Charnley, and Phillips. Specifically, these employees accused the appellants of, inter alia, not working the required number of hours; getting their hair done and going tanning during work hours without taking leave; taking overly long lunches and arriving late without reflecting same on their time sheets; and not making required home visits. In response to these complaints, Blackwell outlined the employees’ concerns in a letter to the main DFCS director.

In what was a routine practice when employee misconduct is alleged, DFCS management requested that OIS investigate Delong and the appellants after examining Blackwell’s letter. Blackwell was thereafter assigned this investigation in September 2007 and was directed to further look into the allegations of abused leave time by Delong and the appellants. Blackwell’s investigation began on October 1, 2007, and she advised Delong and the appellants shortly thereafter that she was looking into an alleged misuse of funds and abuse of the agency’s leave policy.

Throughout the course of Blackwell’s investigation, the three employees who had expressed their concerns to Blackwell maintained logs of Delong and appellants’ activities at work, including the time of their arrival and departure, which the employees then provided to Blackwell. One of these employees was Don Hamil. Hamil, like Charnley and Phillips, was supervised by Forrester, and he became suspicious of Delong and the appellants after inadvertently stumbling upon some of their time sheets on Forrester’s office floor, examining them, and realizing that the time reflected on those sheets was inaccurate. Hamil thereafter began documenting appellants’ various and sundry workplace activities, noting instances when they (1) scheduled lengthy hair appointments during office hours; (2) told co-workers they were going shopping but then indicated on a sign-out board that they were on a DFCS-related errand; (3) played games on a work computer; and (4) clipped coupons during work hours (on one occasion) for over an hour. Thereafter, Blackwell substantiated these claims by comparing Hamil’s logs to appellants’ time sheets.

Meanwhile, shortly after the start of Blackwell’s investigation, Wilson (as noted supra) became the interim director of Dawson County DFCS. Forrester approached Wilson in October 2007, and the two discussed Delong’s misuse of leave, as well as her erratic, strange behavior. The appellants also spoke to members of the Dawson County Sheriffs Office regarding their concerns about Delong’s prescription drug use and that she might drive while under the influence of those drugs, and then informed Wilson that they had made this disclosure. Throughout this entire time period, Wilson relayed the appellants’ and his own concerns about Delong to upper management in DFCS.

In January 2008, Blackwell completed her investigation of Delong and the appellants, submitting the original version of the report to her supervisor. The final version was then signed in February 2008, and thereafter made its way up through the chain of command. When a DFCS field operations director eventually received the OIS report, she was “shocked” by the falsification of time sheets and abuse of leave by Delong and the appellants. And based upon Blackwell’s investigation, the field operations director decided it was appropriate to terminate all of them. The field operations director’s decision and subsequent recommendation of termination was based exclusively on the OIS report, and she was completely unaware of any reports by the appellants regarding their concerns with Delong. A DFCS employee relations analyst then agreed with the recommendation to terminate Delong and the appellants based on the serious misconduct outlined in the OIS report.

Accordingly, Forrester was terminated because she (1) signed off on falsified time sheets, (2) took long lunches, (3) conducted personal errands during those long lunches, (4) went tanning during work hours, and (5) spent most of one workday at a hair appointment. Charnley was terminated for falsifying her time sheets, and Phillips was terminated for falsifying her time sheets and downloading and playing a game on her computer during work hours.

Thereafter, the appellants filed suit under OCGA § 45-1-4, claiming that they were terminated in retaliation for making protected disclosures regarding Delong’s unlawful workplace activity. They also contended that their time sheets accurately reflected a 40-hour work week, and that on the occasions when they spent time out of the office, they did so using “flex time” that DFCS employees were encouraged (if not mandated) to take—due to budget constraints—in order to avoid working overtime and receiving compensatory time (also known as “comp time”), for which DFCS was required to pay employees time-and-a-half. According to the appellants, this was a common practice at their office, and they were merely doing what they could to avoid the accrual of comp time. Thus, while the appellants admit that they did not accurately reflect the use of flex time on their time sheets, they claim that Forrester knew when Charnley and Phillips worked late and that she verbally approved their use of this time.

DHS then moved for summary judgment, which the trial court granted because, in its view, the appellants failed to present evidence of retaliation. In its order, the trial court also briefly acknowledged the appellants’ pending motion for the qualification of an expert witness, which the court likewise denied, and in doing so noted that the proposed expert-witness testimony would not have changed its decision. Forrester, Charnley, and Phillips now appeal the grant of summary judgment for DHS, as well as the trial court’s refusal to consider qualifying their expert witness.

1. Appellants first contend that the trial court erred in granting summary judgment for DHS because there are genuine issues of material fact for a jury to resolve and this grant of summary adjudication violated our holding in Jones v. Board of Regents of the University System, of Georgia. We disagree.

A party that moves for summary judgment “must demonstrate that there is no genuine issue of material fact[ ] and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law.” To prevail, the movant “must only point to an absence of evidence supporting at least one essential element of the plaintiffs claim.” Nevertheless, “[cjircumstantial evidence may be sufficient to create a jury issue in the face of direct evidence to the contrary.” Thus, when there is direct evidence and positive testimony on a disputed issue, the nonmoving party must point to evidence that genuinely contradicts the testimony in question. If the nonmoving party presents direct evidence of the contradictory fact, this is sufficient to allow for a jury’s consideration of the dispute; however, “if the other fact is circumstantial evidence, it must be inconsistent with the [moving party’s] evidence, or if consistent, it must demand a finding of fact on the issue in favor of the [nonmoving party].” We may, of course, affirm a trial court’s grant of summary judgment if it is right for any reason.

We have addressed the issue of summary judgment in the context of whistle-blower claims in very few cases, none of which explicitly sets forth a standard for analyzing when summary judgment is appropriate in such circumstances. In its summary-judgment brief below, DHS relied heavily on federal Title VII cases and suggested that the burden-shifting analysis used therein would be helpful in deciding whether summary judgment was appropriate under Georgia’s whistle-blower statute. The trial court apparently agreed with DHS, citing federal Title VII cases throughout its order.

We agree that the McDonnell Douglas burden-shifting analysis used in Title VII retaliation cases is appropriately utilized in the context of evaluating whether a state whistle-blower claim is subject to summary adjudication, and that this analytical framework is in no way inconsistent with our prior decision in Jones, in which we held that circumstantial evidence may preclude summary judgment in these cases. This is because the McDonnell Douglas burden-shifting analysis rightly places on the plaintiff the ultimate burden of proving that he or she was the victim of discrimination. We, therefore, apply the following analytical framework to claims brought pursuant to OCGA § 45-1-4 (d) (2): (1) the plaintiff must establish a prima facie case of retaliation by a preponderance of the evidence; (2) if a prima facie case is established by the plaintiff, the employer must, nevertheless, articulate a legitimate, non-retaliatory reason for the adverse employment action taken; and (3) when such a reason is given by the employer, the plaintiff must demonstrate that the stated reason for the employer’s adverse action is pretext-ual. With this analytical framework in mind, we now turn to the appellants’ enumeration of error.

(a) Prima Facie Case of Retaliation.

To establish a prima facie case of retaliation under OCGA § 45-1-4 (d) (2), the employee must present evidence that (1) the employer falls under the statute’s definition of “public employer”; (2) the employee disclosed “a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency”; (3) the employee was then discharged, suspended, demoted, or suffered some other adverse employment decision by the public employer; and (4) there is some causal relation between (2) and (3).

And here, in appealing the grant of summary judgment for DHS, appellants claim to have presented “overwhelming circumstantial evidence” of retaliation and “abundant direct evidence[ ] that clearly establishes that DFCS retaliated against [them] for reporting abuse, fraud, and waste as defined in [the whistle-blower statute.]” In actuality, the appellants’ deposition testimony shows that they did not have any direct evidence of retaliation. Indeed, Charnley explicitly testified during her deposition that she was never told by anyone in a supervisory capacity that she and the other appellants were being fired because of their communications regarding Delong; and neither Forrester nor Phillips claim otherwise. Appellants, then, must rely solely on circumstantial evidence in establishing a prima facie case of retaliation under OCGA § 45-1-4 (d) (2).

(i) Public Employer: As noted supra, in order to make out a prima facie case of retaliation under OCGA § 45-1-4, the appellants must first show that DHS is a public employer within the meaning of the statute. This prong of the test is easily met by the appellants because the parties agree that DHS is a public employer within the meaning of OCGA § 45-1-4 (a) (4).

(ii) Whistle-Blowing Activity. Next, appellants must show that they engaged in whistle-blowing—i.e., that they disclosed “a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency.” We will consider each of the appellants’ allegedly protected disclosures in turn.

First, the appellants all testified in their depositions that De-long’s illnesses and excuses were a “running joke” with Dawson County DFCS directors, that everybody (employees and directors included) knew about Delong’s abuse of prescription drugs, and that Delong’s chronic absenteeism and drug use were discussed at the office on a daily basis. The appellants also presented other testimony that Delong’s problems with prescription drug use were common knowledge in the office because it was “obvious,” and this evidence only served to corroborate the evidence presented by DHS that Delong’s problems were no secret and were, sadly, considered a laughing matter by most of the office’s employees. Thus, to the extent the appellants claim to have disclosed something that was already widely known (and even joked about), we cannot say that this is the type of communication encompassed by the whistle-blower statute.

Second, there was deposition testimony by various Dawson County DFCS directors and interim directors that the concerns expressed by the appellants were personal concerns about Delong regarding her excessive absences from the office and use of prescription medication. Former-Interim Director Rice testified during her deposition that she did not consider Forrester’s communications “whistle-blowing” because Forrester and Delong were friends. Instead, Rice explained that she understood and interpreted these communications from Forrester as an expression of concern for a friend and not as a report of a policy violation. And Former-Director Gore likewise did not consider Forrester’s communications about Delong to be whistle-blowing; she instead viewed Delong’s problems as something that she needed to monitor closely in order to develop her own conclusions about the severity of the situation. Indeed, even Forrester testified that she did not consider her communications with any former Dawson County DFCS directors and interim directors—including the June 2007 communication with Rice—as “whistle-blowing” because (1) Delong’s problems were commonly discussed and joked about and (2) she only wanted Delong to get the help she needed. Thus, to the extent the appellants were merely expressing their personal concern about a troubled friend, we cannot say that this type of communication is encompassed by the whistle-blower statute.

Third, appellants also maintain that the disclosures they made to members of the Dawson County Sheriffs Office are protected because “[n]o other DFCS employee engaged in the same type of protected activity.” And while disclosures of “a violation of or noncompliance with a law, rule, or regulation to ... a government agency” are protected by the whistle-blower statute, a review of the affidavits made by members of the Dawson County Sheriffs Office and a member of Dawson County Emergency Services reveals that the appellants’ communications with these individuals amounted to no more than complaints about Delong’s chronic absenteeism and requests for advice on dealing with her suspected addiction to pain medication. Accordingly, we cannot say that this type of disclosure falls within the protection of the statute.

Finally, the appellants testified during their depositions that they spoke with Interim Director Wilson in January 2008 to complain about Delong’s abuse of prescription drugs after she was in a car accident, and expressed their concern about her potentially transporting foster children while under the influence of drugs. Charnley also claimed that she spoke to Wilson about Delong attending a staff meeting while impaired. And while Wilson did not recall speaking with appellants about either of the foregoing matters, he did recall speaking with them in late January 2008 about their concerns regarding Delong’s foul language, her lack of supervision over employees, her lack of oversight on spending, and her frequent absences—all of which Wilson relayed to DFCS upper management. Wilson claims, however, that he did not consider the appellants whistle-blowers when they approached him about their concerns related to Delong. Nevertheless, to the extent there is conflicting testimony as to whether the appellants expressed their concerns to Wilson—a supervisor—about Delong’s workplace intoxication and her potentially transporting foster children while under the influence of drugs (communications that would fall within the ambit of the whistle-blower statute), there is a genuine issue of material fact as to whether these particular communications in fact occurred.

(iii) Adverse Employment Action. Next, appellants must show that they suffered an adverse employment action. And here, it is undisputed that they were terminated from their employment with DFCS.

(iv) Causal Connection. Finally, because there is a genuine issue of material fact as to whether the appellants made protected disclosures to Wilson (see discussion supra), the appellants must show that these communications and the adverse employment action are causally connected—i.e., that there is evidence linking their complaints about Delong to the adverse-employment action taken against them. A plaintiff can establish such a causal connection by showing that the decision-maker was aware of the protected disclosure and that the disclosure and action were not wholly unrelated. In this respect, some cases even “accept mere temporal proximity between an employer’s knowledge of protected activity and adverse employment action as sufficient evidence of causality to establish a prima facie case.”

In the case sub judice, it is undisputed that the final decision to terminate the appellants was made by the DFCS field operations director, who based her decision solely upon the OIS report. The field operations director made this decision after the report was forwarded to her by an employee relations analyst with the Office of Human Resource Management and Development (“OHRMD”) with DHS. This employee relations analyst reviewed the OIS report and then consulted with OHRMD’s manager of employee relations. Both agreed that termination of appellants’ employment was appropriate and in line with disciplinary actions taken in other cases of similar misconduct.

The OHRMD representatives spoke to Wilson about their recommendation, but he was actually resistant to terminating all four employees. As a result, OHRMD then contacted the DFCS field operations director (who was higher than Wilson in the chain of command), and she is the one who ultimately decided that terminating the employment of Delong and the appellants was indeed the appropriate course of action. In making this decision, the field operations director did not communicate with any of the parade of former Dawson County DFCS directors, interim directors, or with Wilson.

Moreover, DHS presented direct evidence (in the form of e-mails from the field operations director) that Dawson County DFCS Interim Director Wilson delivered termination letters to the employees per the field operations director’s decision and that her decision was based solely on the OIS report. Wilson also testified below that he had no role in the decision to terminate Delong or the appellants, that he did not take any action against the appellants for approaching him about their concerns regarding Delong, and that his sole role was to deliver the message that they had been terminated. Indeed, Wilson told Hamil as much when Hamil inquired as to the status of the investigation—i.e., that the decision would come from a higher office and that somebody else would tell him what to do.

Furthermore, Charnley and Forrester’s own deposition testimony cuts against the appellants’ claims that Wilson retaliated against them for expressing their concerns about Delong. Specifically, Charnley and Forrester testified about how Wilson told them, along with Delong and Phillips, that the investigation was over and that he had been instructed to give them letters of termination. Additionally, the undisputed evidence shows that other employees likewise made complaints about Delong (even that Delong was abusing prescription drugs), but they were not terminated or otherwise disciplined.

Nevertheless, the appellants point to the close proximity in time between the decision to terminate them in February 2008 and their communications with Wilson in January 2008 about Delong. In Jones, we found circumstantial evidence of a causal connection through the close proximity in time between the employee’s protected activity and the adverse employment action, and by the employer’s interference with the employee’s protected activity. However, appellants’ proximity-in-time argument in the case sub judice is seriously undermined (if not eviscerated) by the fact that the investigation ultimately leading to their dismissals had already begun by the time Wilson was named interim director of Dawson County DFCS.

The appellants also point to the deposition testimony of Cathy Conlon, another Dawson County DFCS employee, as evidence that at least one other employee feared the appellants would suffer retaliation for reporting Delong’s conduct. But when read in the context of her entire deposition, it is clear that what Conlon feared was that Delong would retaliate against the appellants for notifying superiors about their concerns. Indeed, almost all of the deposition testimony regarding suspected retaliation concerned fears of Delong’s reaction once she learned about the complaints concerning her conduct. As Charnley testified, she feared that Delong would “make life hell” if she learned of the complaints because she was already abusive toward her co-workers. Phillips likewise testified that she did not report Delong’s conduct to Blackwell because of Delong’s reputation for exacting revenge. Thus, Conlon’s testimony does not establish a causal link between the appellants’ disclosures and their subsequent dismissals.

Finally, appellants highly tout the testimony of Jason Sauls, a DFCS trainer for DHS, who averred below that his personal experience in DFCS Region 2 led him to believe that upper management preferred to terminate employees as an alternative to dealing with personnel issues, and he speculated that the appellants’ complaints are what actually resulted in their terminations. Sauls also testified, however, that (1) he had no personal knowledge that the appellants were in fact fired in retaliation for their complaints; (2) he was not privy to the appellants’ termination process; (3) he did not discuss their termination with Wilson; (4) he did not discuss the investigation with Blackwell; and (5) he had not even read the OIS report. Indeed, Sauls admitted that his conclusion of retaliation was based merely on an assumption. Accordingly, Sauls’s testimony is nothing more than mere speculation that raises only a conjecture or possibility.

In sum, the appellants have presented no evidence that the actual decision-maker knew about their disclosures to Wilson about Delong or that Wilson himself had any role in their termination other than to deliver the message of their dismissals. And with no evidence that the actual decision-maker knew about their disclosures to Wilson, mere guesses and speculation are all that the appellants present in support of a causal connection between these disclosures and their subsequent terminations. Suffice it to say, this is not enough to survive a motion for summary judgment. Indeed, mere speculation as to an employer’s motives in terminating an employee is not “sufficient to create even an inference of fact for consideration on summary judgment. ” Thus, because appellants cannot show a causal connection between a protected disclosure and the adverse employment action taken against them, they cannot make out a prima facie case of retaliation; and as such, summary judgment for DHS was proper.

2. Appellants also appeal the trial court’s refusal to qualify Jason Sauls as an expert, claiming the trial court “ruled, without considering evidence, that to qualify as an expert witness, a person must be employed by the alleged wrongdoer, participated in the alleged wrongdoing, and hold the same job title as the alleged wrongdoer.” What the trial court actually ordered as related to Sauls was as follows:

Finally, Plaintiffs allege that an affidavit from Jason Sauls, who works for DFCS as a Social Services Trainer, precludes summary judgment because he claims that the decision to terminate Plaintiffs’ employment was retaliatory. There is no evidence that Mr. Sauls was consulted or otherwise involved in the OIS Investigation or termination decisions for Plaintiffs. Therefore, his non-supervisor’s opinion does not raisé a genuine issue of material fact regarding Defendants’ rationale for terminating Plaintiffs employment.

As explained in Division 1, we, like the trial court, do not believe Sauls’s testimony provided any evidence, let alone expert testimony, that would preclude summary judgment in favor of DHS. And as to appellants’ request to qualify Sauls as an expert, the trial court had discretion in determining whether expert testimony was necessary.

Appellants apparently intended to present Sauls as an expert because of his “specialized knowledge ... as to the organizational structure of DFCS, both for Region 2 as well as the State” and his “familiar[ity] with many of the people who are part of the DFCS management.” Appellants claim that due to Sauls’s history with the agency and his position as a project administrator, “[n]o one in the world is a more qualified expert witness to testify about the byzantine organizational structure of DFCS, its complex, often overlapping policies and procedures, and the specific obligations and duties of DFCS management and employees.” Appellants also contend that DFCS job titles and the “acronyms alone in the lexicon of DFCS boggle the mind and are ‘shrouded in the mystery of professional skill and knowledge’ ” such that expert testimony is necessary. We disagree.

When a factual contention is one not “capable of proof only by expert testimony,” it is not necessary to produce expert testimony. Any use of Sauls as an expert in the case sub judice (for all of the reasons noted supra) was, then, wholly unnecessary because the above-noted areas are not issues beyond the ken of lay persons. Thus, pretermitting the issue of whether Sauls was even qualified to give an expert opinion in an employment retaliation case, Sauls’s proffered testimony in no way precluded summary judgment in favor of DHS as appellants claim.

Judgment affirmed.

Blackwell, J., concurs. Barnes, P. J., concurs in judgment only.

Decided March 24, 2011

Fox, Chandler, Homans, Hicks & McKinnon, David A. Fox, Sidney O. Smith III, for appellants.

Thurbert E. Baker, Attorney General, Annette M. Cowart, Senior Assistant Attorney General, Romy D. Smith, Assistant Attorney General, for appellee.

BARNES, Presiding Judge,

concurring in judgment only.

While I concur with the result reached by the majority in this case, I do not agree with all that is said. Accordingly, I concur in the judgment only.

       OCGA § 45-1-4 (d) (2) prohibits public employers from retaliating “against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency, unless the disclosure was made with knowledge that the disclosure was false or with reckless disregard for its truth or falsity.”

        See, e.g., Furlong v. Dyal, 246 Ga. App. 122, 123 (1) (539 SE2d 836) (2000).

       OIS is part of DHS, but it is a separate and distinct agency under the DHS umbrella. In a nutshell, OIS is responsible for maintaining the integrity of DHS programs by investigating allegations of employee misconduct.

       An employee who provided a considerable amount of information about the appellants stated that he was mainly concerned about the lack of accountability in the Dawson County DFCS office in the absence of a full-time director.

       The OIS investigation of Forrester, Charnley, Phillips, and Delong was considered complex because it involved multiple employees.

       DFCS has a timekeeping policy, and the appellants acknowledged their understanding of this policy when they signed forms attesting to same.

       Delong was terminated for (1) her pattern of chronic absenteeism, (2) her dishonest statement to the investigator that she never took lunch, (3) her failure to perform supervisory duties, and (4) retaliatory conduct she directed toward Hamil for reporting her to OIS.

       According to the appellants, if an employee worked an hour of overtime one night, he or she could use that hour to come in late or leave early at another point during the week. And while Forrester, as a supervisor, could not accrue comp time, the policy at Dawson was that supervisors could keep up with their overtime and use flex time accordingly.

       262 Ga. App. 75 (585 SE2d 138) (2003).

        Id. at 75-76.

        Id. at 76 (emphasis supplied).

        Id. at 81 (4); see also Furlong, 246 Ga. App. at 123 (1).

        See, e.g., Jones, 262 Ga. App. at 81 (4); Furlong, 246 Ga. App. at 123 (1).

        Jones, 262 Ga. App. at 81 (4); see also Furlong, 246 Ga. App. at 123-24 (1).

         Jones, 262 Ga. App. at 77 (1).

        See Edmonds v. Bd. of Regents of the Univ. Sys. of Ga., 302 Ga. App. 1 (689 SE2d 352) (2010) (affirming grant of summary judgment because plaintiffs communication was not protected by the statute); Jones, 262 Ga. App. 75 (reversing grant of summary judgment because plaintiff presented circumstantial evidence that termination was in retaliation for disclosure of information); Weaver v. N. Ga. Reg’l Educ. Serv. Agency, 238 Ga. App. 72 (517 SE2d 794) (1999) (reversing grant of summary judgment on basis of agency’s status and the type of communication made by the plaintiff), reversed by N. Ga. Reg’l Educ. Serv. Agency v. Weaver, 272 Ga. 289 (527 SE2d 864) (2000) (reversing this Court’s reversal of summary judgment because, at the time, the defendant was not an agency covered by the whistle-blower statute). We also note that the statute has been amended a number of times between these decisions, which to some extent limits their applicability to the current language of the statute. See Ga. L. 2005, Act 213, § 1 (changing provisions related to complaints or information regarding fraud, waste, and abuse, and providing for related matters); Ga. L. 2007, Act 206, § 1 (expanding list of employees, officials, and administrators protected by statute; changing definition of “retaliate”; and providing for related matters); Ga. L. 2009, Act 155, §§ 1, 2 (adjusting designation of State Merit System of Personnel Administration to State Personnel Administration).

        See McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802-06 (93 SC 1817, 36 LE2d 668) (1973), as modified by St. Mary’s Honor Center v. Hicks, 509 U. S. 502 (113 SC 2742, 125 LE2d 407) (1993) and Reeves v. Sanderson Plumbing Prods., Inc., 530 U. S. 133 (120 SC 2097, 147 LE2d 105) (2000); see also Heng v. Rotech Med. Corp., 720 NW2d 54, 62-63 (III) (A), (B) (N. D. 2006) (applying McDonnell Douglas burden-shifting analytical framework to state whistle-blower suit); Cokley v. City of Otsego, 623 NW2d 625, 630 (Minn. App. 2001) (same).

        See Jones, 262 Ga. App. 75 (reversing grant of summary judgment because plaintiff presented circumstantial evidence that termination was in retaliation for disclosure of information).

        See Bailey v. Stonecrest Condo. Ass’n, Inc., 304 Ga. App. 484, 488 (1) (696 SE2d 462) (2010) (holding that “[cjlaims based on circumstantial evidence are subject to a burden-shifting analysis that was first developed by the United States Supreme Court for employment discrimination cases in McDonnell Douglas Corp. v. Green").

        Cf. McDonnell Douglas Corp., 411 U. S. at 802-05 (II); Bailey, 304 Ga. App. at 490 (1) (b).

        See OCGA § 45-1-4 (a) (4).

        See OCGA § 45-1-4 (a) (2).

        See OCGA § 45-1-4 (a) (5).

        Cf. Pennington v. City of Huntsville, 261 F3d 1262, 1266 (II) (A) (11th Cir. 2001) (“To establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) he engaged in statutorily protected expression; (2) he suffered an adverse employment action; and (3) there is some causal relation between the two events.” (citation and punctuation omitted)). The causal link requires that the plaintiff prove that the protected disclosure and adverse employment action are not completely unrelated. Cf. Pennington, 261 F3d at 1266 (II) (A) (explaining same as related to Title VII retaliation claims); Hall v. Bodine Elec. Co., 276 F3d 345, 357 (7th Cir. 2002) (Manion, J.) (same).

       We note that OCGA § 45-1-4 only covers complaints of “abuse, fraud, and waste” in the context of a public employer’s ability to receive and investigate such complaints by public employees, not in the context of retaliation, which explicitly only encompasses disclosures of “violationfs] of or noncompliance with a law, rule, or regulation.” See OCGA § 45-1-4 (b) (“A public employer may receive and investigate complaints or information from any public employee concerning the possible existence or any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer.”); OCGA § 45-1-4 (d) (l)-(3) (retaliation provisions); see also note 16 supra (citing amendments to statute).

       “Public employer” means
      the executive, judicial, or legislative branch of the state; any other department, board, bureau, commission, authority, or other agency of the state which employs or appoints a public employee or public employees; or any local or regional governmental entity that receives any funds from the State of Georgia or any state agency.
      OCGA § 45-1-4 (a) (4); see Weaver, 272 Ga. at 290 (holding that, prior to amendment, OCGA § 45-1-4 “applies solely to persons employed in state government” and that regional agencies are not “clearly part of either state or local government”).

        See OCGA § 45-1-4 (d) (2). The statute specifically defines “law, rule or regulation” as including “any federal, state, or local statute or ordinance or any rule or regulation adopted according to any federal, state, or local statute or ordinance.” OCGA § 45-1-4 (a) (2); see Edmonds, 302 Ga. App. at 6-7 (1) (summary judgment appropriate when employee raised concerns regarding laboratory adherence with accepted biosafety rules, which were not the type of disclosure protected by the statute).

        See OCGA § 45-1-4 (a) (2) (defining “law, rule or regulation” as including “any federal, state, or local statute or ordinance or any rule or regulation adopted according to any federal, state, or local statute or ordinance”); see also Edmonds, 302 Ga. App. at 6-7 (1) (summary judgment appropriate when employee raised concerns regarding laboratory adherence with accepted biosafety rules, which were not the type of disclosure protected by the statute); Jones, 262 Ga. App. at 81 (4) (reversing grant of summary judgment when employee disclosed suspected internal thefts to supervisor).

       Rice also testified that she did not require Delong to take a drug test after Forrester’s communication because, after discussing Forrester’s concern with her own supervisor, she was not directed to do so.

        See OCGA § 45-1-4 (a) (2); see also Edmonds, 302 Ga. App. at 6-7 (1); Jones, 262 Ga. App. at 81 (4).

        See OCGA § 45-1-4 (d) (2).

        See OCGA § 45-1-4 (a) (2); see also Edmonds, 302 Ga. App. at 6-7 (1); Jones, 262 Ga. App. at 81 (4).

        See OCGA § 45-1-4 (d) (2).

        See OCGA § 45-1-4 (a) (5). The statute refers to “the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action taken by a public employer against a public employee in the terms or conditions of employment. . . .’’Id.

        Pattee v. Ga. Ports Auth., 477 FSupp.2d 1272, 1276 (III) (B) (S.D. Ga. 2007) (interpreting Georgia’s whistle-blower statute). We note that “[i]t is not enough . . . that a state employer had a policy of stamping out internal dissent; a [whistle-blower] plaintiff must allege that he dissented and was thereby stamped.” Id.

        See Clover v. Total Sys. Servs., Inc., 176 F3d 1346, 1354 (III) (B) (11th Cir. 1999) (“At a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took adverse employment action.” (citation and punctuation omitted)).

        Clark County School Dist. v. Breeden, 532 U. S. 268, 273 (121 SC 1508, 149 LE2d 509) (2001) (per curiam) (citing various cases to hold that temporal proximity must be “very close,” and periods of three to four months are insufficient); see also Higdon v. Jackson, 393 F3d 1211, 1220 (III) (A) (2) (11th Cir. 2004) (“A close temporal proximity between the protected expression and an adverse action is sufficient circumstantial evidence of a causal connection for purposes of a prima facie case.” (citation and punctuation omitted)); Jones, 262 Ga. App. at 81 (4).

       The appellants also testified that they never spoke to the field operations director and that they did not even know who she was.

       The recommendation was forwarded to Wilson through DHS human resources, he forwarded the recommendation to the regional office, and the regional director instructed him to terminate Delong and the appellants. And what the appellants characterize as a “notification” by DFCS management that they would not be terminated was actually an informal conversation with a former Dawson DFCS director, who told Forrester (while the investigation was ongoing) that the appellants would “be fine” but that she was not sure about Delong.

       Charnley also testified that when she told Wilson that the situation was “BS,” he agreed with her.

        See Jones, 262 Ga. App. at 81 (4).

         As of February 2010, when his affidavit was filed, Sauls had eventually reviewed the OIS report, but this was only after his deposition in September 2009.

        See Taylor v. N.I.L., Inc., 221 Ga. App. 99, 100 (470 SE2d 491) (1996).

        Taylor, 221 Ga. App. at 100 (citations and punctuation omitted).

       OCGA § 24-9-67.1 (d) (“Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of subsections (a) and (b) of this Code section.” (emphasis supplied)); see also Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 748 (3) (542 SE2d 151) (2000) (“The question of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.” (citation and punctuation omitted)).

        BSF, Inc. v. Cason, 175 Ga. App. 271, 273 (2) (333 SE2d 154) (1985); see also Abernethy v. Cates, 182 Ga. App. 456, 456-57 (1) (356 SE2d 62) (1987) (“Expert testimony is permitted if the nature of the question is such that factors leading to a conclusion are not known to the common or average man, but are among those things shrouded in the mystery of professional skill or knowledge.” (citation and punctuation omitted)).

        See Gianotti v. Beleza Hair Salon, Inc., 296 Ga. App. 636, 642 (2) (675 SE2d 544) (2009) (“The proper interpretation of the product instructions was not an issue beyond the ken of laypersons!).]”); Purcell v. Kelley, 286 Ga. App. 117, 118 (1) (648 SE2d 454) (2007) (holding that expert testimony was unnecessary because jury capable of determining the color of a traffic light).

       In the brief supporting their motion to qualify Sauls as an expert witness, the appellants mentioned that Sauls had been offered as an expert by DFCS “in hundreds of cases . . . focusing on deprivation and parental termination issues” and had extensive training in those areas, but we do not see how this has any bearing on Sauls’s ability to testify as an expert on issues related to employment retaliation.

        See Hadden v. ARE Props., Inc., 280 Ga. App. 314, 316-17 (1) (633 SE2d 667) (2006) (holding that because expert testimony on issue was unnecessary, the proffered testimony did not preclude summary judgment). Compare Bayfield v. Dep’t of Transp., 280 Ga. 848, 851 (1) (632 SE2d 135) (2006) (holding that proffered expert testimony on technical issue of proximate cause in an automobile accident precluded summary judgment).

       “If an appeal is decided by a Division, a judgment in which all three judges fully concur is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said.” Court of Appeals Rule 33 (a).


author: SMITH, Presiding Judge. ADAMS, Judge,

text:
    A10A2254, A10A2255.
    COLEMAN v. THE STATE (two cases).
    (708 SE2d 638)
   SMITH, Presiding Judge.

A jury found Brent Coleman and his wife Jennifer Ann Coleman guilty of cruelty to children in the first degree. Following the denial of their motions for new trial, the Colemans appeal, citing several claims of error. Because the trial court erred in denying the Cole-mans’ motion for a mistrial, we reverse.

On appeal, both the Colemans complain of the same errors: the trial court erred in (1) allowing evidence of their marijuana purchase and use, (2) denying their motion for mistrial following testimony that their son D. C. was in foster care, and (3) denying their motion for a directed verdict at the close of the State’s case. We address each of these claims of error in turn.

1. The Colemans contend that the trial court erred in denying their motions for a directed verdict. “The standard of review for denial of a motion for directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction.” (Citation and footnotes omitted.) Gore v. State, 277 Ga. App. 635, 640 (4) (627 SE2d 198) (2006). Therefore, we construe the evidence in favor of the jury’s verdict and determine whether a rational trier of fact could have found the Colemans guilty beyond a reasonable doubt of the crimes of which they were convicted. Id.

Construed in this light, the evidence showed that D. C. was born as a normal full-term baby on January 21, 2006, weighing 5 pounds and 11 ounces. When D. C.’s pediatrician saw him on February 2, when he was almost two weeks old, D. C. weighed 4 pounds and 15 ounces. When asked if he was concerned about D. C.’s loss of 12 ounces, the pediatrician testified:

[I]t’s cause for concern. And if the baby is appearing sick, if their profusion [sic] is down, then you would do more investigating. But when you have a child that looks otherwise healthy and especially when they’re — when they’re that age, you’re concerned, but you do it on an outpatient basis. Meaning, you’re trying to give hints as far as increasing the input and then bring them back.

Following the examination, the pediatrician scheduled the Colemans to return with D. C. for a follow-up visit four days later, on February 6. On that day, the pediatrician noted that D. C. had gained four ounces and appeared well. He scheduled an appointment for the Colemans to return with D. C. on March 7 for another check-up.

On March 2, however, the Colemans appeared at the emergency room with D. C. The pediatrician was notified that D. C. was in the emergency room and that medical personnel had difficulty intubating him. The pediatrician testified that when he arrived at the emergency room, D. C. was not moving and was “ashen . . . almost yellowish” in color which indicated that his hemoglobin was low. D. C.’s skin was very loose, especially around his abdomen, his blood sugar was extremely low, and he exhibited agonal respirations (taking a gasp of air about once a minute). He had very little muscle mass, was emaciated, and had a very low heart rate. The pediatrician stated simply that D. C. was dying. Nurses made several attempts to find a vein for D. C. to receive fluids intravenously and were eventually able to find a vein in D. C.’s scalp. The only movement D. C. made was when he bit down on the pediatrician’s finger as he attempted to tape down the tube that was inserted into D. C.’s trachea. D. C. was diagnosed with hypoxia (i.e., not getting enough oxygen in the bloodstream), respiratory distress, acidosis, and cachexia (i.e., an emaciated appearance caused by an absence of body fat).

The pediatrician explained that it would take a week or more for D. C. to appear in the condition he was in when he arrived in the emergency room. He testified further that between D. C.’s February 6 visit and March 2 when the Colemans appeared in the emergency room with D. C., he had not been contacted by the Colemans with any concerns about D. C.’s health. When asked about D. C.’s prognosis when he observed him in the emergency room, the pediatrician testified: “I thought it was awful. I thought... he was going to die, I really did. To be honest with you, I was amazed that... he survived even being able to be transported.”

A transport team arrived to transport D. C. to the Medical Center of Central Georgia in Macon. The pediatric intensivist who treated D. C. in Macon testified that D. C. was in intensive care for a week to ten days and that when he began treating D. C., he observed that the baby was emaciated, having a “striking lack of any baby fat, subcutaneous fat,” and on a ventilator. He testified further that D. C. was hypothermic, hypoglycemic, and dehydrated. D. C. had a seizure on the first day of his admission, but a subsequent brain scan was normal. The intensivist stated that he observed evidence of auto-cannibalism because D. C.’s body “had eaten away all his body fat.” He stated that D. C.’s ribs and backbone were visible and that he had sagging skin on his buttocks and neck. He stated further that D. C.’s condition was consistent with child neglect and starvation and that the loss of subcutaneous fat would take “many days to weeks.”

A GBI agent testified that she visited the Coleman home as part of her investigation. She stated that she discovered an empty can of baby formula in the trash and a can of baby formula on the kitchen counter with about three scoops of formula missing from the can.

The Colemans presented several witnesses and testified in their own defense, both denying that they willfully denied D. C. of sustenance. Jennifer’s aunt testified that she visited the Coleman home after D. C. was born “just about every day,” usually some time between 12:00 p.m. and 3:00 p.m., that she fed D. C. each time she visited, and that she observed Jennifer feed D. C. The aunt stated further that D. C. was “a little baby,” that she saw him with his clothes off and had never become concerned about his condition, and that she was at the Coleman home at around 12:30 p.m. on March 2, the same day the Colemans rushed D. C. to the emergency room, and noticed nothing unusual about him.

Jennifer’s grandmother testified that there did not appear to her “to be any problem with [D. C.]” when she visited the Coleman home a week before D. C. was taken to the emergency room. She stated further that babies born in her family were small, including Jennifer. Another family member testified that D. C. was a normal but small baby, and recalled that on her only visit to the Coleman home a week and a half before March 2, Jennifer was feeding D. C. when she arrived. Jennifer’s cousin testified that she fed D. C. during a visit two days before D. C. was taken to the emergency room, and Jennifer’s twin sister testified that she visited the Coleman home three days a week and was never concerned about D. C.’s condition. She stated further that D. C. appeared normal when she visited the home on March 1 and that she observed both Jennifer and Brent feed him on several occasions.

Jennifer testified that she was concerned about D. C.’s weight loss at his one-week appointment with the pediatrician. She stated that she was instructed by the pediatrician to nurse D. C. on each breast for 15 minutes and to then offer him two ounces of formula. Jennifer stated further that she was excited when D. C. gained back four ounces, but that it never seemed to her that D. C. was losing weight. Sometime between February 10 and 13, Jennifer ceased breast feeding and began making D. C. four-ounce bottles of formula. She explained that D. C. would only drink two and a half or three ounces per feeding.

Jennifer also testified that because D. C. became constipated, she fed him a mixture of one ounce of adult prune juice and one ounce of water for one feeding a day for about a week and a half beginning on February 18 when D. C. was four weeks old. She stated that she did not realize at the time that the adult prune juice was not good for him. Jennifer explained that she first noticed a change in D. C. on the day she took him to the emergency room. She described him as limp and listless, and stated that he would not eat and gave her a blank stare. She held D. C. in her arms and waited on the porch until Brent arrived home from work around 5:00 p.m. Jennifer explained that she waited on Brent because she did not have any remaining minutes on her cell phone to call for help, nor transportation. She stated that en route to the emergency room D. C. stopped breathing.

Jennifer testified that there was never a time that she did not have formula in the house, nor a time when D. C. was not fed every three to four hours. She stated that days before she and Brent took D. C. to the emergency room, D. C. had diarrhea that ran through his diaper and clothing but eventually tapered off the next morning. She explained that D. C.’s “butt bones were always sticking out” and that his “sternum always stuck out.”

Brent testified to the same series of events. He explained that he often made bottles and fed D. C. and that D. C. would only eat two and a half or three ounces of formula per feeding. Brent explained further that D. C. became constipated when Jennifer switched from breast feeding to only formula feeding and that he purchased prune juice after a co-worker advised him to give D. C. a mixture of prune juice and water to help relieve his constipation. He stated that D. C. had several “runny” bowel movements after drinking the prune juice and water. He explained that he did not notice any problem with D. C. when he left for work on the morning of March 2.

OCGA § 16-5-70 (a) provides: “A parent... of a child under the age of 18 commits the offense of cruelty to children in the first degree when such person willfully deprives the child of necessary sustenance to the extent that the child’s health or well-being is jeopardized.” And “[t]he term ‘necessary sustenance,’ as used in this Code section, has consistently been defined as that necessary food and drink which is sufficient to support life and maintain health.” (Citation omitted.) Knight v. State, 233 Ga. App. 819, 821 (2) (505 SE2d 796) (1998). The Colemans argue that the evidence is insufficient because the pediatric intensivist “never opined that the prune juice could not be the cause of the malnutrition opined by him.” But when asked about the effect of diarrhea induced by prune juice, the intensivist testified: “If you’re getting plenty of calories on top of the prune juice, you still ought to grow. You still should have some diarrhea from dehydration, but you shouldn’t be so emaciated and so deplete[d] of any fat stores at all.” The Colemans also argue that the State’s case was based solely on circumstantial evidence of D. C.’s condition on March 2, but the evidence was not purely circumstantial as two pediatricians, who observed and treated the victim, testified to what they saw. See Allen v. State, 278 Ga. App. 292, 294 (1) (628 SE2d 717) (2006).

Direct medical testimony reveals that D. C. was severely malnourished and that his health was jeopardized. Whether the Colemans wilfully perpetrated the act causing D. C.’s condition was an issue for the jury to resolve. See Copeland v. State, 263 Ga. App. 776, 779-780 (1) (589 SE2d 319) (2003); Knight, supra, 233 Ga. App. at 822 (2). The evidence presented here was sufficient for a rational trier of fact to find the Colemans guilty of child cruelty in the first degree as charged in the indictment; the trial court therefore did not err in denying the Colemans’ motion for directed verdict. See Copeland, supra.

2. The Colemans contend that the trial court erred in denying their motion for mistrial following the testimony of a DFACS employee who stated that D. C. had been in foster care.

A trial court has the discretion to grant a mistrial or to give curative instructions, and this court will only interfere with that discretion when granting a mistrial is essential to the preservation of the right to fair trial. When determining whether the trial court abused its discretion, we consider the statement itself, other evidence against the accused, and the actions of the trial court and counsel dealing with the impropriety.

(Citations and punctuation omitted.) Jackson v. State, 302 Ga. App. 412, 414 (1) (691 SE2d 553) (2010).

A DFACS investigator was asked on redirect examination: “do you know where [D. C.] is now?” The investigator replied: “No , sir, I do not know. My understanding is that the child was in foster care for a time and —.” Counsel for Jennifer objected immediately and the Colemans made a motion for mistrial. The trial court denied the motion for mistrial but granted the Colemans’ motion in limine to exclude any further evidence concerning D. C.’s placement. The trial court offered to give a curative instruction, but Jennifer’s counsel rejected the offer, stating: “[T]here’s no way that that can be corrected by any curative instruction. The damage is done.”

The Colemans argue the statement that D. C. “was in foster care for a time” improperly placed their character into issue and implied to the jury that some court had removed D. C. from their home because they committed the acts charged in the indictment. We agree.

Foster care refers to “a private home used by a child-placing agency.” See OCGA § 49-5-60 (10). And, generally, a court order removing a child from the child’s home is based upon a finding by the court that continuation in the home would be contrary to the welfare of the child. See OCGA § 15-11-58 (a); see also OCGA § 15-11-58 (a) (4) (A) (reasonable efforts to preserve family not required where parent has subjected child to aggravated circumstances). Therefore, the statement that D. C. “was in foster care for a time” could have given the jury the impression either that the Colemans were guilty of the crime charged, or that a court determined that living in the Coleman home was contrary to D. C.’s welfare for some other reason attributable to the Colemans.

In either case, under the particular facts and circumstances here, we hold that the prejudicial effect of the witness’s statement could not have been corrected by a curative instruction and that the Colemans’ right to a fair trial was prejudiced by it, where, as in this case, the evidence was not overwhelming. See, e.g., Jackson, supra, 302 Ga. App. at 417 (1) (when given contradictory testimony defendant’s right to fair trial prejudiced by improper testimony of prior incarceration). The trial court therefore abused its discretion in denying the Colemans’ motion for mistrial on this ground, and the Colemans are entitled to a new trial.

3. Although we reverse this case in Division 2, we nevertheless address the Colemans’ remaining enumeration of error as it may occur at retrial. The Colemans argue that the trial court erred in allowing evidence of their marijuana purchase and use. The Colemans filed separate motions in limine to exclude the evidence. At the hearing on the motions, the State argued that the evidence was admissible because the Colemans commented on their poverty during the investigation, but then spent money to purchase marijuana. The trial court denied the motions stating only: “I have continued my research with regard to the marijuana issue. I am still not as familiar with the facts of the case as you all are, so I am somewhat at a disadvantage. With that being said, I am going to allow the evidence ... AT THIS TIME.” (Emphasis in original.)

At trial, several witnesses testified about the Colemans’ purchase and use of marijuana. Trial counsel objected to the first introduction of the testimony and moved for a mistrial. The trial court denied the motion and reminded trial counsel that it had already denied a motion in limine on the issue.

The State contends on appeal, as it did during the hearing on the motion in limine, that evidence of the purchase and use of marijuana was relevant to rebut the Colemans’ “assertions of poverty to explain and justify their conduct.” The State argues that “[b]y claiming the excuse of poverty for the offense of starving their baby nearly to death, the Appellants made their use of the family money relevant and necessary to the investigation of their conduct.” In particular, the State points to the testimony of the DFACS investigator and a GBI agent. The DFACS investigator testified: “I asked [Jennifer Coleman] why she didn’t call 911, they said they didn’t have a phone and then Mr. Coleman interjected that the only thing they were guilty of or he was guilty of was being poor.” The GBI agent stated that Jennifer told her “she did have a TracFone. I guess it’s prepaid minutes on a cell phone and that there were not any minutes on that phone on that particular date and that she was unable to call.” When the prosecutor asked, “Did [Jennifer Coleman] make any explanation as to why there were no minutes on it?,” the agent stated that Jennifer replied, “Money was tight.”

The State contends on appeal that evidence that the Colemans purchased marijuana was relevant to rebut the Colemans’ claim that they were poor. But the relevant issue is whether they claimed poverty as a defense to the charges against them. The Colemans were charged with willfully depriving D. C. “of necessary sustenance to the extent that said child’s health was jeopardized.” At no time during the trial did the Colemans claim that they were unable to provide food for D. C. because they were poor. And the State presented no evidence of such a claim. Therefore evidence that the Colemans purchased and used marijuana was not relevant to rebut a claim that they did not make. The marijuana evidence therefore was not admissible on this ground. See, e.g., Racquemore v. State, 204 Ga. App. 88, 89 (2) (418 SE2d 448) (1992) (testimony that defendant stated he was on probation not relevant to explain motive for crime); Parker v. State, 162 Ga. App. 271, 274 (5) (290 SE2d 518) (1982) (“As appellant did not raise the issue of consent as a defense to the aggravated sodomy charge, this testimony was not admissible for the purpose of rebutting such contentions. [Cit.]”).

Judgment reversed in both cases.

Mikell, J., concurs. Adams, J., concurs specially.

ADAMS, Judge,

concurring specially.

I disagree with Division 2 because the Colemans waived any error when they refused a curative instruction, which might have remedied any error. I agree, however, that the conviction must be reversed for a new trial. With regard to Division 3 and the admission of the evidence of marijuana use, it was reversible error to allow the State to admit evidence of the Colemans’ use of marijuana over and above what could have been admitted as res gestae. That error was not harmless because the improper evidence was prejudicial and the evidence of guilt is not overwhelming.

The DFACS worker only testified that “the child was in foster care for a time. ...” Although the Colemans moved for a mistrial, they turned down the court’s offer to give a curative instruction, which normally means that they cannot contest the denial of their motion for mistrial:

Because curative instructions were offered and refused, [the appellant] cannot now complain of the testimony. Jones v. State, 250 Ga. 166, 168 (296 SE2d 598) (1982). Under these circumstances, the denial of the motion for a mistrial was not an abuse of discretion. Conklin v. State, 254 Ga. 558, 568 (331 SE2d 532) (1985).

Bromley v. State, 259 Ga. 377, 380 (4) (380 SE2d 694) (1989) (testimony that defendant was asked to take a polygraph examination). See also Williams v. State, 214 Ga. App. 834, 835 (449 SE2d 532) (1994) (following Bromley); Wilbanks v. State, 251 Ga. App. 248, 268 (19) (e) (554 SE2d 248) (2001) (statement that defendant was on drugs). Furthermore, “[i]n the absence of a demonstration that a mistrial was essential to preservation of a defendant’s right to a fair trial, it is not an abuse of discretion to deny a motion for a mistrial even where no curative instructions were given. [Cit.]” Bell v. State, 179 Ga. App. 491 (1) (347 SE2d 321) (1986).

Here, a curative instruction might have remedied any problem. Curative instructions have been used to successfully remedy a host of testimonial errors concerning improper evidence, although there are limits. See, e.g., Hall v. State, 161 Ga. App. 521, 523 (1) (289 SE2d 313) (1982) (evidence of the confession of a co-defendant implicating a defendant cannot be cured by a limiting instruction).

Decided March 24, 2011

John L. Tracy, for appellant (case no. A10A2254).

With regard to the mention of foster care, such care is often used for placement of children deemed to be deprived. The jury possibly could be told that the definition of deprivation “focuses upon the needs of the child regardless of parental fault.” (Citation and punctuation omitted.) In the Interest of A. B., 285 Ga. App. 288 (645 SE2d 716) (2007). Or a jury possibly could be told that the child was in foster care as a result of the allegations raised against the parents and that additional decisions regarding the child’s care will be determined after the trial. Other instructions might be appropriate.

Nevertheless, the case must be reversed because of the improper admission of a large part of the evidence that the Colemans bought and smoked marijuana. I agree with the conclusion that the trial court erred by concluding that the Colemans had raised the issue by claiming that they were poor and that any evidence related to marijuana therefore could be admitted. It is true that evidence of the parents’ marijuana use that took place in the first six weeks of their child’s life — the dates relevant to the allegations against them — may be admissible as part of the res gestae of the crime. Pless v. State, 260 Ga. 96, 98 (2) (390 SE2d 40) (1990); Carrie v. State, 298 Ga. App. 55, 58 (1) (c) (679 SE2d 30) (2009). But other evidence of their marijuana use, from times unrelated to the allegations is inadmissible. Plessy, 260 Ga. at 98 (2) (distinguishing testimony about the defendant’s drug use on the day of the crime from other testimony about the defendant’s drug use unconnected with the crime). And given that the evidence of guilt was not overwhelming, admission of the marijuana evidence was prejudicial, reversible error. See Crosby v. State, 269 Ga. 434, 435 (3) (498 SE2d 62) (1998) (evidence that defendant possessed a small amount of marijuana was irrelevant and prejudicial); Hampton v. State, 300 Ga. App. 49 (684 SE2d 118) (2009) (improper admission of character evidence of “probation for an unspecified prior offense involving cocaine” was reversible error).

Norman J. Crowe, Jr., for appellant (case no. A10A2255).

C. Paul Bowden, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellee.

       D. C. was fed intraveneously, then with a feeding tube, and then when he began breathing on his own, with a bottle. Once his condition improved, he was released from the hospital.

       This holding is limited to the particular facts of this case and should not be construed to stand for the proposition that any mention of the involvement of DFACS or foster care in a criminal case creates grounds for per se reversal.

       This evidence included that, without any reference to a certain time, Brent Coleman smoked marijuana; that he might still smoke marijuana as of the trial, which was over three years after the relevant incident; that he purchased marijuana for a certain price; and that he had been smoking marijuana for a long time.