text:
    A14A0648.
    ARMSTRONG et al. v. GYNECOLOGY & OBSTETRICS OF DeKALB, P.C. et al.
    (761 SE2d 133)
   Boggs, Judge.

Carlethia and Opprezender Armstrong (“the Armstrongs”) brought this medical malpractice action against Gynecology & Obstetrics of DeKalb, P.C., and three physicians (“the physicians”) after their daughter was stillborn. A jury returned a verdict in favor of all defendants, and the Armstrongs brought a motion for new trial based upon juror misconduct. The trial court denied the motion for new trial, and the Armstrongs appeal, asserting three enumerations of error: failure to grant a new trial on the basis of juror misconduct; a jury instruction on hindsight; and the limitation of the testimony of a witness. For the following reasons, we affirm.

1. The Armstrongs’ motion for new trial was based upon juror misconduct in using cell phones during deliberation to obtain definitions of words or terms in the written instructions sent out with the jury. The trial court made a very thorough and complete inquiry, summoning all the jurors for examination in court. Each juror was sequestered and examined individually regarding the Armstrongs’ allegations; both counsel were given the opportunity to ask questions as well.

The jurors’ testimony differed in some respects. Six jurors did not recall which words were researched, and one juror did not recall any words being looked up. Ultimately, testimony was presented that one or more jurors sought definitions of four words or terms: “causation,” “proximate cause,” “requisite,” and “decedent.” The Armstrongs elicited no testimony regarding the results of the jurors’ search for definitions of the terms in question, whether those results differed from the instructions given to the jury, or whether the jurors relied upon those definitions in reaching a verdict.

After examining the jurors and receiving extensive briefing from all counsel on the issue, the trial court entered a commendably thorough and detailed order discussing the jurors’ testimony in light of the applicable legal authority. The court found that, although several jurors improperly used their phones to search for definitions of words, their conduct had no effect on the verdict; it therefore denied the motion for new trial.

Under former OCGA § 9-10-9, the affidavits of jurors could be received only to sustain, not impeach, their verdict. An exception existed in criminal cases in which “compelling personal interests of life and liberty” were implicated. Riddle v. Beker, 232 Ga. App. 393 (501 SE2d 893) (1998). But since the trial of this case occurred after January 1, 2013, the relevant statutory provision regarding post-verdict juror testimony is now found in OCGA § 24-6-606 (b):

Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify by affidavit or otherwise nor shall a juror’s statements be received in evidence as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon the jury deliberations or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith; provided, however, that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the juror’s attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form.

(Emphasis supplied.) As the trial court correctly observed, Georgia’s new Evidence Code “adopted, in large measure, the Federal Rules of Evidence, and its sections are comparable to corresponding federal rules. Because of this similarity, it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” (Citations, punctuation and footnotes omitted.) Jones v. State, 326 Ga. App. 658, 660 (1) (757 SE2d 261) (2014).

The parties and the trial court rely upon a Tenth Circuit decision, Mayhue v. St. Francis Hosp., 969 F2d 919, 924 (II) (10th Cir. 1992), which identifies a number of factors to consider in determining whether a party was prejudiced by extraneous information in the form of dictionary definitions. To rebut a presumption of prejudice, the opposite party must show: (1) the importance of the term in question to the legal or factual issues in the case; (2) the extent to which the extraneous definition differs from the jury instructions or the law; (3) the extent of the jury’s discussions and emphasis on the extraneous definition; (4) the strength of the evidence and whether the jury had difficulty in reaching a verdict; and (5) any other relevant factors. Id. In a criminal context, the Eleventh Circuit employs a similar analysis, but it holds that prejudice is not presumed:

When jurors consider extrinsic evidence, we require a new trial if the evidence poses a reasonable possibility of prejudice to the defendant. Prejudice is not presumed. The defendant has the burden of demonstrating prejudice by a preponderance of credible evidence. Such prejudice may be shown by evidence that extrinsic factual matter tainted the jury’s deliberations. . . . Subject only to Federal Rule of Evidence 606 (b), the court may use whatever inquisitorial tools are necessary and appropriate to determine prejudice. If after this inquiry the court determines that the defendant met his burden of showing by a preponderance of the evidence the likelihood of jury prejudice, the burden shifts to the government to prove that the consideration of the extrinsic evidence was harmless. In recognizing the degree of prejudice required and the government’s burden to establish harmless error, the strength of the government’s case has a bearing on the issue of prejudicial error. Also relevant is the nature of the information learned by the jurors and the manner in which it was revealed. Finally, the standard by which we review the district court’s determination of whether the defendants were prejudiced is a factual one committed to the court’s large discretion.

(Citations, punctuation and footnotes omitted; emphasis in original.) United States v. Rowe, 906 F2d 654, 656-657 (III) (11th Cir. 1990).

But the new Evidence Code does not change Georgia’s longstanding rule that “[a] motion for new trial because of improper juror conduct is addressed to the sound discretion of the trial judge, and unless there is an abuse of discretion, the appellate court will not upset the trial court’s determination.” (Citations and punctuation omitted.) Dryman v. Watts, 268 Ga. App. 710, 711-712 (2) (603 SE2d 51) (2004); see also Kellett v. Kumar, 281 Ga. App. 120, 126 (4) (635 SE2d 310) (2006), citing Riddle, supra, 232 Ga. App. at 394. In fact, the federal courts agree that the trial court should be reversed only for abuse of discretion, given the trial judge’s unique ability to observe the jurors and assess any potential prejudice. See Mayhue, supra, 969 F2d at 922 (II) (affirming trial court’s decision granting new trial “because there is credible evidence in the record to support it”); Rowe, supra. Nor does the new Evidence Code alter the general rule that “[a]n appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.” (Citations and punctuation omitted.) American Home Svcs. v. A Fast Sign Co., 322 Ga. App. 791, 794 (1) (b) (747 SE2d 205) (2013); see Wood v. Food Giant, 183 Ga. App. 604, 605 (3) (359 SE2d 410) (1987) (when appellant alleged juror misconduct but failed to show “any harm or prejudice resulting from the juror’s alleged actions,” trial court did not abuse discretion in denying motion for new trial).

Here, evidence of prejudice was lacking. As the Armstrongs acknowledge, no testimony was elicited regarding the substance of the definitions found by jurors, and no showing has been made that the information obtained was prejudicial, or even that it differed from the trial court’s written instructions which went out with the jury. Compare Mayhue, supra, 969 F2d at 921 (I) (extraneous and erroneous definitions used by jury discovered in handwritten note left behind in jury room); Steele v. State, 216 Ga. App. 276 (454 SE2d 590) (1995) (juror copied encyclopedia definitions of manslaughter and “usual penalty,” which differed from Georgia law), overruled on other grounds, Kennebrew v. State, 267 Ga. 400, 404, n. 2 (480 SE2d 1) (1996); Moore v. State, 172 Ga. App. 844 (324 SE2d 760) (1984) (juror took definitions of murder and voluntary manslaughter from Reader’s Digest book on law). Here, there is no showing of any variance from the jury instructions or the law, and no evidence from which to determine any discussion or emphasis on the unknown definitions under the second or third part of the Mayhue test.

In summary, the trial court thoughtfully considered the juror misconduct and its possible effect on the verdict. After an extensive review of the facts and the applicable law, it concluded that the extrajudicial information did not prejudice the jury’s deliberations. We find no abuse of the trial court’s broad discretion in that ruling.

2. The Armstrongs also assert error in the trial court’s “hindsight” instruction to the jury, taken from the Suggested Pattern Jury Instructions, Vol. I: Civil Cases (5th ed.), § 62.311. In Smith v. Finch, 285 Ga. 709 (681 SE2d 147) (2009), our Supreme Court disapproved the pattern charge in part, but explicitly approved the first sentence of the pattern charge “in any medical malpractice case in which the facts warrant it, i.e., where the negligence claim is based in whole or in part on the assertion that the physician made an incorrect assessment of a patient’s condition.” Id. at 711, n. 3. The trial court here gave only the first sentence of the pattern charge after extensive discussion with counsel and reliance upon Smith.

The Armstrongs argue that all the relevant risk factors were known to the physicians before the fact, and that a hindsight charge therefore was inappropriate.

But jury charges are not limited to a plaintiff’s characterization of the lawsuit. A trial court has a duty to charge the jury on the law applicable to issues which are supported by the evidence. If there is even slight evidence on a specific issue, it is not error for the court to charge the jury on the law related to that issue.

(Citations, punctuation and footnote omitted.) Mercker v. Abend, 260 Ga. App. 836, 839 (1) (581 SE2d 351) (2003). Here, a key and hotly disputed issue in the trial was whether the physicians were correct in their assessment of the length of time this high-risk pregnancy could be allowed to proceed before performing a caesarean section. The day before the scheduled delivery, Mrs. Armstrong suffered an acute placental abruption. As the Armstrongs’ expert acknowledged, however, an abruption is an unpredictable event. Therefore more than slight evidence was presented raising an issue of whether the Armstrongs’ claim was based on later-acquired knowledge of the placental abruption, and the hindsight charge was authorized. Id. at 840 (1). See Steele v. Atlanta Maternal-Fetal Medicine, 271 Ga. App. 622, 631-632 (4) (610 SE2d 546) (2005), overruled on other grounds, Smith, supra, 285 Ga. at 712 (1). In Steele, we held that the hindsight charge was supported by some evidence when the defendant physician contended that only hindsight could show that failure to hospitalize the patient would result in a placental abruption occurring too far from an operating room for the child to be saved. The trial court did not err in giving the charge.

3. Finally, the Armstrongs assert error in the trial court’s limitation of the rebuttal testimony of an expert witness, Dr. Shehata. This witness, a pediatric and fetal placenta pathologist, was called as a rebuttal witness immediately after the defendants rested. Asked for his opinion based on his examination of Mrs. Armstrong’s pathology slides, he responded, “the slides show abruption of the placenta and the evidence of fetal stress.” The physicians’ counsel immediately objected that this was not proper rebuttal testimony, because no pathology testimony had been presented in their case-in-chief, and because there was no dispute that a placental abruption had occurred. The trial court excused the jury and heard argument from counsel. Counsel for the physicians reiterated that no pathologist testimony regarding stillbirth or slides had been presented. Counsel for the Armstrongs contended that one of the physicians had testified “that we did not know one way or the other if this was a placental abruption.” The trial court responded, “No, that is not to the testimony [sic].” The discussion continued:

THE COURT: Is he going to offer an opinion about late delivery as cause of death?
PLAINTIFFS’ COUNSEL: He’s going to offer an opinion that this abruption would have been avoided if the delivery had been done 48 hours before, based upon his review of the slides, the abruption happened during that time —

Decided June 24, 2014.

Audrey M. Tolson, Candace J. Rodgers, Wayne D. Toth, Turkheimer & Hadden, John D. Hadden, for appellants.

THE COURT: I’m not sure anybody disputes that either.
DEFENDANTS’ COUNSEL: There’s no dispute.
THE COURT: It’s a standard of care question whether they should or should not have delivered.
PLAINTIFFS’ COUNSEL: He’s not going to answer that question.
THE COURT: Then he doesn’t need to be here.

The trial court excused the witness, and explained to the jury:

The defense has made an objection to the testimony of the last witness as not being relevant to the subject matter for this trial or for the defense put up. When you put up a rebuttal witness the witness is supposed to rebut, that is to contradict something in the testimony put up by the defense, in this case medical expert testimony. Based on the objection, I’ve conducted a hearing, I find that it is not relevant to rebut the defense expert testimony, therefore I have excluded that witness.

“[Admissibility of rebuttal evidence lies within the sound discretion of the trial court.” (Citation and punctuation omitted.) Dept. of Transp. v. Patten Seed Co., 290 Ga. App. 532, 537 (4) (660 SE2d 30) (2008). Here, the fact that a placental abruption occurred and caused the death of Mrs. Armstrong’s child was not in dispute. The physicians acknowledged this repeatedly in their opening statement and closing argument, and witnesses also testified to these facts. The trial court did not abuse its discretion in concluding that the proffered testimony did not rebut any evidence presented by the physicians. Moreover, the Armstrongs’ expert had testified on direct examination that placental abruption was the cause of death in this case. The proffered testimony therefore was merely cumulative of evidence that had already been presented, and excluding it was not an abuse of discretion. Greg A. Becker Enterprises v. Summit Investment Mgmt. Acquisitions I, 314 Ga. App. 721, 725(3) (725 SE2d 841) (2012).

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.

Peters & Monyak, Jonathan C. Peters, Jeffrey A. Peters, for appellees.

       One juror testified that she looked up a word that she did not recall, but that she believed was misspelled in the written instructions. During deliberations, the jury sent a question to the judge regarding the phrase “casual relation” in the jury instruction on proximate cause, and the trial court corrected the typographical error of “casual” for “causal.”

       While the affidavit filed with the Armstrongs’ motion for new trial stated that the jurors looked up “standard of care,” when questioned by the trial court this juror testified that he did not remember that term being researched. Other jurors who were questioned on the issue denied that “standard of care” was one of the definitions sought.

       The physicians point to the foreman’s testimony that the jury based its verdict on a determination that the physicians did not violate the applicable standard of care in their treatment of Mrs. Armstrong. From this, they argue that any search for definitions of “cause” or “proximate cause” was irrelevant to the jury’s verdict. The trial court noted that most federal circuits agree that a juror may not testify to the effect of an extraneous influence upon deliberations. But we need not address this question because, as noted below, the substance of the definitions at issue here was never shown.

       While the jury announced early in deliberations that it was deadlocked, the trial court explicitly considered this issue and concluded that “[tjhis sort of announcement is not unusual in a medical malpractice case,” and that the jury “continued to discuss the case at length after the words were searched before they reached a decision.”

       Although Rowe is a criminal case, the Eleventh Circuit has applied it in a civil context. See BankAtlantic v. Blythe Eastman Paine Webber Inc., 955 F2d 1467, 1472 (B) (2) (a) (11th Cir. 1992). Likewise, Mayhue, supra, relies upon criminal decisions in evaluating improper jury conduct. 969 F2d at 922-923 (III). The statement of the Eleventh Circuit in Rowe, supra, that “[pjrejudice is not presumed,” 906 F2d at 656, is consistent with long-standing Georgia law on this issue in civil cases. The Eleventh Circuit has also applied this rule in a civil context. BankAtlantic, supra, 955 F2d at 1471-1472 (B) (2) (a). We note that while the Tenth Circuit states in Mayhue that it will apply a presumption of prejudice, Mayhue, supra, 969 F2d at 922, the District of Columbia Circuit observed that the Mayhue court does not apply a presumption, but instead employs the five-factor test. United States v. Williams-Davis, 90 F3d 490, 502 (I) (B) (2) (D.C. Cir. 1996). Moreover, “the federal circuits disagree on... any presumption of prejudice” in the absence of jury tampering by a third party. Tunstall v. Hopkins, 306 F3d 601, 610 (II) (C) (8th Cir. 2002) (declining to presume prejudice in extraneous information case).

       While Steele refers to a presumption of prejudice, it was decided under former OCGA § 9-10-9, which allowed juror impeachment of a verdict only in criminal cases when “compelling personal interests of life and liberty” were implicated. Riddle, supra, 232 Ga. App. at 393.

       On appeal, the Armstrongs give no citation to this alleged testimony; they now contend that the physician’s testimony that placental abruption was the “presumed cause of death” justified rebuttal.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A12A0529.
    FULTON COUNTY v. COLON. FULTON COUNTY v. WARREN.
    A12A0530.
    (761 SE2d 162)
   ANDREWS, Presiding Judge.

In Fulton County v. Colon, 316 Ga. App. 883 (730 SE2d 599) (2012), we consolidated the captioned appeals by Fulton County in actions brought by Maria Colon and Gwendolyn Warren pursuant to OCGA § 45-1-4, the whistleblower statute. In those cases, the County appealed from the trial court’s denial of identical motions filed in each action. In the motions, the County sought: (1) dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction on the basis that the County’s sovereign immunity barred the action; and (2) judgment on the pleadings (a) because the whistleblower complaints did not relate to a “state program or operation,” and (b) because Warren was a high-level employee not entitled to whistleblower protection.

As to the motions seeking dismissal on the basis of sovereign immunity, we concluded that the trial court correctly found that OCGA § 45-1-4 expresses a specific waiver of sovereign immunity and the extent of the waiver. As to the motions seeking judgment on the pleadings because the complaints did not relate to a “state program or operation,” we construed OCGA § 45-1-4 and, based on that statutory construction, vacated the trial court’s denial of the motions on that issue and remanded. In light of our construction of OCGA § 45-1-4, we also vacated the trial court’s denial of the motions on the sovereign immunity issue and remanded. As to the motion seeking judgment on the pleadings on the basis that Warren was not entitled to whistleblower protection because she was a high-level employee, we affirmed the trial court’s denial of the motion. Accordingly, in Colon, supra, we affirmed the trial court’s judgment in part, and vacated in part and remanded.

In Colon v. Fulton County, 294 Ga. 93 (751 SE2d 307) (2013), the Supreme Court affirmed our decision in Colon, 316 Ga. App. 883, “insofar as it relates to the express waiver of sovereign immunity created by OCGA § 45-1-4,” but disagreed with and reversed our construction of OCGA § 45-1-4. Colon, 294 Ga. at 96-100. Accordingly, our decision in Colon, 316 Ga. App. 883, is vacated to the extent it was reversed by the Supreme Court, and the judgment of the Supreme Court is made the judgment of this Court. It follows that the judgment of the trial court denying Fulton County’s motions in the captioned appeals seeking dismissal for lack of subject matter jurisdiction on the basis of sovereign immunity, and seeking judgment on the pleadings is affirmed.

Decided June 25, 2014.

Kaye W. Burwell, Y. Soo Jo, for appellant.

Parks, Chesin & Walbert, A. Lee Parks, Larry H. Chesin, for appellees.

Judgment affirmed.

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


author: DOYLE, Presiding Judge. MILLER, Judge,

text:
    A14A0012.
    THE STATE v. TERRELL.
    (761 SE2d 142)
   DOYLE, Presiding Judge.

The State appeals from the trial court’s order granting Michael Cody Terrell’s motion to suppress evidence found after a traffic stop. The State contends that the trial court erred by finding that consent to search the vehicle was obtained after police unreasonably prolonged the detention during the traffic stop. For the reasons that follow, we reverse.

[There are] three fundamental principles which must be followed when conducting an appellate review of a trial court’s ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

To the extent that “the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.”

The record is essentially undisputed and shows that an officer on patrol received a radio communication from an investigator who identified a particular vehicle as being suspected of drug activity and asked if the officer could observe a reason to justify a traffic stop of the vehicle. The officer located the vehicle and noticed a crack in the windshield sufficient to partially obstruct the driver’s view. The officer initiated a traffic stop, and the vehicle pulled into a Phillips 66 gas station. The vehicle was driven by Kelsey Lambert, and Terrell was in the passenger seat. As a backup officer arrived, the first officer requested Lambert’s driver’s license and took it back to his patrol car to run a check on it approximately one minute later. As the license check proceeded, the officers discussed how they might obtain consent to search the vehicle. Approximately three minutes after the stop began, the license check was complete, and after forty seconds of further discussion between the officers, an officer began writing out a warning citation for the cracked windshield. As that officer wrote the warning, the backup officer approached Lambert’s vehicle and asked Terrell for his identification, which Terrell provided, telling the officer he was on parole for a drug violation. The officer radioed dispatch with Terrell’s identification to run a check on the Georgia Crime Information Center (“GCIC”) database. After that process was complete* ** (approximately two minutes later), the first officer returned to Lambert’s vehicle to give her the written warning. He requested her to exit her vehicle so he could explain the citation to her and get her signature. After returning her license, the officer told Lambert she was free to go and then immediately asked her for consent to search the vehicle. Lambert responded that she had somewhere to be, but after the officer replied that it would only take “five minutes at the most,” she agreed to the search of her vehicle. Up to that point, the entire stop had taken approximately ten to eleven minutes. Lambert asked if she could go into the gas station to purchase some cigarettes, and the officers reiterated that she was free to go.

Thereafter, before the vehicle search began, an officer requested Terrell to exit the vehicle, and he did, throwing a styrofoam “QuikTrip” cup into a nearby trash can. The officer patted down Terrell and discovered several small plastic baggies in his pocket but no contraband. The brief vehicle search also failed to yield any contraband, and the officers concluded their engagement with Terrell and Lambert, who stayed at the gas station chatting and smoking cigarettes. After the first officer left the scene, the backup officer remained in his patrol car, which he had moved from the immediate scene and backed into a parking space. He sat in his patrol car and observed Terrell and Lambert as they lingered at the gas station. After approximately five or ten more minutes, Lambert and Terrell drove away, and the backup officer searched the trash can into which Terrell had thrown the QuikTrip cup. He located the cup and saw a glass pipe and several baggies of suspected methamphetamine inside. Terrell was later apprehended and charged with one count of trafficking in methamphetamine.

Terrell moved to suppress the evidence gathered during the pat-down search and from the trash can, and after an evidentiary hearing, the trial court granted the motion on the ground that the officer obtained consent to search the vehicle after unreasonably prolonging the traffic stop, rendering any evidence obtained thereafter “fruit of the poisonous tree.” At the hearing, the trial court stated as follows:

The Court had the benefit of a video tape, it had a time stamp on it that showed the traffic stop as it played out from beginning to end. The traffic stop[,] however, in this Court’s opinion, based on the facts and evidence presented here[,] exceeded the scope in detaining the driver and the Defendant past the time when the ... traffic citation warning was given to the driver at the scene. I believe on the tape that was somewhere around the ten-minute mark, ten-minute thirty mark. At that point in time it’s clear that the officer had no legal reasons to keep the driver there. There was no other independent articulable suspicion of illegal activity other than the initial traffic stop at that point in time, and the driver and the Defendant should have been free to leave at that point. At that point, however, the officers asked for consent to search the vehicle after the driver’s license was given back and the warning citation was done. They asked for consent to search from the driver, who upon testimony gave a consent to search her vehicle. Unfortunately[,] that consent to search came after the driver and the passenger were illegally detained and there . . . was no articulable suspicion of any criminal activity warranting a request for consent to search.

The trial court relied on Weems v. State,* in which this Court reversed the denial of a motion to suppress evidence obtained pursuant to a search after a traffic stop. In Weems, the officer executed a traffic stop and spoke to Weems as he wrote out a courtesy warning for following too closely. After finishing writing the warning, the officer prolonged the detention by further asking a passenger questions about the vehicle, “whether he had picked up Weems, where he lived, and about information on his driver’s license.” The officer then told Weems he was going to do a check on both of their driver’s licenses, and at that point, the officer asked for consent to search the vehicle. Weems deferred to the passenger, who did not respond to the request. The officer then informed the passenger that he was going to conduct a free air search with a dog and asked the passenger to exit the vehicle, and the officer patted down the passenger. The officer noticed a bulge in the passenger’s pocket, and the passenger informed him that it was $2,000 in cash. The officer told the passenger to place the cash on the front passenger seat and then performed a free air search with the police dog; the dog alerted on an area of the car near where the cash was placed. The officer then searched the vehicle and found $18,000 in cash and several baggies of crack cocaine in the back of the vehicle.

Based on these facts, this Court held that there was no valid reason to continue to detain Weems and the passenger after the completion of the written warning: “The officer had completed the tasks related to the investigation of the traffic violation of following too closely and had written the courtesy warning,” yet the officer continued to detain the suspects for several more minutes while he questioned them, patted down the passenger, and completed a drug dog search. Therefore, this Court held that the trial court erred by denying Weems’s motion to suppress because the officer lacked sufficient suspicion at the conclusion of his authorized duties.

The present case, however, presents a different factual scenario not controlled by Weems. Here, as noted by the trial court, the officer completed the tasks related to the investigation of the traffic violation and returned Lambert’s license to her in approximately ten minutes. At that point, upon returning Lambert’s license and telling her she was free to go, the officer “immediately’ requested consent to search Lambert’s vehicle, and as found by the trial court, Lambert consented. At that moment, Lambert’s license had been returned, she had been told she was free to leave, and the encounter had de-escalated into a first-tier encounter. “[Because] the request to search occurred . . . contemporaneously with the conclusion of the traffic stop, it did not unreasonably prolong the stop.” Therefore, the facts here differ from Weems, which merely stands for the proposition that an officer may not, after concluding an otherwise valid traffic stop, continue to detain a person without reasonable articulable suspicion. Here, under the facts as found by the trial court, the detention related to the traffic stop had ended, and the immediate request to search did not prolong the detention or otherwise violate the principle articulated in Weems. Accordingly, the trial court erred by ruling that Lambert’s consent was obtained after an unlawful detention. Based on this legal error, we reverse the grant of Terrell’s motion to suppress.

Judgment reversed.

Miller, J., concurs specially. Dillard, J., concurs in judgment only.

MILLER, Judge,

concurring specially.

I agree with the ultimate conclusion reached by the majority, but write separately to note that once Terrell abandoned the drugs, he no longer had any reasonable expectation of privacy in them.

It is well settled that the “constitutional protection of the Fourth Amendment does not apply to property which has been abandoned.” (Footnote omitted.) Watson v. State, 247 Ga. App. 498, 499 (544 SE2d 469) (2001); see also Teal v. State, 282 Ga. 319, 328-329 (6) (647 SE2d 15) (2007) (accused no longer has reasonable expectation ofprivacyin property that is abandoned). “However, if unlawful police conduct coerces the defendant into abandoning the property, then suppression of the evidence may be warranted.” Edwards v. State, 239 Ga. App. 44, 45 (1) (518 SE2d 426) (1999) (abandonment not coerced where police conduct is lawful).

Decided June 25, 2014.

Daniel J. Porter, District Attorney, Lee F. Tittsworth, Assistant District Attorney, for appellant.

Rocky E. Remson, for appellee.

Here, once the traffic stop had concluded, police officers contemporaneously asked for and received permission from the vehicle’s driver to search the car. See Davis v. State, 306 Ga. App. 185, 186-187 (1) (702 SE2d 14) (2010) (no illegal detention where police asked to search vehicle almost contemporaneously with conclusion of traffic stop). Prior to searching the car, police were entitled to ask Terrell to step out of the vehicle. See Brandt v. State, 314 Ga. App. 343, 346 (723 SE2d 733) (2012) (police may ask passenger to exit the vehicle). Throughout the entirety of the stop the officers’ actions were legitimate and lawful.

After Terrell exited the vehicle, he threw away into a nearby trash can a “QuikTrip” cup containing several baggies of suspected methamphetamine. There is no evidence that police officers coerced Terrell into throwing away the cup and its contents in a public trash can. Consequently, Terrell abandoned his property, and no longer had any reasonable expectation of privacy in it. The police officers’ recovery of the cup did not implicate the Fourth Amendment. Accordingly, the trial court erred in granting Terrell’s motion to suppress.

       (Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286, 286-287 (702 SE2d 888) (2010).

        Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012), citing Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       The driver testified at the suppression hearing and did not dispute having a cracked windshield. See OCGA § 40-8-73 (e) (“No motor vehicle shall be operated with a windshield or rear window having a starburst or spider webbing effect greater than three inches by three inches”).

       The fact that a traffic stop arises pursuant to an underlying drug investigation does not render the stop invalid if “an officer observes the motorist committing even a minor traffic violation,” such as the cracked windshield in this case. Valentine v. State, 323 Ga. App. 761, 763-764 (1) (748 SE2d 122) (2013). See also State v. Price, 322 Ga. App. 778, 780 (746 SE2d 258) (2013) (“If an officer witnesses a traffic violation, the ensuing stop is never pretextual, regardless of the officer’s subjective intentions.”).

       The State did not introduce evidence of a Fourth Amendment waiver arising from Terrell’s parolee status, hut it did introduce a copy of his sentence, which Terrell was still serving and which contained a provision requiring Terrell to submit to searches without probable cause or reasonable suspicion. See generally Thomas v. State, 287 Ga. App. 163, 166 (1) (651 SE2d 116) (2007) (discussing searches pursuant to parole and probation waivers). Nevertheless, the trial court ruled that the search was fruit of the unlawful detention and the officers did not perform the search pursuant to a Fourth Amendment waiver associated with Terrell’s sentence or parolee status. On appeal, the State makes no argument as to the error of this ruling, so we do not address the effect of the waiver in Terrell’s prior drug sentence or his status as a parolee at the time of the search. See generally Court of Appeals Rule 25 (c) (2) (unsupported claim of error may be deemed abandoned); Barrett v. State, 253 Ga. App. 357, 360 (3) (559 SE2d 108) (2002) (enumeration of error not supported by argument or authority was deemed abandoned).

       The officer can be heard on the recording of the stop ruling out a similarly named entry in the GCIC database.

       Based on the video, the vehicle search took less than six minutes.

       OCGA § 16-13-31 (e).

       The fact that Terrell threw his cup into the trash does not create an abandonment such that we need not engage in a Fourth Amendment analysis of the traffic stop. See generally Watson v. State, 247 Ga. App. 498, 499 (544 SE2d 469) (2001) (the “constitutional protection of the Fourth Amendment does not apply to property which has been abandoned”). “[I]f unlawful police conduct coerces the defendant into abandoning the property, then suppression of the evidence may be warranted.” Edwards v. State, 239 Ga. App. 44, 45 (1) (518 SE2d 426) (1999). The evidence shows that the police removed Terrell from the vehicle after the conclusion of the traffic stop so they could perform the consensual search; thus, if the consent was unlawfully obtained, Terrell’s abandonment would have been fruit of the unlawful search.

       (Emphasis supplied.)

       318 Ga. App. 749 (734 SE2d 749) (2012).

       See id. at 750.

       Id.

       See id.

       See id.

       See id.

       See id.

       See id. at 750-751.

       See id.

       See id. at 752 (1).

       See id. at 752-753 (1).

       We note that requesting Lambert to exit her vehicle to discuss and sign the warning was permissible as part of the traffic stop. See Sims v. State, 313 Ga. App. 544, 547-548 (722 SE2d 145) (2012) (During a traffic stop, “[t]he officer was... authorized to ask [the defendant] to step outside his car; ‘ordering [the defendant] from the car was an extension of the constitutionally valid detention resulting from the traffic stop.’ ”) (footnote omitted).

       The trial court explicitly found that the officer “immediately requested consent to search after returning the license to Lambert.

        See Rowe v. State, 314 Ga. App. 747, 750 (2) (a) (725 SE2d 861) (2012) (“Upon receiving [her] license and warning ticket, a reasonable person would have concluded that the traffic stop had ended.”) (citation and punctuation omitted).

        Davis v. State, 306 Ga. App. 185, 187 (1) (702 SE2d 14) (2010), citing Davis v. State, 303 Ga. App. 785, 787 (694 SE2d 696) (2010); Hayes v. State, 292 Ga. App. 724, 730 (2) (e) (665 SE2d 422) (2008) (officer’s request for consent to search 30 seconds after issuing a warning ticket did not unreasonably prolong the detention).

       We note in particular that the trial court’s statement at the hearing, “there . .. was no articulable suspicion of any criminal activity warranting a request for consent to search,” implies a misapplication of the law. See generally Bacallao v. State, 307 Ga. App. 539, 541-542 (705 SE2d 307) (2011) (even if police have no basis for suspecting a particular individual, they may generally ask questions of that individual and request consent to search as long as the police do not detain the person or convey a message that compliance with their requests is required).


author: Ray, Judge.

text:
    A14A0189.
    GRIFFIN v. THE STATE.
    (761 SE2d 146)
   Ray, Judge.

Following a jury trial, Richard Thomas Griffin was convicted of two counts of aggravated sexual battery (OCGA § 16-6-22.2) and one count of child molestation (OCGA § 16-6-4). He appeals from his convictions and the denial of his motion for new trial, asserting that the trial court erred in admitting similar transaction evidence and in instructing the jury on the appropriate purposes for considering similar transaction evidence. We affirm for the reasons set forth below.

Construed in the light most favorable to the verdict, Woods v. State, 304 Ga. App. 403 (1) (696 SE2d 411) (2010), the evidence shows that the victim, H. G., was between the ages of three and five years old when she was sexually abused by her step-grandfather, Griffin. In her initial outcry to her mother, H. G. stated that Griffin had pulled her across his lap, pulled down her panties, and stuck his fingers inside of her vagina. H. G. also told her mother that she saw Griffin hold his penis and that he had threatened to kill her if she told anyone. H. G. further stated that Griffin had inserted his finger in her vagina on several other occasions. H. G. gave consistent statements regarding this sexual abuse to the pediatric physician who examined her and later during a forensic interview. At trial, H. G. testified that Griffin called her into her room to get a toy, then picked her up, laid her across his lap, pulled down her pants, and inserted his finger into her vagina. She further testified that Griffin had threatened to kill her if she told her mother.

At trial, the State presented evidence of a similar transaction that involved S. H., the seven-year-old daughter of a woman who had previously been romantically involved with Griffin’s son. S. H. testified that one night when she was sleeping in bed with her aunt, Griffin came into the room and began touching her. S. H. further testified that Griffin tried to pull down her pants, touched her “inside” her privates with his hand, and then made her touch his penis.

1. Griffin argues that the trial court erred in admitting the similar transaction evidence because the separate incident was not sufficiently similar to the charged offenses in this case. We discern no error.

Before evidence of an independent act is admissible, the trial court must determine, inter alia, that the State has affirmatively shown that “there is [a] sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.” (Citation omitted.) Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009). “As a general rule, the sexual molestation of young children or teenagers, regardless of the type of act, is sufficiently similar to be admissible as similar transaction evidence.” (Punctuation and footnote omitted.) Jackson v. State, 309 Ga. App. 450, 451 (1) (710 SE2d 649) (2011). In determining the admissibility of similar transaction evidence, the proper focus is on the similarities, and not the differences, between the independent act and the incident on trial. However, a higher degree of similarity is required when such evidence is introduced to prove identity. See Hunt v. State, 288 Ga. 794, 797-798 (3) (708 SE2d 357) (2011). We review a trial court’s decision to admit similar transaction evidence under the abuse of discretion standard. Jackson, supra.

Here, both victims were young girls to whom Griffin served as a grandfather figure, each victim’s mother was romantically involved with Griffin’s son, both incidents took place in the victims’ bedrooms, Griffin touched each victim’s vagina, and Griffin exposed his penis in the presence of each victim. As these facts demonstrate sufficient similarities between the independent acts and the crimes charged in this case such that the proof of the former tended to prove the latter, we find that the trial court did not abuse its discretion in admitting this similar transaction evidence.

2. Griffin contends the trial court erred when it provided the jury with a “comprehensive list” of possible purposes for which to consider the similar transaction evidence. We discern no error.

Specifically, Griffin contends that the trial court, prior to the presentation of the similar transaction evidence, instructed the jurors that they could consider the evidence to show “the identity of the perpetrator, state of mind, knowledge or intent of the defendant in the crimes charged in the case[.]” However, the record shows that the trial court actually instructed the jury prior to the presentation of similar transaction evidence that it could consider such evidence “for the limited purpose of showing . . . identity, motive, bent of mind or course of conductf.]” These are all appropriate purposes for considering similar transaction evidence, Jackson, supra, and the trial court’s instruction was consistent with the specific purposes for which the State sought to admit the similar transaction evidence.

However, in its charge to jury at the end of trial, the trial court did instruct the jury that the similar transaction evidence “may be considered for the limited purpose of showing . . . the identity of the perpetrator, state of mind, knowledge or intent of the defendant in the crimes charged in [this] case[.]” Griffin did not object to this charge.

Despite the lack of objection below, however, the expansion of the jury instructions was raised in Griffin’s amended motion for new trial, and the content of the trial court’s instruction was enumerated as error on appeal. In accordance with our Supreme Court’s decision in State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011), and the mandate of OCGA § 17-8-58 (b), we shall review the charge to determine whether it constituted plain error. Kelly, supra. Although Griffin does not argue in his appellate brief that plain error resulted from the “expansion” of the trial court’s instruction on similar transaction evidence, upon our review under the standard set forth in Kelly, supra, we discern no plain error.

In McTaggart v. State, 225 Ga. App. 359, 364-365 (2) (483 SE2d 898) (1997), overruled on other grounds in Wall v. State, 269 Ga. 506, 508-510 (2) (500 SE2d 904) (1998), we determined that there was no error in giving a broader charge encompassing multiple purposes so long as the trial court had held a similar transaction hearing, had made a determination regarding admissibility, and had given an instruction when the evidence was admitted which limited the jury’s consideration of the extrinsic act evidence to legitimate purposes. Likewise, in McClain v. State, 220 Ga. App. 474, 476 (5) (469 SE2d 756) (1996), we held that the trial court’s instruction which encompassed more than the State’s stated purpose for admission was not error because the additional purpose cited in the charge was “permissible.” We also found no error in a charge authorizing the jury to consider the evidence for more legitimate purposes than that for which it was proffered at the similar transaction hearing when the additional purpose was permissible and relevant to the State’s prima facie case. Livery v. State, 233 Ga. App. 332, 335 (1) (c) (503 SE2d 914) (1998). Compare Stephan v. State, 205 Ga. App. 241, 243 (2) (422 SE2d 25) (1992) (where State did not specify the purpose for which it intended to offer similar transaction evidence, and trial court made no requisite determination regarding a limited purpose, the trial court’s recitation of a comprehensive list of possible purposes did not sufficiently limit the purpose for which the jury should consider the evidence).

Decided June 25, 2014.

Jennifer A. Trieshmann, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

As the trial court gave an appropriate limiting instruction prior to the admission of the similar transaction evidence, McTaggart, supra, and because the purposes cited in the trial court’s final charge were permissible and relevant to the State’s case, Livery, supra, we find no plain error in the trial court’s charge to the jury.

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur.

       Griffin did not object to this limiting instruction.


author: Branch, Judge.

text:
    A14A0358.
    EASTER v. THE STATE.
    (761 SE2d 149)
   Branch, Judge.

Andra Easter was tried by a Richmond County jury and found guilty of one count of burglary and one count of aggravated assault. He now appeals from the denial of his motion for a new trial, arguing that the trial court’s jury charge violated his due process rights by allowing the jury to convict him of committing both burglary and aggravated assault by a method not alleged in the indictment. Easter further contends that the trial court erred in instructing the jury that it should first consider whether Easter was guilty of burglary before considering the lesser included offense of criminal trespass. For reasons explained below, we reverse the trial court’s denial of Easter’s motion for a new trial as to the charge of aggravated assault, but affirm the denial of that motion as to the charge of burglary.

“On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict.” Marriott v. State, 320 Ga. App. 58 (739 SE2d 68) (2013) (citation omitted). So viewed, the record shows that Easter’s victim was his former girlfriend, DeShawn Coatney. Easter had lived with Coatney at her residence for approximately 18 months before the couple broke up in January 2006. Evidence of prior difficulties between the couple was introduced at trial and showed that after Easter moved out of Coatney’s residence, Coatney had to call police several times because of Easter’s harassing and sometimes violent behavior. According to Coatney, during the approximately six weeks between the end of the couple’s romantic relationship and the incident at issue, she called police to her home on three or four occasions because Easter had appeared at her residence uninvited and refused to leave. Additionally, because Easter was consistently attempting to gain entrance to the house, Coatney had to change the locks on her residence several times in the span of a few weeks. An officer with the Richmond County Sheriff’s Department testified that on February 6,2006, he responded to a call regarding a domestic dispute at Coatney’s residence. Coatney explained to the officer that Easter had been coming to her house repeatedly and trying to gain entrance and that on the night in question he had broken the screen door. The officer observed that the door had been damaged and the handle broken off. Another local police officer testified that on February 17, 2006, he responded to a call placed by Coatney regarding a traffic incident. Coatney reported that Easter had followed her home from work, rammed her car with his, and then attempted to break her car window with a crowbar. The officer noted damage to the rear bumper of Coatney’s car and to one of the car’s headlights and also observed that the passenger side mirror appeared to have been “knocked off” with an “object.”

On the same night as the traffic incident, someone had broken a front window on Coatney’s house while she was at work. Before she left for work the following evening, Coatney rearranged the curtains on the broken window to cover the break. Coatney returned from work in the early morning hours of February 19 and upon entering her house, noticed that the curtains on the broken front window had been disturbed. Afraid that Easter might be in the house, Coatney retrieved a gun she kept hidden on top of her china cabinet and began a room-to-room search of the residence. After approximately ten minutes of searching, Coatney found Easter hiding under a bed in one of the home’s three bedrooms. When Easter came out from under the bed, Coatney saw that he was wearing what she described as “rubber gloves” and holding a crowbar. Coatney then began to back out of the room and Easter began moving toward her, holding the crowbar in an upright position. When Coatney asked what he was doing, Easter did not reply but instead simply continued walking toward Coatney. Fearing that Easter was about to attack her, Coatney fired two shots in his direction. A wounded Easter then fled the residence, and Coatney called the police. After speaking with Coatney, officers began searching a wooded area near the residence for Easter, who eventually surrendered to police and was later charged with aggravated assault and burglary.

Easter testified in his own defense and admitted that he had entered Coatney’s home on the night in question through the broken front window. Easter explained, however, that he had gone to the home because he had learned it had been broken into the night before, he had property at the residence, and he feared the intruders would return to burglarize the house. Sometime after he entered the residence, Easter heard a noise and then retrieved the crowbar from his car to use for his own protection. After he had “secured the house,” Easter decided to stay until Coatney returned from work to help protect both Coatney and the property. Easter decided to wait in a bedroom, however, so that Coatney would not be alarmed by him when she came through the front door. And once Coatney returned from work, Easter decided to wait for her to discover him in the bedroom, rather than coming out and startling her. According to Easter, when Coatney confronted him with the gun, Easter told her that he was not there to hurt her, but instead wanted to talk “like two mature adults, to sit down and talk.” Easter denied that he had any intent to harm Coatney that night, explaining that he loved her too much to hurt her.

At the charge conference following the close of the evidence, the trial judge agreed to charge the jury on criminal trespass as a lesser included offense of burglary. After extensive discussion with counsel concerning the verdict form, the parties agreed that burglary would appear before criminal trespass on that form and that the trial court would tell the jury to consider criminal trespass only if it found Easter not guilty of burglary. Thus the trial court charged the jury: “If you find that [Easter] is not guilty of the offense of burglary, you may consider a lesser offense of criminal trespass.” The trial court subsequently gave the jury a sequential charge, telling the jury that it should first consider Easter’s guilt as to the offense of burglary, and that it should consider the crime of criminal trespass only if it found Easter not guilty of burglary.

When charging the jury on both burglary and aggravated assault, the trial court charged the relevant Code sections in their entirety. Thus, the jury was instructed that a person commits burglary “when, without authority, that person enters or remains in any ... dwelling place of another person . . . with the intent to commit a felony.” And with respect to aggravated assault, the court charged the jury, in relevant part, that “[a] person commits ... aggravated assault when that person assaults another person with a deadly weapon or with any object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” The court then further instructed the jury:

The crowbar ... is not a deadly weapon per se, but may or may not be used as a deadly weapon depending upon the manner in which it is used in the circumstances of the case. Whether or not, under all the circumstances and facts of this case, the crowbar alleged in the Bill of Indictment... did, in fact constitute a deadly weapon or a weapon likely to cause serious bodily injury is a matter to be decided by you.

Defense counsel offered no objection to any of these charges.

After deliberating for approximately one hour, the jury sent a note to the judge asking if it could have a copy of the law defining aggravated assault and burglary. The trial judge conferred with counsel and decided that he would recharge the jury on both offenses. At this point, defense counsel noted for the first time that the indictment charged Easter with committing burglary by “entering” Coatney’s home with intent to commit a felony, but not by “remaining” there with such intent. Trial counsel further noted that the indictment charged Easter with committing aggravated assault by using “a crowbar, an object which[,] when used offensively against another person is likely to result in serious bodily injury,” and that it did not charge Easter with committing aggravated assault by use of a deadly weapon. Noting that the jury had already been deliberating for an hour, that it could not “unring the bell,” and that it feared confusing the jury, the trial court recharged the jury using its original charges as to aggravated assault and burglary, but noted defense counsel’s objections for the record.

When the jury came back with its verdict, the verdict form reflected that the jury found Easter guilty of burglary, not guilty of criminal trespass, and guilty of aggravated assault. The trial court explained to the jury that its verdicts as to the counts of burglary and criminal trespass were inconsistent and sent the jurors back to the jury room for further deliberations. The jury thereafter returned a verdict finding Easter guilty of both burglary and aggravated assault and making no finding as to the lesser included offense of criminal trespass.

Easter was convicted in June 2007 and shortly thereafter he filed his original motion for a new trial. Easter was released from prison and was on a supervised reprieve for medical reasons from November 8, 2010, through February 8, 2012, the date on which he was paroled. He filed an amended motion for a new trial on October 2, 2012, asserting error by the trial court in instructing the jury. The trial court heard that motion on May 9, 2013, and denied the same eight days later, on May 17. This appeal followed.

1. As the Supreme Court of Georgia has previously explained,

[a] criminal defendant’s right to due process may be endangered when, as here, an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment.

Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999), citing Dukes v. State, 265 Ga. 422 (457 SE2d 556) (1995) (citations omitted). On appeal, Easter asserts that the jury charge violated his due process rights because the charge allowed the jury to convict him of both aggravated assault and burglary by a method not alleged in the indictment. In analyzing these claims, we note that a due process violation will be found where the trial court gives a jury instruction “which deviates from the indictment [,]” in that “there is evidence to support a conviction on the [unindicted] manner of committing the crime[,] and the jury is not instructed to limit its consideration to the manner specified in the indictment.” Id., citing Dukes, 265 Ga. 422.

(a) The relevant portion of the Georgia Code section defining aggravated assault provides that a person commits that crime “when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). The indictment at issue charged Easter with committing an aggravated assault on Coatney “with a crowbar, an object which when used offensively against another person is likely to result in serious bodily injury.” As noted earlier, however, when charging the jury the trial court read OCGA § 16-5-21 (a) (2) in its entirety, thereby including the “deadly weapon” reference which was not a part of the indictment. Moreover, in conjunction with the jury charge on aggravated assault, the trial court further instructed the jury that while a crowbar was not a “deadly weapon per se,” it was for the jury to decide whether it constituted such a weapon in this case, given the evidence presented at trial. That evidence showed that Easter had engaged in a pattern of harassing and violent behavior toward Coatney; that his violence toward her had escalated in recent days; that he entered her house that night wearing rubber gloves and armed with a crowbar; that he hid himself and lay in wait for Coatney; and that when she confronted him, Easter began moving toward Coatney with the crowbar raised. Given this evidence, and reading the jury charge as a whole, we must conclude that the charge allowed the jury to find that Easter had committed aggravated assault by a method not charged in the indictment, i.e., by using a deadly weapon rather than merely an object likely to result in serious bodily injury.

Citing Mikell v. State, 286 Ga. 722 (690 SE2d 858) (2010), the State argues that the error in the trial court’s charge did not violate Easter’s due process rights, as it was cured by the trial court’s instruction that the State bore the burden of proving “every material allegation in the Bill of Indictment... beyond a reasonable doubt” and by providing the jury with a copy of the indictment. We disagree. In Mikell, the indictment against the defendant had charged him with committing burglary by one specific method; when instructing the jury, however, the trial court erroneously charged the entire burglary statute. In analyzing the defendant’s ineffective assistance claim based on his trial counsel’s failure to object to the erroneous charge, our Supreme Court found that the trial court cured its error by “providing] the jury with the indictment and instructing] jurors that the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” Id. at 724 (2) (b) (citations omitted). We find Mikell to be factually distinguishable, however, because the jury charge in this case emphasized that Easter could have committed aggravated assault by a method not alleged in the indictment, by specifically instructing the jury that it could find that a crowbar constituted a deadly weapon. Furthermore, although it had the opportunity to do so, the trial court specifically declined to give a curative instruction, reasoning that such an instruction might confuse the jury. Instead, the court gave the erroneous instruction on aggravated assault a second time. And when doing so, the trial court did not recharge the jury as to the State’s burden to prove the crime as alleged in the indictment. Thus, “[i]f anything, the recharge confirmed in the jurors’ minds that they could consider aggravated assault with [a deadly weapon] as [an] alternative [method] of committing aggravated assault.” Blige v. State, 208 Ga. App. 851, 852-853 (2) (432 SE2d 574) (1993). See also Milner v. State, 297 Ga. App. 859, 860-861 (1) (678 SE2d 563) (2009) (noting that the trial court’s original error in instructing the jury that the crime could be committed by a method not alleged in the indictment “was aggravated by the court’s recharge to the jury” in which it repeated its error) (citation omitted).

Given the evidence presented at trial and the absence of any meaningful limiting or curative jury instruction, we must conclude that the erroneous jury charge on aggravated assault resulted in “a reasonable probability . . . that the jury convicted [Easter] of committing [aggravated assault] in a manner not charged in the indictment.” Hopkins v. State, 255 Ga. App. 202, 206 (2) (564 SE2d 805) (2002) (punctuation and footnote omitted). See Harwell, 270 Ga. at 767 (1) (reversing defendant’s conviction for aggravated assault where the indictment charged him with assault with a deadly weapon, the trial court charged the Code section in its entirety, and the evidence was sufficient to support a conviction for assault with an object likely to cause serious bodily injury); Blige, 208 Ga. App. at 852 (2) (reversing aggravated assault conviction where indictment charged commission of the crime by one method and the trial court “did not merely read to the jury the entire Code section defining aggravated assault, but actually emphasized a method of committing the crime not specified in the indictment”). Accordingly, because the jury charge as to aggravated assault violated Easter’s due process rights, his “aggravated assault conviction must be reversed and the sentence vacated.” Harwell, 270 Ga. at 768 (1), citing Dukes, 265 Ga. at 424 (footnote omitted).

(b) At the time Easter committed the crimes at issue, Georgia law provided, and the trial court instructed the jury, that “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony... therein, he enters or remains within the dwelling house of another.” OCGA § 16-7-1 (a) (2006). The indictment at issue, however, charged Easter with committing burglary only by entering the “dwelling house of Coatney” with “the intent to commit [the] felony [of] Aggravated Assault therein,” and not with remaining in the dwelling with such intent. Based on the record, we find that the discrepancy between the crime as charged in the indictments and the instructions given to the jury did not result in a violation of Easter’s due process rights. This finding results from the fact that the evidence presented at trial did not support a conviction of Easter on the alternate, unindicted crime of committing burglary by remaining in Coatney’s house with felonious intent.

The difference between the two methods of committing burglary is the point in time at which the defendant formulated his intent to commit a felony. One method contemplates that the defendant entered the dwelling place of another with felonious intent, while the second method contemplates that the defendant formulated that intent after he entered the dwelling and, having formed the intent to commit a felony, thereafter remained in the dwelling for the purpose of acting on that intent. See generally Joyner v. State, 267 Ga. App. 309, 310 (1) (599 SE2d 286) (2004) (the requisite intent for commission of burglary can be formed either at the time the perpetrator makes his unauthorized entry into the premises or at some point “thereafter [,] while the perpetrator is remaining on the premises”). In this case, the only direct evidence of Easter’s intent was Easter’s testimony, in which he denied any intent to harm Coatney. The jury, however, clearly rejected this testimony. Moreover, the evidence showed that Easter entered the house when Coatney was not present, equipped with rubber gloves and armed with a crowbar. This circumstantial evidence supports the conclusion that Easter entered the house intending to assault Coatney. There is no evidence from which the jury could have inferred that Easter did not formulate the intent to commit an assault until some time after he entered the residence. In short, “the evidence presented at trial supported two alternative theories: either that [Easter] committed no offense at all, or that he committed the crime of [burglary] as alleged in the indictment” by entering Coatney’s dwelling with the intent to commit aggravated assault against her. Tidwell v. State, 312 Ga. App. 468, 472 (2) (718 SE2d 808) (2011) (citation and punctuation omitted). Accordingly, we find no reasonable possibility that the jury convicted Easter of burglary by a manner not charged in the indictment, and therefore affirm the trial court’s denial of Easter’s motion for a new trial as to that offense. Id. (indictment charged defendant with intentionally terrorizing the victim; in instructing the jury, the trial court charged the entire Code section, which provided that a defendant violated the statute when he acted with the intent to terrorize or with reckless disregard of the risk of causing terror; given that all the evidence showed that defendant acted intentionally rather than recklessly, there was no error in the charge).

2. Easter argues that the trial court erred in charging the jury that it must first decide his guilt as to burglary before considering the lesser included offense of criminal trespass. As Easter acknowledges, however, he did not object to the jury charge at trial. Thus, the charge will provide a grounds for reversal only if it constitutes “plain error.” State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011); OCGA § 17-8-58 (b). To demonstrate plain error with respect to a jury charge, it must be shown that the instruction was erroneous, that the error was obvious, and that there is a reasonable probability that the erroneous instruction affected the outcome of trial. Id. at 33 (2) (a). We find no such plain error in this case.

In cases involving one or more lesser included offenses, the trial court may properly give the jury a sequential charge; that is, the court may instruct the jury that it is to consider the greater offense before it considers any lesser included offense. See Camphor v. State, 272 Ga. 408, 414-415 (6) (d) (529 SE2d 121) (2000); Cantrell v. State, 266 Ga. 700, 703, n. 3 (469 SE2d 660) (1996); State v. Nicholson, 321 Ga. App. 314, 320 (2) (739 SE2d 145) (2013). “A trial court may not, however, instruct the jury that it must reach a unanimous verdict on the greater offense before considering the lesser [included] offense.” Armstrong v. State, 277 Ga. 122, 123 (2) (587 SE2d 5) (2003) (footnote omitted). As our Supreme Court explained in Cantrell, such a unanimity requirement as to the greater offense creates the possibility that the jury will return a verdict that is not truly unanimous:

Under a unanimity requirement the lesser offense cannot even be considered until the whole jury votes to acquit the defendant of the greater offense. Jurors favoring the lesser offense, unless they can dissuade those favoring the greater, must either hold out until a mistrial is declared because of the deadlock or surrender their opinions and vote for the greater offense. Members of the jury who have substantial doubts about an element of the greater offense, but believe the defendant guilty of the lesser offense, may very well choose to vote for conviction of the greater rather than to hold out until a mistrial is declared.

Cantrell, 266 Ga. at 702 (citations and punctuation omitted).

In this case, the trial court gave the following sequential charge when explaining the verdict form to the jury:

The first issue you will address is the charge in Count One of burglary. And if you find from the evidence and the law that I have given you that the defendant is guilty beyond a reasonable doubt, you will check the block guilty. If you find from the evidence and the law .. . that the defendant is not guilty ... as to the charge of burglary, you would check the block not guilty. If you check the block not guilty for burglary, only then would you move on to the lesser offense of criminal trespass. If you find the defendant guilty of burglary, you would skip over criminal trespass. If you find the defendant not guilty of burglary, then you may consider the issue of criminal trespass as I have defined it for you.

The court subsequently reiterated: “If you find [Easter] guilty of burglary, you must skip over criminal trespass [on the verdict form]. If you find him not guilty of burglary, you must address criminal trespass.”

Easter argues that the foregoing charge constitutes reversible error because it effectively required the jury to reach a unanimous verdict of acquittal as to the burglary charge before considering the lesser included offense of criminal trespass. In support of this argument, Easter relies on Kunselman v. State, 232 Ga. App. 323 (501 SE2d 834) (1998), a case which also involved a challenge to a sequential charge as to burglary and the lesser included offense of criminal trespass. In Kunselman, the trial court instructed the jury that “ ‘if you find the defendant not guilty of burglary, you would then and only then be authorized to consider the lesser included offense of criminal trespass on that count.’ ” Id. at 324 (1) (citation and footnote omitted; emphasis supplied). Shortly after giving this charge, the trial court “gave the usual pattern charge requiring [a] unanimous verdict, instructing, ‘[w] hat ever your verdict is, it must be unanimous, that is, agreed to by all 12 of you.’ ” Id. at 325 (1). We found that when read together, these instructions violated the unanimity rule set forth in Cantrell because

a jury faithfully following these instructions would have to render a unanimous verdict on the burglary charge before considering the criminal trespass charge. No jury could innately comprehend that unanimity was required on all occasions except when acquitting a defendant in the context of considering a lesser included offense.

Id.

Citing the “then and only then” language relied on by the analysis in Kunselman, Easter argues that the trial court’s instruction to the jury in his case that “[i]f you check the block not guilty for burglary, only then would you move on to the lesser included offense of criminal trespass,” constitutes plain error and requires us to reverse his conviction for burglary. Having examined all of the relevant case law decided after Kunselman, we disagree.

Since the decision in Kunselman, both the Supreme Court of Georgia and this Court have repeatedly held that sequential jury charges which employ mandatory language such as “only if” or “then” do not constitute reversible error, plain or otherwise, unless the charge as a whole compels “ ‘the jury to reach a unanimous verdict on the greater offense before it may consider the lesser offense.’ ” Nicholson, 321 Ga. App. at 319 (2) (citation omitted) (finding no plain error where the trial court instructed the jury it could consider the lesser included offenses of simple assault and simple battery “only if” it found the defendant not guilty of aggravated assault and aggravated battery). See also Arrington v. Collins, 290 Ga. 603, 607-608 (3) (724 SE2d 372) (2012) (finding no reversible error where trial court instructed jury “that it could consider the lesser-included offense of simple possession if it first found [defendant] not guilty of trafficking,” because charge as a whole did not require a unanimous finding of not guilty as to trafficking before jury could consider offense of possession) (citation and punctuation omitted; emphasis supplied); Dockery v. State, 308 Ga. App. 502, 504-505 (1) (707 SE2d 889) (2011) (declining to reverse under Cantrell where “jury was instructed to consider the lesser offense of possession of methamphetamine only if they did not believe beyond a reasonable doubt that [defendant] was guilty of possession of methamphetamine with intent to distribute,” because charge as a whole did not require jury to unanimously acquit on greater offense before considering the lesser offense) (footnote omitted; emphasis supplied); Allison v. State, 259 Ga. App. 775, 779 (4) (577 SE2d 845) (2003) (same; sequential charge instructed jury “to consider the lesser offense of possession of cocaine only if they did not believe beyond a reasonable doubt that defendants were guilty of conspiracy to traffic in cocaine”) (emphasis supplied).

The jury charge in this case, when read as a whole, cannot be fairly interpreted as requiring the jury to reach a unanimous verdict of acquittal on the burglary charge before considering the lesser offense of criminal trespass. Although the trial court did give a charge on unanimity, that charge was not given in conjunction with the sequential charge and it simply required that the jury’s final verdict, as reflected on the verdict form, be unanimous. Moreover, as noted above, the jury returned a verdict of not guilty on the charge of criminal trespass and guilty on the charge of burglary. The trial court refused to accept this verdict, and sent the jury back to deliberate further. At that time, the trial court instructed the jury “my instructions to you earlier today in the charge was that if you find beyond a reasonable doubt, all 12 of you, that the defendant is guilty of burglary, then you must move on and skip over criminal trespass. You could only address criminal trespass if you found him not guilty of burglary.” (Emphasis supplied.) Thus, the trial court made clear to the jury that they should consider criminal trespass only if they could not reach a unanimous verdict of guilt as to burglary. Accordingly, viewing the charge as a whole and in light of all the relevant case law, we find that the charge in this case is more akin to the charges allowed by the decisions in Arrington, Nicholson, Dockery, and Allison than to the charge disapproved in Kunselman. The court here “did not instruct the jury that it had to reach a unanimous verdict [of acquittal] on the greater offense before it could consider the lesser offense .... Instead, the instructions merely required a unanimous verdict as a whole.” Nicholson, 321 Ga. App. at 320 (2) (citations and punctuation omitted). See also Armstrong, 277 Ga. at 123 (2) (no reversible error where “[t]he record... demonstrates that neither the trial court nor the verdict form required the jury to reach a unanimous verdict [of acquittal] on the greater offense before considering the lesser-included offense”).

Decided June 25, 2014

Christopher R. Geel, for appellant.

Ashley Wright, District Attorney, Amanda N. Heath, Assistant District Attorney, for appellee.

For the reasons set forth above, we reverse Easter’s conviction for aggravated assault and therefore reverse that part of the trial court’s order denying his motion for a new trial on that offense. We affirm, however, Easter’s conviction for burglary and therefore affirm that part of the trial court’s order denying his motion for a new trial on that offense.

Judgment affirmed in part and reversed in part.

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

       OCGA § 16-7-1 (a).

       OCGA § 16-5-21 (a) (2).

       Coatney testified that Easter did not have any belongings at her house on the night in question.

       The burglary statute has since been amended to provide for the offenses of burglary in the first degree (which involves entry into the dwelling place of another) and burglary in the second degree (which involves entry into any building not used as the dwelling place of another). See OCGA § 16-7-1 (2013).

       The trial court charged the jury: “Whatever your verdict is, it must be unanimous. That is, it must be agreed upon by all 12 of you.”


author: McFADDEN, Judge.

text:
    A14A0613.
    MOORE v. THE STATE.
    (761 SE2d 158)
   McFADDEN, Judge.

This is an appeal from the denial of a motion to vacate an allegedly void life sentence for armed robbery. But because it was authorized by the controlling statutes, as those statutes have been construed by our Supreme Court, the sentence is not void. We therefore affirm.

In 1987, David Moore was tried before a jury and convicted of armed robbery, aggravated assault, aggravated battery and aggravated assault with intent to rob, based on an incident involving the shooting of an off-duty police officer. The trial court imposed a life sentence for the armed robbery, plus 60 years for the other offenses. This court affirmed the convictions, and the underlying facts are set out more fully in that prior appeal. See Moore v. State, 190 Ga. App. 278 (378 SE2d 880) (1989).

In 2009, Moore filed a pro se motion to vacate a void sentence, arguing that his life sentence for armed robbery was void. The trial court denied that motion, and Moore did not appeal. But three years later, in 2012, he filed a motion for reconsideration and for an out-of-time appeal. The trial court denied the motion for reconsideration but granted the out-of-time-appeal.

Moore acknowledges that OCGA § 16-8-41 (b) has provided, since before his sentencing, that trial courts have discretion to impose life sentences for armed robbery; but he argues that at the time of his sentencing grants of such discretionary authority were prohibited by OCGA § 17-10-1 (a) and that this conflict must be resolved in his favor. OCGA § 16-8-41, a part of Title 16, Crimes and Offenses, criminalizes armed robbery; subsection (b) authorized, at the time of Moore’s sentencing in 1987, terms of imprisonment for between five and twenty years or for life, at the discretion of the sentencing judge. OCGA § 17-10-1, a part of Title 17, Criminal Procedure, deals generally with determinative sentences; subsection (a) provided, at the time of Moore’s sentencing:

Except in cases in which life imprisonment or the death penalty must be imposed . . . the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years, which shall be within the minimum and maximum prescribed by law as the punishment for the crime.

Decided June 25, 2014

L. David Wolfe, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, David K. Getachew-Smith, Assistant District Attorneys, for appellee.

(Emphasis supplied.)

Moore also acknowledges that our Supreme Court has twice considered and rejected his argument. Worley v. State, 265 Ga. 251, 253 (1) (454 SE2d 461) (1995) (when read in conjunction with OCGA § 17-10-1 (a), the armed robbery statute must be construed as allowing for imposition of either a life sentence or a determinate sentence); Echols v. Thomas, 265 Ga. 474, 476 (458 SE2d 100) (1995) (after considering legislative history of OCGA § 17-10-1, “we adhere to our recent holding in Worley that the legislature did not intend to restrict a judge’s power to impose a life sentence for armed robbery”). He argues that Worley and Echols were wrongly decided.

Although this court has initial appellate jurisdiction over this case, Ga. Const, of 1983, Art. VI, Sec. V, Par. Ill, we have no authority to accept that argument. “[W]e are [constitutionally] bound by the decisions of the Supreme Court of Georgia and have no power to overrule or modify them.” Seymour v. State, 262 Ga. App. 823, 824 (1) (586 SE2d 713) (2003) (citation omitted). See also Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI; Nahid v. State, 276 Ga. App. 687, 688 (3) (624 SE2d 264) (2005). Accordingly, we affirm the trial court’s ruling that the life sentence is not void and its denial of the motion to vacate it.

Judgment affirmed.

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

       The current version of the armed robbery statute provides, in pertinent part, for a sentencing range of ten to twenty years or punishment by life imprisonment. OCGA § 16-8-41 (b).

       In the current version of the statute, the corresponding language is “may be imposed.” OCGA § 17-10-1 (a).


text:
    A14A0673.
    STILLS v. THE STATE.
    (761 SE2d 159)
   McFADDEN, Judge.

Delletorious Stills appeals his convictions of conspiracy to commit armed robbery, armed robbery, attempted armed robbery, aggravated assault, and possession of a firearm during the commission of a felony. Stills argues that the evidence at trial was insufficient to support the convictions. In particular, he argues that the evidence was insufficient as to the convictions relating to victim Bernardo Franco because the indictment listed that victim’s name as Franco Bernardo, but a mere misnomer is not a fatal variance. He argues that his convictions are founded on uncorroborated accomplice testimony, but slight evidence is sufficient to corroborate accomplice testimony, and multiple accomplices can corroborate one another’s testimony. Viewed accordingly the evidence was sufficient, and we therefore affirm.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence shows that a group of men were sitting outside at a party at a mobile home park, when five men approached them from behind a trailer. Two of the perpetrators were armed, and they aimed pistols at the victims, demanded money, and struck three of the victims. One of the victims, Bernardo Franco, gave the perpetrators $207. The five perpetrators were wearing black clothing, and the two men with pistols wore black ski masks. The victims were unable to identify the perpetrators.

Three co-defendants who had pled guilty testified that a group of five of them, including Stills, decided to “rob the Mexicans” and then did so. One of the co-defendants testified that Stills wore a black ski mask during the robbery. The police executed a search warrant at Stills’s residence and found a black ski mask and a holster for a small caliber weapon. They executed search warrants at two other residences of co-defendants and found another ski mask and a handgun.

1. Variance between indictment and proof at trial.

Stills argues that there was no evidence of a conspiracy to commit armed robbery, armed robbery, and aggravated assault on Bernardo Franco because the indictment named “Franco Bernardo” as the victim. The trial court merged the convictions of conspiracy to commit armed robbery of Franco and aggravated assault of Franco into the conviction of armed robbery of Franco. Therefore his challenges to the conspiracy to commit armed robbery of Franco and aggravated assault of Franco are moot. Powell v. State, 291 Ga. 743, 749 (3) (733 SE2d 294) (2012).

Decided June 25, 2014.

Kevin C. Armstrong, for appellant.

As for the armed robbery conviction, “a variance between the victim’s name as alleged in the indictment and as proven at trial is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved.” Bostic v. State, 294 Ga. 845, 847 (1) (757 SE2d 59) (2014) (citation and punctuation omitted). Testimony proved that the victim was Bernardo Franco, and it is clear that the two names referred to the same individual and that Franco’s surname and first name were simply transposed in the indictment. In fact, in the order denying Stills’s motion for new trial, the trial court found that “Stills concede [d] that the evidence established that the person referred to in the indictment and at trial were the same.” (Emphasis in original.) Stills does not contest this finding on appeal. “The challenge to the sufficiency of the evidence on this basis has no merit.” Id.

2. Sufficiency of the evidence.

Stills argues that the evidence was insufficient because the only testimony identifying him as a member of the group that robbed the victims was that of his co-defendants, which was not corroborated.

While a defendant may not be convicted on the uncorroborated testimony of one accomplice, only slight evidence is required to corroborate it. Further, if more than one accomplice testifies at trial, the testimony of one accomplice may be corroborated by the testimony of the others.

Thompson v. State, 320 Ga. App. 150, 152 (1) (739 SE2d 434) (2013).

Here, each co-defendant testified that Stills was involved in the crime. And a ski mask similar to those worn by two perpetrators and a holster for a small caliber weapon such as that used in the crime were found in Stills’s residence. “Accordingly, the evidence as outlined above was sufficient for a rational trier of fact to find [Stills] guilty beyond a reasonable doubt of the offenses charged.” Thompson, 320 Ga. App. at 153 (1).

Judgment affirmed.

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

Gregory W. Edwards, District Attorney, M. April Wynne, Heather H. Lanier, Assistant District Attorneys, for appellee.


author: Miller, Judge.

text:
    A14A0057.
    LIBERTY COUNTY v. ELLER et al.
    (761 SE2d 164)
   Miller, Judge.

This appeal arises from an action that Martha and Adam Eller filed against Liberty County (“the County”) for trespass, continuing trespass, nuisance, inverse condemnation, and damages based on a drainage pipe that discharges storm water run-off into a pond on the Ellers’ property. The County filed motions for summary judgment arguing that the statute of limitation had run on the Ellers’ inverse condemnation claim and their other claims were barred by sovereign immunity. The trial court denied the County’s motions for summary judgment, and the County appeals. For the reasons that follow, we reverse.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We apply a de novo standard of appellate review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Punctuation and footnote omitted.) Community Marketplace Properties v. SunTrust Bank, 303 Ga. App. 403, 404 (693 SE2d 602) (2010).

So viewed, the record shows that in 2001, Liberty County began improving a portion of Carter Road in Walthourville by paving the road and installing gutters and a corresponding storm water management system, including an 18-inch-wide drainage pipe that led into an existing pond on real property located on Carter Road (“the property”). In April 2008, Martha Eller purchased the property so that her son, Adam Eller, could build houses on the land, excavate dirt out of borrow pits, provide the dirt to builders, and ultimately convert the pits into catfish ponds.

Adam Eller thereafter signed a contract to provide dirt to a builder. To excavate the soil, Adam had to pump water out of the pond. Adam first observed the drain pipe three or four months after Martha purchased the property, after the water level in the pond dropped. In order to stop the water from filling up the pond each time it rained, Adam cut back the pipe, and attempted to block it off.

Between 2009 and 2012, Adam discontinued excavation of the pond due to drainage and permitting issues. In 2012, he resumed his excavation work and sold more dirt off of the property until the Ellers lost possession of the property in foreclosure in September 2012.

1. The County contends that the doctrine of sovereign immunity bars the Ellers’ claims for trespass, continuing trespass, tortious interference with contractual relations, adverse impact on credit rating, emotional damages, and litigation expenses. To the extent the Ellers have raised claims outside the rubric of trespass, nuisance, or inverse condemnation, we agree that the Ellers’ claims are barred by sovereign immunity.

As provided in Georgia’s Constitution, sovereign immunity extends to the counties, and a county’s sovereign immunity can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver. Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability, and, therefore, whether a governmental defendant has waived its sovereign immunity is a threshold issue. A waiver of sovereign immunity must be established by the party seeking to benefit from that waiver.

(Citations and punctuation omitted.) Board of Commrs. of Glynn County v. Johnson, 311 Ga. App. 867, 869 (1) (717 SE2d 272) (2011). Whether sovereign immunity has been waived is a matter of law, which we review de novo. Savage v. E.R. Snell Contractor, Inc., 295 Ga. App. 319, 323 (3) (672 SE2d 1) (2008).

As the party seeking to benefit from the waiver, the Ellers have the burden of establishing that the County has waived its sovereign immunity. Johnson, supra, 311 Ga. App. at 869 (1). Counties can be liable for conditions created on private property under the constitutional eminent domain provisions against taking or damaging such property for public purposes without just and adequate compensation. See Stanfield v. Glynn County, 280 Ga. 785, 786 (1) (631 SE2d 374) (2006). However, counties, unlike municipalities, are not generally liable for creating nuisances, unless the nuisance rises to the level of a taking amounting to inverse condemnation. See id. (regardless of how the claims are denominated, plaintiffs may recover only if trespass or nuisance amounts to the taking of property); see also DeKalb County v. Orwig, 261 Ga. 137, 138 (1) (402 SE2d 513) (1991). “To be liable for a nuisance, a county must perform a continuous or regularly repetitious act, or create a continuous or regularly repetitious condition that caused the harm.” (Punctuation and footnote omitted.) Morris v. Douglas County Bd. of Health, 274 Ga. 898, 899 (1) (561 SE2d 393) (2002).

There is no authority, and the Ellers point to none, for the proposition that the County has waived its sovereign immunity as to claims for tortious interference with contractual relations, adverse impact on credit rating, or emotional damages, or the recovery of any related expenses of litigation.

If the Ellers have stated a viable claim for inverse condemnation, or a claim for nuisance or trespass that rises to the level of a taking, then the County has waived sovereign immunity as to all these claims since “the Constitution provides for a waiver of sovereign immunity where a county creates a nuisance which amounts to an inverse condemnation.” Duffield v. DeKalb County, 242 Ga. 432, 433 (1) (249 SE2d 235) (1978); see also Stanfield, supra, 280 Ga. at 786 (1) (trespass and nuisance claims are duplicative of inverse condemnation claims); Orwig, supra, 261 Ga. at 138 (1). Likewise, a related claim for litigation expenses is not barred. Waters v. Glynn County, 237 Ga. App. 438, 440 (3) (514 SE2d 680) (1999) (no separate statutory waiver of sovereign immunity is required to allow recovery of litigation expenses).

2. The County contends the trial court erred in denying its motion for summary judgment because the statute of limitation bars the Ellers’ claim of inverse condemnation by a nuisance. We agree, and reverse the trial court’s denial of the county’s summary judgment motion because the Ellers did not establish a continuing nuisance.

Inverse condemnation claims based on trespass or nuisance are subject to a four-year statute of limitation. OCGA § 9-3-30 (a); Benton v. Savannah Airport Comm,., 241 Ga. App. 536, 539 (3) (525 SE2d 383) (1999). The classification of a nuisance as continuing or permanent “directly controls the manner in which the statute of limitations will be applied to the underlying claim.” City of Atlanta v. Kleber, 285 Ga. 413, 416 (1) (677 SE2d 134) (2009); see also Oglethorpe Power Corp. v. Forrister, 289 Ga. 331, 333 (2) (711 SE2d 641) (2011).

A nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon the completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately upon the creation of the nuisance, and against which the statute of limitations begins, from that time, to run. Where a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie. This action accrues at the time of such continuance, and against it the statute of limitations runs only from the time of such accrual.

(Citation omitted.) Kleber, supra, 285 Ga. at 416 (1); see also Benton, supra, 241 Ga. App. at 540 (4).

Landowners may show a continuing nuisance through evidence that an existing condition, such as a culvert or drainpipe, was improperly maintained. Kleber, supra, 285 Ga. at 417 (1); see also City of Columbus v. Cielinski, 319 Ga. App. 289, 292 (1) (734 SE2d 922) (2012) (homeowner’s claim for continuing nuisance based on improper or negligent maintenance of drainage system not barred). To the extent, however, that landowners complain about the mere presence of a culvert or drain pipe “due to improper installation, their nuisance claim is permanent in nature.” Kleber, supra, 285 Ga. at 416 (1).

Our review of the record reveals that neither the County nor anyone else has improperly performed any maintenance (or failed to perform any necessary maintenance) on the drain pipe. Adam Eller never observed anyone maintaining the drain pipes. Moreover, the County’s public works director deposed that since the road was paved in 2001, the County has performed no maintenance on the pipe or on Carter Road, except for sweeping. The City of Walthourville’s public works supervisor, who was responsible for maintaining the pipe, also deposed that from 2002 to 2010, there had been no maintenance required on the pipe on the Ellers’ property.

Accordingly, even viewing the record in the light most favorable to the Ellers, there is no evidence to support a claim of improper maintenance of the drain pipe. Compare Columbus, supra, 319 Ga. App. at 292 (1) (plaintiff offered evidence of numerous complaints regarding city’s maintenance of the drainage system). Accordingly, their nuisance claim is permanent in nature. Kleber, supra, 285 Ga. at 416-417 (1).

A claim for a permanent nuisance is not barred if “some new harm that was not previously observable occurred within the four years preceding the filing of their cause of action.” Oglethorpe Power, supra, 289 Ga. at 336 (3). Although the Ellers argue that they did not personally observe the pipe until 2008 the issue is whether some new harm that was not previously observable occurred in the four years prior to October 2011, when the complaint was filed. Id. While the parties disagree as to whether the storm water runoff into the pond increased after the road was paved in 2001, the Ellers point to no evidence and we have found none showing any change in the run-off or discharge from the drain pipe after it was installed in 2001. Accordingly, to the extent that the Ellers assert a claim for a permanent nuisance based on the installation of the drainage pipe in 2001, their claim is barred by the four-year statute of limitation. See Kleber, supra, 285 Ga. at 417 (1).

Decided June 26, 2014

Freeman, Mathis & Gary, T. Bart Gary, Sun S. Choy, Jones Osteen Jones, Luther K. Davis, for appellant.

Lloyd D. Murray, Savage & Turner, Brent J. Savage, for appellees.

3. The County also contends that it obtained an easement and the Ellers cannot show a nuisance rising to the level of a taking. Based on our conclusion above that the trial court erred in denying the County’s motion for summary judgment based on the statute of limitation, we need not address these arguments.

In sum, all of the Ellers’ claims are either barred by sovereign immunity or time-barred. Accordingly, the trial court’s denial of the County’s motion for summary judgment is reversed.

Judgment reversed.

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

       “A borrow pit is defined as a pit or bank from which material is taken for use in filling or embanking.” (Citation and punctuation omitted.) Stafford v. Dept. of Transp., 267 Ga. 531, n. 1 (480 SE2d 846) (1997).

       The Ellers’ claims for tortious interference with contractual relations, adverse impact on credit rating and emotional damages were not a part of their original complaint. The County-does not dispute that these claims were added during the litigation, so although these claims are not evident in the record on appeal, we address the merits of the County’s argument as to these claims.