author: Bloodwokth, J.

text:
    16336.
    Hammond v. The State.
    Decided April 21, 1925.
    Indictment for vagrancy; from Clarke superior court—Judge Fortson. February 28, 1925.
    On January 8, 1925, under an indictment found at the January term, 1925, Asa Hammond was convicted of vagrancy. His motion for a new trial was overruled, and he excepted. At the trial a police officer of the'City of Athens testified: “I see the defendant practically every day at some hour from noon until night when I go in, on the streets, usually from the corner of College Avenue on up. . . I have seen him there every day that I have been there practically for the last year or two, though some days I would not get down there myself. I never saw him doing any work. I guess possibly for a year and a half he was engaged in a little store here. . . Since that time I have not seen him do any work. . . I think he is able to work, never having heard any complaints of his not being able to work. He is not crippled that I know of. . . When I saw him he was able to navigate. He rides in a.Cadillac. . . He lives . . and has lived . . for the last twoi years at Kate O’Dwyer’s, and the reputation of her house has been bad for the last forty years. . . I could not say what he was doing when I couldn’t see him. I don’t know whether he has any property or not. . . He has no income to my knowledge.” The witness testified, and it was admitted, that the tax-books of the State and county “do not show any returns of property for the defendant.” There was other testimony to the same effect. A policeman testified that the defendant was “on the streets all the time,” “was just a loafer, and citizens had been complaining about it all the time;” that he saw the defendant with women and hugging and kissing a woman in a house that had the reputation of being a gambling, liquor-storage, and assignation house, and saw him a number of times at a pool-room. The defendant introduced in evidence a business license issued to him by the City of Athens for a pressing club on College Avenue for the period from October 1, 1924, to January 1, 1925; and Grover Deadwyler testified: “The defendant owns a pressing club on College Avenue which I have a working interest in. . . ITe had this business before I went there. We make from $7.50 a week apiece to $15. We have not come under $7.50 nor over $15 apiece over and above expenses, the business being heavier some weeks than others. . . I went there in October, about the first. . . I have a negro there that does the pressing, and I look after getting the clothes in and out. Hammond gets new customers and sends them in.” The defendant introduced also a receipt dated “3/25, 1924,” for special city tax of the City of Athens for pressing club, four months. Others testified as to the defendant’s ownership of the pressing club, and as to paying him for pressing
   Bloodwokth, J.

This case is controlled by the rulings in Mooney v. State, 32 Ga. App. 448 (123 S. E. 734), and Baugh v. State, 32 Ga. App. 496 (123 S. E. 923), in each of which this court held that the evidence was not sufficient to support the verdict.

Judgment reversed.

Broyles, O. J., and Luhe, J., concur.

clothes, and it' was testified that he was in this business for about two years. The defendant; in his statement to the jury, said, -that he bought the pressing club and always made a living out of it, and was still running it.

Carlisle Cobb, for plaintiff in error,

cited: Ga. App. Rep.,: 1/519; 3/322; 4/392; 27/184.

Ilenry H. West, solicitor-general,

cited: 119 Ga. 429 (3); 118. Ga. 784; 126 Ga. 570.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    16340.
    Popham v. The State.
    Decided April 21, 1925.
    Indictment for possessing liquor; from Floyd superior court—' Judge Wright. February 28,' 1925.
    Popham was convicted under an indictment which charged him with having five pints of intoxicating liquor in his possession, custody, and control, in his garage, on October 4, 1924. It was testified, that at the time and place alleged five pints of liquor were found in the hood of “an old abandoned automobile,” but that the' defendant was not there;.that the garage was a public garage run' by the defendant, in a thickly settled neighborhood, and on “one. of the most used streets in the county,” and was always open and accessible to anybody; that when the liquor was found a boy' named Peed was there, who said he was staying there, and who' must have been sixteen or eighteen years old; and that nineteen, empty bottles and five gallon cans were also found there. A witness testified: “Those cans had had whisky in them; I would not say for sure, but I smelled of the funnel.” It was also testified that a short time before the officers discovered the liquor a man was seen carrying into the garage a package in a paper sack, and that the defendant was not there; that he had left there early in the morning or in the night preceding the afternoon in which the liquor was found. The defendant, in his statement at the trial, said that in the afternoon preceding the day mentioned by the witnesses he went to Alabama, leaving at the garage the boy named' Reed, and cautioned the boy not to allow anybody to be around there to create any disturbance; that he did not know the whisky was there, and knew nothing about it, and was forty miles away when it was found.
   Luke, J.

Tlie evidence in this ease did not authorize the conviction, and for this reason the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Bloodworih, J., concur.

Porter & Mebane, for plaintiff in error.

James P. Kelly, solicitor-general, M. Neil Andrews, contra.


text:
    15265.
    FLESHNAR & ADAR v. SOUTHERN RAILWAY COMPANY.
    Tn an interstate shipment such as was made in this ease, the initial carrier is liable if the goods are lost or injured, destroyed, or converted by a connecting carrier when acting as warehouseman under such facts as render a terminal carrier liable.
    Decided May 14, 1925.
    Certiorari; from Fulton superior' court—Judge Humphries. December 3, 1923.
    The Court of Appeals certified the following question: This was a suit by Fleshnar & Adar against the Southern Railway Company, to recover damages for the alleged loss of goods shipped by them. The case was tried upon the following agreed statement of facts:
    “On March 7, 1922, the plaintiff, a partnership, delivered to the Southern Railway Company, in Atlanta, Ga., a certain shipment "of shoes consigned to H. Rothenberg, New York City. ' Said shipment was refused by the consignee, and the'-consignors were not notified that the shipment had been refused until 'after the same' had been sold for charges. Fleshnar & Adar, the plaintiff, ’ have been in business in Atlanta, Ga., at the same address, to wit, 154 Decatur street, in said city, fór inore than 15 years. The defendant agreed to handle said shipment.' We agree that the items set out as bill of particulars in plaintiff’s suit are correct, and that the original or copy bills of lading, covering same, may be' admitted, and that correspondence between plaintiff and defendant, including copy of letters, may be admitted. The same are identified as copies of the originals. Title to the goods was in and remained in Fleshnar & Adar at all times. This shipment moved from Atlanta, Ga., on March 7, 1922, via Southern Kailway Company, and by said Southern Kailway Company was delivered to its agent, the Pennsylvania Railroad, consigned to H. Rothenberg, 221 Canal street, New York. The shipment arrived in New York on March 15, and consignee was notified that the goods were stored with Duvall & Company, 341 Spring street, New York, on March 27, 1922. On June 19, 1922, a notice was sent by the Southern Railway Company to the consignor, advising that the shipment arrived at the destination on March 15, and on March 20 was stored with Duvall & Company, where it remained unclaimed. In reply to this letter, the consignor on June 29, 1922, requested the Southern Railway Company to call back the shipment in' question. The notice of June 19, 1922, was the 'first notice which the consignor had of the failure of the consignee to accept said shipment, and this was after the goods had been sold by the Pennsylvania Railroad. The contract for the shipment was made between Fleshnar & Adar, the plaintiff, and the Southern Railway Company, the defendant.”
    The bill of lading under which the property was shipped contained the following provision: “Sec. 5. Property not removed by the party entitled to receive it within 48 hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only, or may be at the option of the carrier removed to and stored in a public or licensed rvarehouse at the cost of the oAvner, and there sold at the oAvner’s risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage.”
    Under these facts, was the initial carrier, the Southern Railway Company, liable for the negligence or conversion of its connecting carrier where the negligence or conversion occurred after the goods were stored in a warehouse?

      Bell & Bilis, George L. Bell Jr., for plaintiffs in error.
    IF. 0. Wilson, for defendant.
   Luke, J.

This case comes to this court upon exception to the ruling of the judge of the superior court on certiorari, setting aside a judgment of the municipal court of Atlanta, rendered in favor of the plaintiff, upon an agreed statement of facts. The controlling part of the judgment excepted to was as follows: “Negligence or conversion on the part of the connecting carrier, not as such, but merely as a warehouseman, should not, under this contract, be imputed to the initial carrier.” The Supreme Court in answer to a question certified by this court held as follows: “ Tn an interstate shipment such as indicated in the question propounded, the initial carrier is liable if the goods are lost or injured, destroyed, or converted by a connecting carrier when acting as warehouseman under such facts as render such terminal carrier liable.” 160 Ga. 205 (127 S. E. 768). Under this ruling the judge of the superior court erred in sustaining the certiorari and in setting aside the judgment of the municipal court of Atlanta.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


author: Bloodworth, J.

text:
    16353.
    Elliott v. The State.
    Decided April 21, 1925.
    Indictment for selling liquor ; from Catoosa superior court-judge Tarver. February 21, 1925.

      William E. & W. Gordon Mann, for plaintiff in error.

      G. G. Pittman, solicitor-general, contra.
   Bloodworth, J.

1. When considered in connection with the remainder of the instructions given to the jury and the explanatory note of the trial judge, there is no merit in either of the grounds of the motion for a new trial based on alleged errors in the charge.

2. The court did not err “in admitting the record of the bond forfeiture at the last term of court.” “Evidence that the appearance bond of the defendant had been forfeited was admissible as tending to show flight.” Jones v. State, 26 Ga. App. 635 (3), 636 (3) (107 S. E. 166).

3. There is some evidence to support the verdict, which was approved by the trial judge; and, no error of law having been committed, this court is powerless to interfere.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    16402.
    RAWLINGS v. THE STATE.
    A motion for change of venue, though sworn to, is not evidence on the trial of the issues raised by the motion, unless it is formally introduced in evidence.

      Denial of the motion for change of venue was not error, under the, ev'i-' dence in this case.
    Decided April 21, 1925.
    Application for change of venue; from Johnson superior court—. Judge Camp. March 30, 1925.
    Application for certiorari was denied by the Supreme Court.

      Hardwick & Adams, C. 8. Claxbon, Evans & Evans, Wright cC McMillan, for plaintiff in error.

      Fred Kea, solicitor-general, E. L. Stephens, J. L. Kent, lb. 0.. Brinson, J. J. Harris, contra.
   Bloodworth, J.

1. Where a motion for a change of venue is made, the motion, though sworn to, is not evidence upon the trial of the issues made by the motion, unless it is formally introduced in evidence.

2'. “ ‘Where an application is made by one accused of crime, for a change of venue on the ground that an impartial jury can not lie obtained, the law devolves on the trial judge the duty and responsibility of making an examination and informing himself of the truth of the averments in the application; and where after hearing evidence the trial court is satisfied that a fair and impartial jury may be had in the county where the crime is alleged to have been committed, this court will not reverse his judgment refusing to change the venue, unless it is made to appear that there has been an abuse of discretion.’ Coleman v. State, 141 Ga. 737 (2 S. E. 227); Best v. State, 26 Ga. App. 671 (1) (107 S. E. 266).” Wilson v. State, 28 Ga. App. 574 (112 S. E. 295).

3. “ ‘While it is mandatory upon the judge to whom a petition for.a change of venue is presented in behalf of a defendant in a criminal case, under the, act approved August 21, 1911 (Acts of 1911, p. 76), to change the venue if the evidence submitted should reasonably show that there is a “probability or danger of lynching or other violence,” it is primarily a question for the judge upon the hearing of such petition to determine from the evidence whether or not such probability or danger of lynching or other violence exists; and where the evidence upon such issue conflicts, the judgment denying the defendant’s motion to change the venue will not be reversed, unless manifestly erroneous. Where evidence fails to reasonably show the probability or danger of lynching or other, violence, it is not error on the part of the judge to refuse to change the Tenue.’ Broxton v. State, 24 Ga. App. 31 (1) (99 S. E. 635 ), and cases cited.” Wilson v. State, supra.

4. The rulings quoted in paragraphs 2 and 3 above are firmly established as the law of this State, the former applicable where the motion to change the venue is based on the ground that an impartial jury can not be obtained, and the latter where the motion is based on the probability or danger of lynching or other violence; and both are applicable to the ease we are now considering. In the instant case the accused was indicted in Johnson county for murder, and moved for a change of venue on the grounds that he could not obtain an impartial jury in that county, and that there was “danger of violence being attempted to be committed on this movant if he is required to remain in the county of Johnson or to be tried in said county.” Upon the hearing of the motion the undisputed evidence showed that there was no danger of any violence being attempted upon the movant. As to the other ground of the motion, while there was some conflict in the evidence presented, the preponderance thereof was to the effect that the movant could obtain a fair and impartial trial in Johnson county. Fifteen witnesses for the State unqualifiedly so testified. Indeed some of the six witnesses for the movant testified that in their opinion such a jury could be obtained. It follows that the trial judge did not err in denying the motion. In addition to authorities cited above, see Coggeshall v. State, 33 Ga. App. 613 (126 S. E. 568).

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


author: Broyles, C. J.

text:
    16354.
    Rhodes v. The State.
   Broyles, C. J.

1. Tlie accused was on trial on the charge of manufacturing intoxicating liquors. Part of his statement to the jury was as follows: “Gentlemen of the jury, as for making liquor, I have never made a drop in my life, I don’t know a thing about the copper still, and they have never seen me there at one, and I will go further and say they never will, . . and as far as that is concerned I am not afraid of any officer in the State of Georgia coming in and saying that they saw me. at a still; that is one thing I don’t fool witti.” (Italics ours.) '

Held: (a) Under the ruling in Cowart v. State, 33 Ga. App. 122 (125 S. E. 770), this court can not hold, ns a matter of law,.'that' the judge erred in ruling that the accused, by his statement to the jury, had put in issue his general character as to making whisky, and in permitting the State thereafter to introduce evidence as to his general reputation in the community in which he lived for whisky making.

Decided May 14, 1925.

Indictment for making liquor; from Richmond superior court— Judge A. L. Franklin. March 6, 1935.

Application for certiorari was denied by the Supreme Court.

Pierce Brothers, Hammond & Kennedy, for plaintiff in error.

George Hains, solicitor-general, John M. Graham, contra.

(b) It was not error for the court to charge the jury upon the subject of good character.

2. The verdict was amply authorized by the evidence and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Dillard, Judge.

text:
    A14A1098.
    ALGREN v. THE STATE.
    (764 SE2d 611)
   Dillard, Judge.

Todd Algren was charged in one indictment with one count of statutory rape and was charged in a second indictment, pertaining to a separate victim, with two counts of child molestation. Following a joinder of the indictments and a consolidated trial, the jury found him guilty on the statutory-rape charge and not guilty on the child-molestation charges. Algren appeals his conviction and the denial of his motion for new trial, arguing that the trial court erred in joining the two indictments for trial, failing to charge the jury as to similar-transaction evidence, improperly charging the jury that a child under the age of 16 years cannot consent to sexual intercourse, and sentencing him for felony statutory rape. For the reasons set forth infra, we affirm Algren’s conviction.

Viewed in the light most favorable to the jury’s verdict, the record shows that S. H. and her older brother had lived with their aunt and uncle since 2005. In June 2008, S. H.’s aunt and uncle, who were both avid scuba divers, planned a diving vacation to the Florida Keys. Consequently, they registered then 14-year-old S. H. and her 16-year-old brother for scuba diving lessons with Algren, who was a certified diving instructor and operated a local dive shop. On the morning of June 29, having completed most of their certification requirements over the course of the previous week, S. H. and her brother met Algren at a coffee shop and then went to a nearby swimming pool for some additional training.

Some time around noon, S. H., her brother, and Algren returned to the dive shop to unload their gear and other equipment, and after doing so, S. H.’s brother offered to go pick up some fast-food for lunch. A few minutes after her brother left the shop, S. H. and Algren, who had been flirting with each other for a couple of days via text messages and phone calls, began kissing. They then went to a room at the back of the dive shop, at which point Algren removed S. H.’s shorts and her bathing suit and had sexual intercourse with her. Subsequently, S. H. and Algren put their clothes back on, and returned to the front part of the dive shop just as S. H.’s brother returned from picking up their lunch.

A few days thereafter, Algren called S. H. at her home to discuss scheduling a time for her to fulfill one of the swimming requirements that she had yet to meet. And during this conversation, S. H. and Algren continued flirting and discussed their sexual liaison. Algren also asked S. H. if she wanted to have sex again and inquired as to whether there was any chance she could be pregnant, given the fact that they did not use protection during their first encounter. But while S. H. and Algren were talking, S. H.’s uncle, who was suspicious that S. H. was dating a former classmate despite being forbidden to do so, quietly picked up another phone in the house, heard nearly the entire conversation, and realized that S. H. was speaking with Algren.

Not long after S. H. and Algren ended their phone call, S. H.’s aunt and uncle confronted her regarding the conversation that her uncle overheard. Initially, S. H. denied that anything inappropriate occurred, but she eventually admitted that she and Algren had sexual intercourse. That same day, S. H.’s aunt and uncle reported the incident to local law enforcement, who then scheduled a forensic interview for S. H. and began an investigation into S. H.’s allegation against Algren.

While the investigation of S. H.’s statutory-rape allegation was pending, Algren was living with his girlfriend and her two young children. And on April 29,2010, approximately a year and a half after S. H.’s allegation, K. R., the nine-year-old daughter of Algren’s girlfriend, informed a counselor at her elementary school that one night, during the summer of 2009, Algren came into her bedroom and touched her breasts and privates. The counselor contacted K. R.’s mother and reported the child’s outcry to DFCS and law enforcement, which then began a second investigation of Algren.

Subsequently, Algren was charged, via indictment, with one count of statutory rape, alleging that he engaged in sexual intercourse with S. H. And in a second indictment, he was charged with two counts of child molestation, alleging that he touched K. R.’s breasts and privates. Prior to trial, the State moved to join the two indictments and try all three charges simultaneously. Algren opposed joinder, but following a hearing on the issue, the trial court granted the State’s motion and joined the indictments for trial.

The case was then tried and concluded with the jury finding Algren guilty on the statutory-rape charge but not guilty on the two child-molestation charges. Following a sentencing hearing, the trial court imposed a sentence of twenty years upon Algren with ten years to serve in confinement. Subsequently, Algren obtained new counsel and filed a motion for new trial, which the trial court denied. This appeal follows.

1. Algren first contends that the trial court erred in joining the separate indictments for trial in the same proceeding. We disagree.

The Supreme Court of Georgia has held that if charges against a defendant are “joined solely because they are of the same or similar character, a defendant has an absolute right to sever.” This is so because of the “great risk of prejudice from a joint disposition of unrelated charges.” However, severance is not required where “the similarity of the offenses is coupled with evidence of a pattern which shows a common motive, plan, scheme, or bent of mind.” More precisely, offenses have not been joined solely because they are “of the same or similar character when the evidence of one offense can be admitted as similar transaction evidence during the trial of the other offense”; and “severance is not mandatory in such a case.” But this does not end a trial court’s inquiry because,

while the fact that evidence of one offense would be admissible in a trial of another offense is a relevant consideration in determining whether to sever, a trial court must still determine if severance of the offenses would promote a fair and intelligent determination of guilt or innocence as to each offense.

In doing so, the court should consider whether, “in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.” Finally, we review a trial court’s decision in this regard for an abuse of discretion.

In the case sub judice, Algren’s trial only involved one charge of statutory rape, which pertained to S. H.’s allegations, and two charges of child molestation, which pertained to K. R.’s allegations. And neither the facts surrounding the offenses, nor the evidence presented to prove such facts, was complicated. Consequently, Algren could not show that there was any danger that the jury would be confused or unable to distinguish the evidence and apply the law as to each offense. Indeed, the verdict itself, including Algren’s acquittal for the two child-molestation charges, shows that the jury fully understood the law and evidence.

Furthermore, all of the indicted offenses involved the same type of conduct, i.e., inappropriate sexual conduct with young girls over whom Algren wielded some level of authority, and they occurred within nearly one year of each other. Thus, even if the trial court had not joined the indictments, the allegations of child molestation would have been admissible in Algren’s statutory-rape trial as similar-transaction evidence. And as noted supra, when the evidence of one offense can be admitted as similar-transaction evidence during the trial of the other offense, “the decision of whether to sever the offenses for trial is within the discretion of the trial court.” Given these circumstances, we conclude that the trial court did not abuse its discretion in joining the separate indictments against Algren for trial.

2. Algren also contends that the trial court erred by failing to charge the jury on the law regarding similar-transaction evidence. Once again, we disagree.

Initially, it is important to note that Algren did not object to any portion of the trial court’s jury charges, and under OCGA § 17-8-58, “[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” The failure to so object precludes “appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects the substantial rights of the parties.” In such cases, as the Supreme Court of Georgia has explained, “the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.” Thus, because Algren failed to object whatsoever to the jury charges, our review is limited to consideration in this regard.

Here, Algren is correct that the trial court did not instruct the jury on the law regarding similar-transaction evidence. But this failure does not constitute error by the trial court because the State did not present any similar-transaction evidence against Algren. Indeed, as discussed at length supra, the State argued successfully in favor of joining the two indictments on the ground that the child-molestation charges would be admissible in the statutory-rape trial as similar-transaction evidence. Nevertheless, the simple fact is that once the trial court joined the indictments, Algren was actually tried (and acquitted) on the child-molestation charges. Put simply, evidence pertaining to those charges was part of the State’s case-in-chief, rather than evidence of similar transactions. And in trying Algren on those charges, the trial court properly instructed the jury that the State was required to prove those charges beyond a reasonable doubt.

It is, of course, well settled that a defendant is not “entitled to a jury charge on legal issues which are irrelevant, not tailored to the evidence or factually inapplicable.” And given that Algren was indicted and tried on the child-molestation charges, characterizing them as similar-transaction evidence in a jury charge would have been in error. Accordingly, the trial court did not commit plain error in refusing to charge the jury on the law regarding similar-transaction evidence.

3. Algren further contends that the trial court erred in charging the jury that a child under the age of 16 years cannot consent to sexual intercourse, arguing that, under OCGA § 24-4-412, evidence of the victim’s consent is relevant even in statutory-rape cases. Again, we disagree.

At the outset, we note that the fundamental rules of statutory construction require us to “construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” Put another way, when we consider the meaning of a statute, we must (1) “presume that the General Assembly meant what it said and said what it meant,” and (2) “read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.” As our Supreme Court recently explained,

[i]n our search for the meaning of a particular statutory provision, we look not only to the words of that provision, but we consider its legal context as well. After all, context is a primary determinant of meaning. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.

This is what we mean when we speak of discerning “the intent of the legislature,” as that “intent” is reflected in the relevant statutory text and its contextual backdrop.

Turning to the statute at issue, under the new Evidence Code, the revision of the Georgia Rape Shield Statute included only minimal changes and left the former version of the statute largely untouched. That being said, OCGA § 24-4-412 (b) of the Rape Shield Statute provides:

In any prosecution for rape in violation of Code Section 16-6-1; aggravated assault with the intent to rape in violation of Code Section 16-5-21; aggravated sodomy or sodomy in violation of Code Section 16-6-2; statutory rape in violation of Code Section 16-6-3; aggravated child molestation or child molestation in violation of Code Section 16-6-4; incest in violation of Code Section 16-6-22; sexual battery in violation of Code Section 16-6-22.1; or aggravated sexual battery in violation of Code Section 16-6-22.2, evidence relating to the past sexual behavior of the complaining witness may be introduced if the court, following the procedure described in subsection (c) of this Code section, finds that the past sexual behavior directly involved the participation of the accused and finds that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.

Ignoring the fact that in Georgia it is unquestionably a crime to have physical sexual contact with a person 15 years of age or younger, Algren argues that because OCGA § 24-4-412 (b) includes statutory rape as one of the prosecutions for which evidence of the victim’s past sexual behavior may be admissible to support a defendant’s belief that the victim consented to the sexual conduct at issue, the trial court, here, erred in charging the jury that “[a] child under the age of 16 cannot consent to sexual acts.” However, while Algren’s argument perhaps demonstrates that the drafters of OCGA § 24-4-412 (b) lacked an eye for detail, ultimately, it is neither clever nor particularly novel. Indeed, construing the former version of the statute, which as previously noted was only minimally changed in the new Evidence Code, this Court held that although evidence of a victim’s past sexual behavior may be admissible under exceptions to the statute relating to whether the victim consented, when the complaining victim has “no legal capacity to consent, the statutory exceptions do not apply.”

Moreover, under the plain language of OCGA § 24-4-412 (b), the only evidence of the victim’s past sexual behavior that is admissible to support a defendant’s belief that the victim consented to the sexual conduct at issue is past sexual behavior with the defendant. Thus, pursuant to Algren’s argument, evidence that S. H. consented would necessarily entail evidence that she and Algren engaged in prior sexual acts, to which she could not consent under current law. Suffice it to say, we flatly refuse to construe Georgia’s Rape Shield Statute in a manner that would necessarily imply that the General Assembly intended for that statute to supplant the clear dictates of our criminal code. Accordingly, the trial court did not plainly err in charging the jury that a child under the age of 16 years cannot consent to sexual intercourse.

4. Finally, Algren contends that the trial court erred in sentencing him for felony statutory rape, rather than the misdemeanor offense, given that the jury did not make a specific finding as to his or S. H.’s age. Once again, we disagree.

Under OCGA § 16-6-3 (a), “[a] person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.” The sentencing provision of OCGA § 16-6-3 is divided into felony and misdemeanor subsections. Subsection (b) provides:

Except as provided in subsection (c) of this Code section, a person convicted of the offense of statutory rape shall be punished by imprisonment for not less than one nor more than 20 years; provided, however, that if the person so convicted is 21 years of age or older, such person shall be punished by imprisonment for not less than ten nor more than 20 years. . . .

But under subsection (c), “[i]f the victim is at least 14 but less than 16 years of age and the person convicted of statutory rape is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor.”

Relying on Apprendi v. New Jersey, Algren argues, as previously noted, that because the jury did not make a specific finding as to his or S. H.’s age, he should have only been sentenced for misdemeanor statutory rape, pursuant to OCGA § 16-6-3 (c). In Apprendi, the Supreme Court of the United States held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” But importantly, the focus of Apprendi and its progeny is that “a jury must find those facts which increase the punishment for a crime; [those cases] do not suggest that the jury must find those mitigating facts which decrease the punishment for a crime.” And with regard to Georgia’s statutory-rape statute, this Court previously addressed this issue and held that the language in OCGA § 16-6-3 (c) establishes mitigating factors that decrease the felony punishment for the crime of statutory rape to misdemeanor punishment, and, thus, there is no constitutional requirement that their presence or absence be found by the jury.

Decided November 10, 2014

Reconsideration denied November 21, 2014

Banks & Stubbs, Rafe Banks III, for appellant.

Penny A. Penn, District Attorney, Ramsey R. Magaro, Assistant District Attorney, for appellee.

Here, the indictment charged Algren with “the offense of Statutory Rape (OCGA § 16-6-3)” in that Algren “being older than 21 years of age, did engage in sexual intercourse with [S. H.], a person under 16 years of age and not the spouse of the accused .. ..” Additionally, the undisputed evidence at trial proved that S. H. was 14 years old and that she was not Algren’s spouse at the time they engaged in sexual intercourse. Given these circumstances, the trial court was not required to sentence Algren for misdemeanor statutory rape, pursuant to OCGA § 16-6-3 (c). Accordingly, the trial court did not err in sentencing Algren for felony statutory rape.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

        Stewart v. State, 277 Ga. 138, 139 (587 SE2d 602) (2003) (emphasis supplied); accord Dingler v. State, 233 Ga. 462, 463-64 (211 SE2d 752) (1975).

        Stewart, 277 Ga. at 138 (punctuation omitted).

        Heck v. State, 313 Ga. App. 571, 574 (1) (722 SE2d 166) (2012) (punctuation omitted); accord Boatright v. State, 308 Ga. App. 266, 273 (707 SE2d 158) (2011).

        Heck, 313 Ga. App. at 574 (1); see Stewart, 277 Ga. at 139-40.

        Heck, 313 Ga. App. at 574 (1).

        Id. (punctuation omitted); accord Heard v. State, 287 Ga. 554, 559 (4) (697 SE2d 811) (2010).

        Heck, 313 Ga. App. at 574 (1) (punctuation omitted).

        Smith v. State, 249 Ga. App. 39, 40 (1) (547 SE2d 598) (2001) (“We review a trial court’s denial of a motion to sever the trial of separate charges for an abuse of discretion.”).

        See Heck, 313 Ga. App. at 575 (1).

        See id. (holding that the trial court was not required to sever charges against defendant given that the facts and evidence pertaining to the charges were not confusing for the jury).

        See Heard, 287 Ga. at 559 (4) (finding that verdict in which defendant was acquitted of some of the charges against him demonstrated that the jury understood the law and evidence, and, therefore, severance of the charges was not warranted).

        See Heck, 313 Ga. App. at 575 (1) (holding that trial court did not abuse its discretion in denying defendant’s motion to sever charges because, inter alia, child molestation charges in one indictment would have been admissible as similar transaction evidence in trial on similar child-molestation charges). We note that Algren was tried in June 2013, and, therefore, the new Evidence Code, which eliminated bent-of-mind and course-of-conduct exceptions to similar-transaction evidence, was applicable. See Ga. L. 2011, p. 99, § 101; OCGA § 24-4-404 (b). However, in criminal proceedings in which the defendant is accused of a sexual assault, the new Code includes a provision for the admission of certain prior sexual assaults or child-molestation offenses for bearing on any matters to which they are relevant. See OCGA §§ 24-4-413; 24-4-414.

        Heck, 313 Ga. App. at 575 (1); see Stewart, 277 Ga. at 140.

       OCGA § 17-8-58 (a).

       OCGA § 17-8-58 (b); see also Alvelo v. State, 290 Ga. 609, 614 (5) (724 SE2d 377) (2012); Wheeler v. State, 327 Ga. App. 313, 318 (3) (758 SE2d 840) (2014).

        Alvelo, 290 Ga. at 615 (5) (punctuation omitted); see also State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011); Wagner v. State, 311 Ga. App. 589, 594 (716 SE2d 633) (2011) (Blackwell, J., concurring specially).

        See OCGA § 17-8-58 (b); see also King v. State, 317 Ga. App. 834, 836-37 (1) (733 SE2d 21) (2012).

       We note in passing that, in contrast, a charge on similar-transaction evidence would have provided that “the State need only prove that the defendant committed the prior offense by a preponderance of the evidence.” Miller v. State, 325 Ga. App. 764, 767 (2) (a) (754 SE2d 804) (2014).

        Wicks v. State, 278 Ga. 550, 553 (5) (604 SE2d 768) (2004); accord Harris v. State, 324 Ga. App. 411, 415 (4) (b) (750 SE2d 721) (2013); Orr v. State, 283 Ga. App. 372, 373 (1) (641 SE2d 613) (2007).

        State v. Mussman, 289 Ga. 586, 588 (1) (713 SE2d 822) (2011) (punctuation omitted); see also Martinez v. State, 325 Ga. App. 267, 273 (750 SE2d 504) (2013) (“[A]s with any question of statutory interpretation, we necessarily begin our analysis with familiar and binding canons of construction. Indeed, in considering the meaning of a statute, our charge as an appellate court is to ‘presume that the General Assembly meant what it said and said what it meant.’ And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, and read the text ‘in its most natural and reasonable way, as an ordinary speaker of the English language would.’ In sum, where the language of a statute is plain and susceptible of only one natural and reasonable construction, ‘courts must construe the statute accordingly.’ ”) (citations and punctuation omitted).

        Fed. Dep. Ins. Corp. v. Loudermilk, 295 Ga. 579, 588 (2) (761 SE2d 332) (2014) (punctuation omitted); see also Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013).

        Loudermilk, 295 Ga. at 588 (2) (punctuation omitted); see also Deal, 294 Ga. at 172.

        Loudermilk, 295 Ga. at 588 (2) (punctuation omitted); see also May v. State, 295 Ga. 388, 391-392 (761 SE2d 38) (2014); Martinez, 325 Ga. App. at 273.

        Mussman, 289 Ga. at 588 (1) (punctuation omitted).

        See Loudermilk, 295 Ga. at 588 (2); see also May, 295 Ga. at 391-92; Martinez, 325 Ga. App. at 273.

        See Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 146 (2nd ed. 2014); see also former OCGA § 24-2-3 (2011).

        Chase v. State, 285 Ga. 693, 696 (2) (681 SE2d 116) (2009).

        Osborne v. State, 291 Ga.App. 711, 712(2) (662SE2d792) (2008); see also Barnes v. State, 244 Ga. 302, 306 (3) (260 SE2d 40) (1979) (holding that logic and plain meaning of the Rape Shield Act show that it should be equally applicable in a statutory-rape case but that the exceptions in the Act relating to consent and the accused’s prior participation would be inapplicable in such cases); Coker v. State, 164 Ga. App. 493, 494 (1) (297 SE2d 68) (1982) (holding that consent is irrelevant in cases of statutory rape, child molestation, and enticing a child for indecent purposes).

        See OCGA § 24-4-412 (b).

        See Mussman, 289 Ga. at 588 (1).

        530 U. S. 466 (120 SCt 2348, 147 LE2d 435) (2000).

        Id. at 490 (IV).

        Kolar v. State, 292 Ga. App. 623, 626 (2) (665 SE2d 719) (2008); see Apprendi, 530 U. S. at 491-94 (V) (holding that hate-crime statute, which allowed judge to make factual determination based on preponderance of evidence, and would increase maximum sentence of defendant, violated due process requiring such determinations to be made by a jury on the basis of proof beyond a reasonable doubt); see also Blakely v. Washington, 542 U. S. 296, 303-04 (II) (124 SCt 2531, 159 LE2d 403) (2004) (holding that a finding of “deliberate cruelty,” which increases statutory maximum for offense of kidnapping, must be found by jury); Ring v. Arizona, 536 U. S. 584, 609 (II) (122 SCt 2428, 153 LE2d 556) (2002) (holding that the jury, not the judge, must find the aggravating circumstances necessary for imposition of the death penalty).

        See Kolar, 292 Ga. App. at 629 (2) (holding that the factors set forth in the provision of child-molestation and statutory-rape statutes were mitigating factors that decreased felony punishment for crime to misdemeanor punishment, rather than defining factors that characterized baseline crime as a misdemeanor, which could be increased to a felony only if the State showed that such factors were absent).

        See Rodriguez v. State, 306 Ga. App. 169, 171 (2) (702 SE2d 10) (2010) (holding that because the indictment adequately set forth a charge of felony statutory rape and because evidence proved charge as indicted, the trial court was not required to sentence defendant for misdemeanor statutory rape); Attaway v. State, 284 Ga. App. 855, 856-57 (2) (644 SE2d 919) (2007) (same); Orr, 283 Ga. App. at 373 (2) (holding that trial court was not compelled, under the rule of lenity, to impose misdemeanor statutory rape penalty even though indictment made no mention of defendant’s age).


author: Boggs, Judge.

text:
    A14A0805.
    JACKSON COUNTY v. UPPER OCONEE BASIN WATER AUTHORITY.
    (766 SE2d 488)
   Boggs, Judge.

This is the second appearance of this case before this court. In our previous opinion, we affirmed the denial of the Upper Oconee Basin Water Authority’s (“the Authority’s”) motion to dismiss multiple claims filed by Jackson County (“the County”). Upper Oconee Basin Water Auth. v. Jackson County, 305 Ga. App. 409 (699 SE2d 605) (2010) (“Oconee Basin /”). In this case, the County appeals from the trial court’s grant of the Authority’s motion for summary judgment and the denial of its cross-motion for summary judgment. For the following reasons, we affirm.

It is well established that

[o]n appeal from a grant or denial of summary judgment, we conduct a de novo review of the law and evidence. In applying this standard of review, we view 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 is entitled to judgment as a matter of law.

(Citation and punctuation omitted.) BAC Home Loans Servicing v. Wedereit, 328 Ga. App. 566 (759 SE2d 867) (2014); see also OCGA § 9-11-56 (c).

1. The relevant facts here are provided in this court’s prior opinion:

Pursuant to the Upper Oconee Basin Water Authority Act, the Authority was created in 1994 for the purpose of
acquiring and developing adequate sources of water supply, including but not limited to the construction of reservoirs; the treatment of such water, and thereafter the transmission of such water within the Upper Oconee Basin area, and to various counties, municipalities, and public authorities located therein; and the collection and treatment of waste water from the counties, municipalities, and public authorities within the . . . area.
Ga. L. 1994, pp. 5123, 5125, § 4. Athens-Clarke, Barrow, Jackson and Oconee Counties comprise the “Member Counties” under the Act. Ga. L. 1994, p. 5126, § 5 (a) (6).
In 1996, the Authority and the Member Counties entered into a 50-year Intergovernmental Reservoir and Raw Water Supply Agreement (“Agreement”) to further the purposes of the Act to construct reservoirs and treat and transmit that water to the Member Counties. Pursuant to the Agreement, the Authority was to plan, build and manage the Bear Creek Reservoir, which would serve as a source of water to the Member Counties.
As is pertinent here, Article II of the Agreement states:
The Authority shall provide or cause to be provided and each Member County may take from the Authority its Entitlement Share of the Water Supply pursuant to Section 306. The Authority will be responsible for planning, negotiating, designing, financing, acquiring or constructing, contracting for, administering, operating, and maintaining the Project as necessary to effect the delivery and sale of such Water Supply to each Member County.
Section 102 (k) of the Agreement expressly assigns “Entitlement Shares” to each Member County, f[] and Section 301 of the Agreement obligates the Authority to “cause to be delivered or make available for delivery to the Member Counties during each month of each Water Supply Year its Entitlement Share. . . .” Section 306 further specifies how much water each Member County is allowed to withdraw. Pursuant to that section, “the maximum quantity that may be withdrawn by any Member County .. . shall be limited to a quantity equal to the EPD[] approved Established Yield of the Project multiplied by the Member County’s Entitlement Share of the Project.” “EPD approved Established Yield” is not defined in the Agreement, but subsection (a) (1) of Section 306 defines “Established Yield” to mean “the maximum rate of withdrawal which can be sustained during critical dry periods as established by a mathematical simulation of the reservoir operation as it would have occurred during the worst historic drought for which applicable stream-flow records are available.”

Oconee Basin I, supra, 305 Ga.App. at 409-411 (1). InNovember 1996, four months after the parties entered into the Agreement, an engineer retained by the Authority submitted a hydrology report to the EPD in which he concluded that the peak monthly yield of the reservoir was 58.3 MGD (million gallons per day) using the “most critical drought period of 1986-1989.”

Upon completion of the construction of the reservoir in April 2002, the EPD concurred with the conclusions presented in the hydrology report and granted the Authority’s request for a surface water withdrawal permit not to exceed 58 MGD. The permit noted that the County was to receive a 25% entitlement share of the 58 MGD monthly average. A permit pursuant to the same conditions was issued in 2007, with an expiration date of April 2022.

In 2008, the County requested that the Authority hire an independent third party to recalculate the Established Yield____[T]he County contended that the Authority should recalculate the Established Yield to incorporate the stream-flow records for the year 2007 because those records reflect the “worst historic drought for which applicable stream flow records are available.” The County contended that recalculations based on those records would... result in a reduction of the Established Yield.

Oconee Basin I, supra, 305 Ga. App. at 411 (1).

When the Authority denied the County’s request to recalculate the Established Yield, the County filed an action asserting breach of the Agreement by the Authority’s failure to comply with its terms. The parties later filed cross-motions for summary judgment. Following a hearing, the trial court granted the Authority’s motion for summary judgment and denied the County’s motion, finding that the Agreement did not require a recalculation of the Established Yield based upon a future drought, the EPD approved Established Yield governs the quantity of water which the Authority must make available to the County, and that “[i]t would have been illogical for the parties to have incurred the expense to construct the treatment plant had they contemplated that the yield of the Reservoir could be permanently and drastically reduced based upon one future weather event.” We agree with the trial court’s result here, but affirm based only upon the plain language of the Agreement.

2. The County complains of the trial court’s ruling on the cross-motions for summary judgment, arguing that the court erred in finding that the Agreement does not require the Established Yield to be recalculated using the streamñow data for the new worst historic drought of 2007-2008.

To begin with, we note that the construction of a contract is a question of law for the court. And the construction of a contract involves three steps. The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning. Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. Indeed, the cardinal rule of contract construction is to ascertain the intention of the parties.

(Citation, punctuation and footnotes omitted.) Bd. of Commrs. of Crisp County v. City Commrs. of the City of Cordele, 315 Ga. App. 696, 699 (727 SE2d 524) (2012).

In its complaint, the County alleged that the Authority breached the Agreement by failing to “properly calculate and recalculate the Established Yield as required in Section 306 (a).” It is well settled that “the terms and phrases contained in a contract must be given their ordinary meaning.” (Citation and punctuation omitted.) Unified Govt. of Athens-Clarke County v. McCrary, 280 Ga. 901, 903 (635 SE2d 150) (2006).

It is equally well settled that no construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation. In such an instance, the language used must be afforded its literal meaning and plain ordinary words given their usual significance, and this rule applies equally as well to insurance contracts as to any other contract.

(Citation and punctuation omitted.) Id.

The County contends that the Agreement does not tie the Established Yield to the EPD permitted amount, but to the Established Yield as that term is defined in the Agreement, and that the Authority is required to recalculate the Established Yield based upon the new worst historic drought of 2007-2008. But the Agreement does not require the Authority to make such calculation; rather, it states the meaning of the term “Established Yield,” and defines this term as the product of a mathematical simulation under certain conditions. The Agreement does not name the party that is responsible for conducting that simulation, nor does it provide when the simulation is to be conducted. Simply put, it only defines the meaning of “Established Yield.” Moreover, the Agreement does not obligate the Authority to provide the County with an “Established Yield.” Rather, the Authority’s obligation pursuant to the Agreement is to allow the County to withdraw a maximum quantity of water equal to the “EPD approved Established Yield” (emphasis supplied), and it is undisputed that the Authority made this amount available. No evidence in the record shows a different “EPD approved Established Yield,” and the Agreement does not include a provision requiring the Authority to conduct multiple simulations based upon changing data.

The County argues that Section 306 (b) of the agreement shows that the parties intended that the Established Yield could be reduced based on future events. That section provides:

Each Member County shall pay its Entitlement Share of Annual Project Costs set forth in the monthly Billing Statements submitted by the Authority to each Member County in accordance with the provisions of Section 305, hereof, whether or not the Project or any part thereof has been completed, is operating or operable or its output is suspended, interrupted, interfered with, reduced or curtailed or terminated in whole or in part, and such payments shall not be subject to reduction whether by offset or otherwise and shall be conditional upon the performance or nonperformance by any party of any agreement for any cause whatever.

But this section speaks to only the payment obligations of the Member Counties whether or not the “Project or any part thereof has been completed.” While the term “Project” is defined by Section 102 (n) of the Agreement to include the “sale of water to wholesale users which are the Member Counties for the purpose of resale,” it does not include and makes no reference to Established Yield or the calculation thereof. This provision simply does not show that the parties intended that the Established Yield be reduced based upon future events.

Decided November 21, 2014

Balch & Bingham, Michael J. Bowers, James L. Hollis, for appellant.

Gregory M. Perry, Atkinson Ferguson, Kirby G. Atkinson, Charles M. Ferguson, Jr., Paul E. Nystrom III, for appellee.

Because the Authority could not be in breach of an obligation to recalculate the Established Yield when such an obligation does not exist under the plain language of the Agreement, the trial court did not err in concluding that “the Authority is entitled to summary judgment on [the] County’s claims since its refusal to recalculate or reduce the yield of the Reservoir as demanded by Jackson County did not breach the [Agreement].”

3. The County argues further that the trial court erred in “finding that 58 MGD is the only yield approved by the EPD” because “any rate of withdrawal below the EPD maximum permitted levels are EPD approved.” The County is correct that the trial court stated in its order: “it is undisputed that the ‘EPD approved Established Yield’ of the Reservoir is 58 MGD, the only yield actually reviewed and approved by the EPD.” But the court also correctly stated that the withdrawal was “not to exceed a monthly average of 58 MGD,” that the “ ‘EPD approved Established Yield’. . . governs the quantity of water which the Authority must make available to its member counties,” and that “it is the ‘EPD approved Established Yield’ which . . . determines the maximum quantity of water that such member may receive.” (Emphasis supplied.) We find no merit in the County’s argument here, because it is clear that the trial court’s ruling was based upon a finding that the Authority was required to make available no more than the EPD approved Established Yield of 58 MGD. And “Established Yield” is defined in the Agreement as the “maximum quantity that may be withdrawn.” (Emphasis supplied.) Therefore any less amount is not the “Established Yield.”

For the above-stated reasons, the trial court did not err in granting the Authority’s motion for summary judgment and in denying the County’s motion.

Judgment affirmed.

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

       “The Entitlement Shares of each Member County are as follows: Athens-Clarke: 44 percent; Barrow: 19 percent; Jackson: 25 percent; and Oconee: 12 percent.” Oconee Basin I, supra, 305 Ga. App. at 410, n. 1.

       The Environmental Protection Division of the Georgia Department of Natural Resources.

       “The County argues that, properly calculated, the Established Yield should be approximately 24 million gallons per day instead of 58 million gallons per day, the amount the Authority is currently permitted to withdraw.” Oconee Basin I, supra, 305 Ga. App. at 411 (1), n. 2.


author: Phipps, Chief Judge.

text:
    A14A0849.
    CANAAN LAND PROPERTIES, INC. et al. v. HERRINGTON.
    (766 SE2d 493)
   Phipps, Chief Judge.

We granted an application for interlocutory appeal to review the denial of a motion for summary judgment filed by Canaan Land Properties, Inc., Rick Poppell, and Fred’s Stores of Tennessee (collectively “Canaan Land”) in this premises liability action brought by Carol Steve Herrington. In his complaint, Herrington alleged that Canaan Land was liable for injuries he suffered after he fell on uneven pavement in the parking lot of a Fred’s store. Because Herrington failed to point to evidence establishing that the uneven pavement caused him to fall, the trial court erred in denying Canaan Land’s motion for summary judgment. We therefore reverse.

On appeal from the denial of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on [his] pleadings, but rather must point to specific evidence giving rise to a triable issue.

Viewed in the light most favorable to Herrington, the record reveals the following. Herrington deposed that he went to Fred’s store on January 12, 2011, minutes before it closed for the evening. After shopping, he exited the store and pushed a shopping cart containing groceries through the store parking lot to return to his vehicle. As he approached his vehicle, the shopping cart jerked or turned quickly to the left, and a rear wheel on the cart caught his foot, tripping him. Still holding onto the cart, Herrington fell, injuring his arm and turning the cart over. Herrington did not know immediately what had caused the cart to turn suddenly to the left. He telephoned his sister, who drove him from the store parking lot to a hospital for treatment. In the meantime, Herrington left his vehicle in the store parking lot.

Several hours later, after receiving medical attention, Herring-ton returned to the store parking lot. He looked to “see if any of my stuff was still out there,” “and to see if there was anything out there that made the buggy turn to the left and trip me.” In doing so, Herrington noticed, for the first time, that there was a hole or divot in the ground about 14 inches from his vehicle’s rear bumper. He concluded that “[i]t had to be the hole” that had caused the cart to turn to the left. He observed that there were also cigarette butts, “pieces of garbage,” and sand near his vehicle. Before he fell, he had not noticed anything, such as uneven pavement or debris, that he thought made the parking lot unsafe. When asked about his determination that the divot had caused the cart to turn to the left, Herrington deposed, “That’s the only thing that could have other than the trash in the parking lot.”

Then, when asked if something other than the divot could have caused the cart to turn, such as trash or sand, the following transpired:

A. [Herrington]. All I know, it was something in the parking lot.
Q. But you don’t know what exactly?
A. It had to be the hole.
Q. It couldn’t have been the sand?
A. All I know is there was just something in the parking lot that caught it. Apparently there’s many hazards out there that I didn’t know of until after my injury.

The following also transpired in Herrington’s deposition.

Q. [Y]ou don’t even know that your buggy made contact with that divot, do you?
A. Well, apparently it did, I fell.
Q. But do you know one way or another as you sit here whether your buggy actually touched that divot or not or whether it turned for some other reason?
A. All I know is it tripped me. It jerked to the left and tripped me. It caught my right foot.
Q. You’re talking about the cart?
A. The cart. The shopping cart.
Q. But what I’m asking about is the hole. As we sit here today, you can’t tell me whether that shopping cart turned to the left because of that divot or for some other reason. Isn’t that true?
A. All I know, it was the divot. It had to be. I mean, that’s all I know.

A store employee testified on deposition that there was an indentation or divot that was about two to three inches in diameter in the area in which Herrington’s vehicle had been parked; at the time of the deposition (May 2012), the divot hadbeen there “for some time.”

Causation is always an essential element in slip or trip and fall cases. Where the plaintiff does not know of a cause or cannot prove the cause, there can be no recovery because an essential element of negligence cannot be proven. A mere possibility of causation is not enough and when the matter remains one of pure speculation or conjecture and the probabilities are at best evenly balanced it is appropriate for the court to grant summary judgment to the defendant.

Although Herrington alleges that his fall was caused by a static condition — “uneven pavement” or “some sort of hole” caused the cart “to dip and then flip over,” and that a wheel “became lodged in a hole” — he has not shown more than a mere possibility that such a defect caused him to fall.

When asked on deposition about his conclusion that the hole apparently caused the cart to jerk to the left (with the result being that a wheel tripped him and caused him to fall), Herrington acknowledged that trash could have caused the sudden turn. He testified, “All I know is [the shopping cart] tripped me,” and that “it was something in the parking lot” that had caused the cart to turn. Indeed, he concedes in his appellate brief that he “could not be certain exactly what caused [the] cart to flip over,” just that “some defect in the parking lot caused the wheel of his shopping cart to dip and then flip the shopping cart.”

Herrington points to the following evidence as establishing that the hole in the parking lot caused his fall. A store employee testified that Herrington told her the day after the incident that a hole in the parking lot had caused him to fall. But Herrington disputed the employee’s testimony, deposing that he had never told the employee about the hole in the parking lot. Further, as set out above, Herring-ton acknowledged on deposition that some other condition may have caused him to fall.

Herrington also relies on an investigator’s affidavit as “solidifly-ing] the hole in the parking lot as the cause of [the] injury.” Herring-ton states that the investigator, whom he had retained, pushed a shopping cart over the hole and found that “it caused a wheel of the cart to become stuck and destabilized the cart.” However, the inspection occurred two years after the incident; the investigator admitted that he could not testify as to the condition of the hole at the time of the fall. And, the cart merely came to a stop in the hole during the exercise, an outcome different from that experienced by Herrington. Notably, the investigator admitted that he had no expertise in reconstructing incidents.

“[A]lthough the plaintiff is entitled to the benefit of all reasonable inferences to be drawn from the evidence, such inferences cannot be based on mere conjecture or possibility or upon evidence which is too uncertain or speculative.” “The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough.”

Herrington has pointed to a mere possibility of causation, with the matter remaining one of pure speculation or conjecture, or the probabilities being at best evenly balanced. “The mere existence of a defect in the [parking lot] in the area of [his trip and] fall could not establish causation.” Thus, Canaan Land was entitled to summary judgment.

Relying on Pennington v. WJL, LLC, Herrington contends that he has satisfied the causation element despite lacking “absolute certainty” as to what caused him to fall. But Pennington does not support Herrington’s contention. In that case, the plaintiff (whose fingers had been severed by an overhead door after he lost his balance and tried to catch himself), deposed that he “may have stumbled on [some] hoses” on the floor; he asserted that common sense and logic dictate that the hoses caused him to fall because the hoses seemed to be the only explanation; and a worker had to kneel down on the hoses to retrieve the plaintiff’s fingers. This court held that the evidence presented could not defeat summary judgment, inasmuch as the plaintiff had relied on “nothing but mere speculation and conjecture with respect to causation.”

2. In light of our holding in Division 1, that Herrington failed to point to a genuine issue of material fact with regard to causation, we need not address Canaan Land’s argument that Herrington had superior knowledge of any alleged hazardous condition, and that he failed to exercise ordinary care for his own safety.

Decided November 21, 2014.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Bradley J. Watkins, for appellants.

Smith Law Group, J. Frank Smith, Jr., for appellee.

Judgment reversed.

Ellington, P. J., and McMillian, J., concur.

       Herrington alleged that Canaan Land Properties was the record owner of the premises, and that Fred’s Stores of Tennessee was the lessee.

        Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010) (citation and punctuation omitted); Bryan Bank & Trust v. Steele, 326 Ga. App. 13 (755 SE2d 828) (2014).

        Bryan Bank & Trust, supra.

       See Hood, supra.

        Pennington v. WJL, LLC, 263 Ga. App. 758, 760 (1) (589 SE2d 259) (2003) (footnotes omitted); see Shadburn v. Whitlow, 243 Ga. App. 555, 556-557 (533 SE2d 765) (2000); Jackson v. K-Mart Corp., 242 Ga. App. 274, 275-276 (529 SE2d 404) (2000).

        Adamson v. Gen. Electric Co., 303 Ga. App. 741, 744, 746-747 (3) (694 SE2d 363) (2010) (citation and punctuation omitted); see Shadburn, supra.

        Avery v. Cleveland Ave. Motel, 239 Ga. App. 644, 645 (1) (521 SE2d 668) (1999) (citations and punctuation omitted).

       See Bryan Bank & Trust, supra at 15 (1); Shadburn, supra; Avery, supra (plaintiff failed to establish causation where she testified that she was not certain what caused her to fall, though she speculated that her fall may have been caused by worn and frayed carpeting which she noticed at the top of the stairwell after her fall).

        Imperial Investments Doraville v. Childers, 303 Ga. App. 490, 493 (1) (693 SE2d 834) (2010) (citation omitted).

       See Taylor a Thunderbird Lanes, 324 Ga. App. 167, 170-171 (1) (748 SE2d 308) (2013) (defendant was entitled to summary judgment where plaintiff “offerjed] only conjecture to support her conclusion that oil on the ... howling lane’s foul line caused her to fall”; plaintiff’s son noticed oil on the floor after the fall, hut plaintiff “did not know for a fact” that the oil had caused her to fall); Bryan Bank & Trust, supra (defendant was entitled to summary judgment where plaintiff “believe [d]” that a landscape border next to a sidewalk had caused her to fall, as it was protruding onto the sidewalk after the fall, but she was not certain what had caused her to fall; evidence of the cause of the fall was only speculation, and causation was not established); Willingham Loan & Realty Co. v. Washington, 311 Ga. App. 535, 536 (716 SE2d 585) (2011) (plaintiff alleged that the defendants were negligent for failing to maintain the stairs on which she fell; there was evidence of an accumulation of ice on the stairs, and plaintiff had previously complained to defendants about broken and loose steps; plaintiff deposed that she was unable to state what had caused her to fall, though it was “possible” that the condition of the steps was the cause; because the evidence had raised a mere possibility that a defect in the stairs had caused her fall, the trial court erred in denying the defendants’ motion for summary judgment); see generally Imperial Investments Doraville, supra (defendant was entitled to a directed verdict where plaintiff assumed that he had stumbled over a raised piece of carpet that he had observed was “wrinkly,” but he never testified that he knew that he fell over the carpet).

       Supra.

       Id. at 758-759.

       Id. at 760 (1).

       Id. at 759.

       Id. at 761 (2) (footnote omitted).

       Supra.


author: MCFADDEN, Judge. ANDREWS, Presiding Judge,

text:
    A14A0996.
    CAWLEY v. THE STATE.
    (766 SE2d 581)
   MCFADDEN, Judge.

This is the second appearance of this case in this court on interlocutory appeal. In Cawley v. State, 324 Ga. App. 358 (750 SE2d 428) (2013), we vacated the trial court’s order denying Cawley’s motion to dismiss based on a violation of his constitutional right to a speedy trial and remanded the case to the trial court with direction that the trial court enter an order containing findings of fact and conclusions of law in accordance with Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972). On remand, the trial court entered a more detailed order that once again denied Cawley’s motion. We granted Cawley’s application for interlocutory appeal, and Cawley appeals, arguing that the trial court abused his discretion in denying his motion. As detailed below, we find that the trial court erroneously attributed a majority of the pretrial delay in this case to Cawley instead of weighing that factor lightly against the state. Because we cannot say that the trial court would have had no discretion to reach a different result had he correctly attributed and weighed that factor, we must again vacate the trial court’s order and remand the case for further proceedings.

The record reflects that Cawley was arrested for driving under the influence (“DUI”) and speeding on February 19, 2009. The state filed an accusation against Cawley in the trial court on March 23, 2009. Cawley was arraigned on April 22, 2009, entered a plea of not guilty, and requested a jury trial. At the hearing on his motion to dismiss, Cawley called an employee from the trial court clerk’s office as a witness. The employee testified that she was responsible for keeping records pertaining to cases filed in the trial court and was able to identify a document Cawley’s counsel showed her as a summary of the events in Cawley’s case, and the summary, which was generated by the Odyssey case management system, was introduced into evidence. The printout reflected that the trial court granted the state a continuance on June 20, 2011 because the arresting officer was on leave. Cawley’s counsel represented that the case was next set for trial on September 12, 2011. The summary of events reflects that the trial court ordered a bond forfeiture and bench warrant on that date based on Cawley’s failure to appear. A rule nisi was issued for September 13, 2011 with respect to the bond forfeiture. The state introduced into evidence another printout from the Odyssey system, and the clerk’s office employee testified that the printout included a note from September 13, 2011 stating: “coming to plea on 09/21/2011 per [the trial judge].”

Cawley’s attorney stated that “for some reason” Cawley did not get notice of the September 12, 2011 trial date but that Cawley was notified to appear on September 21, 2011 and did so. An entry in the case management system from September 21, 2011 indicated that the trial judge “said for this case to be placed back on a Trial Calendar; 01/2013.” The trial judge who was assigned to the case was scheduled to retire at the end of 2012.

With respect to the entry on September 13, 2011 stating that Cawley was coming to plea on September 21, 2011, Cawley’s counsel stated that “Mr. Cawley has never told me that he wanted to enter a plea to the offense of DUI.” He then tendered to the trial court a final decision, dated May 5, 2009, in an administrative appeal from the Department of Public Safety’s notice to suspend Cawley’s driver’s license pursuant to OCGA § 40-5-67.1. The decision reflected that the arresting officer agreed to withdraw the report initiating the administrative license suspension based on an agreement with Cawley that Cawley would enter a plea of guilty to reckless driving. Cawley’s counsel conceded, however, that the trial court was not bound by that agreement and stated: “[t]hat is one reason no plea was entered that day.” The solicitor-general stated at the motion to dismiss hearing that two subpoenas were sent to Cawley for the September 12, 2011 trial date and that the state also served him with a notice of intent to present similar transaction evidence. The subpoenas and notice are reflected on the summary of events Cawley introduced into evidence.

On March 1, 2013, Cawley filed his motion to dismiss based on his constitutional right to a speedy trial. The summary of events in Cawley’s case reflects that the newly-assigned trial judge placed the case on an April jury trial calendar but that the case was moved to a nonjury trial calendar at the request of Cawley’s counsel on April 12, 2013. The case was continued for a nonjury trial until May 8, 2013, when the trial court conducted a hearing on Cawley’s motion to dismiss. The trial court entered an order summarily denying Caw-ley’s motion on May 10, 2013. After we vacated the trial court’s order and remanded in Cawley, supra, 324 Ga. App. 358, the trial court entered a more detailed order on December 3, 2013 that again denied Cawley’s motion. This interlocutory appeal followed.

Alleged violations of the constitutional right to a speedy trial are analyzed in two stages under the framework set forth in Barker, supra, 407 U. S. 514, and Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520) (1992). Under this framework, “a court first must consider whether the case has been delayed for long enough to raise a presumption of prejudice and to warrant a more searching judicial inquiry into the delay.” State v. Alexander, 295 Ga. 154, 156 (1) (758 SE2d 289) (2014). If the delay raises a presumption of prejudice, a court then must consider four factors: “whether the delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Id. at 156-157 (2) (citation and punctuation omitted).

These four inquiries have no talismanic qualities and must be considered together with such other circumstances as may be relevant in light of the animating principles of the speedy trial guarantee. No one element is either necessary or sufficient to conclude that the right to a speedy trial has been violated.

Sweatman v. State, 287 Ga. 872, 873 (2) (700 SE2d 579) (2010) (citations and punctuation omitted). “The trial court’s weighing of each factor and its balancing of all four factors — its ultimate judgment — are reviewed on appeal only for abuse of discretion.” State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011).

1. Presumptive prejudice.

“Where a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied.” Porter, 288 Ga. at 526 (2) (b). “A delay approaching one year is sufficient in most cases to raise a presumption of prejudice and to warrant a more searching inquiry.” State v. Buckner, 292 Ga. 390, 392-393 (2) (738 SE2d 65) (2013). The trial court did not abuse his discretion in concluding that the almost 58-month delay between Cawley’s arrest and the trial court’s second order denying Cawley’s motion to dismiss was presumptively prejudicial. See Sechler v. State, 316 Ga. App. 675, 677-678 (1) (730 SE2d 142) (2012) (44-month delay in DUI case presumptively prejudicial).

2. The Barker-Doggett factors.

(a) Length of the delay. With respect to the length of delay, “a court must decide whether the case was prosecuted with customary promptness, keeping in mind that the delay that can be tolerated in a particular case depends to some extent on the complexity and seriousness of the charges in that case.” Alexander, supra, 295 Ga. at 157 (2) (a) (citations and punctuation omitted). The trial court found that “[t]his is a simple DUI case in which all investigation appears to have been completed at the time of [Cawley’s] arrest” and that a 57-month delay in a misdemeanor case is significant. As such, he weighed the length of delay against the state. The trial court did not abuse his discretion. See State v. Takyi, 322 Ga. App. 832, 836 (2) (a) (747 SE2d 24) (2013) (trial court did not abuse her discretion in weighing 46-month delay against state in case involving DUI charge).

(b) Reason for the delay. “Deliberate delay intended to hinder the defense must be weighed heavily against the [s]tate, whereas delay occasioned by more ‘neutral’ causes, such as negligence or overcrowded dockets, weighs less heavily against the [s]tate.” Phan v. State, 290 Ga. 588, 593 (1) (b) (723 SE2d 876) (2012). “On the other hand, delay caused by the defense weighs against the defendant.” Id.

The trial court attributed a “large majority” of the pretrial delay to Cawley. He concluded that Cawley was responsible for the 19-month delay between September 12, 2011, when Cawley failed to appear for trial, and his April 12, 2013 trial date. The trial court concluded that the remaining delay of approximately 38 months should be “attributed to the [s]tate and [Cawley] evenly due to common delays ... in jury trial cases.” The record does not support the trial court’s apportionment of responsibility.

The record supports a finding that Cawley alone is responsible for no more than approximately 35 days of the pretrial delay. He may be held responsible for the continuance from September 12 to September 21, 2011 that was necessitated by his failure to appear on the September 12 trial date. He also could be held responsible for the continuance between April 12, 2013 and May 8, 2013 that resulted from his decision to seek a nonjury trial.

The trial court apparently concluded that Cawley was responsible for the entire delay between September 12, 2011 and April 12, 2013 due to Cawley’s failure to appear on September 12, 2011 and because Cawley waited until April 2013 to request a nonjury trial and described both actions as major factors in the delay of the case. The trial court stated that he was taking judicial notice that no jury trial dates were available between October 2012 and February 2013 due to the retirement of the judge assigned to the case at the end of 2012. Assuming that judicial notice was proper, the trial court did not mention whether jury trials were available between October 2011 and October 2012, leaving no explanation for the delay during this period. “Where no reason appears for a delay, we must treat the delay as caused by the negligence of the [s] tate in bringing the case to trial.” Ruffin v. State, 284 Ga. 52, 61 (2) (b) (ii) (663 SE2d 189) (2008) (citation and punctuation omitted). It is possible that the trial court meant to state that, due to the retirement of the trial judge, no jury trials were available beginning in October 2011 rather than October 2012. But the responsibility for any delay associated with the trial judge’s retirement also must be assigned to the state. See Howard v. State, 307 Ga. App. 822, 826-827 (2) (b) (706 SE2d 163) (2011); Brooks v. State, 304 Ga. App. 281, 283 (h) (696 SE2d 110) (2010). Finally, while we do not foreclose the possibility that Cawley might have been tried sooner if he had requested a bench trial before April 2013, there is no evidence in the record to substantiate that assertion. The record contains no information about the availability of bench trials from September 2011 to April 2013.

The trial court also erred in concluding that responsibility for the 31-month delay between Cawley’s arrest and the September 12, 2011 trial date and the period of delay resulting from Cawley’s prior interlocutory appeal should be apportioned evenly between Cawley and the state. The state requested a continuance of the June 20, 2011 trial date due to the arresting officer’s unavailability and is responsible for the resulting delay of the case until September 12, 2011. See Tyner v. State, 298 Ga. App. 42, 44 (2) (679 SE2d 82) (2009). (The trial court acknowledged as much at one point in his order, yet he went on to include this delay of almost three months in the total delay that he attributed to Cawley and the state evenly.) The record does not include evidence that establishes any explanation for the delay in the case prior to June 20, 2011, and that delay must be charged to the state. See Ruffin, supra, 284 Ga. at 61 (2) (b) (ii). While there is evidence suggesting that Cawley was interested in entering a plea of guilty to reckless driving in lieu of DUI, there is simply no evidence that any pursuit of a plea deal delayed the case. Compare Phan, supra, 290 Ga. at 594 (1) (b) (record showed that six-month delay between defendant’s arrest and indictment was due in part to his counsel’s effort to negotiate plea agreement). In the prior interlocutory appeal in this case, we vacated the trial court’s order denying Cawley’s motion to dismiss and remanded for entry of a proper order applying the Barker-Doggett framework. We have held that a delay associated with an appeal under such circumstances should weigh against the state. See Richardson v. State, 318 Ga. App. 155, 160 (2) (b) (733 SE2d 444) (2012); Goddard v. State, 315 Ga. App. 868, 874 (2) (b) (729 SE2d 397) (2012).

Although the record includes no evidence that the state deliberately caused or engineered any delay, it establishes that a majority of the delay resulted from more neutral causes for which the state bore responsibility. As such, the trial court should have weighed the reason for the delay against the state lightly or benignly. See State v. Pickett, 288 Ga. 674, 676 (2) (c) (2) (706 SE2d 561) (2011) (trial court correctly weighed nondeliberate delay caused by overcrowded docket only benignly against state); Sweatman, supra, 287 Ga. at 875 (4) (“delay due to negligence or workloads is weighed lightly against the [sjtate”).

(c) Assertion of the right. The third Barker-Doggett factor requires the trial court to consider whether the accused has asserted the right to a speedy trial in “due course.” Phan, supra, 290 Ga. at 595 (1) (c). “[B]ecause delay often works to the defendant’s advantage, the failure of the accused to assert his right in due course generally is accorded strong evidentiary weight.” Buckner, supra, 292 Ga. at 397 (3) (c) (citations and punctuation omitted).

Here, the trial court correctly concluded that Cawley did not assert his constitutional right to a speedy trial by requesting a jury trial at his arraignment on April 22, 2009. See Meder v. State, 305 Ga. App. 702, 703 (c) (700 SE2d 706) (2010); Over v. State, 302 Ga. App. 215, 218 (3) (690 SE2d 507) (2010). The trial court further stated that Cawley “had never asserted his right to a speedy trial,” and he weighed the assertion of the right factor against Cawley. The trial court erred to the extent he failed to acknowledge that Cawley’s motion to dismiss asserted his constitutional right to a speedy trial. See Davis v. State, 308 Ga. App. 843, 846 (2) (c) (709 SE2d 343) (2011). Nevertheless, the record reflects that more than four years elapsed after Cawley’s arrest before he filed the motion to dismiss. Under the circumstances, the trial court did not abuse his discretion in weighing the assertion of the right against Cawley. See Fallen v. State, 289 Ga. 247, 249 (3) (710 SE2d 559) (2011) (three-year delay in asserting right weighed heavily against defendant); Brown v. State, 287 Ga. 892, 895 (1) (c) (700 SE2d 407) (2010) (same).

(d) Prejudice. The types of prejudice that may result from an unreasonable delay before trial include “oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the (accused’s) defense will be impaired by dimming memories and loss of exculpatory evidence.” Pickett, supra, 288 Ga. at 677 (2) (c) (4) (citation and punctuation omitted). “Of these forms of prejudice, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. (citation and punctuation omitted).

Cawley does not argue that he suffered oppressive pretrial incarceration or dispute the trial court’s finding that he spent less than 24 hours in jail following his arrest. Likewise, Cawley does not argue that he has suffered any demonstrable impairment to his defense as the result of the pretrial delay. Cawley did not testify at the hearing on his motion to dismiss regarding anxiety or concern he was experiencing. Cawley’s counsel, however, stated that a DUI conviction in this case would be Cawley’s second and that Cawley was concerned about losing his driver’s license because he depends on it for his livelihood. See OCGA § 40-5-63 (a) (2). “Anxiety and concern of the accused are always present to some extent, and thus[,] absent some unusual showing[,] are not likely to be determinative in defendant’s favor.” Layman v. State, 284 Ga. 83, 86 (663 SE2d 169) (2008) (citation and punctuation omitted). Assuming that Cawley’s counsel’s cursory statements about the concern and anxiety Cawley experienced were made in counsel’s place as an officer of the court and that we may treat them as evidence, see Rank v. Rank, 278 Ga. 147, 149 (695 SE2d 13) (2010), they fall well short of establishing that Cawley experienced anxiety and concern beyond that normally experienced by an accused in a criminal prosecution. Given the paucity of evidence of actual prejudice, the trial court did not abuse his discretion in weighing the prejudice factor in the state’s favor.

3. Balancing of factors.

“A trial court exercises substantial discretion in applying the Barker balancing test.” Pickett, supra, 288 Ga. at 679 (2) (d) (citation and punctuation omitted). But where, as here, “the trial court significantly misapplies the law or clearly errs in a material factual finding, the trial court’s exercise of discretion can be affirmed only if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.” Id. (citations omitted; emphasis supplied).

We cannot conclude that the trial court would have had no discretion to do anything but deny the motion to dismiss in this case. Instead, the facts of this case are similar to those in State v. Johnson, 291 Ga. 863 (734 SE2d 12) (2012), a case in which our Supreme Court held that it could not affirm the trial court’s ruling. The Court in Johnson described those facts as follows:

The first factor — the length of the delay — weighs against the [s]tate in the case. The second factor — the reasons for the delay — also weighs against the [s]tate, although relatively lightly. The third factor — whether the defendant asserted the right in due course — weighs against [the defendant], but its weight may be mitigated by the occasions on which [the defendant] announced that he was ready for trial. The fourth factor — prejudice to the defendant — cuts both ways, inasmuch as [the defendant] has failed to show demonstrable prejudice, but he nevertheless is entitled to the presumption of prejudice that arises from a long delay.

Id. at 868 (3). The Johnson court proceeded to explain that, although it had held in other cases that

trial courts confronted with similar circumstances did not abuse their discretion in finding no denial of the right to a speedy trial, we never have held that a trial court presented with such circumstances always must find no denial of the right. And for that reason, we must remand this case for the trial court to correctly apply the pertinent legal principles and to consider again whether [the defendant] was denied his right to a speedy trial.

Id. (citation and footnote omitted; emphasis in original).

We discern no distinction between the circumstances of Johnson and those of this case, such that the trial court would retain discretion to grant or deny the speedy trial motion in the former but not in the latter. In accordance with the precedent established in Johnson, we vacate the trial court’s judgment and remand the case for further proceedings.

Judgment vacated and case remanded with direction.

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

ANDREWS, Presiding Judge,

dissenting.

Because the trial court would have been constrained to deny Cawley’s motion to dismiss had it correctly weighed the reason for the pretrial delay factor of the Barker-Doggett analysis, I would affirm the judgment of the trial court. Therefore, I respectfully dissent to Division 3 of the majority opinion.

It is well settled that “[a] trial court exercises substantial discretion in applying the Barker balancing test.” (Citation and punctuation omitted.) State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011).

If the trial court significantly misapplies the law or clearly errs in a material factual finding, [however,] the trial court’s exercise of discretion can be affirmed only if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.

Id. As the majority correctly notes, the trial court erred in attributing a majority of the pretrial delay in this case to Cawley and abused its discretion by failing to weigh that factor lightly against the State. However, I conclude that even if the trial court had weighed the reason for the delay correctly, it would have been constrained to deny Cawley’s motion to dismiss.

As we recently acknowledged in Ward v. State, 325 Ga. App. 890 (756 SE2d 21) (2014), the “delayed assertion of the right to a speedy trial and lack of prejudice are the two factors that most often weigh heavily against defendants and which then support the overall conclusion that speedy trial rights have not been violated.” Id. at 895 (2) (e), quoting Phan v. State, 287 Ga. 697, 700 (699 SE2d 9) (2010) (Nahmias, J., concurring). Here, Cawley waited over four years to assert his constitutional right to a speedy trial and offered virtually no evidence of actual prejudice. Under the circumstances, there is no abuse of discretion in the trial court’s order denying Cawley’s motion to dismiss. See Phan v. State, 290 Ga. 588, 596 (1) (e) (723 SE2d 876) (2012) (trial court did not abuse discretion in denying motion to dismiss on speedy trial grounds where assertion of the right and prejudice factors weighed against defendant notwithstanding that the trial court erred by failing to treat the reason for delay as neutral); Ward, supra, 325 Ga. App. at 894-895 (2) (e) (given defendant’s delay in asserting right to speedy trial and lack of evidence of prejudice, trial court did not abuse discretion in denying motion to dismiss in DUI case despite its error in treating reason for delay as neutral instead of weighing it lightly against the State); Over v. State, 302 Ga. App. 215, 219 (5) (690 SE2d 507) (2010) (trial court did not abuse discretion in denying motion for discharge and acquittal in DUI case, although it erred by failing to conclude that delay caused by trial court’s schedule was attributable to State; defendant’s failure to assert right weighed heavily against him).

The majority’s reliance upon State v. Johnson, 291 Ga. 863 (734 SE2d 12) (2012) is misplaced. In Johnson, our Supreme Court concluded that the weight given to the defendant’s delay in asserting his right to a speedy trial might be mitigated by the multiple occasions on which the defendant appeared in the trial court and announced ready for trial. Id. at 868 (3). There are no comparable mitigating circumstances in this case. Accordingly, Johnson is distinguishable and does not require us to remand a second time for reconsideration of the speedy trial issue. I would affirm the judgment of the trial court denying Cawley’s motion to dismiss. Therefore, I dissent to Division 3 of the majority opinion.

Decided November 21, 2014.

Robert L. Crowe, for appellant.

Maria S. Lugue, Solicitor-General, for appellee.