author: DILLARD, Presiding Judge.

text:
    A16A1607.
    KNOWLES v. THE STATE.
    (797 SE2d 197)
   DILLARD, Presiding Judge.

In this interlocutory appeal, Elrico Knowles challenges the trial court’s denial of his motion to suppress drug evidence that was discovered on his person during a warrantless search incident to his arrest for disorderly conduct. On appeal, Knowles argues that the trial court erred in finding that the arresting officer had probable cause to arrest him. For the reasons set forth infra, we agree, and thus, reverse the trial court’s ruling.

The facts relevant to this appeal are undisputed. On September 20, 2014, a police officer, while on patrol in Laurens County, Georgia, observed a vehicle with no tag light. And because the officer could not see the car’s tag without the light, he initiated a traffic stop. Once the car was stopped, the driver exited the vehicle, and although he was instructed to stay inside the car, he continued to walk toward the officer. As the driver approached, the officer smelled the odor of an alcoholic beverage and observed him talking with slurred speech. Shortly thereafter, two additional officers arrived on the scene and conducted field-sobriety tests on the driver.

Meanwhile, the officer who initiated the stop noticed movement in the car and went to ask its occupants for their identification. In doing so, the officer observed Knowles, who was in the backseat, “fidgeting and put[ting] his hand in and out of his pockets and looking in a bag.” Based on Knowles’s behavior of “fidgeting and looking around,” the officer thought that he was acting nervous and suspicious, and therefore, requested that he exit the vehicle to be frisked for weapons. Once Knowles exited the car, he began “yelling and cursing,” and in an apparent attempt to explain his fidgety behavior, he told the officer “I’m just trying to give you my damn ID.” But despite Knowles’s statements and rude behavior, the officer did not feel threatened, and ultimately, he determined that Knowles was unarmed. The officer then ran a check on Knowles’s identification and discovered that he had no outstanding warrants or warnings. When the officer returned to give Knowles back his identification, Knowles said “fuck you,” and at that point, the officer arrested him for disorderly conduct. Later, during a search of Knowles incident to his arrest, the officer found a crack pipe and a substance that he suspected to be cocaine.

Ultimately, a grand jury charged Knowles with possession of cocaine and disorderly conduct. Knowles subsequently filed a motion to suppress the drug evidence discovered during the search incident to his arrest, arguing, inter alia, that the arresting officer lacked probable cause to arrest him for disorderly conduct. Following a hearing on the matter, the trial court denied Knowles’s motion to suppress evidence but granted him a certificate of immediate review. This Court then granted Knowles’s application for an interlocutory appeal, and this appeal follows.

In his sole enumeration of error, Knowles argues that the trial court erred in denying his motion to suppress evidence because the arresting officer lacked probable cause to arrest him for disorderly conduct. We agree.

In reviewing the denial of a motion to suppress, an appellate court generally must “(1) accept a trial court’s findings unless they are clearly erroneous, (2) construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court, and (3) limit its consideration of the disputed facts to those expressly found by the trial court.” However, we review de novo the trial court’s “application of law to the undisputed facts.” Bearing these guiding principles in mind, we turn now to Knowles’s specific claim of error.

On appeal, Knowles contends that the trial court erroneously found that the arresting officer had probable cause to arrest him for disorderly conduct because his use of profanity during the traffic stop, without more, is insufficient to support an arrest for that offense. A warrantless arrest, like the one at issue here, “is constitutionally valid if the arresting officer has probable cause to believe the accused has committed or is committing an offense.” And probable cause exists if the arresting officer has “reasonably trustworthy information that would allow a reasonable person to believe the accused committed a crime.”

Relevant to the arrest in this case, OCGA § 16-11-39 (a) (3) provides:

A person commits the offense of disorderly conduct when such person . . . [wjithout provocation, uses to or of another person in such other person’s presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person’s presence, naturally tend to provoke violent resentment, that is, words commonly called “fighting words” . . . .

And “fighting words” are defined as “those which by their very utterance tend to incite an immediate breach of the peace.” Indeed, as the Supreme Court of Georgia has explained, “profane, libelous, lewd, obscene, and fighting words . . . have in common the characteristics of injuring or offending a particular audience and tending to provoke a retaliatory response. . . .” Moreover, the use of “fighting words” does not “constitute protected speech under the First and Fourteenth Amendments to the United States Constitution or under Art. I, Sec. I, Par. V of the Georgia Constitution.” To the contrary, fighting words constitute “one of those narrow speech areas not constitutionally protected.” Nevertheless, to ensure no abridgment of constitutional rights, “the application of OCGA § 16-11-39 (a) (3)’s proscription on ‘fighting words’ must necessarily be narrow and limited.” Importantly, when determining whether words constitute fighting words, “the circumstances surrounding the words can be crucial, for only against the background of surrounding events can a judgment be made whether these words had ‘a direct tendency to cause acts of violence’by others.” Indeed, “[c] (institutional enforcement of even facially valid laws applied to fighting words now appears to depend as much on the factual circumstances surrounding a word’s utterance as on the character of the word uttered.”

Lastly, although the State argues that “there should not be a different, standard when opprobrious and abusive language is directed toward a police officer,” the Supreme Court of the United States and other federal courts have indicated that the fighting-words exception to constitutionally protected speech “require[s] a narrower application in cases involving words addressed to a police officer[.]” This is because a “properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.’ ” Additionally, as the Supreme Court has further explained, “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” Indeed, the freedom of individuals verbally to “oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

Turning to the case sub judice, the only evidence cited by the trial court or set forth in the stipulated facts to show that the arresting officer had reason to believe that Knowles had engaged in disorderly conduct was that he yelled, cursed, referenced his “damn ID,” and said “fuck you” once to the officer. And while the trial court also noted that Knowles acted “aggressively] toward the officer,” it did not cite any evidence regarding how Knowles did so other than by making the foregoing (and unsubstantiated) statement. Furthermore, the stipulated facts, which the trial court approved, gave no indication that Knowles exhibited any non-verbal aggressive behavior; and although the officer’s subjective feelings are not directly relevant to our analysis, the fact that the officer did not feel threatened by Knowles strongly suggests that his disrespectful behavior and offensive statements were unaccompanied by physical aggression. Indeed, as previously mentioned, presuming that the officer was properly trained, he may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to react violently to Knowles’s insolent statements.

To support its position that the officer had probable cause to arrest Knowles for disorderly conduct, the State relies on two cases in which we upheld convictions for disorderly conduct when the defendant made obscene or profane statements to police officers. But in those cases, the offending statements appear to have been made amid more threatening circumstances than those at issue here (i.e., a one-on-one encounter between Knowles and the arresting officer during a traffic stop in which other officers were nearby). For example, in Bolden v. State, this Court upheld a conviction for disorderly conduct when the defendant directed a string of insults at the officer, calling him a “son of a bitch,” a “mother fucker,” a “pig,” a “motherfucking pig,” and a “bastard.” And while this Court gave no further details regarding the circumstances in which those insults were made, it appears that, unlike in this case, the confrontation occurred in front of a potentially hostile crowd because, although the defendant was ultimately acquitted of the offense of inciting a riot, there was at least some evidence to charge and try her for that offense.

The State also relies on Brooks v. State, a case in which the officer encountered the defendant when he was participating in a protest involving claims that certain murder convictions were the result of a police coverup. When the officer asked the protestors to move out of the way of pedestrian traffic, the defendant pointed to the police officer—in the midst of protesting an alleged police coverup— and shouted “to a large crowd of 150 to 200 people” that “all cops are dogs ... [t]his man here is a dog.” Then, the defendant, in an attempt to resist arrest, “started swinging his arms wildly” at the officer, who ultimately had to radio for assistance. But here, unlike in Brooks, Knowles’s statements were made during a one-on-one encounter with the officer while two other officers were already nearby, and there is no evidence that Knowles resisted arrest or exhibited any other aggressive or threatening behavior. And in fact, other cases in which we have found that offensive statements to a police officer constituted fighting words typically involved physical threats or insults to the officer, some aggressive conduct by the defendant, or other aggravating circumstances such as the presence of a hostile crowd when the words were spoken.

Decided February 21, 2017

Natalie K. Glaser, Abigail R. Safford, for appellant.

L. Craig Fraser, District Attorney, Cheryl A. Banks, Leslie L. Ray, Assistant District Attorneys, for appellee.

In sum, the stipulated facts in this case show that Knowles raised his voice and cursed at a police officer during a traffic stop. While we in no way condone Knowles’s use of disrespectful and vulgar language toward a police officer (indeed, we unequivocally condemn this behavior), the particular facts and circumstances of this case—including that the statements were directed to a trained police officer—do not support the trial court’s finding that there was probable cause to believe that Knowles uttered fighting words within the meaning of OCGA § 16-11-39 (a) (3). Thus, for all of the foregoing reasons, we reverse the trial court’s denial of Knowles’s motion to suppress evidence.

Judgment reversed.

Reese and Bethel, JJ., concur.

       The trial court held a hearing on Knowles’s motion to suppress on November 19, 2015, and issued its order denying the motion the following day. For reasons unknown to this Court, the hearing was either not transcribed or the transcript is otherwise unavailable . Nevertheless, in April 2016, the parties agreed to a statement of stipulated facts, which the trial court approved. Thus, notwithstanding the absence of a transcript, we rely on the agreed-upon statement of facts to resolve this appeal. See OCGA § 5-6-41 (i) (“In lieu of sending up a transcript of record, the parties may by agreement file a stipulation of the case showing how the questions arose and were decided in the trial court, together with a sufficient statement of facts to enable the appellate court to pass upon the questions presented therein. Before being transmitted to the appellate court, the stipulation shall be approved by the trial judge or the presiding judge of the court where the case is pending.”); see also Holmes v. Roberson-Holmes, 287 Ga. 358, 360-61 (1) (695 SE2d 586) (2010) (noting that “[e]ven where parties actually do agree on the facts and execute a ‘stipulation of the case’ with a sufficient statement of facts to enable an appellate court to pass upon the questions presented, that stipulation must have attached the approval of the trial judge, OCGA § 5-6-41 (i), before an appellate court would be authorized to use that stipulation ‘to consider the enumerations of error as having been raised in the trial court in accordance with the statements contained therein.’ ”).

        Armentrout v. State, 332 Ga. App. 370, 371-72 (772 SE2d 817) (2015) (footnotes omitted).

        Id. at 372 (punctuation omitted).

        Brown v. State, 278 Ga. 724, 727 (2) (609 SE2d 312) (2004) (punctuation omitted); accord Dodds v. State, 288 Ga. App. 231, 233 (653 SE2d 828) (2007).

        Brown, 278 Ga. at 727 (2); accord Dodds, 288 Ga. App. at 233.

       Under subsections (1), (2), and (4) of OCGA § 16-11-39 (a), the offense of disorderly conduct is also committed when a person “[a]cts in a violent or tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person’s life, limb, or health”; “[a]cts in a violent or tumultuous manner toward another person whereby the property of such person is placed in danger of being damaged or destroyed”; or “[wjithout provocation, uses obscene and vulgar or profane language in the presence of or by telephone to a person under the age of 14 years which threatens an immediate breach of the peace.” Here, there is no evidence (and the indictment did not charge) that Knowles acted in a violent or tumultuous manner or that he used vulgar or profane language in the presence of a person under the age of 14. Thus, the only criminal offense that potentially applies to Knowles is delineated in OCGA § 16-11-39 (a) (3). Indeed, the indictment charged Knowles with committing the offense of disorderly conduct by using “opprobrious and abusive words,” which are allegations that track the language in (a) (3).

        Cunningham v. State, 260 Ga. 827, 828 (400 SE2d 916) (1991) (punctuation omitted), quoting Chaplinsky v. State of New Hampshire, 315 U. S. 568, 572 (62 SCt 766, 86 LE 1031 (1942); accord Walt Disney Prods., Inc. v. Shannon, 247 Ga. 402, 403 (2) (276 SE2d 580) (1981); Tucker v. State, 233 Ga. App. 314, 316 (2) (504 SE2d 250) (1998); see Delaney v. State, 267 Ga. App. 377, 377-78 (599 SE2d 333) (2004) (noting that, to be considered fighting words under OCGA § 16-11-39, the words must be such that their mere utterance tends to incite an immediate breach of the peace); see generally Dawn Christine Egan, “Fighting Words” Doctrine: Are Police Officers Held to a Higher Standard, or Per Bailey v. State, Do We Expect No More from our Law Enforcement Officers than We Do from the Average Arkansan?, 52 Ark. L. Rev. 591, 595-99 (III) (1999) (discussing the historical development of federal law regarding fighting words, beginning with Chaplinsky).

        Cunningham, 260 Ga. at 828, citing Chaplinsky, 315 U. S. at 572; accord Virginia v. Black, 538 U. S. 343, 359 (III) (A) (123 SCt 1536, 155 LE2d 535) (2003); Shannon, 247 Ga. at 403 (2); see Tucker, 233 Ga. App. at 316 (2) (“Fighting words include statements that injure or offend a particular audience and tend to provoke a retaliatory response.”); See generally Annotation, Validity and Construction of Statutes or Ordinances Prohibiting Profanity or Profane Swearing or Cursing, 5 A.L.R.4th 956, § 3.

        Tucker, 233 Ga. App. at 316 (2) (punctuation omitted); accord State v. Klinakis, 206 Ga. App. 318, 319 (1) (b) (425 SE2d 665) (1992); see N. A. A. C. P. v. Claiborne Hardware Co., 458 U. S. 886, 927 (III) (102 SCt 3409, 73 LE2d 1215) (1982) (“It is clear that‘fighting words’ — those that provoke immediate violence — are not protected by the First Amendment.”); West v. State, 300 Ga. 39, 43 (793 SE2d 57) (2016) (noting that a statement that constitutes an “upbraid, insult, or abuse” that can be classified as fighting words is not subject to First Amendment protections) (punctuation omitted); Cunningham, 260 Ga. at 828 (explaining that fighting words are one of the categories of speech that does not “raise constitutional problems provided that the statutes regulating them are narrowly drawn”).

        Tucker, 233 Ga. App. at 316 (2) (punctuation omitted); accord Klinakis, 206 Ga. App. at 319 (1) (b); see Brown v. Entm’t Merchants Ass’n, 564 U. S. 786, 791 (II) (131 SCt 2729, 180 LE2d 708) (2011) (noting that fighting words represent one of the “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem” (punctuation omitted)); Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, Inc., 266 Ga. 393, 402 (5) (467 SE2d 875) (1996) (holding that, although the regulation of profane language in the context of “fighting words” is constitutional, the statute at issue was unconstitutional because it was not “narrowly tailored to protect some vital government interest”) (punctuation omitted); supra note 9 and accompanying text.

        Delaney, 267 Ga. App. at 378 (punctuation omitted); accord Lundgren v. State, 238 Ga. App. 425, 426 (518 SE2d 908) (1999); see Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U. S. 37, 45 (III) (A) (103 SCt 948, 74 LE2d 794) (1983) (noting that for a state to enforce a content-based regulation of speech, “it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end”); Cunningham, 260 Ga. at 831 (explaining that if a statute, such as one criminalizing the use of fighting words, “affects protected speech,” Georgia courts, in reviewing whether the statute is constitutional, must first determine if it is narrowly tailored to protect some vital government interest).

        Tucker, 233 Ga. App. at 317 (2) (punctuation omitted); see Chaplinsky, 315 U. S. at 574 n.8 (upholding a fighting words statute that prohibited speech that had “the direct tendency ... to provoke the person against whom it was directed to acts of violence”); Hess v. Indiana, 414 U. S. 105, 109 (94 SCt 326, 38 LE2d 303) (1973) (describing fighting words as those that have a “tendency to lead to violence”) (punctuation omitted); City of Macon v. Smith, 244 Ga. 157, 159 (259 SE2d 90) (1979) (construing a city ordinance prohibiting the use of fighting words as one that is applicable to “words, expressions, or acts which have a direct tendency to cause immediate acts of violence by the person to whom the speech or act is addressed”).

        Tucker, 233 Ga. App. at 317 (2) (punctuation omitted), quoting Lamar v. Banks, 684 F2d 714, 719 (III) (11th Cir. 1982); see Lewis v. City of New Orleans, 415 U. S. 130, 135 (94 SCt 970, 39 LE2d 214) (1974) (“Quite apart from the ambiguity inherent in the term‘opprobrious,words may or may not be ‘fighting words,’ depending upon the circumstances of their utterance.” (Powell, J., concurring), approved of in City of Houston v. Hill, 482 U. S. 451, 462 (II) (107 SCt 2502, 96 LE2d 398) (1987)); Posr v. Court Officer Shield No. 207, 180 F3d 409, 416 (II) (C) (1) (2d Cir. 1999) (stating that the meaning of the words alleged to be fighting words “is dependent upon context, tone, accompanying action, and a variety of other circumstances”); Smith, 244 Ga. at 158-59 (holding that, although the conduct at issue was vulgar and offensive, it could not fairly be characterized as “fighting words” under the circumstances and noting that the record did not indicate that the conduct was “sufficiently belligerent” to incite an immediate breach of the peace); Turner v. State, 274 Ga. App. 731, 732 (1) (a) (618 SE2d 607) (2005) (“[A]n appellate court faced with a conviction for disorderly conduct arising from the use of offensive language alone must examine not only the words used but also the circumstances and context in which they were said.” (punctuation omitted)); Lundgren, 238 Ga. App. at 427 (holding that although the remarks at issue were “rude, crude, and socially unacceptable,” they could not “fairly be characterized as ‘fighting words’ in the circumstances and context in which they were said" (emphasis supplied)); see also Johnson v. Campbell, 332 F3d 199, 212 (II) (B) (3d Cir. 2003) (“On the specific subject of ‘profane’ words, the Supreme Court [of the United States] has held that even those words alone, unaccompanied by any evidence of violent arousal, are not ‘fighting words,’ and are therefore protected speech.”), citing Cohen v. California, 403 U.S. 15 (91 SCt 1780, 29 LE2d 284) (1971). But see Sandidge v. State, 279 Ga. App. 86, 88 (1) (630 SE2d 585) (2006) (“While the circumstances surrounding the words can be crucial, circumstances cannot change harmless words into ‘fighting words.’ ” (citation and punctuation omitted)).

       To support its apparent argument that, in determining whether words rise to the level of fighting words, this Court should not take into consideration that the words were directed to a police officer, the State relies on Bolden v. State, 148 Ga. App. 315 (251 SE2d 165) (1978). However, Bolden merely held that “[t]he fact that a policeman admits that he is used to hearing obscene language during the performance of his duties is not a defense available to the defendant under [the fighting-words statute].” See id. at 316 (2) (emphasis supplied). Moreover, in Bolden, this Court also acknowledged that, in determining whether certain statements amount to fighting words, the circumstances in which the statements are made must be considered. See id. We have reaffirmed Bolden s holding regarding words spoken to police officers in the course of their duties in subsequent fighting-words cases. See Anderson v. State, 231 Ga. App. 807, 809 (1) (499 SE2d 717) (1998), abrogated on other grounds by Golden Peanut Co. v. Bass, 249 Ga. App. 224 (547 SE2d 637) (2001); Evans v. State, 188 Ga. App. 347, 347 (1) (373 SE2d 52) (1988); Brooks v. State, 166 Ga. App. 704, 705 (305 SE2d 436) (1983). But to the extent that our decisions in these cases can possibly be read as standing for the broad proposition that, in determining whether offensive words amount to fighting words, this Court should disregard that the words were directed toward a law-enforcement officer, we reject such a reading as having no precedential utility because it would be in direct conflict with decisions of the Supreme Court of the United States, set forth infra, regarding matters of federal constitutional law. Marchman v. Marchman, 198 Ga. 739, 742 (32 SE2d 790) (1945) (“Since the question here involves the constitution and laws of the United States, this court must accept the interpretation placed thereupon by the Supreme Court of the United States.”). Suffice it to say, when “questions arising under the [fjederal constitution are properly invoked,” Georgia’s appellate courts are “bound to follow the decisions of the Supreme Court of the United States as respects such questions.” See Mason & Dixon Lines v. Odom, 193 Ga. 471, 471 (2) (18 SE2d 841) (1942); Georgia R.R. v. Cubbedge, Hazelhurst & Co., 75 Ga. 321, 322 (1885) (holdingthat, regardless of the Supreme Court of Georgia’s prior rulings on a question of federal bankruptcy law, the Court was “bound by the decisions of the Supreme Court of the United States on th[e] subject”); see also Ga. Const., art. VI, § VI, ¶ VI (1983) (“The decisions of the Supreme Court shall bind all other courts as precedents.”); State v. Smith, 308 Ga. App. 345, 352 (1) (707 SE2d 560) (2011) (“[T]he doctrine of stare decisis prohibits this Court from ignoring the valid precedent of a higher court.”).

         Hill, 482 U. S. at 462 (II); accord Johnson, 332 F3d at 212 (II) (B); United States v. Poocha, 259 F3d 1077, 1081 (9th Cir. 2001); Provost v. City of Newburgh, 262 F3d 146, 159 (3) (2d Cir. 2001); Posr, 180 F3d at 415 (II) (C) (1) (“[T]he ‘fighting words’ doctrine is probably ‘narrower [in] application in cases involving words addressed to a police officer, because a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen.’ ”); Gold v. City of Miami, 138 F3d 886, 889 (11th Cir. 1998) (“[A] police officer, by virtue of his profession or training, is expected to absorb a certain amount of [verbal] abuse without retaliating”) (Barkett, J., dissenting) (punctuation omitted); Buffkins v. City of Omaha, 922 F2d 465, 472 (III) (B) (8th Cir. 1990) (noting that the Supreme Court of the United States, in Hill, recognized that ‘the ‘fighting words’ doctrine may be limited in the case of communications addressed to properly trained police officers because police officers are expected to exercise greater restraint in their response than the average citizen”).

        Hill, 482 U. S. at 462 (II) (punctuation omitted); accord Lewis, 415 U. S. at 135 (Powell, J., concurring, approved of in Hilly, Johnson, 332 F3d at 212 (II) (B); Poocha, 259 F3d at 1081; see Payne v. Pauley, 337 F3d 767, 776 (II) (7th Cir. 2003) (noting that “the First Amendment protects even profanity-laden speech directed at police officers” and that “[pjolice officers reasonably may be expected to exercise a higher degree of restraint than the average citizen” (emphasis supplied)). Cf. Lamar, 684 F2d at 718 (2) n.13 (“This is not a case where the words were addressed to a person who by virtue of his profession or training could be expected to absorb a certain amount of abuse without retaliating physically, for example, a policeman. The situation may be different where words are addressed to a police officer trained to exercise a higher degree of restraint than the average citizen.” (punctuation omitted)).

        Hill, 482 U. S. at 461 (II); accord Lewis, 415 U. S. at 135 (Powell, J., concurring, approved of in Hill); Stearns v. Clarkson, 615 F3d 1278, 1283-84 (II) (B) (1) (10th Cir. 2010); Mesa v. Prejean, 543 F3d 264, 273 (II) (B) (5th Cir. 2008); Greene v. Barber, 310 F3d 889, 896 (2) (6th Cir. 2002); Gold, 138 F3d at 888; Buffkins, 922 F2d at 472 (III) (B).

        Hill, 482 U. S. at 463 (II); accord Mesa, 543 F3d at 273 (II) (B); Greene, 310 F3d at 895 (2); Gulliford v. Pierce Cty., 136 F3d 1345, 1349-50 (II) (A) (9th Cir. 1998); Gold, 138 F3d at 888; Guffey v. Wyatt, 18 F3d 869, 872 (I) (10th Cir. 1994).

        See Tucker, 233 Ga. App. at 317 (2) (“In determining if words uttered are such as to incite an immediate breach of the peace, it is not necessary that the State prove the effect of the words upon a particular individual; that is, whether the individual to whom the words were addressed or in whose presence the words were spoken was incited to hostile action. OCGA § 16-11-39 (a) (3) makes no distinction between the types of persons to whom the words are uttered.” (punctuation omitted)); Davenport v. State, 184 Ga. App. 214, 214-15 (361 SE2d 219) (1987) (same); Brooks, 166 Ga. App. at 705 (same); Bolden, 148 Ga. App. at 316 (2) (same); OCGA § 16-11-39 (a) (3) (describing fighting words as “opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person’s presence, naturally tend to provoke violent resentment . . . .” (emphasis supplied)); see also Chaplinsky, 315 U. S. at 573 (upholding a state’s fighting-words statute as constitutional when, inter alia, it was limited to the use of words in public that are likely to cause a breach of the peace and noting that the word “offensive” in the statute, as described by the lower court, was not defined in terms of what a “particular addressee thinks”).

        See supra note 16 and accompanying text.

       148 Ga. App. 315.

        See id. at 316 (4).

        See id, at 315; see also OCGA § 16-11-31 (a) (“Aperson who with intent to riot does an act or engages in conduct which urges, counsels, or advises others to riot, at a time and place and under circumstances which produce a clear and present danger of a riot, commits the offense of inciting to riot.” (emphasis supplied)).

       1 66 Ga. App. 704.

         See id.

        See id. at 704-05 (emphasis supplied).

        See id. at 704.

        See, e.g., Anderson, 231 Ga. App. at 808-09 (1) (holding that a jury was authorized to find that the defendant’s statements—made after she sought the sheriff out at a car dealership— calling him a “no good son of a bitch” and threatening to “kick [his] ass” were fighting words) (punctuation omitted); Person v. State, 206 Ga. App. 324, 325 (1) (425 SE2d 371) (1992) (holding that the defendant’s statements constituted fighting words when the defendant used profane, abusive language throughout the encounter with the officer, kept “getting up in his face,” screamed in the officer’s face that he was “not going to any g_d_n jail and [he was] not wearing any mother-f_g handcuffs,” and threatened to “blow the officer’s head off” (punctuation omitted)); Johnson v. State, 143 Ga. App. 826, 826-27 (240 SE2d 207) (1977) (holding that a defendant’s statements to a female police officer amounted to fighting words when, with such a “loud voice” and “abusive tone” that he caused a crowd to gather to “see what the trouble was,” he stated “I don’t give a damn about you. I don’t respect any m_f_ women, especially policewomen”) (punctuation omitted). But see Evans, 188 Ga. App. at 347 (1) (holding, without providing any details regarding the circumstances under which the statements were made, that the defendant’s statement calling police officer a “g. . . d. . . liar” and telling all the officers at the scene to “f. . . o. . .” could be considered fighting words).

        See supra notes 15-17 and accompanying text; Delaney, 267 Ga. App. at 377-78 (holding that the defendant’s actions of pulling behind a parked police car, honking his horn, exiting his car, approaching the officer, and “screaming and throwing his hands in the air” did not amount to a violation of OCGA § 16-11-39 (a) (3)); Turner, 274 Ga. App. at 732-33 (1) (a) (holding that a defendant yelling “you bastards” at a police officer did not amount to fighting words within the meaning of OCGA § 16-11-39 (a) (3)); Lundgren, 238 Ga. App. at 427 (holding that, although the remarks at issue were “rude, crude, and socially unacceptable,” they could not be fairly characterized as fighting words in the circumstances and context in which they were said); Crolley v. State, 182 Ga. App. 2, 4 (2) (354 SE2d 864) (1987) (holding that the use of “obscene, vulgar and profane” words did not amount to fighting words under the circumstances in which they were made); see also Spiller v. Texas City Police Dep’t, 130 F3d 162, 164 (I), 165-66 (III) (A) (5th Cir. 1997) (concluding that a motorist yelling at an officer to “move his damn truck” did not constitute “fighting words”); Buffkin, 922 F2d at 472 (III) (B) (holding that the defendant’s use of the word “asshole” could not reasonably have prompted a violent response from the arresting officers). Cf. Biddle v. Martin, 992 F2d 673, 677-78 (II) (B) (7th Cir. 1993) (concluding that disorderly conduct pertained where screaming was accompanied by violent arm movements and the argument was with a physically smaller officer on a deserted highway at 3:00 a.m.).


source: Caselaw Access Project

license: Public Domain

text:
    A16A1619.
    SULLIVAN v. BUNNELL et al.
    (797 SE2d 499)
   DILLARD, Presiding Judge.

Becky Sullivan appeals from the trial court’s grant of Karen Bunnell’s motion to dismiss an action to hold her in contempt of a divorce decree. Becky filed this action against Bunnell individually and in her capacity as agent for her father, Timothy Sullivan, after first filing the identical suit solely against Timothy Specifically, Becky contends that the trial court erred in determining that (1) it lacked personal jurisdiction over Bunnell in both her individual capacity and her capacity as an agent, and (2) it lacked subject-matter jurisdiction to consider Bunnell in contempt or to compel her compliance with the divorce decree that was entered into between Becky and Timothy. For the foregoing reasons, we reverse the trial court’s grant of Bunnell’s motion to dismiss.

The record reflects that after 23 years of marriage, Becky and Timothy Sullivan divorced in 2012. In the midst of the divorce, Timothy moved to California, where his daughter, Karen Bunnell, resided. Thereafter, Timothy hired counsel in Georgia to represent him in ongoing settlement negotiations, and Bunnell assisted him with e-mail and telephone conversations to his counsel. The divorce was made final in May 2012, with Becky and Timothy entering into various (and related) settlement agreements. It is undisputed that one such agreement provided that Timothy would send his Teacher’s Retirement System of Georgia (“TRS”) payments to Becky.

In June 2012, Timothy executed a power of attorney, which appointed Bunnell to act as his agent. At some point after executing the power of attorney, Timothy was put under care and supervision for dementia, and he was deemed unable to make sound financial and medical decisions on his own. Then, in July 2015, in a letter from counsel by and through Bunnell acting on behalf of her father as power of attorney, Becky was informed that Timothy could no longer send his TRS payments because he was incapacitated by Alzheimer’s Disease, the payments were necessary to maintain his placement in an assisted-living facility, and the failure to send the payments was not a wilful violation of the parties’ divorce decree. Becky responded with a letter demanding compliance with the terms of the parties’ divorce agreement.

Thereafter, Becky filed a motion for attachment of contempt against Timothy on August 27, 2015, for his failure to send the TRS payments. Then, in October 2015, she amended the motion to add Bunnell both individually and in her capacity as a fiduciary for Timothy, and Bunnell was personally served by substitute service in both capacities. Bunnell, who is a resident of California, filed a limited answer by special appearance and a motion to dismiss for lack of personal and subject-matter jurisdiction.

Following a hearing on the motion to dismiss, at which Bunnell’s attorney made a special appearance on her behalf, the trial court granted the motion to dismiss after finding that it lacked both personal and subject-matter jurisdiction over Bunnell. This appeal follows.

1. Becky first argues that the trial court erred in finding that it lacked personal jurisdiction over Bunnell both in her individual capacity and in her capacity as power of attorney on her father’s behalf. We agree.

A defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving same. In considering whether this burden was met by Bunnell, we first turn to Georgia’s Long Arm Statute, which allows the courts of this state to exercise personal jurisdiction over a nonresident defendant “if in person or through an agent, he or she . . . [tjransacts any business within this [Sjtate.” In interpreting this statute, the Supreme Court of Georgia has explained that it “grants Georgia courts the unlimited authority to exercise personal jurisdiction over any nonresident who transacts any business in this State ... to the maximum extent permitted by procedural due process.” Indeed, in so holding, our Supreme Court overruled prior cases that failed to “accord the appropriate breadth to the construction of the ‘transacting any business’ language” of the Long Arm Statute.

The Supreme Court of Georgia has also explained that nothing in the Long Arm Statute “requires the physical presence of the nonresident in Georgia or minimizes the import of a nonresident’s intangible contacts with the State.” To the contrary, Georgia permits the assertion of long-arm jurisdiction over nonresident defendants based on “business conducted through postal, telephonic, and Internet contacts .” As a result, when determining the limits of procedural due process, we apply the following three-part test:

Jurisdiction exists on the basis of transacting business in this State if (1) the nonresident defendant has purposefully done some act or consummated some transaction in this State, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this State does not offend traditional notions of fairness and substantial justice.

The first two prongs are analyzed to determine whether “a defendant has established the minimum contacts with the forum state necessary for the exercise of jurisdiction.” If such minimum contacts exist, we then analyze the third prong to consider whether “the exercise of jurisdiction is ‘reasonable’—that is, to ensure that it does not result solely from ‘random,’ ‘fortuitous’ or ‘attenuated’ contacts.” To be sure, the application of the minimum-contacts rule will “vary with the quality and nature of the defendant’s activity.” Nevertheless, it is essential in each case that there be “some act by which the defendant purposefully avails [herself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” With these guiding principles in mind, we turn now to Becky’s contentions that the trial court erred in determining that it lacked personal jurisdiction over Bunnell in either her individual or fiduciary capacity

In her motion to dismiss, Bunnell argued that there were “no factual allegations of. .. business or sufficient contacts with Georgia so as to warrant jurisdiction” over her in either capacity. Suffice it to say, Becky disagreed with this assertion, alleging that, during the pendency of the divorce proceedings, Bunnell (1) “was intimately aware of the details and contents of the settlement documents”; (2) “hired Georgia counsel and actively engaged in re-negotiating the settlement terms prior to the entry of the [fjinal [djecree”; and (3) had several exchanges with Georgia counsel, subsequent to the entry of the final divorce decree, about Becky’s claims of Timothy’s noncompliance.

We decline Becky’s invitation to subject Bunnell to the personal jurisdiction of this state based on Timothy’s contempt of the divorce decree. Whatever involvement Bunnell may have had in the divorce proceedings between Becky and Timothy, it strains credulity to suggest that this somehow subjects her to personal jurisdiction as a result of Timothy’s contempt of the divorce decree. Indeed, the alleged violation of the divorce decree forms the foundation for the cause of action, not the negotiations that resulted in the final decree.

That said, Becky’s motion for contempt also alleges that Bunnell, acting as Timothy’s agent, “hired Georgia counsel to draft and send correspondence . . . indicating that due to changes in his health and residence, he would no longer be sending any TRS payments to [Becky] effective August, 2015.” And in her response to Bunnell’s motion to dismiss, Becky further alleges that Bunnell has, for some time, been involved in communications with her regarding Timothy’s noncompliance with the TRS-terms of the divorce decree and acted to reduce the TRS payments by modifying deductions. Then, in July 2015, Bunnell notified Becky that the TRS payments would cease altogether.

These post-divorce allegations sufficiently allege that Bunnell has done some act or consummated some transaction in this state, although she did so on behalf of her father as power of attorney But, at least as to individuals who act as agents or fiduciaries on behalf of a corporation, our Supreme Court has concluded that “[t]he status of . . . individual defendants as employees or officers does not somehow insulate them from jurisdiction.” Indeed, the status of an agent does not “necessarily mean that the individual defendants did not purposefully avail themselves of the privilege of conducting activities in Georgia such that the minimum contacts mandated by constitutional due process were not present.” For example, employees of a corporation that is subject to the personal jurisdiction of the courts of the forum state “may themselves be subject to jurisdiction if those employees were primary participants in the activities forming the basis of jurisdiction over the corporation.”

Here, Bunnell is alleged to have been a primary participant in the activities at issue—i.e., the nonpayment of TRS payments in violation of Becky and Timothy’s divorce decree. And Becky’s cause of action for contempt unquestionably arises from those activities. Furthermore, at least two other states have determined that their courts could properly assert personal jurisdiction over a nonresident individual who acted as a power of attorney. Indeed, one such court noted that “[a]n agency relationship does not shield an individual from jurisdictional contacts with a state, only from possible liability flowing from the activities conducted within the forum state.” We find this reasoning persuasive and consistent with our own jurisprudence in this area of the law. In our view, the assertion of personal jurisdiction over an individual who acted as power of attorney does not offend traditional notions of fair play and substantial justice when, asan attorney in fact, Bunnell took advantage of the laws of the State of Georgia to exercise control over her father’s assets (the TRS payments) and purposefully directed her activities toward a Georgia resident (Becky).

Accordingly, for all of the foregoing reasons, the trial court erred in determining that it could not exercise personal jurisdiction over Bunnell.

2. Becky further argues that the trial court erred in holding that it lacked subject-matter jurisdiction to hold Bunnell in contempt. Once again, we agree.

Although the parties and the trial court framed this issue in the context of lacking subject-matter jurisdiction, this was more properly an argument that Becky’s attempt to hold Bunnell in contempt failed to state a claim upon which relief could be granted. Indeed, a superior court has the authority to “entertain an action for contempt of a Georgia divorce decree,” and subject-matter jurisdiction is “the power to deal with the general abstract question, to hear the particular facts in any case relating to this question.” Of course, jurisdiction of the subject matter “does not mean simply jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which that particular case belongs.” Therefore, the question before the trial court—a superior court with jurisdiction to entertain actions for contempt of Georgia divorce decrees—was whether Becky failed to state a claim against Bunnell upon which relief could be granted, not whether the court lacked subject-matter jurisdiction.

A motion to dismiss for failure to state a claim upon which relief can be granted will only be granted when it is shown with certainty that “the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his or her claim.” And we review a trial court’s ruling on a motion to dismiss de novo. Moreover, in deciding a motion to dismiss, “all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.”

In the case sub judice, Becky asserted that the trial court could hold Bunnell in contempt of the divorce decree under OCGA § 15-1-4 (a) (3), which provides that the power of a court to punish for contempt of court extends to, inter alia, “[djisobedience or resistance by any officer of the courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the courts[.]” Although Bunnell argued that she could not be held in contempt of a divorce decree to which she was not a party, in Georgia, the violation of a court’s order by one who was not a party to the proceedings can be punished as contempt if “it is alleged and proved that the contemnor had actual notice of the order for disobedience of which he is sought to be punished.” And, as recognized by our Supreme Court, “[m]ost jurisdictions also require that the nonparty be in privity with, aid and abet, or act in concert with the named party in acts constituting a violation of the order.” Thus, one who acts as the representative of another with actual notice of the order that has allegedly been violated may be held in contempt.

Decided February 21, 2017

Cynthia L. Patton, for appellant.

O’Dell & O’Neal, Justin B. O’Dell, Leslee C. Hungerford; Hackett & Wine, Ashley M. Wine, for appellees.

Here, it is alleged that Bunnell, acting as Timothy’s power of attorney with knowledge of the relevant order, aided in implementing the nonpayment of TRS funds to Becky in violation of the former couple’s divorce decree and settlement agreement. Thus, Becky asserted sufficient facts to withstand a motion to dismiss for failure to state a claim upon which relief could be granted, and the trial court erred in granting the motion to dismiss under this argument.

Accordingly, for all of the foregoing reasons, we reverse.

Judgment reversed.

Rickman and Reese, JJ., concur.

       Becky also enumerates as error the trial court’s failure to join Bunnell as a necessary party to the action, but she notes that the court did not address the merits of that argument “because it dismissed for lack of jurisdiction instead.” We do not consider this enumeration of error because “[ijssues which have not been ruled on by the trial court may not be raised on appeal.” Ga. Dept. of Nat. Res. v. Coweta Cty., 261 Ga. 484, 484 (405 SE2d 470) (1991); accord Velkey v. Grimes, 214 Ga. 420, 420-21 (105 SE2d 224) (1958); Shennett v. Piggly Wiggly So., Inc., 197 Ga. App. 502, 504 (5) (399 SE2d 476) (1990).

       Becky originally filed her appeal as an application for interlocutory review before the Supreme Court of Georgia, which then transferred the case to this Court. We granted the application because the trial court’s grant of Bunnell’s motion to dismiss was subject to direct appeal. See OCGA § 9-11-54 (b). We further note that the action for contempt against Timothy remains pending below, and although he was included in the style of the case on appeal, Timothy is not a party to this appeal because it does not concern the action against him personally.

        Am. College Conn., Inc. v. Berkowitz, 332 Ga. App. 867, 868 (775 SE2d 226) (2015); see also Easterling v. Easterling, 231 Ga. 90, 91 (1) (200 SE2d 267) (1973) (“In a plea to the jurisdiction),] the burden is upon the defendant to establish the averments of his plea.”).

       OCGA § 9-10-91 (1).

        Innovative Clinical & Consulting Servs., LLC v. First Nat’l Bank of Ames, 279 Ga. 672, 675 (620 SE2d 352) (2005) (punctuation omitted); accord Weathers v. Dieniahmar Music, LLC, 337 Ga. App. 816, 819 (1) (788 SE2d 852) (2016); Berkowitz, 332 Ga. App. at 869-70.

        Innovative Clinical & Consulting Servs., 279 Ga. at 676; accord Weathers, 337 Ga. App. at 819 (1); Berkowitz, 332 Ga. App. at 870.

        Innovative Clinical & Consulting Servs., 279 Ga. at 675; accord Amerireach.com, LLC v. Walker, 290 Ga. 261, 270 (2) (719 SE2d 489) (2011); Weathers, 337 Ga. App. at 820 (1) (a); Berkowitz, 332 Ga. App. at 871.

        Berkowitz, 332 Ga. App. at 871 (punctuation omitted); accord ATCO Sign & Light ing Co., LLC v. Stamm Mfg., Inc., 298 Ga. App. 528, 534 (1) (680 SE2d 571) (2009); see also Home Depot Supply, Inc. v. Hunter Mgmt., LLC, 289 Ga. App. 286, 289 (656 SE2d 898) (2008) (holding that “even when a nonresident defendant has no physical presence in Georgia, intangible contacts, such as telephone communications, can be sufficient to establish ‘minimum contacts’ which meet the constitutional standard for the exercise of personal jurisdiction”).

        Berkowitz, 332 Ga. App. at 870 (punctuation omitted); accord Walker, 290 Ga. at 269 (2); Aero Toy Store, LLC v. Grieves, 279 Ga. App. 515, 517-18 (1) (631 SE2d 734) (2006).

        Berkowitz, 332 Ga. App. at 870 (punctuation omitted); accord Weathers, 337 Ga. App. at 820 (1); ATCO Sign & Lighting, 298 Ga. App. at 534 (1).

        Berkowitz, 332 Ga. App. at 870 (punctuation omitted); accord Weathers, 337 Ga. App. at 820 (1); ATCO Sign & Lighting, 298 Ga. App. at 534 (1).

        Berkowitz, 332 Ga. App. at 870 (punctuation omitted); accord Catholic Stewardship Consultants, Inc. v. Ruotolo Assoc., Inc., 270 Ga. App. 751, 757 (1) (608 SE2d 1) (2004); Stuart v. Peykan, Inc., 261 Ga. App. 46, 49 (1) (581 SE2d 609) (2003).

        Berkowitz, 332 Ga. App. at 870 (punctuation omitted); accord Ruotolo Assoc., Inc., 270 Ga. App. at 757 (1); Stuart, 261 Ga. App. at 49 (1).

        See Berkowitz, 332 Ga. App. at 870 (noting that jurisdiction exists on the basis of transacting business in Georgia if, inter alia, the cause of action arises from or is connected with such act or transaction); Aero Toy Store, 279 Ga. App. at 517-18 (1) (same); cf. Noorani v. Sugarloaf Mills Ltd. Partnership of Ga., 308 Ga. App. 800, 804 (2) (a), (b) (708 SE2d 685) (2011) (holding that personal jurisdiction over appellant was proper when he personally guaranteed rent payments that were subject of dispute, and “the direct connection between the loan, guaranty, [appellant’s] activities [in Georgia] and [the plaintiff’s] claim under the guaranty [was] so obvious as to require no elaboration”) (punctuation omitted); Ga. R.R. Bank & Trust Co. v. Barton, 169 Ga. App. 821, 824 (315 SE2d 17) (1984) (“The direct connection between the execution of the notes and appellant’s suit for collection is so obvious as to require no elaboration.”).

         Amerireach.com, LLC, 290 Ga. at 267 (2) (punctuation omitted).

        Id.

        Id. at 267-68 (2) (punctuation omitted).

        Id. at 269-70 (2) (holdingthat allegations supported finding that individual defendants were primary participants in defendant corporation’s transaction of business in Georgia when it was alleged that the individual defendants directly facilitated transaction of business that resulted in unlawful conduct set forth in complaint).

        See Noorani, 308 Ga. App. at 804 (2) (a), (b) (“[T]he direct connection between the loan, guaranty, [appellant’s] activities [in Georgia] and [the plaintiff’s] claim under the guaranty [was] so obvious as to require no elaboration.”) (punctuation omitted); Barton, 169 Ga. App. at 824 (“The direct connection between the execution of the notes and appellant’s suit for collection is so obvious as to require no elaboration.”).

        See Catauro v. Goldome Bank for Sav., 189 AD2d 747, 748 (N.Y. App. Div. 1993); Smith v. Lanier, 998 SW2d 324, 334 (Tex. App. 1999). But see Cohn v. Woolin, 971 So2d 868, 871-72 (Fla. Dist. Ct. App. 2007) (remanding to trial court for additional findings as to personal jurisdiction after reversing determination that court had personal jurisdiction based upon allegation that son brought a lawsuit in his mother’s name via power of attorney).

        Smith, 998 SW2d at 334-35.

        See id. (holding that assertion of personal jurisdiction over nonresident individual who acted as power of attorney did not offend traditional notions of fair play and substantial justice when, as attorney in fact, she took advantage of the laws of the state to exercise control over her father’s assets, purposefully directed her activities toward state residents and institutions, and was on notice that her father’s property might be subject to the jurisdiction of the state’s probate courts); see also Catauro, 189 AD2d at 748 (holding that assertion of personal jurisdiction over nonresident individual who acted as power of attorney was appropriate when he transacted business to withdraw funds from joint bank account).

        Cf. Pinnacle BenningLLCv. Clark Realty Capital, LLC, 314 Ga. App. 609, 612 (724 SE2d 894) (2012) (”[W]e recognize that in the case sub judice, [appellee’s] motion to dismiss, the trial court’s order granting same, and the parties’ arguments on appeal all frame the issues in the context of a failure to state a claim upon which relief can be granted[,] [b]ut . . . [appellant’s] claims were in actuality properly dismissed for a lack of subject-matter jurisdiction[.]”).

        Crutchfield v. Lawson, 294 Ga. 407, 409 (754 SE2d 50) (2014).

        Id. (punctuation omitted); accord Melton v. Jenkins, 50 Ga. App. 615, 615 (1) (178 SE 754) (1935).

        Crutchfield, 294 Ga. at 409 (punctuation omitted); accord Zeagler v. Zeagler, 192 Ga. 453, 456 (15 SE2d 478) (1941).

        See supra note 24 and accompanying text.

        See Crowley v. Tedesco, 687 A2d 194 (Table) (Del. 1996) (noting petition that alleged “[party] had violated a court order” was dismissed for failure to state a claim upon which relief can be granted when court found that no such order had been entered, meaning that “there was no basis to hold [party] in contempt”); Joseph v. Bureau of Corrections, Civ. No. 2009-0055, 2011 WL1304605, at *5 (V.I. March 7, 2011) (“[T]he [appellee] could not be boundby the order placing terms and conditions on the [appellant]. If the [appellee] cannot be bound by the order, then the order is not valid as it applies to the [appellee]—even if the order is valid with respect to [the appellant]—and [appellee] cannot be in contempt of that order. Therefore, we cannot draw a reasonable inference that [appellant] has a plausible claim for relief and, thus, we affirm the trial court’s dismissal of the contempt count for failure to state a claim.” (citation omitted)).

        Cf. Crutchfield, 294 Ga. at 409 (“[T]he question before us does not concern what type of court in which the entire class of contempt cases must be brought; instead, it deals with the question of which superior court may properly consider this particular case. This latter consideration is one of venue, not subject matter jurisdiction.”).

        Tate v. Kia Autosport of Stone Mtn., Inc., 273 Ga. App. 627, 627-28 (616 SE2d 112) (2005) (punctuation omitted); accord Common Cause/Ga. v. Campbell, 268 Ga. App. 599, 601 (2) (602 SE2d 333) (2004).

        Tate, 273 Ga. App. at 628; Campbell, 268 Ga. App. at 601 (2).

        Jordan v. City of Atlanta, 283 Ga. App. 285, 285 (641 SE2d 275) (2007) (punctuation omitted); accord Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997).

        The Bootery, Inc. v. Cumberland Creek Props., Inc., 271 Ga. 271, 272 (2) (517 SE2d 68) (1999) (punctuation omitted).

        Id.; see Murphy v. Murphy, 330 Ga. App. 169, 176 (6) (a) (ii) (767 SE2d 789) (2014) (“The violation of a court’s order by one who was not a party to the proceedings can be punished as a contempt if the contemnor had actual notice of the order and is in privity with, aided and abetted, or acted in concert with the named party in acts constituting a violation of the order.”); see also United States v. Kirschenbaum, 156 F3d 784, 794 (III) (D) (7th Cir. 1998) (Manion, J.) (“A district court may not enjoin non-parties who are neither acting in concert with the enjoined party nor are in the capacity of agents, employees, officers, etc. of the enjoined party.”); Blockowicz v. Williams, 675 FSupp.2d 912, 914 (N.D. Ill. 2009) (“[A] court may find a nonparty in contempt if that person has actual knowledge of the court order and either abets the party named in the order or is legally identified with him.” (punctuation omitted)).

        See Murphy, 330 Ga. App. at 176-77 (6) (a) (ii) (holding that evidence was sufficient to hold mother’s attorney in contempt when attorney had actual notice of order and “acted as [mother’s] representative” when he engaged in an action that violated order); cf. Segal v. Dorber, 250 Ga. App. 688, 689 (1) (552 SE2d 873) (2001) (holding that attorney could not be held in contempt for client’s failure to pay fee as ordered by court because trial court lacked authority to hold attorney in contempt “for violating an order which was not directed at him, at least in the absence of evidence he caused or contributed to [the client’s] failure”).

        See supra note 35.


author: BARNES, Presiding Judge.

text:
    A16A1622.
    POLANCO v. THE STATE.
    (797 SE2d 204)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Deivi M. Polanco appeals his burglary and aggravated stalking convictions and contends that the evidence adduced at trial was insufficient to enable a rational trier of fact to find him guilty beyond a reasonable doubt. Upon our review, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). “We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” (Citation and punctuation omitted.) Clark v. State, 283 Ga. App. 884, 886 (1) (642 SE2d 900) (2007).

So viewed, the evidence demonstrates that Polanco and the victim were married on March 7, 2007, and were husband and wife throughout the incidents upon which the convictions are based. The victim testified that by “the [f]all of 2011,” the relationship had deteriorated into “[a] lot of fights, arguing, hitting [and] insults.” When she had threatened to leave him, Polanco said that he would “put [her] four meters under the ground.”

In 2011 and January 2012, Polanco was arrested after domestic violence incidents with the victim. While Polanco was incarcerated for the 2012 incident, the victim moved all of his possessions to Polanco’s mother’s house, gave his car to his mother, and changed the locks to the apartment. After Polanco was released from jail, he stayed with his mother. He soon began appearing at the victim’s residence on several separate occasions — crouching below the window, hiding in a storage closet, and entering the residence and hiding under the bed. In response, the victim obtained a temporary protective order (“TPO”), which was served on Polanco on April 11, 2012. The TPO ordered that Polanco, among other things, not contact the victim, leave and stay away from the family residence, and surrender all keys and other items associated with the residence.

On April 12, 2012, the victim arrived home and found flowers, a ring, and a note from Polanco inside her apartment. Polanco then approached her from where he had been hiding in the back of the apartment, and fearing for her safety, the victim told him to leave. Polanco eventually left, and the victim called the police. The responding officers discovered that Polanco had gained access to the apartment from a bedroom window and that “[t]he window was off the hinge and the blinds were disarrayed.” Fearing that Polanco might come back, the victim and her children stayed in a hotel that night.

The next day, as the victim was sitting in her vehicle preparing to move to a new apartment in the same complex, Polanco approached her and asked for a camera. She picked up her phone and threatened to call the police, but Polanco leaned inside the car and yanked the phone out of her hand. The victim went inside and called the police from a different, phone. Polanco was later arrested and convicted of burglary and aggravated stalking.

1. Under OCGA § 16-7-1 (b), a person is guilty of burglary when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within the dwelling house of another. Polanco argues that the State failed to prove an essential element of burglary, namely, that he entered the dwelling house of another. Polanco contends that he cannot be guilty of burglary because he was authorized to enter his own residence.

In State v. Kennedy, 266 Ga. 195 (467 SE2d 493) (1996), the Supreme Court of Georgia recognized that while “marriage is a significant factor in the determination of whether one spouse is authorized ... to enter the separate residence of his or her estranged spouse . . . marriage alone is not an absolute defense to burglary.” (Emphasis omitted.) Id. at 196. The Court held that

[t]here are no express marital exemptions nor implicit exclusions in the burglary statute which give a spouse unlimited consent, as a matter of law, to enter the separate residence of his or her estranged spouse ... [a]n entry into the separate residence of an estranged spouse, without authority and with the intent to commit a felony or theft therein, constitutes burglary.

Id. The jury may consider the fact that Polanco used to live in the residence with his wife and family in determining whether he was authorized to enter the apartment. However, “the fact that [Polanco] may have once lived at the victim’s house . . . does not, in itself, give the defendant subsequent authority to enter.” (Citation and punctuation omitted.) Williams v. State, 268 Ga. App. 384, 386-387 (1) (b) (601 SE2d 833) (2004).

Here, the evidence demonstrated that Polanco had been arrested for domestic violence against the victim and that the victim so feared for her safety that a TPO had been issued which required that Polanco leave and stay away from the family residence. Further, Polanco’s name was not on the lease for the residence. During Polanco’s incarceration, the victim changed the locks to the residence. When he was released from jail, Polanco moved in with his mother and did not live at the residence, and when Polanco later entered the residence, he did so through a bedroom window. Given these circumstances, the jury was entitled to conclude that Polanco no longer lived at the residence and was no longer authorized to enter it. Moreover, “in light of [Polanco’s] forcible entry, the jury could infer that [Polanco] knew that he was without authority to be in [his wife’s] house.” (Citation and punctuation omitted.) Williams, 268 Ga. App at 387 (1) (b). Likewise, there was evidence, based on past domestic violence, to support a finding that, when Polanco entered the apartment, he had the intent to commit a felony therein against the victim. “For such action to constitute burglary, it is not necessary that the felony be committed as long as the intent to commit the felony was present.” Johnson v. State, 262 Ga. 441, 442 (1) (421 SE2d 70) (1992). See Patterson v. State, 274 Ga. App. 341, 343 (2) (618 SE2d 81) (2005) (“Whether a defendant entertained the requisite intent after entering is a matter for the jury to say, under the facts and circumstances proved. As a general rule the state must, of necessity, rely on circumstantial evidence in proving intent.”) (citation and punctuation omitted).

2. Under OCGA § 16-5-91 (a), a person is guilty of aggravated stalking when, in violation of a TPO, he or she contacts another person without their consent and for the purpose of harassing and intimidating the other person. Polanco argues that the evidence shows that he contacted the victim for a single purpose, namely, retrieving a camera.

Here, a TPO required Polanco to refrain from contacting the victim. Despite the TPO, the evidence demonstrates that Polanco approached the victim at her apartment after the TPO was issued and the next day while she was in her vehicle. While Polanco argues that the purpose for contact with the victim was only to retrieve the camera and not to harass and intimidate her, “intent is a question of fact to be determined by the jury upon consideration of [Polanco’s] words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.” (Citation omitted.) Holmes v. State, 291 Ga. App. 196, 198 (1) (661 SE2d 603) (2008) (the jury was authorized to find Holmes guilty of aggravated stalking even where his stated intent was to “rekindle his failed marriage,” not to harass and intimidate his ex-wife). We therefore find that the evidence was sufficient for a rational trier of fact to conclude that Polanco was guilty beyond a reasonable doubt of aggravated stalking.

Judgment affirmed.

Rickman and Self, JJ., concur.

Decided February 21, 2017

G. Richard Stepp, for appellant.

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