author: Branch, Judge.

text:
    A14A1626.
    CHESTNUT v. THE STATE.
    (769 SE2d 779)
   Branch, Judge.

Rufus Chestnut was tried by a Coffee County jury and convicted of violating OCGA § 42-1-12, which required Chestnut, as a registered sex offender, to provide the Coffee County sheriff’s office with 72 hours advance notice of any change in his residential address, with such notice to include the new address to which Chestnut was moving. Chestnut now appeals, arguing that under the Supreme Court of Georgia’s decision in Santos v. State, 284 Ga. 514 (668 SE2d 676) (2008), the evidence is insufficient to sustain his conviction. For reasons explained more fully below, we agree with Chestnut and therefore reverse his conviction.

Although this case has a protracted procedural history, the relevant facts are undisputed and show that in November 2006, Chestnut was convicted of incest as a result of his relationship with an adult woman (S. C.), who was the legal daughter of Chestnut’s brother Larry Chestnut (“Larry”). See Chestnut v. State, 287 Ga. App. 693 (652 SE2d 596) (2007). Upon being convicted of incest, Chestnut received a sentence often years, with four years to be served in incarceration and the balance to be served on probation. As a result of Chestnut’s incest conviction, OCGA § 42-1-12 required him to register with the State as a sex offender prior to his release from prison and to register as a sex offender with his local law enforcement agency within 72 hours following his release. See OCGA § 42-1-12 (a) (10) (B) (xii) (defining incest as a “dangerous sexual offense” and subjecting any person convicted of that crime to the registration requirements found in OCGA § 42-1-12); OCGA § 42-1-12 (f) (1), (2).

Chestnut was released from prison on April 11, 2009. Two days later, on April 13, he went to the Coffee County sheriff’s office to register as a sex offender. Chestnut’s probation officer, Mike Taylor, refused to allow Chestnut to register at the first address he offered because that residence was within 1,000 feet of a day care center and therefore did not meet the requirements of OCGA § 42-1-15 (a) (2006). Recognizing that Chestnut “was homeless,” Taylor gave him an additional three days to find a different residence. On April 14, Chestnut returned to the sheriff’s office and completed his registration, listing his residential address as “1014 N. Latitia St., Apt. B, Douglas, Ga.” Taylor approved this address after measuring to make sure that it was situated the statutorily-mandated distance from “day cares, churches, schools, etc.”

As part of his registration, Chestnut was required to sign a “Notification Form,” on which he acknowledged the restrictions placed upon him by OCGA § 42-1-12, including the requirement that he provide the sheriff’s office with 72 hours prior notice before moving from the approved residential address. The notification form further provided that Chestnut understood that a residence address was a “street or route address” and that “[p]ost office box and homeless do not constitute an address.”

On June 17, 2009, Taylor went to check on Chestnut at his registered address. Chestnut was not present at the apartment, but his brother, Howard Chestnut, was. Based on a conversation that Taylor had with Howard, Taylor contacted Chestnut. When Chestnut appeared at Taylor’s office the following day, he told the probation officer that the apartment belonged to his brother and that Chestnut had been forced to leave when the brother’s minor daughter moved into the residence, as Chestnut knew that the terms of his probation forbade him from living with minors. Chestnut explained to Taylor that his niece was going to return to live with her mother and that when the niece moved out, Chestnut would move back in with Howard. On July 21, 2009, Taylor made a second visit to Howard’s apartment but found no one at home. The following day, Taylor returned to the apartment with Detective Jamie Hersey of the Coffee County sheriff’s office and found Howard at the residence. With Howard’s permission, Hersey and Taylor searched the apartment and found no evidence that Chestnut was living there. Hersey then obtained a warrant for Chestnut’s arrest, charging Chestnut with violating OCGA § 42-1-12 by failing to inform the sheriff’s office 72 hours before changing his residential address. Chestnut was arrested on July 27, 2009, and was indicted on October 1, 2009. An attorney with the Waycross Circuit defender’s office was apparently appointed to represent Chestnut and on November 18, 2009, that lawyer filed a motion to quash the indictment. The trial court denied that motion on March 22, 2010.

On July 18, 2010, Chestnut wrote to the clerk of the Coffee County Superior Court, stating that he had not heard from his attorney since April 2010 and asking when his case would come to trial, noting that he had been in jail for a year on the pending charges. The clerk responded to Chestnut on July 23, telling Chestnut that he did not yet have a trial date. Trial was thereafter set for October 18, 2010, but the case did not go forward at that time. On October 27, 2010, Chestnut’s attorney filed a second motion to quash the indictment that was almost identical to the first motion to quash. The trial court denied the second motion to quash on December 13, 2010. After that time, the case remained dormant for almost two years while Chestnut remained in jail. Although the Waycross Circuit defender’s office remained counsel of record, it appears that during this two-year period, no lawyer in that office was actually assigned to the case. The record reflects that during this time, Chestnut had no contact with an attorney and believed himself to be without legal representation. Accordingly, Chestnut, who has an eighth-grade education, filed four pro se motions, including two motions seeking the appointment of an attorney to represent him.

On November 19, 2012, while there was apparently no specific attorney assigned to represent Chestnut, the trial court entered an order setting trial for December 10, 2012. The trial did not go forward on that date, and on December 13, 2012, three days after the scheduled trial date, the circuit public defender’s office was formally relieved of its representation of Chestnut and a new attorney was appointed. This attorney represented Chestnut at his trial, which occurred on February 20, 2013, and he also represents Chestnut on this appeal.

At trial, Hersey testified that following Chestnut’s arrest on July 27, 2009, Chestnut was read his Miranda rights and agreed to speak with police. Chestnut told Hersey that he could not reside in his brother’s apartment after Howard’s teenage daughter moved in to the residence. Chestnut told police that since leaving his brother’s home, he had been staying “on the Old Axson Highway.” When questioned further, however, Chestnut could not provide the officer with a street address or the name of any person with whom he had been residing.

Chestnut testified on his own behalf and stated that upon his release from prison he had stayed with his brother at the N. Latitia address. Within a day or two after being released, however, Chestnut was hospitalized for several nights. After getting out of the hospital, Chestnut learned that his teenage niece had moved into Howard’s apartment, and Chestnut knew that under the terms of his probation he could not reside with a minor. Thus, although he frequently went to his brother’s apartment to eat, Chestnut could not actually reside there.

Chestnut also testified that although he had several siblings in the area, the sheriff’s office would not allow him to live with any of his brothers or sisters because their homes were too close to schools, churches, parks, and playgrounds. Given the lack of friends or relatives with whom he could reside, Chestnut became homeless after moving out of his brother’s apartment. Because there were no homeless shelters in the area, Chestnut began sleeping in an abandoned trailer situated in some woods off of Axson Road. Chestnut would alternate between sleeping in the trailer (which was boarded up and was without power or water) and different storage units belonging to a nearby storage facility. On some occasions, Chestnut would sleep behind a local furniture store. At no time did Chestnut ever leave Coffee County.

During direct examination, Chestnut’s attorney questioned Chestnut about his failure to inform the sheriff’s office of his homeless status and his failure to tell police where he was sleeping. In doing so, the lawyer erroneously represented to both the jury and Chestnut the contents of the registration form Chestnut had signed. The lawyer asked Chestnut: “Well, you realize one of the things that [registration] form says is that, if you’re homeless, you’re supposed to go report that as well?” Chestnut, who did not have the form in front of him, replied that “when I signed them papers, it didn’t say that. It’s not on there when I first signed them papers. Like he say, things have changed since I been out.” In fact, there is no evidence in the record showing that Chestnut ever signed any form that told him he had to register his homeless status. Instead, the form signed by Chestnut reflected the then-current statutory language, which explicitly provided that for purposes of registration, an address was a route or street number and that “homeless does not constitute an address.” See OCGA § 42-1-12 (a) (1) (2009). In other words, the registration form informed Chestnut that a homeless person who was without a route or street address could not satisfy the statute’s registration requirements.

The jury found Chestnut guilty, and the trial court sentenced him on March 28, 2013 to thirty years, with five years to be served in incarceration and the balance on probation. Chestnut’s attorney filed a motion for a new trial on March 19, 2013 and the trial transcript was filed six months later, on August 12. A hearing on Chestnut’s new trial motion was scheduled for February 28, 2014. Three days after this scheduled hearing date, Chestnut’s attorney and the prosecutor filed a joint stipulation waiving both an evidentiary hearing and oral argument as to the new trial motion. The trial court then entered an order denying the new trial motion on March 14, 2014. This appeal followed, with Chestnut’s sole claim of error being that the evidence is insufficient to sustain his conviction.

As noted above, the statute under which Chestnut was prosecuted, OCGA § 42-1-12, requires individuals convicted of sex crimes to register with the sheriff of the county in which they reside. OCGA § 42-1-12 (f) (2). As part of that registration, the convicted sex offender must provide the sheriff with certain information, including a “residence address.” OCGA § 42-1-12 (a) (16) (B) (2009). And the version of the statute under which Chestnut was prosecuted provided:

Any sexual offender required to register under this Code section shall: . . . Update the required registration information with the sheriff of the county in which the sexual offender resides within 72 hours of any change to the required registration information, other thanresidence address; if the information is the sexual offender’s new residence address, the sexual offender shall give the information to the sheriff of the county with whom the sexual offender last registered within 72 hours prior to any change of residence address and to the sheriff of the county to which the sexual offender is moving within 72 hours after establishing the new residence [.]

OCGA § 42-1-12 (f) (5) (2009). The 2009 version of the statute defined “address” as “the street or route address of the sexual offender’s residence” and specifically states that for purposes of the Code section, “the term does not mean a post office box, and homeless does not constitute an address.” OCGA § 42-1-12 (a) (1) (2009). This version of the statute provided no guidelines for what a homeless person who was without a route or street address should do to comply with the registration requirement as to “residence address.”

In 2008, the Supreme Court of Georgia considered whether a homeless sex offender who was without a route or street address could be prosecuted for violating the former version of OCGA § 42-1-12 (f) (5). Santos, 284 Ga. 514. Santos was a convicted sex offender who had become homeless upon his release from prison but who had been able to provide police with the address of a local homeless shelter that had agreed to house him. Id. at 515 (1). Eventually, however, Santos was asked to leave the shelter and when he did so, he was not only homeless, but also without any kind of route or street address. Id. After Santos had been without an address for approximately three months, he was arrested and charged with violating OCGA § 42-1-12. Id. Santos moved to quash the indictment, arguing that the statute was unconstitutionally vague as applied to homeless sex offenders who were without a residence address. Id. at 514. The trial court denied the motion to quash, but our Supreme Court reversed that decision, finding that because the statute failed to provide individuals such as Santos with fair notice of how they could comply with the statute’s residence address registration requirement, that “requirement is too vague to be enforced against [such persons] and is, therefore, unconstitutional under the due process clauses of the Georgia and United States Constitutions.” Id. at 517 (l).

On appeal, Chestnut relies on Santos to support his claim that the evidence was insufficient to convict him of violating the former version of OCGA § 42-1-12 (f) (5). Specifically, Chestnut contends that under Santos, the State was required to prove that Chestnut had a new street or route address he could have provided to authorities prior to or at any time after he ceased living at his brother’s apartment. Given the absence of any evidence showing that he had such an address, Chestnut argues that the State failed to meet its burden of proof. We agree.

The undisputed evidence, including both Chestnut’s testimony and the testimony concerning statements Chestnut made to police immediately following his July 2009 arrest, shows that after he could no longer live with his brother, Chestnut was homeless. And although the record shows that Chestnut slept at various, nonresidential locations, the State presented no evidence to prove that any of these locations had a route or street address that Chestnut could have provided to authorities. In its appellate brief, the State attempts to overcome this fatal flaw in its case by asserting that “[n]othing in the record indicates that any of the[ ] locations” at which Chestnut slept after leaving the apartment on N. Latitia (including the hospital, the abandoned trailer and the various storage units) “was without a street or route address.” The obvious problem with this argument is that it ignores the basic constitutional principle that in a criminal prosecution, it is the State who bears the burden of proof. Thus, to convict Chestnut, the State was required to prove that he had a route or street address which he failed to register; Chestnut was not required to prove the lack of such an address. See Volz v. State, 306 Ga. App. 763, 764-766 (703 SE2d 354) (2010) (holding that in light of Santos, a convicted sex offender claiming homelessness could be convicted of violating OCGA § 42-1-12 (f) (5) if the State could prove that the homeless person had a residence address which he or she could have provided to the local sheriff). The State, however, came forward with no evidence to satisfy its burden of proof.

In a further effort to circumvent the problems with its case, the State asserts that because Chestnut’s claim as to the sufficiency of the evidence is predicated on Santos, Chestnut is actually challengingOCGA § 42-1-12 on constitutional grounds. The State then argues that Chestnut has waived this alleged constitutional challenge by failing to raise it prior to trial. See Perez-Castillo v. State, 275 Ga. 124, 125 (562 SE2d 184) (2002) (“[a] constitutional attack on a state statute must be made at the first opportunity, and it is too late to raise such [a] question after a guilty verdict has been returned by the jury”) (punctuation and footnote omitted). Again, however, this argument ignores the fact that by the time of Chestnut’s arrest and indictment, the Supreme Court of Georgia had already decided that former OCGA § 42-1-12 (f) (5) was unconstitutional as applied to those homeless sex offenders who, like Chestnut, are without a street or route address. See Santos, 284 Ga. 514. Thus, Chestnut is not challenging the constitutionality of former OCGA § 42-1-12 (f) (5); instead, as explained previously, Chestnut is claiming that Santos required the State to prove that after he became homeless, Chestnut nevertheless had a street or route address which he failed to register.

Moreover, to the extent that the State is contending that Chestnut’s arguments as to Santos should have been raised at some point during the almost five years this case was pending in the trial court, we agree. As our opinion makes clear, Santos is the dispositive legal precedent with respect to this prosecution. Yet despite the fact that Santos controls any prosecution of a homeless sex offender under former OCGA § 41-1-12 (f) (5), and even though Santos was decided nine months prior to Chestnut’s arrest and fifty-two months prior to his trial and conviction, the record shows that neither the State nor defense counsel ever cited that case prior to this appeal. Most notably, no mention of Santos was made in connection with either of the two motions to quash the indictment, and there was not a proposed jury charge based on Santos. In short, it appears that no fewer than four prosecutors (two district attorneys and two assistant district attorneys) and two defense lawyers somehow remained unaware of Santos until approximately six years after that case was decided. The failings of both the prosecution and defense counsel, however, cannot and did not relieve the State of its burden of proof under Santos; nor do these failings preclude Chestnut from relying on Santos to challenge his conviction.

Decided March 11, 2015.

McGee & McGee, James B. McGee III, for appellant.

Bradley L. Collins, District Attorney, George E. Barnhill, Ian L. Sansot, Assistant District Attorneys, for appellee.

Here, the record shows that the State has never contested the evidence showing Chestnut’s homeless status. Nor has the State ever alleged — either in the indictment or at trial — that, despite his homelessness, Chestnut had a street or route address which he failed to register with the sheriff’s office. Most importantly, the State failed to come forward at trial with any evidence showing that Chestnut had such an address. Given the State’s failure to meet its burden of proof, Chestnut’s conviction is reversed.

Judgment reversed.

Phipps, C. J., and Barnes, P. J., concur.

       Prior to Chestnut’s 2006 bench trial on the incest charge, the parties stipulated that S. C. was born during Larry’s marriage to her mother, approximately one year after Larry began serving a 13-year period of incarceration; that Larry was not S. C.’s biological father; and that Larry had never taken any legal action either to adopt S. C. or to repudiate her birth.

       At the time of Chestnut’s release from prison, this statute provided: “No individual required to register pursuant to Code Section 42-1-12 shall reside . .. within 1,000 feet of any childcare facility, church, school, or area where minors congregate.” OCGA § 42-1-15 (a) (2006). The registration statute currently applicable to Chestnut provides: “Any individual who committed an act between June 4, 2003, and June 30, 2006, for which such individual is required to register shall not reside within 1,000 feet of any child care facility, school, or area where minors congregate.” OCGA § 42-1-17 (b) (2013).

       There is nothing in the record reflecting that appointment, but the attorney did file pleadings on Chestnut’s behalf.

       This motion was based on two arguments. First, the motion contended that because Chestnut’s incest conviction resulted from a consensual relationship with an adult woman to whom he was not biologically related, requiring him to register as a sex offender was unconstitutional. The motion also asserted that OCGA § 42-1-12 (f) was unconstitutionally vague because of its failure to define “residence.”

       Nothing in the record reflects why the trial did not go forward as scheduled.

       The other motions filed by Chestnut included a motion seeking a transcript and case record and a motion seeking reconsideration of the trial court’s order denying the second motion to quash the indictment against him. Chestnut’s efforts to get someone in the judicial system to pay attention to his case are further evidenced by a September 10,2012 letter Chestnut wrote to the superior court clerk, in which Chestnut asked for the clerk’s assistance in finding the address of the “Court of Appeal[s] in Atlanta . . . and Washington, D. C.”

       This order was mailed to: “Attorney: Public Defender,” at an address in Douglas. One week after this order was mailed, the district attorney filed notice of his intent to introduce Chestnut’s “prior record.” At the top of this notice, which contains no address at which it was to be served, the following appears: “TO: KEITH HARKLEROAD.” The record is devoid of any indication as to who Keith Harkleroad might be or why notice regarding evidence to be used at Chestnut’s trial was being directed to him.

       This attorney did not file a formal notice of appearance until April 4,2013, approximately six weeks after Chestnut was convicted and approximately two weeks after counsel had filed a motion for a new trial on Chestnut’s behalf.

       During his testimony, Hersey confirmed that under the terms of Chestnut’s probation, Chestnut could not live with his teenage niece.

       Chestnut explained that police did not find any signs of his presence at the apartment because he had no belongings to leave there, saying: “I’m fresh out of prison. I ain’t got no clothes, no nothing. I’m quite sure they can’t find nothing in that house that belongs to me because I didn’t have nothing. Everything I had was on me.”

       Nor does the State contend that Chestnut violated the law by failing to inform the police of his homeless status.

       Thus, with credit for time served during the three years and ten months he had been incarcerated awaiting trial, Chestnut was scheduled to complete his time in incarceration in July 2014, while this appeal was pending.

       Although Chestnut was indicted in 2009, almost one year after Santos was decided, the former version of OCGA § 42-1-12 (f) (5) analyzed by the Supreme Court of Georgia in Santos was still in effect.

       The legislature amended OCGA § 42-1-12 in 2010 and struck the language which excluded “homeless” from the definition of “address.” Additionally, the legislature amended subsection (f) (5) in several ways, including the addition of the following language:
      If the sexual offender is homeless and the information is the sexual offender’s new sleeping location, within 72 hours of changing sleeping locations, the sexual offender shall give the information regarding the sexual offender’s new sleeping location to the sheriff of the county in which the sexual offender last registered, and if the county has changed, to the sheriff of the county to which the sexual offender has moved.
      The legislature also added a new subsection to OCGA § 42-1-12 (f) which provides, in relevant part:
      In the case of a sexual offender whose place of residence is the status of homelessness, [he or she shall] register in person with the sheriff of the county in which the sexual offender sleeps within 72 hours after the sexual offender’s release from prison or placement on parole, supervised release, [or] probation . . . and provide the location where he or she sleeps].]
      OCGA § 42-1-12 (f) (2.1) (2013).

       The State did submit a jury charge based on the current version of OCGA § 42-1-12, which sets forth the steps a homeless person should take to comply with the registration requirement as to residence address. At the charge conference, however, the State withdrew that requested charge, noting that the version of the statute under which Chestnut was being prosecuted contained no provision regarding “homelessness.”


source: Caselaw Access Project

license: Public Domain

text:
    A14A1858.
    TURNER v. THE STATE.
    (769 SE2d 785)
   Branch, Judge.

In April 2008, Marcus Turner was tried by a jury and convicted of burglary, two counts of kidnapping, aggravated assault, armed robbery, and three counts of possession of a firearm during the commission of a crime. He was sentenced to life imprisonment for the armed robbery conviction, concurrent twenty-year sentences for the burglary, kidnapping, and aggravated assault convictions, and five-year sentences for each of the three convictions for possession of a firearm during the commission of a crime, to run concurrently with each other and consecutively to the life sentence. Turner appeals all of his convictions and the denial of his motion for new trial. He contends that the trial court erred by allowing the State to use his silence against him, allowing witness statements to go out with the jury in violation of the continuing witness rule, and incorrectly charging the jury on kidnapping. Finding no reversible error, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U. S. 307 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the evidence showed that on November 16, 2007, Kendra Andrews was in her house with her boyfriend, DeRico Lewis, and their baby. When Andrews heard a knock at the door, she picked up her baby and opened the door slightly before two men pushed it in toward her. As she tried to push back, one man pulled out a gun and the other man, whom Andrews identified as Turner, grabbed her by the neck. While maintaining a grip on her neck, Turner pushed Andrews, who was still holding her baby, back to the bedroom and onto the bed. Turner continued to hold her neck while she was on the bed and held a liquor bottle over her and the baby in a threatening manner. The man with the gun, identified as Montrelle Teasley, asked Andrews where the money was, and she told him that her purse was on the dresser. When the men noticed that the shower water was running, they asked Andrews who was in there, and she replied that it was her boyfriend. Teasley then went into the bathroom. When Andrews asked Turner not to hurt her boyfriend, he responded, “shut up, bitch,” and punched her in the face. She then asked him not to hit her baby and he said, “fuck that baby.”

While Lewis was in the shower, he heard the bathroom door open and pulled back the shower curtain to see Teasley pointing a gun at his face. Teasley asked him where the money was, and Lewis told him that it was in his pants on the bathroom floor. After Teasley got the money from Lewis’s pants, Lewis grabbed the gun. Teasley turned it and fired, hitting Lewis in the forearm. Lewis ultimately gained control of the gun and shot at Teasley and Turner, who still had Andrews and the baby pinned down on the bed. Lewis eventually got both men out of the house, and Andrews contacted the police.

That same day, Charles Norton of the Richmond County Sheriff’s Office was dispatched to the hospital based on a report of two men arriving with gunshot wounds. One of the men was Turner. When Officer Norton asked him about the gunshot wound that he had received, Turner told him that he was walking down the road and someone in an unknown vehicle fired shots at him. Turner said that the incident had occurred approximately two hours before he came to the hospital.

Shawn Newsome, an investigator with the Richmond County Sheriff’s Office, took statements of the incident from Andrews and Lewis. At the police station, Newsome separated Andrews and Lewis and showed them photographic lineups. They both picked Turner out of the lineup as a suspect. Turner and Teasley were subsequently arrested.

Rochelle Johnson of the Georgia Bureau of Investigation performed DNA typing on a jumpsuit worn by Turner, a jacket worn by Teasley, and buccal swabs from Lewis, Teasley, and Turner. She determined that blood found on Turner’s jumpsuit and on Teasley’s jacket came from Lewis.

Turner testified in his defense and admitted that he was at the house with Teasley and that Teasley knocked on the door. He then heard two gunshots fired and went up to the door, which was open, and saw Teasley and the victims facing each other. He dropped the liquor bottle that he had been holding, grabbed Teasley, and pulled him out the door. He was shot in the arm before the door slammed behind him. When he was asked about his conversation with Officer Norton at the hospital, Turner said that Norton had asked if he had ever been shot before and that he was telling Norton about a prior shooting incident.

On cross-examination, Turner was asked, “When did you tell the police the version of events that you’re telling us today?” Turner’s counsel objected that it was “possibly an area of objection” because Turner had a right to remain silent and did not have to tell the police his story. The court overruled the objection and the following transpired:

[PROSECUTOR]: Please tell the jury when you told police the story that you’re telling us today.
[TURNER]: I never told the police the story, sir.
[PROSECUTOR]: In fact, this is the first time that anybody’s ever heard about it; isn’t that right?
[TURNER]: No, sir. This ain’t the first time anyone’s heard about this, sir.
[PROSECUTOR]: This is the first time that you’ve told anyone involved with this case, your current version of what happened, isn’t that right?

Turner responded that he had told his lawyer that version, but admitted that the trial was the first time anyone else had heard that what he had tried to do that night was to help.

1. Turner contends that the trial court erred by allowing the State to use his silence against him during his cross-examination in violation of Doyle v. Ohio, 426 U. S. 610 (96 SCt 2240, 49 LE2d 91) (1976). Because Doyle is inapplicable here, we discern no error.

In Doyle, the United States Supreme Court held that the use for impeachment purposes of a defendant’s silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. Doyle, 426 U. S. at 619 (II). The Supreme Court of Georgia has held that in criminal cases “a comment upon a defendant’s silence or failure to come forward... will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.” Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839) (1991), overruled on other grounds, Chapel v. State, 270 Ga. 151, 155 (4) (510 SE2d 802) (1998) , as recognized in Clark v. State, 271 Ga. 6, 9 (5) (515 SE2d 155) (1999) .

This case, however, is distinguishable on its facts from Doyle and Mallory. Turner did not remain silent, but gave his version of events to Officer Norton while he was in the hospital. Because Turner “had chosen to speak to the investigating officer, the State could properly impeach him with his prior inconsistent statement[ ].” Kendrick v. State, 287 Ga. 676, 678 (2) (699 SE2d 302) (2010) (citations omitted); see also Anderson v. Charles, 447 U. S. 404, 409 (100 SCt 2180, 65 LE2d 222) (1980) (Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements; although “[e]ach of two inconsistent descriptions of events may be said to involve ‘silence’ insofar as it omits facts included in the other version,... Doyle does not require any such formalistic understanding of ‘silence.’ ”); Carter v. State, 324 Ga. App. 118, 126 (2) (b) (749 SE2d 404) (2013) (where appellant was not silent and willingly talked to detective, Mallory principle did not require the exclusion of testimony about her failure to mention certain facts during her interviews with police officers). Accordingly, the trial court did not err in allowing the State to cross-examine Turner about his prior inconsistent statement.

2. Turner contends that the trial court erred by allowing photographic lineup identification forms signed by Andrews and Lewis to go out with the jury, thereby violating the continuing witness rule. We disagree.

The photographic lineup identification forms included the following information: instructions for the lineup, the witnesses’ signatures, the witnesses’ initials under the number of the photograph the witness selected from the lineup, the date and time of the selection, and the signature of the investigator who conducted the lineup. Turner’s counsel objected to the forms going out with the jury based on a violation of the continuing witness rule. The trial court overruled the objection.

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once. The types of documents that have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations.

Davis v. State, 285 Ga. 343, 348 (8) (676 SE2d 215) (2009) (citations and punctuation omitted). The photographic lineup identification forms are documents supporting a photographic lineup, however, and are not equivalent to testimony, but rather are documentary evidence of the lineup itself. Dockery v. State, 287 Ga. 275, 276-277 (4) (695 SE2d 599) (2010). Accordingly, the admission of these exhibits didnot violate the continuing witness rule. Id.; Kenney v. State, 196 Ga. App. 776, 777 (2) (397 SE2d 131) (1990) (photographic lineup documents not viewed as statements of witness, but as tools to explain the photographic lineup display shown to witnesses prior to trial).

3. Turner contends that the trial court erred by incorrectly charging the jury on the offense of kidnapping in violation of Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008). We agree that Turner is entitled to a jury instruction consistent with the rule established in Garza, but conclude that the charging error was not reversible.

In this case, the trial court instructed the jury that

a person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will. I further charge you that any unlawful taking or movement of a person, however slight, is sufficient to show the abduction or stealing away of a person. The distance the person is carried is not material.

The charge given was a correct statement of the law at the time of Turner’s trial, but in Garza, the Supreme Court of Georgia overruled prior law regarding the need for only slight movement to satisfy the asportation element of kidnapping and set out a four-part test to determine whether the movement at issue constitutes asportation. Garza, 284 Ga. at 702 (1).

Because Garza must be applied retroactively, the given charge is rendered erroneous, and Turner is entitled to a jury instruction consistent with the rule established in Garza with respect to satisfaction of the asportation element of kidnapping. Hammond v. State, 289 Ga. 142, 144 (2) (710 SE2d 124) (2011); Arnold v. State, 324 Ga. App. 58, 64 (3) (749 SE2d 245) (2013). Nonetheless, Turner’s kidnapping conviction should be upheld if, after applying the Garza factors, it is still “highly probable that the [erroneous jury charge] did not contribute to the judgment.” Arnold, 324 Ga. App. at 64 (3) (citation and punctuation omitted).

The four factors that should be considered in determining whether the movement at issue constitutes asportation include:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Garza, 284 Ga. at 702 (1) (citation and footnote omitted). Not all four factors must be satisfied to establish that asportation has occurred. Hammond, 289 Ga. at 144-145 (2). And “even a minimal movement that enhances the control of the perpetrator over the victim will constitute asportation when it is not an inherent part of a separate offense.” Arnold, 324 Ga. App. at 62-63 (2) (citations omitted).

Here, we assume without deciding that the first factor of the Garza test was not established because the movement of Andrews and the baby was from the living room to the bedroom and was of minimal duration. The evidence did, however, establish the last three factors of the Garza test. The movement did not occur during the commission of a separate offense against Andrews and the baby because the burglary (OCGA § 16-7-1) had already been completed when they entered the house, the aggravated assault (OCGA § 16-5-21) occurred after the movement to the bedroom (when Teasley brandished a handgun while demanding money from Andrews), and the victim of the armed robbery (OCGA § 16-8-41) was not Andrews, but Lewis (robbery of money from his pants by use of a handgun). Nor was the movement an inherent part of the other crimes because it was not necessary to effect the completion of the burglary or aggravated assault. See Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28) (2009) (movement within duplex was minimal but such movement not inherent part of armed robbery, which had already been completed); Holden v. State, 314 Ga. App. 36, 38 (1) (722 SE2d 873) (2012) (movement from kitchen to bedroom not inherent part of rape, aggravated sodomy, or armed robbery); Dixon v. State, 303 Ga. App. 517, 519 (1) (693 SE2d 900) (2010) (movement from hotel room door to bed occurred before aggravated assault and rape occurred and was not inherent part of either offense). Further, the movement created an additional danger to Andrews and the baby because it moved them farther from the front door, a possible means of escape, and it enhanced Turner’s control over them. See Peralta v. State, 312 Ga. App. 414, 416 (1) (718 SE2d 326) (2011); Holden, 314 Ga. App. at 38 (1).

Based upon the evidence in this case, it is highly probable that the trial court’s error in not instructing the jury to consider the asportation element of kidnapping using the Garza factors did not contribute to the judgment of guilt on the kidnapping charge. Accordingly, the trial court’s error is not reversible.

Decided March 11, 2015.

Charles A. Jones, Jr., for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Because Turner was not a suspect at the time, Norton did not read him his Miranda rights before talking to him.

        Mallory was decided under the old rules of evidence, but the Supreme Court of Georgia has offered no opinion about the continuing viability of Mallory under the new Evidence Code. See Romer v. State, 293 Ga. 339, 343 (2), n. 4 (745 SE2d637) (2013); Yancey v. State, 292 Ga. 812, 817 (2), n. 9 (740 SE2d 628) (2013).

       Following Garza, the Georgia General Assembly amended the kidnapping statute, OCGA § 16-5-40, but the revised statute only applies to crimes committed on or after July 1, 2009. Thus, the Garza rule is applicable here.

       See Whittlesey v. State, 192 Ga. App. 667, 668 (385 SE2d 757) (1989) (crime of burglary complete at time appellant entered the residence without authority and with intent to commit a felony therein).


author: McMillian, Judge.

text:
    A14A1875.
    CLEMENTE v. THE STATE.
    (769 SE2d 790)
   McMillian, Judge.

Doble Martinez Clemente was tried, along with two co-defendants, by a jury and convicted of armed robbery. Clemente now appeals the denial of his motion for new trial, as amended, contending that the evidence was insufficient to support his conviction. We disagree and affirm.

Viewed in the light most favorable to the verdict, the evidence shows that on February 2, 2007 at approximately 10:30 p.m., two masked gunmen confronted Rogelio Pineda-Orrozquieta at gunpoint outside his home at 708 Sheffield Road in Norcross and demanded money and drugs. After entering his home, the men forced Pineda-Orrozquieta into a bedroom along with his pregnant wife, young daughter, and a co-worker. Pineda-Orrozquieta and the co-worker were forced to kneel on the floor, and their hands were bound. Pineda-Orrozquieta also saw two additional intruders in another bedroom tying the hands of his brother-in-law and his friend. The intruders apparently believed Pineda-Orrozquieta was in possession of money from the sale of drugs and continued to demand money. When officers from the Norcross Police Department arrived in response to a 911 call placed by Pineda-Orrozquieta’s wife, they apprehended three intruders and seized two handguns. Shortly thereafter, police learned from the victims that there was a fourth man involved and within minutes began searching the surrounding area.

Officers Todd Bureta and Donald Butynski found Clemente, who was wearing dark clothes and talking on a cell phone, walking on Lancelot Drive, a street that runs parallel to Sheffield Drive. Clemente initially told officers that he had been driving a car that had been taken by “three black males.” At first he claimed he was driving a Mercedes and then said it was a BMW, but could not say exactly what make the vehicle was. Clemente was the only individual the police found walking the streets at that time of night. Officers brought Clemente to the incident location, but the victims told police they were unable to identify any of the intruders because they had all been wearing ski masks. At that time, officers noticed a silver BMW with a Florida temporary tag parked in the driveway of an abandoned house next door. When they pressed the button of the BMW key ring they had found in Clemente’s pocket, it unlocked the BMW’s doors and turned its interior lights on. Police were able to see a black ski mask inside the BMW.

After Clemente was arrested and advised of his Miranda rights, he gave a statement to the police in which he claimed that he drove up from Tampa, Florida the day before with his friend Samuel Melendez in a BMW. They were looking for some painting work because he needed money. He met two of the other individuals apprehended by police the night he and Melendez arrived in Atlanta and the third the following day. He told police he did not know where the five of them were going that evening, but Melendez told him to drive the BMW because they were going someplace “to do a job.” He claimed that he parked in the driveway of the abandoned house next to 708 Sheffield Drive and stayed in the car while the other four men went next door. He denied knowing anything about guns until Melendez came out of the house and threw a shotgun at him and told him to hide it. Clemente admitted to jumping a fence and hiding the shotgun, and he later returned to the scene with officers to show them exactly where he had hidden the shotgun behind some bushes a few houses down. Police located another ski mask and a set of gloves hidden with the loaded shotgun.

In his sole enumeration of error, Clemente asserts the evidence was not sufficient to support his conviction for armed robbery as a party to the crime. When a criminal defendant challenges the sufficiency of the evidence supporting his conviction, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” (Citations omitted.) McNeal v. State, 326 Ga. App. 429, 429 (756 SE2d 660) (2014).

Under Georgia law, a person may be convicted of a crime even if he does not directly commit the crime but, instead, “[i]ntentionally aids or abets in the commission of the crime; or . . . [intentionally advises, encourages, hires, counsels, or procures another to commit the crime.” OCGA § 16-2-20 (b) (3) and (4). And, “[w]hether a person was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed.” (Citation and punctuation omitted.) Flournoy v. State, 294 Ga. 741, 745 (3) (755 SE2d 777) (2014).

Clemente argues that his mere presence near the scene of the armed robbery is insufficient to sustain his conviction. “It is, of course, true that mere presence or association, without any evidence to show further participation in the commission of the crime, is insufficient to authorize a conviction.” (Citation and punctuation omitted.) Newsome v. State, 324 Ga. App. 665, 667 (1) (751 SE2d 474) (2013). However, whether Clemente was a party to the crimes and aided and abetted the other four men in the armed robbery or intentionally advised, encouraged, or counseled them, is a question for the jury. See Buruca v. State, 278 Ga. App. 650, 652 (1) (629 SE2d 438) (2006).

And, contrary to his assertions, the State presented evidence demonstrating more than Clemente’s mere presence. Clemente told police he drove the BMW that night and that they went to 708 Sheffield Road, at 10:30 p.m., to “go look for some money.” And although Clemente claimed he believed they were going to be painting, Officer Andrew Whaley testified that at the time of his arrest, Clemente was wearing gray pants, a “camo” shirt, and a green jacket, and had nothing that would indicate he was a painter. Clemente also admitted to hiding a shotgun after police arrived before fleeing from the scene.

In addition, Martinez, one of the co-defendants tried with Clemente, testified at trial and admitted to entering the house, though he claimed he thought they were only going there to buy cocaine. He also testified that Clemente was an active participant who held the shotgun when they walked over to the house. According to Martinez, he and Clemente waited in the back yard until Clemente got a call from one of the other men who told Clemente to send Martinez inside to help look for the drugs. Clemente continued to wait with the shotgun outside the house. There is sufficient evidence from which a jury could find that Clemente was a designated “lookout” or a “getaway” driver for the group, and thus, was a party to the crime of armed robbery. See Buruca, 278 Ga. App. at 652 (1) (finding sufficient evidence to sustain defendant’s conviction of armed robbery). See also Johnson v. State, 299 Ga. App. 706, 708 (1) (a) (683 SE2d 659) (2009) (getaway driver who waits for his co-defendants to return to the car is also guilty of his co-defendant’s crimes).

We likewise reject Clemente’s assertion that the State failed to exclude every reasonable hypothesis except his guilt as required by former OCGA § 24-4-6. To support a verdict, circumstantial evidence need exclude only reasonable hypotheses. See McNeal, 326 Ga. App. at 432 (1) (“In order to support a conviction, such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses.”) (citation omitted; emphasis in original). And whether circumstances are sufficient to exclude every reasonable hypothesis is a question for the jury, and “that finding will not be disturbed unless the verdict of guilt is insupportable as a matter of law.” (Citation omitted.) Wright v. State, 302 Ga. App. 332, 333 (690 SE2d 654) (2010). Given the record in this case, we cannot say that the jury’s guilty verdict is insupportable as a matter of law. Moreover, Clemente’s conviction was supported by direct evidence through the testimony of Martinez. See State v. Canup, 300 Ga. App. 678, 682 (2), n. 3 (686 SE2d 275) (2009) (reasonable hypothesis rule applies only when the evidence against the accused is entirely circumstantial). And although Clemente argues that he had no knowledge that any criminal activity was going to take place, “it was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Citation and punctuation omitted.) Bighams v. State, 296 Ga. 267, 268-269 (1) (b) (765 SE2d 917) (2014).

Decided March 11, 2015.

Lucas O. Harsh, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

       The co-defendants, Cornell Elijah Martinez and Toni Antonio Lopez, are not parties to this appeal. An additional accomplice, Jose Luis Solis-Morales, was tried separately, and this Court affirmed the convictions of Martinez and Solis-Morales at Martinez v. State, 318 Ga. App. 254 (735 SE2d 785) (2012) and Solis-Morales v. State, 315 Ga. App. 724 (728 SE2d 253) (2012).

       The jury acquitted Clemente of the remaining charges of burglary, false imprisonment, and aggravated assault.

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       At trial, Officer Bureta explained it would have been possible for Clemente to reach that location by cutting across two yards behind 708 Sheffield Drive.

       Although Clemente did not testify at trial, his statements were admitted into evidence.

       The day after the incident, Glenda Cruz came to the Norcross Police Department, claiming to he the owner of the BMW and demanding the return of her vehicle. She told police that she had loaned her car to Clemente, hut denied knowing Melendez.

       At trial, Officer Andrew Whaley testified that they were unable to locate Melendez and that a warrant was still out for his arrest.

       Police had also recovered three black ski masks with the intruders inside the home, and Officer Whaley testified that those masks were identical to the mask found with the shotgun.

       On the night of the incident, the second co-defendant, Lopez, also admitted to entering the house and likewise claimed they were only there to get drugs.

       We note that, although a defendant may not be convicted on the uncorroborated testimony of an accomplice, “only slight evidence of a defendant’s identity and participation from an extraneous source is required to corroborate the accomplice’s testimony and support the verdict.” Hines v. State, 320 Ga. App. 854, 857 (1) (740 SE2d 786) (2013). And corroboration may consist of either direct or circumstantial evidence that connects the defendant with the crime, tends to show his participation therein, and would justify an inference of his guilt independently of the accomplice’s testimony. Id. Here, Clemente’s own statements to police, along with the observations and testimony of officers, provided sufficient corroboration. See id. (“Even the accused’s own statement can serve to corroborate his accomplice’s inculpatory testimony.”) (citation and punctuation omitted).

       This case was tried under Georgia’s previous Evidence Code. Former OCGA § 24-4-6 is carried forward in the new Evidence Code as OCGA § 24-14-6.


author: Miller, Judge.

text:
    A14A2039.
    BUTTACAVOLI et al. v. OWEN, GLEATON, EGAN, JONES & SWEENEY LLP et al.
    (769 SE2d 794)
   Miller, Judge.

Michelle Buttacavoli filed suit individually and on behalf of her minor daughter against the law firm of Owen, Gleaton, Egan, Jones & Sweeney LLP (“Owen Gleaton”) and one of the firm’s attorneys, Amy J. Kolczak, for actions taken in an underlying medical malpractice lawsuit that Buttacavoli settled. The trial court granted summary judgment to Owen Gleaton and Kolczak, and Buttacavoli appeals. Buttacavoli contends that the trial court erred by holding that (1) this case constituted a collateral attack on the prior litigation; (2) Georgia’s RICO (Racketeer Influenced and Corrupt Organizations) Act does not apply to obstruction of justice and conspiracy to commit perjury claims; and (3) she cannot proceed with her state law invasion of privacy claim based on violations of the Health Insurance Portability and Accountability Act (“HIPAA”) because there is no private cause of action under HIPAA. For reasons that follow, we affirm.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from a grant of summary judgment, we apply a de novo standard of review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Walter R. Thomas Assoc. v. Media Dynamite, 284 Ga. App. 413, 413-414 (643 SE2d 883) (2007).

So viewed, the evidence shows that Buttacavoli filed a medical malpractice lawsuit in Bartow County for treatment related to the premature birth of her daughter. The lawsuit named the hospital, the obstetrical group, and a nurse/midwife as defendants. Owen Gleaton and Kolczak represented the nonhospital defendants in that lawsuit, and they identified Dr. Gilbert Webb as one of the expert witnesses they intended to call at trial. Dr. Webb had provided pre-delivery medical services to Buttacavoli and her daughter.

During the Bartow County litigation, the trial court issued a protective order that placed conditions on the defendants’ ability to interview Dr. Webb. Specifically, the defendants were required to send written notice to Buttacavoli’s attorney prior to interviewing Dr. Webb; Buttacavoli and her attorney were permitted to attend all interviews; and the defendants were required to keep all health care information obtained in such interviews private. Despite this order, Kolczak met privately with Dr. Webb prior to the doctor’s scheduled deposition.

According to Buttacavoli’s attorney, he arrived for Dr. Webb’s deposition approximately 20 minutes early and was told that Kolczak was meeting privately with Dr. Webb. Buttacavoli’s attorney had not been informed of the meeting or invited to attend. During the deposition, Dr. Webb testified that he met with Kolczak for 10 or 15 minutes before the deposition started and that they discussed the case for about half of that time. Dr. Webb said that Kolczak had set up the meeting. Buttacavoli subsequently contended that Kolczak’s private meeting with Dr. Webb violated the trial court’s protective order and sought sanctions.

During the hearing on Buttacavoli’s motion for sanctions, Kolczak testified that she arrived approximately 20 minutes early for Dr. Webb’s deposition and was escorted back to inspect the space where the deposition was to be held. Kolczak testified that she ran into Dr. Webb in the hallway and told him that she could not discuss his care and treatment of Buttacavoli, but did inform him of the trial date and that she would need to call him as a witness. She also told him that the allegations of the complaint remained the same. According to Kolczak, the encounter lasted less than 15 minutes. Kolczak testified that she did not invite counsel for Buttacavoli or the hospital to attend because it was not a meeting.

The Bartow County trial court granted Buttacavoli’s motion for sanctions, concluding that Kolczak had violated the protective order and that she had provided testimony that was not credible when she said that only two of the fifteen minutes spent with Dr. Webb prior to his deposition involved any discussion of the case. Because Dr. Webb had been a treating physician, providing approximately 30 days of medical care and treatment to Buttacavoli and her daughter, the trial court determined that it could not merely exclude his testimony as a sanction without penalizing Buttacavoli. Instead, after finding that Kolczak had wilfully violated the protective order and done so in bad faith, the trial court struck the answer of the nonhospital defendants, entering a default judgment against those defendants as if no answer had been filed. As a result, the nonhospital defendants would be allowed to participate at trial on the issue of damages, but could not contest any issues of liability.

While that decision was on appeal, Buttacavoli made a settlement demand of $2,000,000 to the nonhospital defendants. That offer was accepted, and the parties negotiated and signed a settlement agreement.

Two years later, Buttacavoli filed the instant suit against Owen Gleaton and Kolczak in Fulton County, asserting claims for fraud and deceit, conspiracy to defraud, invasion of privacy, and violations of Georgia RICO. The allegations involve communications that Owen Gleaton and Kolczak had with Dr. Webb prior to his deposition in the Bartow County litigation and false testimony given by Dr. Webb during that deposition. Specifically, the complaint alleges that Dr. Webb testified that he had not been asked to serve as an expert witness, that he had not provided any services to Owen Gleaton, and that his communications with Owen Gleaton were limited to three telephone calls. The complaint further alleges that Kolczak failed to correct any of these false statements on the record; that Owen Gleaton and Kolczak created false facts and opinions regarding Buttacavoli’s medical condition and the cause of the premature delivery of her daughter; and that Owen Gleaton and Kolczak solicited Dr. Webb to offer these fabrications during his deposition.

Following discovery in this case, Owen Gleaton and Kolczak filed a motion for summary judgment. The trial court granted the motion, concluding that Buttacavoli’s lawsuit was a collateral attack on the settlement agreement entered in the Bartow County litigation, Georgia does not recognize an independent cause of action for perjury or conspiracy to commit perjury, and there is no private cause of action under HIPAA. Buttacavoli appeals.

1. Buttacavoli contends that this litigation is not a collateral attack on the prior litigation because the defendants are not the same and the current litigation seeks damages for a tort not at issue in the prior litigation. We disagree because the trial court properly determined that the present litigation constitutes an unauthorized collateral attack on the settlement in the Bartow County litigation.

“An action for damages based upon alleged perjury is in the nature of a collateral attack on the previous judgment. Under Georgia law, unless a judgment is void on its face, it may not be attacked collaterally. OCGA § 9-11-60 (a) [.]” (Citation omitted.) Shepherd v. Epps, 179 Ga. App. 685, 686 (1) (347 SE2d 289) (1986). Because alleged perjury in a prior case would not render the judgment therein void on its face, it necessarily follows that the judgment from the prior case should be subject only to a direct rather than a collateral attack. Id. Accordingly, “[w]here a judgment has allegedly been infected by perjury, the remedy is the institution of a direct attack upon that judgment[.]” Id.

“If one is dissatisfied with a judgment one does not merely file a new action against the other party or his counsel.” (Citation omitted.) Dean v. Schreeder, Wheeler & Flint, 222 Ga. App. 426, 429 (1) (474 SE2d 648) (1996). Instead, one must attack the prior judgment by a direct proceeding in the trial court where the prior suit was litigated. See Richardson v. Simmons, 245 Ga. App. 749, 749-750 (538 SE2d 830) (2000) (suit asserting claims for spoliation of evidence, fraud, breach of legal and fiduciary duty, RICO violation, and abusive litigation, which were all based on allegations that the defendants conspired to alter or destroy evidence and used these tactics to prevent plaintiffs from obtaining judgments against defendants in the prior malpractice suits, constituted collateral attack on prior judgments).

All of Buttacavoli’s claims against Owen Gleaton and Kolczak are an effort to increase the amount she received for her injuries and the injuries to her daughter in the settlement of the Bartow County litigation. Buttacavoli agreed to that settlement with full knowledge that the trial court in Bartow County had imposed the ultimate sanction of striking the answer of the nonhospital defendants because it concluded that Kolczak had “tampered with the merits of the case by wilfully violating the clear order of th[e] Court.” As shown by the deposition of Dr. Webb and the motion for sanctions hearing in the Bartow County litigation, Buttacavoli knew by 2010 that Owen Gleaton and Kolczak had communicated with Dr. Webb prior to his deposition about her care and treatment and Buttacavoli believed at that time that Owen Gleaton and Kolczak had provided Dr. Webb with a fabricated theory of the case that he then adopted and used in his deposition. Because that knowledge and belief form the basis for Buttacavoli’s allegations in the current litigation in Fulton County, we must conclude that the present litigation constitutes an unauthorized collateral attack on the settlement in the Bartow County litigation. See Zepp v. Toporek, 211 Ga. App. 169, 170-171 (1) (b) (438 SE2d 636) (1993); see also Richardson, supra, 245 Ga. App. at 749-750. Accordingly, we affirm the trial court’s grant of summary judgment to Owen Gleaton and Kolczak.

Decided March 11, 2015

Robert C. Koski, for appellants.

Hawkins Parnell Thackston & Young, M. Elizabeth O’Neill, Kathryn S. Whitlock, for appellees.

2. Based on our holding in Division 1, we need not address Buttacavoli’s remaining claims of error.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       Buttacavoli filed the suit individually and on behalf of her daughter.


author: MCFADDEN, Judge.

text:
    A14A2175.
    In the Interest of T. A., a child.
    (769 SE2d 797)
   MCFADDEN, Judge.

The mother of T. A. appeals the termination of her parental rights, arguing that the evidence does not support the termination. She contends that the trial court erred in finding clear and convincing evidence that T. A.’s deprivation was likely to continue and that such deprivation would cause or was likely to cause serious physical, mental, or emotional harm to T. A. Although the mother met most of her case plan goals, the evidence of parental inability is sufficient to support the termination of her parental rights, and we must therefore affirm.

1. Facts.

On appeal from a juvenile court’s order terminating parental rights, we view the evidence

in the light most favorable to the juvenile court’s ruling, and our review is limited to addressing the question of whether any rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. In this review, we must necessarily defer to the juvenile court’s fact finding, weighing of the evidence, and credibility determinations.

In the Interest of C. M., 325 Ga. App. 869, 869-870 (1) (756 SE2d 5) (2014) (citation and punctuation omitted).

Viewed in that light, the evidence shows that an authorization for shelter care for T. A. was filed on June 3, 2011, alleging that the mother had abandoned T. A. with a friend. A probable cause order granted temporary legal custody to the Department of Family and Children Services (“DFCS”) based on the abandonment by the mother. T. A. was three years old at the time. Shortly thereafter, DFCS filed a deprivation petition. Following a hearing, the juvenile court held that T. A. was deprived based on numerous conditions, including the fact that the mother left T. A. overnight with a friend so that she could go to a nightclub and did not return in the morning to retrieve him. The friend also stated that the mother had physically abused T. A. and that she had witnessed a beating that resulted in a gash on T. A.’s head. In addition, an employee of a shelter where the mother previously lived stated that the mother physically abused T. A., did not keep T. A. clean, and failed to provide food for T. A. The deprivation order was made final in January 2012, and DFCS was ordered to submit a case plan for the mother to include a requirement that she complete a comprehensive parental skills training program, cooperate with a parent aide to help apply those skills, have regular and frequent visits with T. A., participate in individual and group therapy, maintain stable housing sufficient for her and T. A., and maintain a stable income. Temporary custody of T. A. remained with DFCS.

The mother completed her case plan, with the exception of obtaining stable, clean and safe housing large enough for her and T. A. She attended counseling to help with her parenting skills and anger management and worked with a parent aide. For the most part, the mother was consistent with her visitation with T. A., but she was excessively late a few times and missed some visits entirely. The mother’s income consists of Supplemental Social Security.

The mother was evaluated twice for psychological and parental fitness. She has an IQ of 56, which is in the mild retardation range, and suffers from mild depression. The psychologist who evaluated her testified that the mother’s limited cognitive abilities present a major risk factor in her ability to safely and successfully parent a child or respond appropriately to emergencies. She testified that the mother would need 24-hour in-home support to raise T. A.

T. A. was referred for a psychological/developmental evaluation to consider whether he has an autism spectrum disorder. The psychologist who evaluated him determined that he exhibited signs and symptoms along the autism spectrum. T. A. has significant issues with his verbal and nonverbal communication, engages in repetitive play, has frequent temper tantrums over minor issues, and demonstrates an abnormal lack of fear. To thrive, T. A. would need a home where the parent would be able to provide substantial structure, routine, and consistency. The parent would need to be well-organized, have the ability to get T. A. to appointments, attend special education meetings, and understand T. A.’s special needs and how to apply strategies to address those needs in the home. According to the psychiatrist, it would be very difficult for a parent with a low IQ who cannot read to handle the challenges of a child with T. A.’s needs.

The parent aide who worked with the mother testified at a review hearing that the mother had not demonstrated that she could parent independently and that the mother needed constant reminders to keep the child within eyesight. She relayed an incident where T. A. almost ran into the street and the mother did not react until the aide told her what to do. The parent aide testified that she would not be able to provide the type of support that the mother needed if T. A. were to return home.

Based on the facts outlined above, DFCS filed a petition for termination of parental rights on December 13, 2012. After conducting a hearing, the juvenile court terminated the mother’s parental rights in an order filed on October 21, 2013.

2. Sufficiency of the evidence.

Former OCGA § 15-11-94 applies to this termination proceeding (a new Juvenile Code has been adopted and applies to all juvenile proceedings commenced on and after January 1, 2014). Former OCGA § 15-11-94 (a) provides:

In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability. ... If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home. . . .

Pursuant to former OCGA § 15-11-94 (b) (4) (A), to determine parental misconduct or inability, the court must find that:

(i) The child is a deprived child, as such term is defined in [former] Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

(a) Deprivation.

The juvenile court determined that T. A. was deprived because he lacked proper parental care and supervision as defined in former OCGA § 15-11-2 (8) (A). The mother has not challenged that finding on appeal.

(b) Cause of the deprivation.

The juvenile court concluded that the cause of T. A.’s deprivation was the mother’s failure to provide adequate supervision and the mother’s physical abuse of T. A. The mother has not challenged that finding on appeal.

(c) The cause of the deprivation is likely to continue.

The mother contends that the trial court erred by finding clear and convincing evidence that the deprivation would continue. She argues that she completed her case plan and that DFCS did not provide the specialized parenting classes that she needed to help her understand and care for T. A.’s disability.

The juvenile court’s decision to terminate the mother’s parental rights was not based on her failure to complete her case plan. In fact, the court specifically found that the mother “has completed all [case plan] goals with the exception of housing,” but the mother’s significant cognitive deficits left her “unable to incorporate what she has been offered in her case plan into her own understanding and abilities such that she is able to independently parent her child, who, because of his developmental issues, presents extraordinary parenting challenges.”

Although the mother contends that DFCS should have provided her with specialized training to address T. A.’s disability, she has not pointed to any evidence that the specialized training would have enabled her to parent T. A. on her own. After completing her basic parenting classes, there was no change in the mother’s ability to parent a child independently. And the ptate presented expert testimony that the mother would be unable to care for T. A. on her own without constant in-home support, something that DFCS is not obligated to provide. See In the Interest of H. F. G., 281 Ga. App. 22, 26 (1) (635 SE2d 338) (2006). “The test in determining termination of parental rights, however, is whether the mother, ultimately standing alone, is capable of mastering and utilizing the necessary skills to meet her parenting obligations.” In the Interest of A. R., 302 Ga. App. 702, 710 (1) (c) (691 SE2d 402) (2010) (citations and punctuation omitted; emphasis in original). The evidence does not show that the mother would be capable of parenting T. A. on her own or that she would have the in-home support that she would need to allow T. A. to return home. Thus, the trial court was entitled to infer from the evidence that the same conditions and causes of deprivation would continue if T. A. were reunited with his mother. See In the Interest of A. R., 302 Ga. App. at 710 (1) (c); In the Interest of H. F. G., 281 Ga. App. at 27 (1); see also In the Interest of C. M., 325 Ga. App. at 872 (2) (a) (deprivation likely to continue where clear and convincing evidence supported juvenile court’s finding that mother’s intellectual ability was insufficient to enable her to parent her child safely and that mother was incapable of improving her parenting ability, given her intellectual limitations).

Moreover, the trial court was entitled to consider the mother’s past conduct in determining whether the deprivation was likely to continue. In the Interest of S. L. B., 265 Ga. App. 684, 688 (1) (595 SE2d 370) (2004). The fact that the mother had lost custody of an older child, who was only in her mother’s care for the first two months of her life, “indicates that she would likewise be unable to care for [T. A.].” Id. (citation omitted).

(d) Likelihood of harm.

The mother contends that the trial court erred by finding clear and convincing evidence that T. A. was suffering harm or would probably suffer serious physical, mental, or emotional harm if the termination was denied. She argues that there is no evidence of a bond between T. A. and his foster parents, only general evidence of the harm caused to children by remaining in foster care, and no evidence that the bond between T. A. and his mother is detrimental.

T. A. has been in the care of DFCS for over three years. The juvenile court is “authorized to consider the adverse effects of prolonged foster care in determining that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child.” In the Interest of R. D. B., 282 Ga. App. 628, 632 (1) (c) (639 SE2d 565) (2006) (citation and punctuation omitted). And “[i]t is well settled that children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.” In the Interest of C. T. M., 278 Ga. App. 297, 302 (2) (a) (iv) (628 SE2d 713) (2006) (citation and punctuation omitted).

Here, the juvenile court found that

[a] foster family placement, despite its good intentions, in many cases does not permit the kind of commitment and continuity that exist with permanency. Foster homes can be more easily disrupted than permanent homes. Children who remain in foster care indefinitely will often develop attachment disorders as they grow older, and because of continued instability, may even resort to delinquent or other anti-social behaviors. Prolonged but unplanned foster care, known as foster care drift, would therefore be harmful to this child.

Decided March 11, 2015.

Darice M. Good, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, Lytia G. Brown, Assistant Attorney General, Nathan A. Hayes, Jamieson S. Rogers, for appellees.

The court relied upon expert testimony to reach these conclusions. Cf. In the Interest of A. T., 271 Ga. App. 470, 473-474 (610 SE2d 121) (2005) (no expert testimony that permanency and a stable environment were important to children’s well-being). The psychologist who evaluated T. A. testified that stability is crucial for T. A., including a stable residence, school, and primary caretaker. Alack of stability in these areas could create anxiety and confusion, which could stunt his development. The psychologist who evaluated the mother testified about the risk factors for children who move from foster home to foster home, and the fact that a lack of attachment can cause developmental problems. In addition, a DFCS caseworker testified that “foster care drift” is a possibility for T. A. because as long as he stays in foster care, he is subject to being moved to another placement.

There is also evidence that the mother’s visits were detrimental to T. A. Her visits were initially scheduled for four times a month, but they were reduced to twice a month because T. A. regressed after the visits by acting out, not following direction, and defecating on himself. When the mother did not show up for scheduled visits, T. A. became distraught.

Given the evidence showing that the mother’s cognitive deficits prevent her from properly and safely parenting her child and T. A.’s established need for a stable home situation as well as the detrimental effects of prolonged foster care, a rational trier of fact could have found by clear and convincing evidence that the continued deprivation would likely cause serious physical, mental, emotional, or moral harm to the child. See In the Interest of A. R., 302 Ga. App. at 711 (1) (d).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


author: MCFADDEN, Judge. RAY, Judge,

text:
    A14A2244.
    SMITH v. NT NAILS, LLC.
    (770 SE2d 646)
   MCFADDEN, Judge.

This is an appeal from the grant of summary judgment to the defendant in a slip-and-fall case. Cathy Smith filed a complaint seeking recovery for personal injuries allegedly sustained when she fell in a nail salon. The trial court granted the salon summary judgment because Smith knowingly and voluntarily chose to walk across the recently mopped floor. Smith appeals. Because the uncontroverted evidence shows that Smith and the salon’s staff had equal knowledge of the hazard created by mopping a floor and encountered by walking across it and because Smith voluntarily exposed herself to that hazard, the trial court did not err in granting summary judgment to the defendants. We therefore affirm.

Summary judgment is properly granted when the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.” Scrocca v. Ashwood Condominium Assn., 326 Ga. App. 226 (1) (756 SE2d 308) (2014) (citation and punctuation omitted).

Viewed in the light most favorable to Smith as the nonmovant, the record shows that on the night in question, Smith had gone to NT Nails for a manicure and pedicure. She was the last customer in the salon, and the employees of the salon were preparing to close for the night. An employee mopped the entire floor of the salon while Smith was still receiving her pedicure. When the nail technician finished the pedicure, she gave Smith foam rubber pedicure slippers to walk in. Smith got up from the chair and walked across the floor toward the cash register to pay. After paying, she turned around and fell to the floor, injuring herself.

To survive a summary judgment motion in a slip-and-fall case,

a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff’s injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one’s personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted from the defendant’s own actions or conditions under the defendant’s control.

American Multi-Cinema v. Brown, 285 Ga. 442, 444-445 (2) (679 SE2d 25) (2009) (citation omitted). “Voluntary negligence is applicable when the invitee knew or should have known of the hazard and proceeded.” Robinson v. Kroger Co., 268 Ga. 735, 743 (1) (493 SE2d 403) (1997).

Here, the trial court assumed for purposes of summary judgment that NT Nails had actual knowledge of the wet floor. But it found that NT Nails was nonetheless entitled to summary judgment because the undisputed evidence was that Smith’s injury was caused by her disregard of a known risk and there was no issue of fact on the question of Smith’s voluntary negligence. We agree. “If an invitee knows of the condition or hazard, [she] has as much knowledge as the proprietor does and then by voluntarily acting in view of [her] knowledge [, she] assumes the risks and dangers incident to the known condition.” Ponder v. Brooks, 256 Ga. App. 596, 598 (569 SE2d 267) (2002) (citation omitted).

Smith nevertheless argues that summary judgment was inappropriate because even though she knew of the hazard, she had no choice but to walk across the recently mopped floor to pay for her services and leave the salon. In essence, she argues that the trial court erred by finding that the undisputed evidence shows that she assumed the risk of injury.

Assumption of risk will defeat a plaintiff’s claim only when the defendant has established that the plaintiff:

(1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed herself to those risks. Exposure to the known risk must be voluntary, the result of a deliberate choice. And, the defense of assumption of risk assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice . . . whether to engage in the act or not.

Bass Custom Landscapes v. Cunard, 258 Ga. App. 617, 619-620 (1) (575 SE2d 17) (2002). To coerce is “[t]o compel by force or threat.” Black’s Law Dictionary (9th ed. 2009).

To support her contention that she was coerced into exposing herself to the risk of walking across the newly-mopped floor, Smith points to her own testimony. At her deposition, Smith testified:

I was the last person in the shop and they were cleaning up. They started cleaning up, and I knew they were in a hurry to get out, and the girl put the little shoes on me and said, go pay, and I said, okay, and I was concerned because they had mopped, but there’s only one way. It was the front door.

She testified that the employees “were rushing and cleaning and they were ready to leave,” which she knew because the nail technician said so in a telephone conversation with her husband — although she later admitted she could not understand that conversation as it was in a foreign language.

Such pressure is not a coercion of circumstances sufficient to defeat an assumption of risk defense. While we have found sufficient coercion in, for example, the circumstance of a person’s employment —particularly where a direct order from a supervisor is involved, e.g., Bass, supra, 258 Ga. App. at 618, we have found assumption of risk as a matter of law where an employee chose a perilous course of conduct that he had been empowered to refuse. Moore v. Service Merchandise Co., 200 Ga. App. 463, 464 (408 SE2d 480) (1991). Similarly we have found sufficient coercion where a tenant, who needed to get to work, fell on an ice-covered stairway that was the sole means of egress from her apartment. Hull v. Massachusetts Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977). But we found assumption of risk as a matter of law where a nurse, “knowing that the hallway was wet from recent mopping, and having warned a visitor of the condition, slipped and fell in a hallway while carrying a lunch tray from her patient’s room to a food cart.” Smith v. Bel-Arbor, Inc., 121 Ga. App. 739 (175 SE2d 146) (1970). “The fact that her elderly patient had displayed an eccentricity about having dirty dishes in her room,” we held, “discloses no emergency whereby the plaintiff was required to make use of the hallway to remove the dishes from the room.” Id.

Bel-Arbor is on point. In Hull we distinguished Bel-Arbor explaining that “there was nothing making it necessary for the nurse to venture into the hall at that particular moment, instead of after the danger had subsided.” Hull, 142 Ga. App. at 270. Here, as in BelArbor, it might have been socially awkward or inconvenient for appellant to insist upon waiting until the danger had subsided; but there is no evidence of anything preventing her from doing so.

In her affidavit, Smith testified that she was “forced to walk across [the] recently mopped floor to pay her bill at the cash register as [NT Nails] and its agents were rushing her to leave,” but she describes no facts that would support the assertion that NT Nails forced her. Her belief that the employees of NT Nails were forcing her to leave is merely a conclusion of the ultimate issue — that she was coerced into facing the risk — and, in the absence of substantiating facts, does not create a question of fact as to her assumption of risk. She has pointed to no facts supporting the conclusion that the employees of NT Nails forced her to walk across the recently mopped floor. She did not testify that they told her she must leave or took any kind of action that required her to traverse the hazard of which she was aware, the recently mopped floor.

The only reference to the use of force is Smith’s affidavit that she was forced to walk across the floor because the employees were rushing her. “In the absence of substantiating facts, a party’s affidavit is self-serving and conclusory and cannot be used to support a motion for summary judgment.” Cantera v. American Heritage Life Ins. Co., 274 Ga. App. 307, 311 (617 SE2d 259) (2005) (citations omitted). See also Whitley v. Piedmont Hosp., 284 Ga. App. 649, 656 (2) (644 SE2d 514) (2007) (affidavit that stated defendant breached the standard of care but stated no “ ‘particulars’ [was] not sufficient to rebut the motion for summary judgment”) (citations omitted); Sullivan v. Fabe, 198 Ga. App. 824, 826 (1) (403 SE2d 208) (1991) (plaintiff’s statement that “neither I nor my wife owe the plaintiff anything” is not one of fact, but a conclusion or allegation of the ultimate fact which is not sufficient to support a motion for summary judgment); Johnson v. Crews, 165 Ga. App. 43, 44-45 (299 SE2d 99) (1983) (statements in affidavit that defendant could not by the exercise of reasonable care have discovered or prevented the injury are conclusions bearing on the ultimate fact to be decided, which could not be utilized on a summary judgment motion). Smith’s belief, standing alone, does not create a question of fact on the issue of coercion or, therefore, her assumption of risk.

Because Smith did not come forward with evidence that creates a genuine dispute of fact on the question of her assumption of risk, the trial court did not err in granting summary judgment to NT Nails.

Judgment affirmed.

Andrews, P. J., Doyle, P. J., Boggs and Branch, JJ., concur. Barnes, P. J., and Ray, J., dissent.

RAY, Judge,

dissenting.

I respectfully dissent from the majority’s decision to affirm the grant of summary judgment to the defendant nail salon in this personal injury case. While I agree that there are issues of Smith’s own negligence in crossing the wet floor to pay her pedicure bill so that she could leave the salon,1 do not think it is appropriate that this matter is taken away from the jury for its determination. Thus, I would reverse the trial court’s order and remand this case to trial.

This case involves a claim for injuries from a slip and fall, and it is true that we have held in other cases that a plaintiff assumes the risk of injury when she knowingly walks on a wet floor and falls. Yet, this is not a normal slip and fall case. Under the facts as alleged here, a legitimate question exists as to whether Smith had any reasonable alternative other than walking where she did, when she did, and if not, then a jury might conclude from the evidence that she did not assume the risk of her fall.

As outlined in the majority’s opinion, Smith went to the Appellee’s nail salon for a pedicure at the end of the business day. Indeed, she was the last customer that evening, and the staff at the salon began to mop the floor and prepare to close the salon while Smith’s nails were still being painted. When the nail technician finished the pedicure, she gave the plaintiff foam rubber pedicure slippers to wear so as to protect the finish of Smith’s newly painted nails until they were dry. Such slippers, apparently, are commonly worn after a pedicure. As the salon was closing, Smith was directed by the nail technician to go to the front to pay for the pedicure before leaving. The only path to the register in the front of the salon necessitated that she walk across the wet floor. Unfortunately, in completing the transaction, Smith fell on the slippery, wet floor and was injured.

The majority agrees with the trial court that, as a matter of law, Smith was responsible for her own injuries because she knew that the floor was wet and, thus, that she “disregarded a known risk or failed to exercise ordinary care for her own personal safety.” Further, the trial court concluded that Smith was not forced to walk across the wet floor, but did so on her own volition. The majority argues that she couldn’t have been coerced to walk on the wet floor, as there was no force or threats utilized by the salon staff to make her leave. Accordingly, then, Smith must lose, or so says the majority.

This approach ignores, in my opinion, the reality of the facts before us. If the salon was closing and it was time for her to go, did Smith really have any other option but to walk across the wet floor so as to pay and leave? I am not so sure, which is why this case should be presented to a jury to resolve. If she did not have a choice about leaving and had to walk across the wet floor to do so, then we cannot say as a matter of law that she assumed the risk and therefore failed to exercise ordinary care for her safety.

The possibility that a plaintiff may not have legally assumed the risk of injury for walking in an area where she knew a possible danger lurked finds comfort in our precedent. For example, in Hull v. Massachusetts Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1997), we held that a tenant who came home for lunch during the work day and then slipped on ice outside of her apartment when returning to work was entitled to a jury trial in her case against her landlord, despite her awareness of the ice before she fell, because she had to leave to get back to work and it would be unreasonable to require her to stay home. Also, in Brennan v. Freight Room, Inc., 226 Ga. App. 531 (487 SE2d 109) (1997), we held that a restaurant patron who was injured in a fall while walking on a walkway as she was leaving the facility was entitled to a trial on her personal injury claim despite that she, obviously, knew that it was dark when she left and that the path was poorly lighted. In doing so, we found that it was a disputed fact as to whether an alternate safe means of egress was readily accessible to her. Thus, Hull and Brennan support the proposition that the circumstances of the situation matters. See Myers v. Boleman, 151 Ga. App. 506, 509 (3) (260 SE2d 359) (1979) (“[t]he doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury”) (citation omitted; emphasis supplied).

What we know about the underlying case is that it was closing time, the employees were preparing to close (which included mopping the floor), Smith was the last customer in the salon, and Smith was directed by her nail technician once the pedicure was complete to go pay, which would require that she walk across the wet floor. Who are we to say, under these circumstances, that she had the choice to refuse? If this point is debatable, then a reasonable jury could find either way, which means that summary judgment is inappropriate.

Decided March 11, 2015.

The Houghton Law Firm, John A. Houghton, for appellant.

Groth & Makarenko, Paul L. Groth, for appellee.

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

       At trial, consideration of contributory and/or comparative negligence principles will play an important role.

       Compare Moore v. Service Merchandise Co., 200 Ga. App. 463 (408 SE2d 480) (1991) (Summary judgment affirmed to the retailer on the delivery driver’s claim for injuries when he fell on the wet loading dock of the retailer, as the delivery driver was aware that the dock was slippery due to rain and nonetheless accessed it to pick up packages. We noted that there was no evidence that the delivery driver was limited in his freedom of choice, as on previous occasions he had remained in his truck while the retailer’s employees had handed him the packages, thus avoiding the perils of the loading dock).