author: Peterson, Judge.

text:
    A16A1115.
    JACOBS v. THE STATE.
    (791 SE2d 844)
   Peterson, Judge.

Brian Evan Jacobs appeals from his conviction for DUI per se. He argues that the trial court erred in denying his motion to suppress (1) certain statements he made to police and (2) the results of a chemical testing of his blood. The trial court correctly concluded that Jacobs was not in custody when he made the statements in question and therefore the statements were not taken in violation of Miranda v. Arizona, 384 U.S. 436 (86 S. Ct. 1602, 16 LE2d 694) (1966). The trial court also correctly rejected Jacobs’ request to suppress the results of the blood test because Jacobs freely and voluntarily consented to the test. Therefore, we affirm the trial court’s denial of Jacobs’ motion to suppress and affirm his conviction.

“On appeal from a ruling on a motion to suppress, we construe the evidence most favorably to affirming the trial court’s factual findings and judgment.” Brooks v. State, 285 Ga. App. 624, 626 (647 SE2d 328) (2007) (footnote omitted). The trial court’s application of the law to undisputed facts is subject to de novo review. State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009). However, “the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.” Perez v. State, 249 Ga. App. 399, 399-400 (547 SE2d 699) (2001) (citation omitted).

So viewed, the facts show that in April 2013, police received a report that a vehicle had struck a vehicle gate at an apartment complex. The responding officer found the exit gate stuck partially open, with car debris scattered around it. Within minutes, the officer located in the complex’s parking lot an unoccupied truck with damage that appeared to match the debris he had found.

While the officer was running the truck’s license plate, Jacobs’ girlfriend approached the officer and inquired about Jacobs’ well being. She said Jacobs had called her to say he was hurt and needed to go to the hospital. At some point, she also told the officer that she had seen Jacobs consuming alcohol at a restaurant before he drove to the apartment complex. The girlfriend called Jacobs, who was in her apartment, and permitted the officer to speak with him by phone. Jacobs told the officer that he had been driving the truck. The officer asked Jacobs to come outside and speak with him. Jacobs initially was hesitant but agreed after the officer threatened to seek a warrant for his arrest.

Jacobs came outside and spoke to the officer. Jacobs said that he had tried to enter the complex via the exit gate because he could not get the entrance gate to open. Jacobs was limping and appeared to be injured but refused the officer’s initial offer of medical attention. Jacobs appeared to the officer to be under the influence of alcohol, having an odor of alcohol on his breath. He reported having consumed two drinks in a bowling alley that night, as well as drinking additional alcohol after returning to the apartment. The officer performed no field sobriety tests, explaining at the suppression hearing that he chose not to due to Jacobs’ injuries.

Determining that Jacobs had been under the influence of alcohol when he struck the gate with his vehicle, the officer placed Jacobs under arrest and put him in handcuffs. The officer read Jacobs the Georgia Implied Consent Notice. Although there is no video recording of Jacobs’ encounter with police, the officer testified at a pre-trial hearing that he read the notice as follows:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine or other bodily substances for the purpose of determining if you are under the influence of drugs or alcohol. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your blood under the implied consent law?

Jacobs verbally agreed to a blood test. Jacobs was transported to a fire station where a paramedic drew his blood. The results showed him to have a blood-alcohol concentration of 0.202. At no point during the encounter did the officer advise Jacobs of his rights pursuant to Miranda.

Jacobs moved to suppress his statements provided on the scene on the basis that he was not given Miranda warnings and moved to suppress the results of the blood test on the basis that he did not freely and voluntarily consent to the test. After the pre-trial hearing, the trial court denied both requests. The case proceeded to trial, and a jury convicted Jacobs on all charges. Jacobs filed a motion for new trial, which the trial court denied. Shortly thereafter, our Supreme Court decided Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015), rejecting a rule automatically equating an affirmative response to the implied consent notice with actual consent to a search within the meaning of the Fourth Amendment. Based on that decision, Jacobs asked the trial court to reconsider its denial of his motion for new trial. The trial court issued a new order denying the motion for reconsideration, finding that although Jacobs was intoxicated at the time, he freely and voluntarily gave his consent to the blood test. We dismissed Jacobs’ initial appeal as untimely, but the trial court then granted Jacobs leave to file an out-of-time appeal.

1. Jacobs first challenges the use of statements he made to police as taken in violation of Miranda. We disagree with his argument.

Law enforcement officers are required to give Miranda warnings prior to questioning only where the subject is in police custody, having either been formally arrested or restrained to an extent associated with such an arrest. Where one has not been arrested, he will be considered to be in custody only under circumstances where a reasonable person in the same situation would perceive that he was deprived of his freedom of action in a meaningful way

Smith v. State, 297 Ga. 667, 668 (2) (777 SE2d 453) (2015) (citations and punctuation omitted). A trial court must consider the totality of the circumstances to determine whether a reasonable person would believe he is not at liberty to leave. Id. at 668-69 (2). Factors indicating a defendant is not in custody include that the defendant voluntarily accompanied an officer to another location, that the officer told the defendant he was not under arrest or otherwise in custody, that the defendant was allowed to speak to others, and that the defendant was not handcuffed or otherwise restrained. Id. at 669-70 (2). “The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and we will not disturb the trial court’s determination unless it is clearly erroneous.” Parker v. State, 307 Ga. App. 61, 65 (3) (704 SE2d 438) (2010) (footnote omitted).

Here, the trial court rejected the defense’s Miranda argument because Jacobs was not in handcuffs when he made the statements, there was no evidence of flashing police lights, guns drawn or other officers present, and Jacobs was standing in a parking lot, not in jail or a patrol car. The trial court correctly concluded that, considering the totality of the circumstances, Jacobs was not in custody when he made the statements in question. “[Rjoadside questioning during the investigation of a routine traffic incident generally does not constitute a custodial situation.” State v. Pastorini, 222 Ga. App. 316, 317 (1) (474 SE2d 122) (1996) (citation omitted). We also have held similar investigations to be noncustodial where a suspect was put through field sobriety tests in a parking lot, see Parker, 307 Ga. App. at 65 (3), or asked to step out of her home, see Monahan v. State, 292 Ga. App. 655, 658-59 (1) (665 SE2d 387) (2008). Here, Jacobs voluntarily, albeit reluctantly, exited the apartment and walked down a set of stairs to speak with the officer. Jacobs was not handcuffed or otherwise restrained at that point. Although there is no evidence that the officer explicitly told him he was not under arrest, the officer did not tell him that he was under arrest, either.

This case is similar to Shelton v. State, 214 Ga. App. 166 (447 SE2d 115) (1994), in which we held that a defendant was not in custody when he spoke to an officer investigating a vehicle accident that took place in an apartment complex parking lot. The officer located the defendant in his apartment at the complex and spoke to the defendant both in the apartment and on the stairs leading from the apartment as the officer escorted the defendant to the parking lot. Id. at 167-68 (1). The officer gave unrebutted testimony that the defendant was not told that he was not free to leave and was not placed in handcuffs and that the defendant’s access to leaving was not blocked. Id. at 167. Although the defendant was arrested after being identified by a witness, we held that his pre-Miranda statement given prior to the arrest was admissible as there was “no indication that the defendant had been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 168 (1) (citation and punctuation omitted).

Similarly, in Monahan, an officer knocked on the door of a DUI suspect reported by other motorists. 292 Ga. App. at 656 (1). The suspect opened the door and stepped outside at the officer’s request. Id. The suspect testified that she did not think she could refuse the officer’s request and that, once outside, she felt she could not go back inside. Id. at 658 (1). Noting the inquiry is an objective one, however, we rejected the defendant’s argument. Id. at 658-59 (1). Able to review a recording of the police encounter, we said the evidence “authorized a finding that the investigating officer’s request was not with any language, tone, or accompanying gesture such that a reasonable person would have believed that his or her freedom of movement was restrained to a degree associated with a formal arrest.” Id. at 658-59 (1).

Jacobs suggests that he was in custody based on the officer’s “command” for him to leave the apartment under threat of the officer securing an arrest warrant. But we have held that a threat to obtain a search warrant does not amount to such coercion and duress so as to invalidate a suspect’s consent to the search. See Farley v. State, 195 Ga. App. 721, 721-22 (394 SE2d 585) (1990). Here, the officer’s reference to obtaining a warrant could be seen by Jacobs as a signal that the officer was not authorized or prepared to arrest him absent the further steps of obtaining a warrant, at least as long as he stayed in the apartment. We do not find error with the trial court’s conclusion that, in the light of the totality of the circumstances, Jacobs was not in custody when he made the statements in question.

2. Jacobs also challenges the trial court’s refusal to suppress the results of the chemical testing of his blood, arguing that the court erred in determining that he consented to the test consistent with the Fourth Amendment. We disagree.

The Fourth Amendment of the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution both protect an individual’s right to be free of unreasonable searches and seizures, and apply to the compelled withdrawal of blood and other bodily substances. See Williams, 296 Ga. at 819. Because the extraction of blood is a search within the meaning of the Fourth Amendment, the warrantless extraction of blood is presumed to be invalid, subject only to a few specifically established and well-delineated exceptions, and the State has the burden of showing otherwise. Id.

The Supreme Court of the United States recently held that, although the Fourth Amendment permits warrantless breath tests pursuant to the search incident to arrest exception when a suspect is arrested for drunk driving, a warrantless blood test is not similarly permitted. Birchfield v. North Dakota, 579 U.S. _, _ (V) (C) (3) (136 S. Ct. 2160, 2184, 195 LE2d 560) (2016). The Court held that consent to a blood test was invalid where state law imposed criminal penalties for refusal to consent. Id. at 2186 (VII). However, the sort of implied consent law at issue in Birchfield is not at issue here. Georgia’s implied consent law does not impose criminal penalties for failure to submit to a blood test, but merely provides for license suspension and evidentiary consequences. See OCGA § 40-5-67.1 (b), (d). The Supreme Court in Birchfield reaffirmed its general approval of such an implied consent law, specifying, “nothing we say here should be read to cast doubt on” implied consent laws “that impose civil penalties and evidentiary consequences on motorists who refuse to comply” 136 S. Ct. at 2185 (VI).

Consent given in response to Georgia’s implied consent warning thus remains a valid basis for a warrantless search where it is given freely and voluntarily, including in response to the reading of an implied consent warning that does not threaten a criminal penalty See id.; Williams, 296 Ga. at 821. Here, the State invokes the consent exception to the warrant requirement. Therefore, the question before us is whether the State met its burden of proving that Jacobs actually consented “freely and voluntarily” Williams, 296 Ga. at 821.

Historically, we considered a defendant’s affirmative response to the reading of the implied consent notice as sufficient to allow a search of his or her bodily fluids without further inquiry into the validity of the defendant’s consent. However, Williams rejected this per se rule automatically equating an affirmative response to the implied consent notice with actual consent to a search within the meaning of the Fourth Amendment. Instead, courts must now conduct a case-by-case analysis, considering the totality of the circumstances.

Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016) (citations omitted).

In conducting a totality of the circumstances analysis, we have considered a host of factors. “A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” Cuaresma v. State, 292 Ga. App. 43, 47 (2) (663 SE2d 396) (2008). The defendant’s affirmative response to the implied consent notice may itself be sufficient evidence of actual and voluntary consent, absent reason to believe the response was involuntary. Kendrick, 335 Ga. App. at 771-72. The defendant’s failure to express an objection to the test or change his or her mind also is evidence of actual consent. Id. at 772. There is, however, no duty to inform suspects of their constitutional right against unreasonable searches. Id. at 770. The use of handcuffs does not negate a defendant’s ability to give consent. Id. And the mere fact that a defendant was visibly intoxicated does not render his consent involuntary. See State v. Depol, 336 Ga. App. 191, 198-200 (784 SE2d 51) (2016).

Here, the trial court correctly found under the totality of the circumstances that Jacobs freely and voluntarily consented to the blood test. Jacobs gave an affirmative response to the responding officer’s question pursuant to the implied consent notice. Jacobs had been injured, but there was no evidence that his injury impaired his understanding of the situation he faced. Although Jacobs was handcuffed when he voiced his assent to the blood draw, there is no evidence that the officer had unholstered his weapon or employed other shows of force. There is not evidence of a lengthy detention: the evidence showed that Jacobs and the officer spoke for 10 to 15 minutes before the officer arrested him and read him the implied consent warning, then approximately 15 more minutes passed before they arrived at the fire station. At the fire station, Jacobs reaffirmed his assent before the medic drew his blood.

Of course, Jacobs was intoxicated, as evidenced by his blood test results of more than twice the legal limit for driving. See OCGA § 40-6-391(a)(5). But there was no evidence that he was so intoxicated that he was unable to respond appropriately to the officer’s questions or appreciate the nature of their interaction. Rather, the officer testified that Jacobs, with some reluctance, walked down a set of stairs, then gave some explanation for the night’s events. The officer testified that he concluded that Jacobs was intoxicated based on the gate accident, the odor of alcohol, and statements by Jacobs and his girlfriend to the effect that he had been drinking.

This sort of evidence of intoxication falls short of that shown in State v. Bowman, 337 Ga. App. 313 (787 SE2d 284) (2016), in which we upheld a finding that the defendant’s response to the implied consent warning was not voluntary based on evidence of severe intoxication: the defendant was so unsteady on his feet that an officer directed him to sit down, vomited to the extent that he seemed to be choking, and generally responded to officers’ inquiries to the effect that nothing mattered and he “was going to jail anyway” Id. at 317-18. There, the defendant also had been in an accident significant enough that he suffered a cut to his head. Id. at 317. Moreover, in that case we reviewed a trial court’s grant of a motion to suppress, such that we deferred to the trial court’s determination of involuntariness in the absence of record evidence demanding a different, finding. Id. at 318. Here, the shoe is on the other foot — we are reviewing the denial of a motion to suppress — and the evidence does not support a conclusion that Jacobs’ response to the implied consent notice was anything but voluntary. We thus affirm the trial court’s denial of the motion to suppress evidence obtained as a result of the blood draw.

Decided September 29, 2016

Banks, Stubbs & McFarland, Rafe Banks III, for appellant.

Jessica K. Moss, Solicitor-General, David M. McElyea, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

       This recitation differed in nonsubstantial ways from the precise wording of the pertinent notice found at OCGA § 40-5-67.1(b)(2).

       Based on this decision, Jacobs has filed a Motion to Remand, arguing that we should direct the trial court to reevaluate the validity of his consent because the Georgia implied consent warning is now erroneous. However, as explained above, the court in Birchfield
        reaffirmed its general approval for implied consent laws such as Georgia’s. 136 S. Ct. at 2185 (VI). Therefore, assuming Jacobs preserved his argument, we are not persuaded that remand in the light of Birchfield is necessary, and we deny Jacobs’ motion.

       Jacobs argues that Kendrick does not apply here because the defendant there was not under arrest at the time she was asked to consent. But she was, see Kendrick, 335 Ga. App. at 766-67, and Kendrick applies.


source: Caselaw Access Project

license: Public Domain

text:
    A16A1442.
    HUNGRY WOLF/SUGAR & SPICE, INC. v. LANGDEAU et al.
    (791 SE2d 850)
   Peterson, Judge.

Richard Langdeau, Jr., and Ashley Langdeau (the “Langdeaus”) filed suit against Hungry Wolf/Sugar & Spice (“Hungry Wolf”), alleging that Hungry Wolf was vicariously liable for the tortious actions of its alleged employee, and that it negligently hired and retained the employee. The trial court denied Hungry Wolf’s motion for summary judgment, concluding that a police report submitted by the Langdeaus created a question of fact as to whether the tortfeasor was employed by Hungry Wolf. We granted Hungry Wolf’s application for interlocutory review. On appeal, Hungry Wolf argues that (1) the Langdeaus did not present any evidence or point to record facts creating a genuine issue of material fact, (2) the trial court erred in considering the police report because it was not certified or authenticated, and (3) as a result, it was entitled to summary judgment because no questions of material fact existed. In determining that the incident report was admissible evidence, however, the trial court addressed only Hungry Wolf’s hearsay argument and did not evaluate whether the report had been authenticated. Because the authentication issue must be addressed by the trial court in the first instance, we vacate and remand for further proceedings.

Viewing the evidence in the light most favorable to the Langdeaus, as the nonmovants, the record evidence shows that Robbie Colbert shot a gun outside of Hungry Wolf, a restaurant and bar, and a bullet ricocheted and hit Richard Langdeau, Jr., in the back. Colbert had frequently worked as a cook and DJ at Hungry Wolf, and was working on the night Richard Langdeau was shot.

Hungry Wolf submitted affidavits stating that Colbert was not a Hungry Wolf employee; he had been hired by Hungry Wolf’s performers to DJ and cook, but not to provide security services; and Hungry Wolf did not supervise, train, or direct Colbert in any way Relying on these affidavits, Hungry Wolf moved for summary judgment and argued that, because Colbert was not its employee, the Langdeaus’ claims failed. In their response to Hungry Wolf’s summary judgment motion, the Langdeaus submitted a police officer’s incident report in which the officer stated that he watched surveillance video showing Colbert working as a bouncer as he became involved in a large fight. The officer also stated that the video showed Colbert walking into an office at Hungry Wolf, coming out of the office with a gun, and then firing one shot out of the front door before firing five more rounds after he went outside.

The trial court held a hearing on Hungry Wolf’s summary judgment motion, but the transcript of the hearing is not included in the appellate record. Following that hearing, Hungry Wolf filed a brief arguing that the narrative portion of the police report was inadmissible as a business record and the report itself was inadmissible because it had not been certified or authenticated. The trial court found that the police report fell within the public records hearsay exception under OCGA § 24-8-803(8) and denied Hungry Wolf’s motion for summary judgment because the police officer’s statements based on personal observation created material questions of fact. This appeal followed.

On appeal, Hungry Wolf does not challenge the trial court’s conclusion that the police report fell within a hearsay exception under OCGA § 24-8-803(8). Rather, it argues that the report needed to be authenticated before the trial court could consider it on a motion for summary judgment. Because the trial court did not address this issue, we vacate and remand.

The “[admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally” Capital City Developers, LLC v. Bank of N. Ga., 316 Ga. App. 624, 625-26 (1) (730 SE2d 99) (2012) (footnote omitted). We review a trial court’s decision regarding the admission or exclusion of evidence for an abuse of discretion. Steed v. Fed. Nat. Mtg. Corp., 301 Ga. App. 801, 807 (1) (b) (689 SE2d 843) (2009).

[W]hile the abuse-of-discretion standard presupposes a range of possible conclusions that can be reached by a trial court with regard to a particular evidentiary issue, it does not permit a clear error of judgment or the application of the wrong legal standard.

Koules v. SP5 Atl. Retail Ventures, LLC, 330 Ga. App. 282, 285-86 (2) (767 SE2d 40) (2014) (citation omitted).

The police officer’s report is the only evidence the Langdeaus point to that creates a question of fact as to Colbert’s employment status, and thus the admissibility of the report was key to overcoming Hungry Wolf’s motion for summary judgment. Although the trial court determined that the report was admissible, it applied an incomplete legal standard in reaching that determination. It is undisputed that the trial court correctly determined that the police officer’s report fell within the public records exception under OCGA § 24-8-803(8). See Maloof v. MARTA, 330 Ga. App. 763, 767-68 (2) (769 SE2d 174) (2015) (concluding that police report describing matters observed by the police officer is admissible as a public record in a civil proceeding). But our Evidence Code provides that the authentication or identification of a document is a condition precedent to admissibility OCGA § 24-9-901(a) (providing that the authentication requirement “shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims”); see also Jaycee Atlanta Dev., LLC v. Providence Bank, 330 Ga. App. 322, 325 (2) (765 SE2d 536) (2014) (“In general, a writing will not be admitted into evidence unless the offering party tenders proof of the authenticity or genuineness of the writing.”) (citation and punctuation omitted). Thus, to admit a document, the proponent must both authenticate the document and address any hearsay concerns; satisfying one requirement does not necessarily address the other, and Hungry Wolf challenged the report below on both grounds. See McKinley v. State, 303 Ga. App. 203, 208 (2) (692 SE2d 787) (2010) (satisfying the authentication requirement does not eliminate hearsay concerns).

Decided September 29, 2016.

Gary P. Bunch, for appellant.

Blackburn & Carrillo, David T. Blackburn, for appellee.

In deeming the police report admissible, the trial court addressed only the hearsay concerns raised by Hungry Wolf. Concluding that the document was admissible under OCGA § 24-4-803(8) is a necessary, but insufficient, prerequisite for admitting the police report. The trial court applied an incomplete standard in admitting the police report, and this amounted to an abuse of discretion. See Koules, 330 Ga. App. at 285-86 (2) (trial court abuses its discretion when it applies the wrong legal standard).

Hungry Wolf’s reliance on Baker v. Simon Prop. Group, 273 Ga. App. 406 (614 SE2d 793) (2005), does not demand a conclusion that the police report was inadmissible and that it was entitled to summary judgment. In Baker, the trial court granted summary judgment to the defendants without explanation, and the plaintiff argued on appeal that the trial court overlooked police incident reports and crime statistics. Id. at 407 (1). The trial court’s lack of explanation in granting summary judgment to the defendants was an implicit rejection of the police reports, and we concluded that we could not consider the documents in our de novo review because they were not certified or authenticated. Id. Baker is inapplicable here because the question on appeal is not whether we may consider the evidence but whether the trial court properly determined the police reports to be admissible evidence. We cannot answer that question because the trial court’s analysis was incomplete, and for this reason we vacate the trial court’s order denying summary judgment to Hungry Wolf and remand for consideration of the authentication issue.

Judgment vacated and case remanded.

Phipps, P. J., and Dillard, J., concur.

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

       OCGA § 24-8-803(8) provides an exception to the hearsay rule for
      .. . public records, reports, statements, or data compilations, in any form, of public offices, setting forth: . . . (B) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report ... or (C) In civil proceedings..., factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness [.]

       Contrary to Hungry Wolf’s claims on appeal, the police officer’s observations contained in the police report, if properly admitted, would create a genuine issue of material fact. The police officer observed Colbert working as a bouncer when he became involved in a large fight and later walked into an office at Hungry Wolf to retrieve a loaded gun. “Even slight evidence will be sufficient to satisfy the plaintiff’s burden of production of some evidence on a motion for summary judgment; such evidence may include favorable inferences drawn by the court from the evidence presented.” Dalton v. City of Marietta, 280 Ga.App. 202, 203 (633 SE2d 552) (2006) (punctuation omitted). A jury could infer from this evidence that Colbert was an employee of Hungry Wolf because he worked as a bouncer and had knowledge that a loaded gun was located in the Hungry Wolf office. For this reason, we vacate instead of reverse.


text:
    A16A0741.
    CONNOLLY et al. v. SMOCK.
    (791 SE2d 853)
   Peterson, Judge.

The trial court sanctioned J. Thomas Connolly III and his counsel, Aaron Chausmer and Chausmer Law LLC (collectively “Appellants”) for eliciting testimony about Jeffrey Smock’s personal life that the court concluded violated a ruling prohibiting the parties from introducing irrelevant character evidence. We granted Appellants’ application for discretionary review to consider whether the trial court erred in sanctioning them. On appeal, Appellants argue that (1) they did not violate the court’s ruling, (2) the court failed to provide sufficient notice of its intent to impose a sanction under OCGA § 9-15-14(b) and to hold the required evidentiary hearing, (3) the court did not make sufficient findings of fact as to the sanctionable conduct, and (4) the court failed to make any findings as to the reasonableness and necessity of the fees, and instead awarded an impermissible “lump sum.” Although we conclude that the trial court did not abuse its discretion in determining that Appellants’ actions were sanctionable, we vacate the award because Smock failed to present evidence — and the trial court failed to find — that the attorney fees were the result of Appellants’ trial conduct.

The record shows that Connolly and Smock were partners in Beer Money Partnership (“Beer Money”), which was formed for the purpose of investing in a real estate development venture. A dispute arose regarding the parties’ obligations under the partnership, leading Smock and Beer Money to sue Connolly. Connolly responded by filing counterclaims against Smock and Beer Money Each party asserted that the other breached the partnership agreement and breached their fiduciary duty to the partnership or to each other, and the parties sought dissolution of the partnership and attorney fees. Connolly also sought contribution and set-off.

Prior to trial, Smock filed several motions in limine to exclude certain evidence. At a motions hearing prior to trial, the trial court orally granted Smock’s motion to exclude evidence of: (1) his alleged substance abuse and his net worth, although the trial court agreed to revisit the issues at trial; and (2) sanctions previously imposed against him for discovery violations. The trial court in a written order denied Smock’s motion to exclude evidence of his criminal convictions, but ordered the parties to approach the bench before mentioning the evidence at trial.

At trial, during cross-examination of Smock, Connolly attempted to introduce Exhibit 80, which consisted of several e-mails from Smock discussing his dispute with Connolly, some of which contained vulgar language. The trial court held a bench conference that was not recorded, and Connolly’s counsel withdrew the exhibit based on the court’s ruling during the conference.

During Connolly’s case-in-chief, Connolly’s counsel again attempted to introduce Exhibit 80. The court held another bench conference, which was not transcribed, and following the conference, Connolly’s counsel asked the court to make a ruling on the record. The trial court stated without elaboration that it would not admit Exhibit 80. Connolly’s counsel then presented a redacted version of the e-mails omitting the objectionable language, and the exhibit was admitted into the record as Exhibit 6.

Connolly later testified in support of his claims, explaining that after one of Beer Money’s investments failed, his relationship with Smock became strained and he began to question whether he wanted to continue as Smock’s business partner. In explaining the deterioration of his business relationship with Smock, Connolly testified as follows:

There are some things, you know, [Smock] started to do kind of on a personal level that I just didn’t agree with, and so I was already kind of questioning our partnership. And, you know, more, as partners is this someone I wanted to be in bed with long term.
And, you know, a couple of those things started to arise that I just — I had a problem with. You know, at one point I was closing a transaction for him at work and he moved in with a girlfriend and we had to close and get documents signed and I couldn’t find him.

Smock did not object to this testimony, but the trial court interjected and stated, “It might be better for this to be a question and answer rather than just an open ended narrative. He gets to talk about whatever he wants to, and that’s not the way it works.” Connolly’s counsel subsequently asked if there were specific instances of behavior that caused Connolly to question his dealings with Smock. Connolly said there were, and when asked to identify these instances, Smock objected on grounds of relevance and as an attempt to introduce bad character evidence. The trial court sustained the objection, concluding that it was “not going to have character assassination in a case unless it is relevant.”

After Connolly finished testifying and the court took a recess, Smock moved for sanctions against Connolly and his counsel based on Connolly’s testimony about Smock’s girlfriend. Smock argued that Connolly’s testimony introducing allegations of prior bad acts was the “grossest example of an attempt at character assassination,” and that Connolly and his counsel should have known to avoid discussing such evidence because the trial court had granted Smock’s motions in limine relating to his substance abuse and his financial condition. Smock requested that the trial court sanction Connolly and his counsel under OCGA § 9-15-14, and proposed that the sanction be for attorney fees in the amount of $35,000.

Connolly’s counsel responded and argued that none of the motions in limine addressed the issue before the court. Connolly’s counsel also argued that Connolly did not intend to put Smock’s character at issue, but was attempting to explain Connolly’s dissatisfaction with Smock. Connolly’s counsel also argued that the character evidence was permissible because Smock first put his character at issue by previously testifying that he was a “family man.” Connolly’s counsel argued that the conduct was not so egregious as to warrant an award of $35,000 in attorney fees and that, at most, the court should issue a curative instruction or an admonition.

The trial court orally granted Smock’s request for attorney fees as a sanction against Connolly and his counsel (Appellants), finding that it had advised the parties that it would not tolerate character assassination unless it was relevant, Connolly’s counsel had been persistent in trying to introduce derogatory matters into evidence, and the challenged testimony, which the court found to be calculated, had circumvented a ruling that the court made during a bench conference. The trial court assessed $35,000 in attorney fees against Connolly and counsel, and admonished them in front of the jury

A day after it admonished Appellants before the jury, the court entered a written sanction order, further finding that Connolly’s testimony was unrelated to issues being litigated and was offered solely for the purpose of smearing Smock’s character, and that the conduct of Connolly and his attorney in offering the testimony was substantially vexatious. The jury reached its verdict and found in favor of Connolly on all counts and awarded him no compensatory damages but $68,145 in attorney fees. The trial court entered the final judgment, and this discretionary appeal from the OCGA § 9-15-14 (b) sanctions order followed.

1. On appeal, Appellants argue that the trial court abused its discretion in imposing sanctions under OCGA § 9-15-14(b) because, contrary to the court’s ruling, it did not advise them that it would not permit bad character evidence until after Connolly testified about Smock’s alleged marital infidelities. Appellants’ claim of error is not supported by the record.

OCGA § 9-15-14(b) permits a trial court to award attorney fees if it finds

(1) that an attorney or party brought or defended an action, or part of an action, that lacked substantial justification; or (2) that the action, or part of it, was interposed for delay or harassment; or (3) that an attorney or party unnecessarily expanded the proceedings by other improper conduct.

MacDonald v. Harris, 266 Ga. App. 287, 288 (597 SE2d 125) (2004) (footnote omitted). The statute defines “lacked substantial justification” as “substantially frivolous, substantially groundless, or substantially vexatious.” OCGA § 9-15-14(b). The award of damages under OCGA § 9-15-14 is intended not only to sanction or “deter litigation abuses but also to recompense litigants who are forced to expend their resources in contending with abusive litigation.” LabMD, Inc. v. Savera, 331 Ga. App. 463, 465 (771 SE2d 148) (2015) (citation and punctuation omitted). We review a trial court’s award of sanctions under OCGA § 9-15-14(b) for an abuse of discretion. Id.

In concluding that Appellants were substantially vexatious, the trial court cited Appellants’ conduct in eliciting and presenting Connolly’s testimony that the court believed was intended to smear Smock’s character. The trial court made no finding that Appellants brought or defended an action, or part of an action, that lacked substantial justification, or that Connolly’s action, or part of it, was interposed for delay or harassment. Thus, although the trial court used the term “substantially vexatious,” it cited only Appellants’ conduct during the trial as the sanctionable conduct. The trial court then resteditssanctionawardonthethirdfactorunderOCGA § 9-15-14(b), which allows the trial court to sanction a party and his or her attorney for unnecessarily expanding the proceedings through improper conduct. In determining that Appellants’ conduct was improper, the trial court found that “[pjrior to the subject testimony, [it had] admonished Connolly’s counsel that it would not allow irrelevant character evidence of the parties’ statements or activities, and would not permit the parties to impugn each other’s character in front of the jury”

Appellants argue that this finding was erroneous, because the court did not admonish them until after Connolly gave the subject testimony. Appellants are correct that the record reflects that the court admonished them only after Connolly testified about Smock’s girlfriend. At trial, however, the court also stated that Connolly’s testimony circumvented the court’s ruling during a bench conference. The record does show that the court held several bench conferences when Appellants attempted to admit Exhibit 80 — a series of e-mails by Smock in which he used vulgar language — into evidence. But those bench conferences were not transcribed. As a result, it is impossible to determine whether the trial court ever admonished Appellants not to introduce evidence of the nature that was subject to the sanctions request. It is certainly possible that, during these conferences, the trial court did just that. “Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41(f).” Steele v. Atlanta Maternal-Fetal Med., P.C., 283 Ga. App. 274, 277 (2) n.13 (641 SE2d 257) (2007) (citation and punctuation omitted). Where the complaining party fails to complete the record under this provision, that party “fails to carry his burden of showing by the record the facts necessary to establish his point.” Glass v. State, 289 Ga. 542, 546 (3) (712 SE2d 851) (2011) (citation and punctuation omitted); see also Bellah v. Peterson, 259 Ga. App. 182, 183 (1) (576 SE2d 585) (2003) (the party alleging error has the burden to show it affirmatively by the record, and the ruling complained of will be assumed to be correct when that burden is not met). Given the trial court’s ruling that Appellants circumvented a bench conference ruling, and the failure of Appellants to make a complete record revealing what occurred during those conferences, Appellants have failed to demonstrate by the record that they were not admonished prior to the subject testimony. We must assume that the trial court’s ruling was correct.

2. Appellants also argue that the trial court committed multiple procedural errors in awarding sanctions because it failed to (1) provide sufficient notice of its intent to sanction them and hold an evidentiary hearing, (2) make sufficient findings as to the conduct meriting the award, and (3) make any findings as to the reasonableness and necessity of the fees. We agree in part and, therefore, vacate and remand.

Before a trial court can sanction a party under OCGA § 9-15-14(b), the party must be given (1) notice that an award of attorney fees under that Code section is under consideration and (2) a hearing to provide the party an opportunity to challenge the basis on which the fees are assessed and the need and value of legal services. Wall v. Thurman, 283 Ga. 533, 534 (3) (661 SE2d 549) (2008); Evers v. Evers, 277 Ga. 132, 132 (587 SE2d 22) (2003). “In order to recover attorney fees under OCGA § 9-15-14(b), a prevailing party must prove both their actual cost and their reasonableness.” Bankston v. Warbington, 319 Ga. App. 821, 823 (2) (738 SE2d 656) (2013) (citation and punctuation omitted).

Here, Smock made an oral motion for sanctions under OCGA § 9-15-14(b) for Appellants’vexatious conduct, and after hearing Smock’s argument in support of his motion, the trial court asked what sanction Smock wanted. Smock responded, “Your Honor, $22,500 has been incurred for the three days this week, and $20,000 was incurred from the 18th, [] so the sanction we would propose is $35,000.” Noting he had only a “very short time” to consider the matter, Connolly’s counsel argued that the conduct was not so egregious as to warrant sanctions, and a curative instruction or admonition was the most the court should impose. The court then asked Smock to “close the dialogue,” and, after Smock re-argued why Connolly’s testimony was sanctionable, the trial court stated that “the dialogue is closed.” The trial court then concluded that it would sanction Connolly and his counsel $35,000. The entire discussion, from Smock’s oral motion to the court’s oral ruling, lasted 18 minutes.

We need not decide whether Smock’s oral motion for sanctions made during the trial or the trial court’s subsequent discussion of the request provided Appellants with sufficient notice and opportunity to be heard, because we vacate the award on a different ground. Regardless of whether Appellants had sufficient notice and an opportunity to challenge the basis for the sanction award, Smock failed to submit evidence to establish the amount of fees requested. See Bankston, 319 Ga. App. at 823 (2) (requiring party to prove both actual cost and reasonableness of attorneys’ fees). Although a party’s attorney is competent to testify as to the amount and reasonableness of a party’s attorney fees, see Jones v. Unified Gov’t of Athens-Clarke Cty., 312 Ga. App. 214, 221 (718 SE2d 74) (2011), Smock’s attorney provided only argument in support of the sanction request. Smock’s attorney was not put under oath or questioned. Thus, Smock presented no evidence to establish the attorney fees resulting from the sanctionable conduct, and Appellants did not acquiesce in Smock’s calculation of the amount of attorney fees due.

Smock argues that his counsel did present evidence to support the sanction award because, prior to the sanctions motion, his counsel testified in support of Smock’s request for attorney fees under OCGA § 13-6-11. Smock argues that this testimony could also be used to support the award of attorney fees under OCGA § 9-15-14(b). Although both OCGA § 9-15-14 and OCGA § 13-6-11 allow for awards of attorney fees for sanctionable conduct, they apply to different, types of conduct and thus result in different measures of attorney fees. OCGA § 9-15-14 applies to conduct occurring during the litigation, while OCGA § 13-6-11 applies to conduct arising from the under lying transaction. Trotter v. Summerour, 273 Ga. App. 263, 267 (2) (614 SE2d 887) (2005). Thus, the amount of attorney fees incurred from the transaction underlying the lawsuit cannot establish the fees incurred from the sanctionable conduct that occurred during the litigation itself. Id.

The trial court did not explain why it awarded $35,000 to Smock as a sanction against Appellants, other than to say that was what Smock requested. But Smock’s request was based on litigation fees incurred prior to the conduct. We have stated that “in cases involving OCGA § 9-15-14(a) or (b), the trial court must limit the fees award to those fees incurred because of the sanctionable conduct.” Trotter, 273 Ga. App. at 267 (2) (citations and punctuation omitted; emphasis added). A fee award cannot be sustained under OCGA § 9-15-14(b) where the trial court makes no allocation of fees to the sanctionable conduct and it appears that the court’s award was based on the moving party’s claim of fees and expenses related to other parts of the litigation, not just to the sanctionable conduct. See Hoard v. Beveridge, 298 Ga. 728, 730 (1) (783 SE2d 629) (2016) (concluding the fee award was not sustainable under OCGA § 9-15-14(b) where the court’s order made “no specific allocation of fees awarded pursuant to OCGA § 9-15-14(b) and award[ed] [the moving party] $232,114 in fees and expenses, the same amount he claimed to have incurred from the date of the temporary hearing related to all aspects of the litigation”); Hardman v. Hardman, 295 Ga. 732, 740 (4) (763 SE2d 861) (2014) (vacating and remanding an award under OCGA § 9-15-14(b) because the trial court did not allocate any portion of the award to the fees incurred solely in litigating action that lacked substantial justification).

Decided September 30, 2016.

The trial court’s award then cannot be sustained because it (1) did not receive evidence as to the actual costs and reasonableness of the fees and (2) failed to limit the award to those fees resulting from the sanctionable conduct. Consequently, we must vacate the trial court’s sanction order and remand the case for a hearing or other opportunity to correct these two deficiencies. See Bankston, 319 Ga. App. at 823 (2) (vacating the award of sanctions under OCGA § 9-15-14 (b) where the record contained no evidence to support the amount of attorney fees awarded); Fedina v. Larichev, 322 Ga. App. 76, 81 (5) (744 SE2d 72)(2013)(vacating sanctions award under OCGA § 9-15-14 (b) where trial court awarded lump sum and failed to show that it limited its award to fees resulting from party’s sanctionable conduct).

Judgment vacated and case remanded.

Phipps, P. J., and Dillard, J., concur.

Chausmer Law, Aaron B. Chausmer; Carlock, Copeland & Stair, Johannes S. Kingma, Tyler J. Wetzel, for appellants.

Bloom Sugarman, Simon H. Bloom, Ariel D. Zion, for appellee.

       The judge who presided over the trial was different than the judge who ruled on the pre-trial motions.

       During his case-in-chief, Smock responded affirmatively to the question of whether he was a “family man” and explained that he had two children and had been married for 15 years.

       Appellants acknowledge that the trial court considered Appellants’ attempts to admit Exhibit 80 in evaluating Smock’s request for sanctions, and argue that the e-mails included in that exhibit were relevant toward Connolly’s bad faith claim and that its second attempt to admit the exhibit was merely to perfect the record on the issue. What is at issue, however, is not whether the trial court’s evidentiary rulings were correct, but whether it advised Appellants to avoid introducing irrelevant character evidence.

       OCGA § 5-6-41(f) establishes a procedure for a party contending that the transcript or record does not truly or fully disclose what transpired at trial to have the record completed either by stipulation of the parties as to what occurred or the independent recollection of the trial judge.

       It is not obvious that OCGA § 9-15-14(b) is the most appropriate authority to support the trial court’s action here. Generally, a party’s willful failure to comply with a court order might be cause to hold the party in contempt. See Smith v. Smith, 293 Ga. 563, 564 (1) (748 SE2d 456) (2013) (“The purpose of civil contempt is to provide a remedy and to obtain compliance with the trial court’s orders.”) (citation and punctuation omitted); In re Harvey, 219 Ga. App. 76, 80 (464 SE2d 34) (1995) (the party’s willful refusal to comply with the trial court’s oral order was direct contempt). Appellants do not raise this argument here, and “we do not apply a ‘wrong for any reason’ rule to reverse incorrect rulings on issues not raised or ruled upon in the trial court.” Heard v. City of Villa Rica, 306 Ga. App. 291, 293-94 (1) (701 SE2d 915) (2010) (citations omitted).

       The sanctions issue was discussed on August 26, 2015.

       Smock notes that, although a request for attorney fees under OCGA § 9-15-14 must be brought in the form of a motion, his oral motion was sufficient under OCGA § 9-11-7(b) because it was made during the trial. Appellants counter that such notice was not “proper,” suggesting that the court should have reserved ruling on Smock’s motion for a later date. Smock also argues that Appellants waived their right to a further evidentiary hearing. We need not resolve these arguments, because we vacate and remand on another ground. See Leggette v. Leggette, 284 Ga. 432, 433 (2) n.3 (668 SE2d 251) (2008) (declining to address notice argument where the attorney fee award was reversed and remanded on another ground).

       We note that OCGA § 9-15-14(b) requires only that the court assess reasonable and necessary attorney fees and expenses, and the statute does not contain any express language stating that the award must be limited to the fees incurred because of the sanctionable conduct. OCGA § 9-15-14(b). This additional nexus requirement appears to have been imposed by our courts. See, e.g., Hardman, 295 Ga. at 740 (4); Trotter, 273 Ga. App. at 267 (2) (unanimous decision by three-judge panel) .Smock accepts that this is settled precedent, and we are required to follow it. See Ga. Const. of 1983, Art. VI, Sec. VI, Para. VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”); see also Evergreen Packaging v. Prather, 318 Ga. App. 440, 445 n.15 (734 SE2d 209) (2012) (“Aunanimous decision by a three-judge panel of this Court remains binding precedent until such time as it is modified or reversed by this Court en banc or our Supreme Court.”).


author: PHIPPS, Presiding Judge.

text:
    A14A1536.
    In the Interest of B. R. F., a child.
    (791 SE2d 859)
   PHIPPS, Presiding Judge.

On January 14, 2013, the juvenile court terminated a mother’s parental rights to her minor child, B. R. F. Over nine months later, on September 16, 2013, the mother filed an application for out-of-time discretionary review. We granted the application and affirmed the termination order. The Supreme Court granted certiorari and vacated our judgment, determining that we lacked jurisdiction to consider the application.

“A discretionary application seeking appellate review of an order terminating parental rights must be filed with the clerk of the appellate court within 30 days of entry of the termination order.” The filing deadline is jurisdictional, and this court is unable to accept an untimely application. While this court is authorized to grant an extension of time for the filing of an application for discretionary appeal, requests for extensions must be filed “on or before the due date of the discretionary application.” Otherwise, we lack the authority to grant the request.

Because the mother’s application for discretionary review was untimely, we lack jurisdiction to consider it, and this appeal is hereby dismissed. The mother is advised, however, that “an indigent parent [may be] entitled to file an out-of-time application for discretionary review to remedy ineffective assistance of counsel if that parent was entitled to appointment of counsel as a matter of due process” pursuant to Lassiter v. Dept. of Social Svcs. To pursue such relief, the mother must first direct her request to the juvenile court, which is tasked with initially determining the mother’s rights. Similarly, any argument based on statutory ineffective assistance of counsel must first be addressed to the juvenile court.

Decided October 3, 2016.

McMillan & Rawlings, Thomas C. Rawlings, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, Tammy M. Griner, Mark J. Cicero, Assistant Attorneys General, for appellee.

Jane G. Okrasinski, Vicky O. Kimbrell, LisaJ. Krisher, Phyllis J. Holmen, amici curiae.

If the juvenile court grants a request to file an out-of-time application for discretionary review, the mother will have 30 days from the entry of that order to file an application in this court. If the juvenile court denies the request, the mother will have 30 days to file a notice of appeal from that decision.

Appeal dismissed.

Andrews, P. J., Barnes, P. J., Ellington, P J., and McFadden, Ray, and McMillian, JJ., concur.

        In the Interest of B. R. F., 299 Ga. 294, 296 (788 SE2d 416) (2016) (citing OCGA § 5-6-35 (d)), vacating In the Interest of B. R. F., 332 Ga. App. 49 (770 SE2d 912) (2015).

       See B. R. F., supra, 299 Ga. at 298.

       Court of Appeals Rule 31 (g).

       See id.; B. R. F., supra, 299 Ga. at 298.

        B. R. F., supra, 299 Ga. at 299.

       452 U. S. 18 (101 SCt 2153, 68 LE2d 640) (1981). See also B. R. F., supra, 299 Ga. at 299.

        See B. R. F., supra, 299 Ga. at 299 (discussing the roleof the.juvenile-court in determining whether an indigent parent is entitled to file an out-of-time application for discretionary review).

       See id. at 300, n. 15.

       See OCGA § 5-6-35 (d); see also B. R. F., supra, 299 Ga. at 299, n. 13 (noting the similar process used in the criminal context, as explained in Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995)).

       OCGA § 5-6-38 (a); see also B. R. F., supra, 299 Ga. at 298.


text:
    A16A0788.
    GAITHER v. THE STATE.
    (792 SE2d 88)
   PHIPPS, Presiding Judge.

Yolande Gaither was charged with two counts of driving under the influence (“less safe” and unlawful alcohol concentration), an open container violation, and driving with an expired license. She filed a motion to suppress evidence seized as a result of a traffic stop, asserting, inter alia, that the arresting officer lacked articulable suspicion to stop her. The trial court denied Gaither’s motion, and we granted her application for interlocutory appeal. For the reasons that follow, we reverse.

During Gaither’s suppression hearing, White County Deputy Sheriff Jared Baker testified that, at approximately 1:38 a.m. on March 23, 2014, he saw Gaither’s truck turn left from a turn lane on Highway 17 “into the side entrance to the Hardman House,” a business establishment that was closed at the time. Without explaining what type of establishment the Hardman House was, the officer testified that “[t]hat area is generally closed to the public.” As he followed Gaither up a hill, she passed a driveway about 50 feet “before the top where the gate is that says the road is closed.”

As soon as Gaither passed that driveway and reached the gate, the officer activated his patrol vehicle’s blue lights. Gaither turned her truck around in front of the patrol car and began to drive back toward Highway 17. As she passed the patrol vehicle, the officer verbally instructed her to stop the car. Gaither proceeded “a few more feet” before stopping her truck behind the patrol vehicle. With the blue lights still flashing, the officer exited his vehicle and approached the driver’s side of Gaither’s truck. During the traffic stop, the officer saw an open container of alcohol in her vehicle, and he ultimately arrested Gaither for DUI.

When asked why he had activated his vehicle’s blue lights, the officer responded:

A couple of the things we looked at is, one, that the area is closed and we do have — have some[ Jthings going on of that nature around that time in the evening. Me being a traffic enforcement officer, I also believe that people who see that I’m behind them and turn and go to a closed area like that may be trying to avoid detection for a traffic — you know a traffic offense that’s going on. ... At the point where she passed that only driveway that I believe she could have went through lawfully, when she passed that I realized that she was more suspicious than to — she didn’t know where she was. She possibly was going up there ... to commit a crime.

During cross-examination, the officer testified that he did not observe Gaither commit any traffic offenses before he activated his vehicle’s blue lights. Gaither had turned off Highway 17 by using a turn lane on the highway, and there were no signs indicating that the road onto which she had turned was closed to the public. The officer did not know who owned a building located at the top of the hill, which he believed to be abandoned, and the Hardman House was located “below” the road onto which Gaither had turned. The officer emphasized that he activated his vehicle’s blue lights “solely because it was a suspicious vehicle.”

At the hearing, the state conceded that this was a second-tier stop but argued that it was sufficiently supported by reasonable suspicion. The trial court agreed and denied Gaither’s motion to suppress. The court found that

the traffic stop began as a “citizen’s assist” or a “suspicious vehicle,” and given the late hour and the closed state-owned historical site, there was legitimate and articulable reasonable suspicion for Deputy Baker to conduct a traffic stop on [Gaither’s] vehicle in accordance with his duty as a law enforcement officer.

The court noted further that Gaither had failed to stop when the officer activated his blue lights, driving past his marked patrol vehicle before the officer verbally requested her to stop.

On appeal, Gaither argues that, when the officer turned on his vehicle’s blue lights, their interaction became a second-tier encounter requiring reasonable, articulable suspicion. She contends that the state did not meet its burden of showing that the officer had a particularized and objective basis for suspecting that she was, or was about to be, engaged in criminal activity when he initiated the stop.

“[0]n a motion to suppress, the [s]tate has the burden of proving that a search was lawful.” In reviewing a trial court’s decision on a motion to suppress, this court accepts the trial court’s ruling on disputed facts unless clearly erroneous, but reviews the application of the law to the facts de novo. This court construes the evidence in the light most favorable to the trial court’s ruling.

“At least three types of police-citizen encounters exist: verbal communications involving no coercion or detention; brief ‘stops’ or ‘seizures’ that require reasonable suspicion; and ‘arrests,’ which can only be supported by probable cause.” “In a first-tier encounter, an officer may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.” “[A] citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter. Such conduct may not provide the basis for elevating the encounter to a second-tier Terry[ ] stop.”

“In a second-tier encounter, ... an officer may stop and detain a person briefly when the officer has a particularized and objective basis for suspecting the person is involved in criminal activity.” “[T]he officer must possess more than a subjective, unparticularized suspicion or hunch[.]” Rather, an investigative stop “must be justified by specific and articulable facts which, taken together with rational inferences from those facts,” give rise to reasonable suspicion of criminal activity “[T]he question presented to the trial court [is] whether the investigative stop was proper in that it was justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” “[A]bsent some particularized suspicion of wrongdoing, merely acting in a way that fits a known ‘pattern’ of criminal activity — does not justify an investigatory stop.” Thus, a set of generally suspicious facts may warrant close observation by law enforcement and yet not justify a second-tier encounter.

In its ruling, the trial court noted Gaither’s failure to stop immediately when the officer activated his blue lights. The state contends on appeal that Gaither “was not actually detained until she stopped her car after[ ] driving past [the officer] and his flashing blue lights” and that her “act of fleeing” gave the officer reasonable suspicion to detain her.

1. Viewing the evidence in favor of the ruling, the trial court clearly erred in finding that Gaither failed to stop when the officer activated his blue lights. The officer testified that he activated his blue lights because he suspected Gaither was “going up there to . . . commit a crime.” A reasonable person would not have felt free to leave upon seeing the patrol vehicle’s blue lights and hearing the uniformed officer’s instruction to stop a few seconds later.

Gaither’s limited maneuvering in those intervening few seconds is distinguishable from the conduct at issue in cases such as State v. Stilley, in which we held that a suspect’s failure to pull over when an officer activated his blue lights and siren was sufficient to purge the taint of an otherwise illegal stop. In Stilley, we reversed the grant ofa motion to suppress where the defendantviolatedOCGA § 40-6-395 (a) by driving two to three miles after an officer activated his lights and siren before a second officer helped force the defendant to stop. Here, Gaither merely turned her truck around and stopped a few feet past the officer’s vehicle.

2. The trial court erred in finding that the officer articulated “specific and articulable facts” sufficient to give rise to “a particularized and objective basis” for suspecting Gaither of criminal activity so as to authorize the traffic stop. First, the officer did not see Gaither commit a traffic violation. Second, there was no evidence that he had received any report of criminal activity in the vicinity. Even if the officer had testified “that thefts are common at this time of night,” as the trial court found, such a statement would have been no more than an unparticularized suspicion or hunch, which is insufficient to justify an investigative stop. Third, the deputy testified that there was no indication that the road on which he stopped Gaither was closed to the public before the gate at the top of the road. To the contrary, Highway 17 contained a turn lane leading to the road, which, the officer testified, led to at least one driveway. Similarly, although the trial court found that the location was a “closed state-owned historical site,” the record does not support this finding. Accordingly, the trial court erred in denying Gaither’s motion to suppress.

Decided October 4, 2016.

Penny S. Hunter, for appellant.

W. Jeffrey Langley, District Attorney, Samantha L. Barrett, Assistant District Attorney, for appellee.

Judgment reversed.

Dillard and Peterson, JJ., concur.

       OCGA §§ 40-6-391, 40-6-253, 40-5-20 (a).

        State v. Hammond, 313 Ga. App. 882, 883-884 (723 SE2d 89) (2012) (punctuation and footnote omitted).

       Id. at 884.

        State v. Richards, 327 Ga. App. 58 (755 SE2d 367) (2014).

        State v. Gauthier, 326 Ga. App. 473, 475 (1) (756 SE2d 705) (2014) (footnote omitted).

        Hammond, supra at 884 (punctuation and footnote omitted).

        Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LE2d 889) (1968).

        Groves v. State, 306 Ga. App. 779, 782 (703 SE2d 371) (2010) (punctuation and footnotes omitted).

        Hammond, supra (punctuation and footnote omitted).

       Id. (punctuation omitted). See also Dryer v. State, 323 Ga. App. 734, 739 (2) (747 SE2d 895) (2013) (“ [A]n officer’s subjective feeling that a person is acting in a suspicious way does not amount to a particularized and objective basis for suspecting him of criminal activity.”) (punctuation and footnote omitted).

        Williams v. State, 327 Ga. App. 239, 241 (758 SE2d 141) (2014) (citation omitted).

       Id. at 242 (citation omitted).

       Id. at 244 (citations and punctuation omitted; emphasis in original).

       See State v. Winnie, 242 Ga. App. 228, 230 (529 SE2d 215) (2000) (holding that reasonable suspicion was lacking where an officer saw a truck turn into the parking lot of a closed Salvation Army facility at 4:00 a.m. and then begin to drive away when the officer approached).

       (Emphasis in original.)

       See Dryer, supra at 735, 737 (1) (holding that a second-tier encounter occurred where an officer in a patrol car approached a car in the parking lot of a country club that had been closed for at least two hours, the car began to exit the lot, and the officer activated his patrol lights).

       261 Ga. App. 868, 870-871 (584 SE2d 9) (2003). See also Prather v. State, 279 Ga. App. 873, 876-877 (2) (633 SE2d 46) (2006) (where the defendant fled by vehicle and then on foot after an officer approached the defendant’s vehicle in a parking lot, activated his blue lights, and instructed him to put his hands on the steering wheel).

       Id.

       See Williams, supra at 241-242.

       See Smith v. State, 245 Ga. App. 613, 615 (538 SE2d 517) (2000) (stop was not justified where suspect was merely parked after midnight in a general area of reported burglaries and pulled away quickly as an officer drove toward his car).

       See Dryer, supra at 739 (2) (“[TJhere is no evidence in the record indicating that the officer specifically believed that Dryer was trespassing, but only generally that he did not think there was any reason for Dryer to be there.”).


author: MILLER, Presiding Judge.

text:
    A16A0937.
    BYROM v. DOUGLAS HOSPITAL, INC.
    (792 SE2d 404)
   MILLER, Presiding Judge.

Carolyn Byrom sued Douglas Hospital, Inc. (“Douglas Hospital”) for negligence, attorney fees, and punitive damages after she sustained injuries in a fall while exiting a wheelchair provided by the hospital. The trial court granted summary judgment to Douglas Hospital, finding that (1) Byrom had asserted professional negligence claims without the required expert affidavit and (2) Byrom had equal or superior knowledge of the risk she faced exiting the wheelchair. Byrom appeals, arguing that she raised ordinary negligence claims against Douglas Hospital. For the following reasons, we find that the trial court erred, and we reverse and remand for proceedings consistent with this opinion.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.

(Citation omitted.) Agnes Scott College v. Clark, 273 Ga. App. 619, 620 (616 SE2d 468) (2005).

So viewed, the record shows that Byrom went to Douglas Hospital on April 16, 2013, for pre-operative testing for a procedure scheduled for the next day. Byrom walked slowly and used a cane to support her knees. After taking Byrom’s vitals, a nurse offered to obtain a wheelchair to transport Byrom to the exam room. While Byrom was seated in the wheelchair, she rested her feet on the foot pedals, which were down. A nurse pushed Byrom in the wheelchair, and when they arrived in the exam room Byrom exited the wheelchair independently When Byrom stood up and sat down for the testing, the foot pedals were not raised up.

As the nurse was pushing Byrom back to the waiting room, they encountered a doorway that was not wide enough to fit the wheelchair. The nurse asked Byrom if she thought she could make it to the waiting room on her own, and Byrom told her that she believed she could. The nurse, however, did not come around to assist Byrom in getting out of the wheelchair. Instead, Byrom held her cane in one hand and used her other hand to push up from the arm of the wheelchair. Byrom knew as she stood up that the foot pedals were still down. As Byrom stepped, her right pant leg caught on the wheelchair’s foot pedal and she fell. As a result of this fall, Byrom broke her leg, required surgery, and subsequently stayed in a rehabilitation facility for three months.

Byrom filed suit, alleging that Douglas Hospital was negligent in failing to safely transport her, in failing to maintain a procedure for safely transporting individuals in wheelchairs, and in the hiring, supervision, and training of its employees. Byrom also sought to hold Douglas Hospital vicariously liable for the negligence of its employees and to recover attorney fees and punitive damages.

During discovery, Douglas Hospital acknowledged that patients are at risk of injury when exiting a wheelchair if it is not done safely The hospital also admitted that its employees should follow manufacturer’s instructions and guidelines with regard to the operation of wheelchairs, though Douglas Hospital did not have any specific written policies, procedures, or training programs in place with regard to the safe use of wheelchairs. The instruction on the wheelchair itself stated that the patient should exit the wheelchair by lifting the arm and exiting on the side of the wheelchair, and Douglas Hospital admitted that its employees should have ensured that patients exited wheelchairs in this manner.

At the conclusion of discovery, Douglas Hospital moved for summary judgment on Byrom’s complaint on two grounds, which are at issue in this appeal. First, Douglas Hospital argued that Byrom raised professional negligence claims that required her to file an expert affidavit pursuant to OCGA § 9-11-9.1. Second, the hospital argued that, even if Byrom’s claims were for ordinary negligence, she could not recover pursuant to OCGA § 51-3-1, the statute that creates a duty for owner/occupiers of property, because Byrom had equal or superior knowledge of the risk the wheelchair foot pedals posed on account other prior successful exit from the wheelchair with the foot pedals down. The trial court granted summary judgment to Douglas Hospital on these grounds, and Byrom appeals.

1. Byrom argues that she raised ordinary negligence claims, as opposed to claims for professional negligence, and therefore she was not required by OCGA § 9-11-9.1 to file an expert affidavit with her complaint. We agree.

A plaintiff who asserts a claim for medical malpractice against a hospital is required to file an expert affidavit along with her complaint setting forth at least one negligent act or omission and the factual basis for the claim. OCGA § 9-11-9.1. The fact that a patient’s injury occurs in a hospital setting or calls into question the actions of a medical professional, however, does not in and of itself mean her claim is for medical malpractice. Brown v. Tift County Hosp. Auth., 280 Ga. App. 847, 849 (635 SE2d 184) (2006). Rather, courts “must look to the substance of an action against a [hospital] in determining whether the action is one for professional or simple negligence.” (Citation and punctuation omitted.) Id.

The determination of whether a claim is one for medical negligence and therefore whether it requires expert support at filing is determined on the basis of whether the act or omission was made regarding a medical question. Medical questions have been defined as those concerning highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence. In cases involving a person’s fall while in the care of medical professionals, it can be difficult to distinguish professional negligence from ordinary negligence. This distinction is a question of law for the court.

(Citations, punctuation and footnotes omitted.) Kerr v. OB/GYN Assoc. of Savannah, 314 Ga. App. 40, 41 (1) (723 SE2d 302) (2012).

Where the professional’s alleged negligence requires the exercise of professional skill and judgment to comply with a standard of conduct within the professional’s area of expertise, the action states professional negligence. But where the allegations of negligence do not involve professional skill and judgment, the action states ordinary negligence.

(Citations omitted.) Bardo v. Liss, 273 Ga.App. 103, 104(1) (614 SE2d 101) (2005).

Here, the record does not show that only a person with medical training could transport Byrom in the wheelchair or that transporting her involved the exercise of medical judgment. See Strickland v. Hosp. Auth. of Albany/Dougherty County, 241 Ga. App. 1, 3 (1) (a) (525 SE2d 724) (1999). Indeed, individuals with no medical training whatsoever often push others around in wheelchairs and assist them in exiting the wheelchairs.

Further, Byrom’s claims arise from her allegation that the Douglas Hospital nurse failed to follow the manufacturer’s instructions for exiting from the wheelchair — instructions which Douglas Hospital admits should have been followed. Use of equipment that is inconsistent with the manufacturer’s instructions, without more, does not constitute a medical malpractice claim. Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (1) (413 SE2d 720) (1992) (claim arising from hospital’s use of wrong replacement parts in piece of medical equipment did not assert medical malpractice claim); see also Sood v. Smeigh, 259 Ga. App. 490, 494 (1) (578 SE2d 158) (2003) (assembly of prosthetic patella backward constituted ordinary negligence and did not require submission of an expert affidavit) (physical precedent only). Moreover, the fact that a nurse with medical experience provided the wheelchair for Byrom and pushed her around the hospital in it does not make this a medical malpractice claim because these acts did not require the nurse to exercise her medical judgment. Dent v. Mem. Hosp. of Adel, 270 Ga. 316, 318 (509 SE2d 908) (1998). Certainly, in this case, no expert is necessary to help a jury understand the instructions on the wheelchair handles that constituted the manufacturer’s guidelines for safe use of the wheelchair. Thus, Byrom’s claims are not for medical malpractice. Accordingly, the trial court erred in granting summary judgment to Douglas Hospital based on a failure to file an expert affidavit.

2. Byrom also argues the trial court erred in finding that she had equal or superior knowledge of the risk posed by the wheelchair’s foot pedals. For the reasons that follow, we conclude that the trial court erred in applying the equal or superior knowledge analysis to Byrom’s claims and, therefore, erred in granting summary judgment to Douglas Hospital.

Just as not all claims against a hospital constitute medical malpractice, not all claims which arise from an injury sustained inside a building constitute premises liability, regardless of how the claim is argued by the parties. Georgia law distinguishes between negligence cases where a condition on the premises causes injury to someone and those where an employee’s active negligence causes injury to someone. Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (1994). Liability is determined under the framework of premises liability only if an injury is caused by a condition of the premises over which the premises owner/occupier has some degree of control, such as a static condition or passive defect. Id. If an injury is caused by the active negligence of an owner/occupier’s employee, however, ordinary negligence principles apply. Id. Simply stated, the duty concerning a condition of the premises is distinct from a breach of duty that constitutes active negligence. Id.; see also Card v. Dublin Constr. Co., 337 Ga. App. 804, 806 (2) (788 SE2d 845) (2016) (physical precedent only). This case presents a question of active negligence.

Claims of active negligence require the same proof as other simple negligence claims:

(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff[.]

(Citation omitted.) Phillips v. South West Mechanical Contractors, 254 Ga. App. 144, 145 (1) (561 SE2d 471) (2002). Consequently, the inquiry is whether Douglas Hospital’s nurse, and the hospital, could reasonably foresee that the nurse’s actions or inactions would cause injury to Byrom. See Lipham, supra, 263 Ga. at 865; Card, supra, 337 Ga. App. at 806 (2). Moreover, questions of negligence and the exercise of ordinary care are issues for jury resolution except in plain and palpable cases. Warren v. Cox, 168 Ga. App. 818-819 (1) (310 SE2d 569) (1983).

Although Byrom cites to OCGA § 51-3-1, the statute setting out liability for property owners, the factual bases that she identifies for her claims do not sound in premises liability. Specifically, Byrom’s complaint faults Douglas Hospital for failure to safely transport her, failure to maintain a policy, procedure, or system for safely transporting patients in wheelchairs, and negligently supervising, hiring, training, and retaining employees. Byrom also seeks to hold Douglas Hospital vicariously liable for the active negligence of its employees. Notably, Byrom identifies the “central negligent act” to be the nurse’s failure to raise the foot pedals of the wheelchair or otherwise assist her in exiting the wheelchair. Indeed, Byrom’s allegations do not implicate any condition of the premises itself, aside from the mere fact that the wheelchair was located inside the hospital at the time of her fall.

Decided October 4, 2016

Donald W. Singleton; Fried Rogers Goldberg, Michael L. Goldberg, for appellant.

Downey & Cleveland, W. Curtis Anderson, Savannah L. Bray, for appellee.

At the inexplicable urging of the parties, and even though Byrom’s claims were primarily pled as ones for active negligence, the trial court analyzed this case as if it involved a static defect in the condition of the hospital premises. In so doing, it found that Byrom’s prior successful exit from the wheelchair demonstrated that she had equal knowledge of the risk posed by the wheelchair’s foot pedals such that her recovery was barred. Because nothing about Byrom’s claim implicates a condition of the hospital premises, we find cases applying the framework of a premises liability analysis inapposite to the present case. See Lipham, supra, 263 Ga. at 865. Consequently, we reverse the grant of summary judgment to Douglas Hospital on Byrom’s claims and remand for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

McFadden and McMil-lian, JJ., concur.

       Douglas Hospital also moved for summary judgment on the ground that it was entitled to a setoff against any recovery Byrom may obtain for sums not charged for her care or sums which the hospital paid to third-party care providers. The trial court did not address this argument, and where the trial court has not ruled on an issue, we will not address it. CDP Event Svcs. v. Atcheson, 289 Ga. App. 183, 187 (2) (656 SE2d 537) (2008).

       Further, we are bound by the substance, not nomenclature, of claims, and we should construe pleadings to bring about substantial justice. Cotton v. Fed. Land Bank of Columbia, 246 Ga. 188, 191 (269 SE2d 422) (1980); Dudley v. Wachovia Bank, 290 Ga. App. 220, 224-225 (2) (659 SE2d 658) (2008).

       We note that in light of the trial court’s grant of summary judgment to Douglas Hospital, it did not address Byrom’s claims for attorney fees and punitive damages.


author: MERCIER, Judge.

text:
    A16A1004.
    ROWAN v. THE STATE.
    (792 SE2d 400)
   MERCIER, Judge.

Following the denial of his motion for new trial, Richard Dean Rowan appeals his conviction in the Superior Court of Jackson County for forgery in the first degree and the judgment and sentence entered thereon. The accusation in this case (based on the version of OCGA § 16-9-1 in effect in February 2010) alleged that Rowan “did knowingly, with intent to defraud, possess a certain writing to wit: a Contractor License Application, in such a manner that the writing as made purports to have been made by Vernon Luken, who did not give such authority, and did utter said writing.” He contends on appeal that the evidence at trial was insufficient to prove his guilt beyond a reasonable doubt and that the State failed to prove venue beyond a reasonable doubt. For the reasons that follow, we affirm.

1. Rowan contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt, specifically because there was no evidence that he intended to defraud anyone and no evidence that he knew or should have known that the signature on the application was not Luken’s. We disagree.

As a threshold matter, we address the State’s suggestion that because Rowan did not argue this issue before the trial court in connection with his motion for new trial, it is not properly before this Court. “The entry of judgment on a verdict by the trial court constitutes an adjudication by the trial court as to the sufficiency of the evidence to sustain the verdict, affording a basis for review on appeal without further ruling by the trial court.” OCGA § 5-6-36 (a). “On appeal, a party shall not be limited to the grounds urged in the motion [for new trial] or any amendment thereof.” OCGA § 5-5-40 (g). Issues regarding sufficiency of the evidence to support Rowan’s conviction were therefore preserved for review by the trial court’s entry of a judgment of conviction in this case, and it is proper for us to address this enumeration of error. Thomas v. State, 322 Ga. App. 734 (1) (746 SE2d 216) (2013).

When examining the sufficiency of the evidence to support a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and do not weigh the evidence or determine witness credibility; we determine whether a rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of the charged offense. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). “Although the intent of the accused to defraud has been characterized as the essence of the crime of forgery and must be established by proof beyond a reasonable doubt, both intent to defraud and knowledge may be proven by direct and/or circumstantial evidence.” Johnson v. State, 211 Ga. App. 151, 152 (438 SE2d 657) (1993) (citations omitted). “Knowingly passing as genuine a forged instrument is evidence of the intent to defraud.” Heard v. State, 181 Ga. App. 803 (1) (354 SE2d 11) (1987) (citations omitted).

The evidence at trial, viewed in the light most favorable to the guilty verdict, showed the following. Rowan and Luken were partners in a fire sprinkler company. Luken was a certified fire protection engineer, and his credentials enabled him to obtain licenses to conduct business in several states; when he and Rowan formed a partnership business, Southern States Sprinkler Company (“SSSC”), Luken transferred his licenses to the business. Rowan had management and installation experience. SSSC was dissolved in November 2010.

Rowan and Luken never discussed becoming licensed to conduct business in Maryland. However, “towards the end of [their] business relationship,” and after being told by third parties that SSSC was doing work in states where he normally did not conduct business, Luken discovered that SSSC had been licensed in Maryland based on a license application that had been submitted to that state purportedly bearing his signature. Luken had never given Rowan permission to sign his name, and Luken had not signed the application. Luken discovered that a vehicle owned by SSSC was involved in a traffic accident in Maryland, and also discovered other irregularities in the business that “didn’t seem right.”

Luken filed a report in Georgia with the Jackson County Sheriff’s Office alleging that Rowan had forged documents in order to profit outside of the business, and the Sheriff’s Office conducted an investigation. When questioned, Rowan at first told the investigator that he had signed the Maryland license application with Luken’s permission, and that in the routine course of business, Rowan and Luken signed each others’ names; Rowan later said that Luken had signed the application himself. Rowan submitted to the investigator e-mails between himself and Luken which appeared to discuss the status of the Maryland license, as proof that Luken knew about the application. However, the investigator determined that the content and the dates of the messages had been altered, and Luken identified the e-mails as being from a chain of communication between himself and Rowan regarding a South Carolina license. The state abbreviation “SC” (South Carolina) had been replaced by the state abbreviation “MD” (Maryland) in the e-mails before they were submitted to the investigator.

The evidence showed that on February 24, 2010, before submitting the application to the State of Maryland, Rowan took it to the home of his neighbor Rebecca Davis, a notary public. Davis testified that her home was located in Jackson County. Rowan presented the signed application to Davis and told her that Luken had signed it, and she notarized the signature. At trial Davis identified the Maryland license application that she notarized for Rowan, and identified her notary stamp on the application, which shows that she was a notary public in Jackson County, Georgia.

This evidence was sufficient to support Rowan’s conviction for forgery in the first degree. First, contrary to Rowan’s assertions, there is sufficient evidence that he knew that the signature on the Maryland license application was not Luken’s, including his conflicting stories to the investigator about the signature. Notably, the evidence also shows that Rowan attempted to demonstrate Luken’s knowledge of the application (and prove that Rowan did not sign the application without permission) by altering other documents (the e-mails) and presenting them to the investigator as genuine. Rowan essentially argues that the State did not prove that a third party had not signed the application and suggests that another person employed at SSSC could have signed Luken’s name; he also argues that the State offered no proof that Rowan sent, or directed the sending of, the application to Maryland. This argument is unavailing. “To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of defendant’s guilt.” Johnson, supra. Based on Rowan’s representations to the investigator and the falsified e-mails, a reasonable factfinder would be justified in excluding the hypothesis that another person signed the application without Luken’s knowledge.

There is also sufficient evidence from which a reasonable fact-finder could draw the inference that Rowan intended to defraud Luken, SSSC, or both. The testimony at trial sufficiently demonstrated that Rowan knowingly passed a forged document as genuine, which is evidence of the intent to defraud. Heard, supra. Additionally, however, there is evidence that Rowan pursued completion of the application without any prior conversation with Luken about licensing SSSC in Maryland and that Luken only incidentally learned that SSSC was doing business in Maryland from a source other than Rowan, his business partner. “An intent to defraud, coupled with the possession of an altered writing and delivery thereof, is sufficient to prove forgery in the first degree.” Tucker v. State, 283 Ga. App. 428, 430 (641 SE2d 653) (2007) (citation omitted). For the reasons discussed in Division 2 herein, there is sufficient evidence of the delivery of the application.

We conclude that there was sufficient evidence from which the jury could have found that Rowan acted with the intent to defraud, that he knew that the signature on the application was not Luken’s, and that the jury rationally could have found beyond a reasonable doubt that the evidence excluded every reasonable hypothesis except that of Rowan’s guilt. Johnson, supra.

2. Rowan also contends that the State failed to prove venue beyond a reasonable doubt. As the State points out, Rowan’s argument is slightly different, than this enumeration of error suggests. Rowan does not argue that the State failed to prove that his presentation of the application to Davis for notarization occurred in Jackson County; rather, he argues that the “act of requesting that a notary sign a document cannot meet the definition of uttering” and that the completed offense of forgery did not take place until the license application was submitted to the State of Maryland, precluding venue from lying in Jackson County. The question presented is, therefore, whether Rowan’s conduct in Jackson County satisfied the element of utterance under OCGA § 16-9-1. This is a question of law, which we review de novo. See Hobbs v. State, 334 Ga. App. 241, 245 (3) (779 SE2d 15) (2015).

Decided October 4, 2016.

Clark & Toume, Jessica R. Toume, for appellant.

J. Bradley Smith, District Attorney, Michael D. DeTardo, Assistant District Attorney, for appellee.

We agree with the trial court and the State that Rowan’s presentation of the forged application to the notary public constituted an utterance. It is well established that “[a] check may be uttered by offering directly or indirectly, by words or actions, such document as good,” and that “[a]n offer to pass a check to another person as a genuine instrument constitutes ‘uttering.’ ” Warren v. State, 309 Ga. App. 596, 597 (2) (711 SE2d 108) (2011) (citation and punctuation omitted); Hudson v. State, 188 Ga. App. 684, 689 (2) (374 SE2d 212) (1988). “To utter and publish a document is to offer directly or indirectly, by words or actions, such document as good.” Walker v. State, 127 Ga. 48, 49-50 (56 SE 113) (1906) (citation omitted) (applying previous version of forgery statute).

Here, Rowan presented to the notary public the license application with the signature purporting to be Luken’s, and in order to obtain her notarization of the signature, offered it to her directly and by his words as good when he told her that the signature was Luken’s. Warren, supra. Therefore, although we agree with Rowan that forgery in the first degree is not complete until a document is delivered, we disagree that the offense is not complete until it is used for a single, ultimate improper purpose. While delivering the application to Maryland in order to obtain the license would also be an utterance, this does not preclude the presentation of the document to another party in furtherance of an improper purpose from constituting an utterance as well. We find that when Rowan presented the signed document to the notary, offering it as good in order to elicit her notarization, he uttered the document. The trial court did not err in denying his motion for new trial on this basis, and the jury was authorized to find that the evidence was sufficient to establish venue beyond a reasonable doubt. Short, supra.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.