author: DOYLE, Presiding Judge.

text:
    A13A1410.
    COOGLER v. THE STATE.
    (751 SE2d 584)
   DOYLE, Presiding Judge.

In August 2006, Ronald Coogler was found not guilty by reason of insanity (“NGRI”) of criminal damage to property, criminal trespass, and criminal damage to property in the second degree. Thereafter, he was adjudicated NGRI and civilly committed to the Department of Behavioral Health and Developmental Disabilities (“the Department”) for involuntary treatment pursuant to OCGA §§ 17-7-131 and 37-3-1. In April 2011, pursuant to OCGA § 17-7-131 (e) (5) (B), Coogler filed a petition for full release from the verdict of NGRI, which the trial court denied in a July 18, 2011 order. Coogler now appeals, arguing that the trial court erred by denying his petition. We agree and reverse.

Pursuant to OCGA § 17-7-131 (e) (5) (A) and (B),

[i]f [an Acquittee] appears to meet the criteria for outpatient involuntary treatment... for release on a trial basis in the community in preparation for a full release, the court may order a period of conditional release subject to certain conditions set by the court. The court is authorized to appoint an appropriate community service provider to work in conjunction with the Department ... to monitor the [Acquitteej’s compliance with these conditions and to make regular reports to the court. ... If the [Acquittee] successfully completes all requirements during this period of conditional release, the court shall discharge the individual from commitment at the end of that period. Such individuals may be referred for community mental health, mental retardation, or substance abuse services as appropriate. The court may require the individual to participate in outpatient treatment or any other services or programs authorized by Chapter 3, 4, or 7 of Title 37.

“After a plea of insanity has been successfully entered, a presumption of continuing insanity arises.” When reviewing an order denying the petition for full release from the verdict of NGRI, this Court determines whether any rational trier of fact could have found that the acquittee failed to prove his burden by a preponderance of the evidence.

In addition, the trial court must supply specific findings of fact regarding the presented evidence and its conclusions based thereon. The court must consider all credible and relevant expert and other evidence presented at the hearing and contained in the trial record on the issue. . . .

Pursuant to OCGA § 37-3-1 (12.1), an outpatient is a mentally ill person,

(A) [w]ho is not an inpatient but who, based on the person’s treatment history or current mental status, will require outpatient treatment in order to avoid predictably and imminently becoming an inpatient; (B) [w]ho because of the person’s current mental status, mental history, or nature of the person’s mental illness is unable voluntarily to seek or comply with outpatient treatment; and (C) [w]ho is in need of involuntary treatment.

Thus, we review the trial court’s order to determine whether a rational trier of fact could have found that Coogler failed to establish by a preponderance of the evidence that he was sane, and more specifically to the issue of moving from an involuntary outpatient to full release from the NGRI verdict, that (1) he did not require outpatient treatment to avoid predictably and imminently becoming an inpatient; (2) he could voluntarily seek and comply with outpatient treatment; and (3) he did not need involuntary treatment.

The record reveals that in 2003, several of Coogler’s neighbors at an apartment complex contacted police after a firearm was discharged. Approximately five shots were fired, including one into an apartment and the remainder at vehicles around the complex. Coogler was seen by neighbors hiding behind trees and eventually disposing of a weapon in a grassy area; his arrest took some time because he was spending the night at various hotels around the area. Although Coogler had a competency hearing set for September 30, 2005, he absconded and boarded a plane for Russia, where he was taken into custody based on statements to Russian officials and hospitalized at that time for 30 days. Thereafter, he was returned to the United States based on his bench warrant for the 2003 incident. In 2006, he underwent a psychological evaluation to determine his competency to stand trial. In August 2006, the trial court entered an order finding Coogler NGRI.

In late March 2007, Coogler was granted a 30-day conditional release to a supervised residential facility. In early May 2007, Coogler was given a six-month conditional release from inpatient treatment to a supervised residential facility with outpatient treatment. In October 2007, Coogler was released from the portion of his conditional release order requiring that he reside in a residential treatment facility, and since that time, he has lived on his own in an apartment; he remains under the NGRI verdict, however, and pursuant thereto, an involuntary outpatient commitment plan.

In December 2009, Coogler filed a petition for full release from the NGRI verdict and involuntary outpatient status. The transcript from this hearing established that Coogler was diagnosed with schizoaffective disorder bipolar type with a history of psychotic episodes, although he is also a highly functioning individual with an MBA in accounting. Coogler has lived alone in his own apartment since October 2007, and he has been compliant with taking his prescribed medication (a mood stabilizer and an anti-psychotic) and has never missed his monthly appointments with his doctors or social worker. Although Coogler went to a hospital in June 2008 in order to modify his medication regimen, the testimony presented shows the hospitalization was not a result of an infraction or noncompliance by Coogler, nor did he exhibit any violent behavior at that time. Coogler’s mother and sister lived close to him, they had daily phone contact with him, and his mother had physical contact with him approximately three times a week.

At a March 2010 hearing on this petition, two treating psychiatrists and Coogler’s assigned social worker all testified that Coogler was not a threat to himself or others, he no longer fit the criteria for involuntary commitment, and they recommended Coogler be fully released from the NGRI verdict. Nevertheless, the trial court denied the petition on the ground that it would be beneficial to have Coogler monitored for another year of involuntary outpatient treatment because he had been stable for such a short period of time.

In July 2011, another hearing was held, at which time his treating psychiatrist and social worker again testified that Coogler no longer met the criteria for involuntary commitment, should be released from the NGRI verdict, and was not a threat to himself or others. The experts testified that there was no less restrictive level of involuntary treatment than that which Coogler had been monitored under for the past two years, and Coogler had only monthly contact with his social worker and psychiatrist or an equivalent nurse practitioner. Nevertheless, the trial court denied the petition, finding that Coogler should continue under the NGRI verdict for another year so that the court could continue to supervise him and that he still met the criteria for involuntary commitment.

Coogler contends that the trial court erred by not releasing him from the NGRI verdict because he rebutted the presumption of insanity and the need for continued involuntary outpatient commitment. We agree.

As an initial matter, the trial court’s order contains a number of factual findings that are contrary to the record. First, the trial court found that the treating psychiatrist would “feel more comfortable having a longer amount of time to assess the likelihood of the [Acquittee] discontinuing his medications.” Although in response to the trial court’s hypothetical the doctor stated that generally a longer time period of review over a patient could be helpful in determining the likelihood of another incident, he nowhere testified that he thought Coogler specifically needed more time in involuntary care to assess this issue. Instead, he testified that Coogler had “good insight into his condition,” was “coping well,” was “compliant,” independently cared for himself, and could be responsible for complying with his treatment without the aid of an involuntary order. This was supported by the testimony of the social worker and by the fact that Coogler had minimal contact with officials during each month but still remained compliant with his treatment.

The trial court also found that the psychiatrist testified that Coogler “would decompensate rapidly if his medications were not taken daily’; however, this again was based on statements by the psychiatrist regarding general time frames of noncompliance during which different patients may begin to show symptoms; he stated that “[i]t’s hard to predict because there are some patients that can decompensate in two to three days; other patients that can take up to four, six months or even a year to decompensate.” Moreover, the psychiatrist testified that Coogler “doesn’t take much... to come back from a decompensation. There are some patients [who] would take three or four months to bring them back____[H]e responds... quickly.”

The trial court also found that Coogler’s mother and sister only had contact with him “about [two] times a week.” This finding is belied by the record in which Coogler’s sister stated that she sees her brother three times per week, every week, and he sees their mother once every week. Other portions of the testimony established that the family had daily phone contact with Coogler. The trial court’s order went on to conclude that the family’s lack of frequent contact did “not give the court any assurance that the [Acquittee] will have the appropriate supervision to catch any missed doses at this time.” But this conclusion, again, is completely at odds with the record, which shows that Coogler is only in contact with his physician and social worker on a monthly basis, and during the past two years, he has been independently responsible for taking his medications and appearing at appointments without any further supervision by anyone other than himself and his family. Indeed, the only support for the trial court’s order appears to be the trial court’s own interjections of unsupported, generalized hypothetical questions posed to the experts.

While it is clear that Coogler does have a serious mental illness that led to his actions in 2003, after carefully reviewing the evidence in the light most favorable to the State, we conclude that no rational trier of fact could conclude based on the facts before us that Coogler failed to overcome the presumption of insanity and the continued need for involuntary outpatient treatment. Coogler has shown that he is able to voluntarily comply and seek out individual treatment for his condition, which he has done for the last two years, and based on the testimony by the experts about Coogler’s insight into his diagnosis, there is no evidence to support a finding that without involuntary treatment that he would be in danger of imminently becoming an inpatient again. Thus, he does not fit the definition of a mentally ill outpatient under OCGA § 37-3-1 (12.1). Moreover, the only record evidence that Coogler continues to meet the criteria for involuntary treatment is the presumption of insanity, and that is not sufficient evidence when faced with the evidence of sanity presented at the hearings. “[T]he trial court[ ] may not disregard expert medical evidence and rely solely on the presumption of insanity.”

Decided November 18, 2013.

Alicia H. Thomas, for appellant.

Ashley Wright, District Attorney, Natalie S. Paine, Assistant District Attorney, for appellee.

If no amount of evidence offered at a release hearing by an insanity acquittee could rebut the presumption of insanity, the processes of proof in the due process hearing would be an empty ritual. The sole basis for argument would be an appeal to judicial discretion or mercy rather than to a process of proof.

Here, there is no evidence to support the trial court’s finding that Coogler failed to rebut the presumption of insanity, and the trial court therefore erred by denying his petition for full release from the NGRI verdict.

Judgment reversed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-7-22 (a) (1).

       OCGA § 16-7-21 (a).

       OCGA § 16-7-23 (a) (1).

       (Emphasis supplied.)

        Newman v. State, 314 Ga. App. 99, 100 (722 SE2d 911) (2012).

       See Nelor v. State, 309 Ga. App. 165, 165-166 (709 SE2d 904) (2011) (reversing an order denying release from inpatient treatment to conditional, involuntary outpatient treatment). See also Newman, 314 Ga. App. at 100.

       (Footnote omitted.) Gray v. State, 295 Ga. App. 737 (673 SE2d 84) (2009). See also OCGA §37-3-1 (12.1).

       (Emphasis supplied.)

       See Nagel v. State, 262 Ga. 888, 892 (2) (b) (427 SE2d 490) (1993), citing Brown v. State, 250 Ga. 66, 71-72 (2) (c) (295 SE2d 727) (1982).

       See OCGA § 37-3-1 (12.1). This inquiry, we note, is not whether it is a benefit to the acquittee to have the NGRI verdict lifted or whether the NGRI is infringing on the acquittee’s life.

       See Nelor, 309 Ga. App. at 169.

        Nagel, 262 Ga. at 891 (2) (a).

       (Punctuation omitted.) Id. at 890 (1).


source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A13A1620.
    A13A1621.
    ANDERSON et al. v. ATLANTA GAS LIGHT COMPANY. ANDERSON et al. v. TINKER.
    (751 SE2d 589)
   Ellington, Presiding Judge.

In these related personal injury cases, which arose when a mobile home exploded as a result of accumulated natural gas, Shan Eric Anderson, Jason Hunter, and David Cadieux (hereinafter, “the plaintiffs”) sued the Atlanta Gas Light Company (“AGLC”) and Hunter’s landlord, Charles Tinker d/b/a Tinker Mobile Home Park (“Tinker”) (collectively, “the defendants”). In both of the above-styled cases, the plaintiffs appeal from the trial court’s grant of the defendants’ motions to exclude the testimony of their expert witness. In addition, in Case No. A13A1620, the plaintiffs appeal the court’s grant of summary judgment to AGLC on their complaints. For the reasons explained below, we affirm.

The record shows the following undisputed, relevant facts. Tinker is the owner and operator of a mobile home park in Trenton. At the time of the incident at issue, three of the homes, including the home leased by plaintiffs Jason Hunter and David Cadieux, were served by natural gas lines that were installed by AGLC. A master meter regulated the flow of gas through the lines. The master meter was located on Tinker’s property and was not locked or monitored to prevent unauthorized individuals from turning the natural gas on or off.

On the evening of September 30, 2003, a resident of Tinker’s mobile home park turned on the master meter in order to provide natural gas for an appliance in his home. Later that evening, Hunter and Cadieux entered their home while accompanied by a friend, Joshua Anderson. Shortly thereafter, Anderson lit a cigarette, which ignited natural gas that had accumulated in the home without the plaintiffs’ knowledge. The resulting explosion destroyed the home and severely injured the plaintiffs.

The plaintiffs later discovered that, a few months before the explosion, Tinker had turned off the natural gas supply at the master meter so that his employees could install an electric central heating and air conditioning system in Hunter and Cadieux’s home. The employees did not cap the gas pipeline that serviced the home, nor did they shut off the pipeline’s service valve that was under the home’s floor. As a result, when the gas was turned on at the master meter on September 30, natural gas began to flow into and accumulate in the home.

The plaintiffs sued AGLC, alleging, inter alia, that it had negligently “failed to lock or otherwise secure the master meter when the downstream users [(the park’s residents)] did not require gas or when the meter was shut off[, causing] the master meter to be accessible to the general public,” “failed to exercise ordinary care in the installation, maintenance, operation, inspection and control of the gas supply system it installed for Tinker, and negligently failed to warn the public or [the plaintiffs] of the dangerous condition of the natural gas system on Tinker’s property.” The plaintiffs also asserted that, because the master meter was unlocked and had no warning sticker, it was a dangerous condition that constituted a nuisance, and that, because AGLC failed to train or supervise Tinker in the operation of the master meter, or to warn him of the dangers of the gas system, AGLC was liable for negligent entrustment. According to the complaint, AGLC’s violation of its “own policies and procedures, federal and state law and regulations, and industry standards” constituted negligence per se.

The plaintiffs also sued Tinker for, inter alia, negligence and negligence per se, alleging that he “fail[ed] to exercise ordinary care in operating and maintaining the gas system at [his] property and failed to follow ... laws and regulations applicable to a master meter operator.”

In support of their complaints, the plaintiffs offered the affidavit of an expert witness, Douglas Buchan. In his affidavit, Buchan asserted that “[t]he standard of care applicable to [AGLC] requires that [it] establish policies and practices that ensure that a closed meter valve is secured by lock or other acceptable device,” and, in his opinion, AGLC breached that standard of care in this case.

AGLC and Tinker filed motions to exclude Buchan’s testimony, arguing that the plaintiffs had failed to show that Buchan was qualified as an expert in the specific areas at issue in this case or that his opinions were reliable under former OCGA § 24-9-67.1 (b) or the Supreme Court of the United States’ decision in Daubert v. Merrell Dow Pharmaceuticals. Although the trial court denied the defendants’ motions to exclude Buchan’s testimony, it subsequently granted their motions for reconsideration, relying upon a recent ruling by the Supreme Court of Georgia in HNTB Ga. v. Hamilton-King, 287 Ga. 641 (697 SE2d 770) (2010). In its orders, the trial court concluded that the plaintiffs had failed to meet their burden of showing that Buchan was qualified to serve as an expert witness in this case and that his opinions were reliable under former OCGA § 24-9-67.1 (b) andDaubert, pursuant to the standards enunciated by the Supreme Court in HNTB Ga. v. Hamilton-King. The trial court also ruled that, because the plaintiffs were required to produce expert witness testimony on the applicable standards of care in order to maintain their causes of action against AGLC, and because the plaintiffs produced no expert witness other than Buchan, the exclusion of his testimony required the grant of summary judgment to AGLC on the plaintiffs’ complaints. These appeals followed.

Case Nos. A13A1620 andA13A1621

1. The plaintiffs contend that the trial court abused its discretion when it excluded Buchan’s expert opinion testimony. Specifically, they argue that Buchan is qualified to provide reliable expert testimony about the natural gas industry regulations and standards of care that apply in this case, as well as whether the defendants violated such regulations or breached those standards. They also contend that, because Buchan is qualified to serve as an expert witness, the trial court should admit his testimony and let the jury decide whether the testimony is credible and what weight it should give to the testimony. For the following reasons, we find that these arguments lack merit.

(a) The record shows that, during the hearing on the defendants’ motions to exclude Buchan’s expert opinion testimony, the plaintiffs contended that Buchan’s work experience qualified him to serve as an expert in federal pipeline safety regulations and as to whether AGLC breached the applicable standards of care in this case. As far as his relevant experience, they showed that Buchan operated a “small family propane [delivery] business” from 1956 to 1987; that he had been a member, officer, and/or advisor of several state and local business and inflammable gas industry associations; that he had attended several energy-related industry seminars; and that, in the 1990s, he worked for the federal government as a consultant with the Department of Energy and as a liaison between the department and energy companies during efforts to deregulate energy-related industries. The plaintiffs argued that Buchan’s opinions about the applicable standards of care and AGLC’s alleged breach of those standards were reliable because they were based upon his general knowledge of the natural gas industry and of gas distribution systems.

In response, the defendants argued that the plaintiffs had failed to demonstrate that Buchan’s opinions were sufficiently reliable to be admissible under former OCGA § 24-9-67.1 (b) and Daubert. They pointed out that, although Buchan asserted that AGLC was negligent when it failed to place a lock or a warning sticker on the master meter that was on Tinker’s property, and that AGLC should have trained Tinker to be a master meter operator, Buchan admitted in his deposition that there were no federal pipeline safety regulations that imposed such duties on AGLC. In addition, the defendants noted that an investigation of the explosion by the Georgia Public Service Commission resulted in a finding that there was no evidence that AGLC committed any violations of the applicable pipeline safety regulations. The defendants also argued that Buchan had failed to show that his opinions about the standards of care allegedly breached by AGLC were consistent with the standards of the natural gas industry. Buchan admitted that he did not consult with any natural gas company about its practices, and he did not cite to any data, publication, or industry source to show that AGLC had breached the standards of care in the natural gas industry by failing to install a lock or place a warning sticker on the master meter or by failing to train Tinker. Finally, the defendants argued that Buchan’s opinions about what he believed AGLC should have done in this case could not be deemed reliable based solely upon his education or experience, because he has no relevant college education, has never worked in the natural gas industry, has never worked for an agency that regulated natural gas utilities or interstate gas pipelines, has never operated a business that was subject to federal pipeline safety regulations or that was regulated by any state’s public service commission, has never designed a warning label, has never worked as a master meter operator, and has no first-hand knowledge about what a master meter operator is or is required to do. They argued that, as a result of these deficiencies, Buchan’s opinions about the applicable standards of care and the alleged negligence by AGLC constituted inadmissible speculation about what actions he believed AGLC should have taken in this case.

Following the hearing, but before the trial court ruled on the defendants’ motions to exclude, the plaintiffs filed a supplemental brief in support of their assertion that Buchan’s expert opinion testimony was admissible in this case. They argued that the issues addressed by this Court in Hamilton-King v. HNTB Ga., 296 Ga. App. 864 (676 SE2d 287) (2009), were on “all-fours” with those presented in the instant case, that the defendants’ arguments regarding the unreliability of Buchan’s opinion testimony are the “exact same argument[s] that the Court of Appeals considered and rejected in Hamilton-King,” and that the decision required the trial court to deny the motions to exclude Buchan’s testimony in this case.

The trial court denied the defendants’ motions to exclude Buchan’s testimony. Less than a year later, however, the Supreme Court of Georgia issued its opinion in HNTB Ga. v. Hamilton-King, wherein it reversed this Court’s decision in that case. 287 Ga. at 641. In so doing, the Supreme Court expressly rejected the same legal arguments that the plaintiffs in the instant case had asserted in advocating for the admission of Buchan’s expert opinion testimony. Citing to former OCGA § 24-9-67.1 (b), which governed the admissibility of expert testimony in civil cases at that time, the Supreme Court ruled as follows:

Reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training. There are many different kinds of experts and many different kinds of expertise, and it follows that the test of reliability is a flexible one, the specific factors neither necessarily nor exclusively applying to all experts in every case.

(Citations and punctuation omitted.) Id. at 642-643 (1).

Applying these principles to the proposed expert opinion testimony at issue in that case, the Supreme Court agreed with the trial court’s finding that, although the witness was “marginally qualified to testify as an expert,” the plaintiffs had “failed to provide any indication of the principles and methods employed by [the witness] in reaching his conclusions, rendering them unreliable as defined by former OCGA § 24-9-67.1 (b) (2) and (3) because they ‘cannot be validated against accepted standards, tested or reviewed.’ ” (Footnote omitted.) HNTB Ga. v. Hamilton-King, 287 Ga. at 643 (1), n. 1. Further, the Supreme Court ruled as follows:

Reading the trial court’s order as a whole, it is clear the court identified the legal issue relevant to [the witness’] testimony, whether the design of the bridge project violated the applicable standard of care, and correctly examined [the witness’] methodology in light of the Daubert standard. The court specifically noted [the witness’] failure to cite any treatise or authority supporting his belief that under readily ascertainable and verifiable standards recognized by practitioners in the field, the construction design plan was below standard. It also noted the absence of any testing indicating evidence of similar accidents on interstate highways and the difficulty of ascertaining error rates in the use of engineering judgment. It did so not because it interpreted Georgia law to require evidence of testing or error rates in every case, but in an attempt to identify some foundation for [the witness’] conclusion that bridge construction design plans lacking shoulders and/or lighting are inherently defective. The trial court thus chose among reasonable means of evaluating reliability, adjusted and applied the Daubert factors to the circumstances of this case, and ultimately decided that [the witness’] conclusions, based solely on his own assertions, were unsupported by either the Daubert factors or any other reasonable reliability criteria. [] Nothing in Daubert or [former] OCGA § 24-9-67.1 requires atrial court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. Under the facts of this case, we cannot say the trial court’s application of the Daubert factors and decision to exclude [the witness’] testimony was a manifest abuse of discretion.

(Citations and punctuation omitted.) Id. at 643-644 (1).

Further, on the issue of whether the witness’ experience provided a sufficient foundation for his testimony, the Court stated that the witness had conceded

that his conclusions are based entirely on his “engineering judgment,” unsupported by any criteria by which the court could measure its reliability. He had never before designed, reviewed or evaluated a construction plan for a similar bridge construction project and had never been qualified as an expert in any case involving bridge construction design. He could not cite a single instance in his years of experience where a construction plan called for shoulders or lighting during the construction period. He conceded that the Manual on Uniform Traffic Control Devices, the basic standard in the industry for traffic control, did not require shoulders or lighting on the subject bridge and that nothing in the standards promulgated by the American Association of State Highway and Transportation Officials required the same. Nor could he cite any other publication, standard, statute, or regulation, federal or state, which set forth an industry standard requiring the use of shoulders or lighting on this bridge construction project. While he had reviewed test data related to automobile accidents on interstate highways generally, he admitted that such data had no relevance to the circumstances of this case. In fact, [the plaintiffs] have presented no evidence that [the witness] has any experience that would supply the foundation supporting his methodology and conclusions.

HNTB Ga. v. Hamilton-King, 287 Ga. at 644-645 (2). The Supreme Court emphasized, however, that

ftjhis is not to say that [an expert witness’] professional experience cannot provide some evidence of reliability, only that experience, standing alone, does not render reliable all opinions an expert may express. While both federal and Georgia courts have under different facts found no abuse of discretion when the trial court held expert testimony admissible based solely on the expert’s knowledge and experience, there was some evidence in each of these cases that the expert had experience with the particular procedure or practice at issue or the proffering party offered evidence explaining the absence of reliability criteria. In contrast, [the witness] admits he has had no personal experience in the design or evaluation of construction traffic control plans and appellees have failed to make any showing of why a relevant experience base is unavailable in this case.

(Citations omitted; emphasis supplied.) Id. at 645 (2). The Supreme Court concluded that, “[b]ecause [the plaintiffs] failed to satisfy the Daubert factors or any other reasonable criteria by which the [trial] court could measure the reliability of [the witness’] conclusions, it was within the trial court’s discretion to exclude his testimony.” Id. at 646 (2).

Returning to the instant case, the record shows that AGLC and Tinker relied on the Supreme Court’s decision in HNTB Ga. v. Hamilton-King when they asked the trial court to reconsider its denial of their motions to exclude Buchan’s testimony. The trial court conducted a hearing on the motions to reconsider. In its orders granting the motions, the trial court analyzed the record in light of this new, binding precedent and concluded that the plaintiffs had failed to show that Buchan’s opinions were reliable, finding that his opinions could not be validated against accepted standards, tested, or reviewed, as required by former OCGA § 24-9-67.1 (b) and HNTB Ga. v. Hamilton-King. See HNTB Ga. v. Hamilton-King, 287 Ga. at 642-644 (1). The trial court noted that Buchan had “failed to cite any treatise or authority supporting his belief that[,] under readily ascertainable and verifiable standards recognized by practitioners in the field, AGLC’s actions in connection with this incident fell below the standard of care.” (Punctuation omitted.) In addition, the court found that Buchan had failed to demonstrate that companies that are similar to AGLC meet the standard of care that he advocates or that AGLC violated any applicable statutes or regulations in this case. See id. The court also concluded that Buchan lacked the requisite experience to serve as an expert or to provide a reliable foundation for his opinions on the natural gas practices and procedures at issue in this case, noting that he had no experience with warnings on natural gas master meters, locks on such meters, or master meter operators. See id. at 644-645 (2). Consequently, the court ruled that “Buchan’s opinions, based solely on his own assertions, are unsupported by either the Daubert factors or any other reasonable reliability criteria,” and, as a result, must be excluded. (Punctuation omitted.)

As shown above, the record and the law support these conclusions. Thus, we find no error in the trial court’s determinations that Buchan is not qualified to serve as an expert witness in this case and that his opinions are not sufficiently reliable to be admissible at trial on the question of whether either AGLC or Tinker was negligent. It follows that the court did not abuse its discretion in excluding his testimony on these bases.

(b) The plaintiffs also argue that, because Buchan has some experience in the propane gas industry, he should be allowed to testify as an expert at trial, leaving the jury to decide what weight and credibility it should assign to his opinion testimony. As we concluded in the previous subdivision, however, the trial court properly found that Buchan lacked the qualifications to serve as an expert witness in this case.

Moreover, the Supreme Court rejected a similar argument in HNTB Ga. v. Hamilton-King, emphasizing the trial court’s role in determining the admissibility of expert testimony, wherein it “acts as a gatekeeper, assessing both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.” (Citations omitted.) HNTB Ga. v. Hamilton-King, 287 Ga. at 642 (1). Quoting the Supreme Court of the United States, our Supreme Court stated that the objective of the requirement that the trial court act as a gatekeeper

is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. [] The [trial] court’s role is especially significant since the expert’s opinion can be both powerful and quite misleading because of the difficulty in evaluating it. Indeed, no other kind of witness is free to opine about a complicated matter without any firsthand knowledge of the facts in the case, and based upon otherwise inadmissible hearsay if the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. Thus, regardless of an expert’s experience or qualifications, the proffering party bears the burden of presenting evidence of reliability in order to meet the standards of [former] OCGA § 24-9-67.1. To hold otherwise would eviscerate the trial court’s gatekeeper role and allow all expert testimony, even that based on nothing more than the untested opinion of one individual.

(Citations and punctuation omitted; emphasis supplied.) Id. at 645-646 (2).

Based upon this authority, and given our ruling in Division 1 (a), supra, we conclude that the trial court did not abuse its discretion in excluding Buchan’s testimony instead of allowing him to testify and leaving the weight and credibility of his testimony for the jury to determine.

(c) The plaintiffs further contend that the trial court erred to the extent it ruled that the Supreme Court’s decision in HNTB Ga. v. Hamilton-King “required” it to exclude Buchan’s testimony in this case. They argue that the decision did not “mandate” that the trial court exclude the testimony of an expert such as Buchan, but that it simply reiterated the principle that an appellate court cannot substitute its judgment for the trial court and must limit its review to determining whether the trial court abused its discretion in admitting or excluding an expert’s testimony.

While we agree that the appropriate standard for appellate courts is to review a trial court’s decision on the admissibility of such evidence for an abuse of its discretion, we find no such abuse in this case for the reasons explained in subdivisions (a) and (b) of this Division. Moreover, for those same reasons, we find that the plaintiffs’ suggestion that the trial court excluded Buchan’s testimony without considering the record or conducting the requisite legal analysis to be completely without merit.

Case No. A13A1620

2. The plaintiffs contend that the trial court erred in granting AGLC’s motion for summary judgment on their claims of negligence, negligence per se, nuisance, and negligent entrustment. As noted above, the plaintiffs alleged that AGLC was negligent because it failed to install a lock or place a warning sticker on the master meter, failed to train or supervise Tinker as a master meter operator, and violated applicable laws and regulations. They also alleged that the unlocked master meter was a dangerous condition that constituted a nuisance.

In granting summary judgment to AGLC, the trial court concluded that the standards of care in the natural gas industry with respect to the practices and procedures at issue in this case is a matter beyond the ken of ordinary laypersons and that, without the testimony of Buchan or a qualified expert witness, the plaintiffs are unable to establish the standard of care in that industry in 2003 or to show that AGLC breached that standard of care. It ruled that, as a result, AGLC was entitled to judgment as a matter of law on the plaintiffs’ complaints.

Although the plaintiffs argue, on appeal, that the trial court erred because their claims allege acts of ordinary negligence that the jury can understand and consider without the benefit of expert testimony, this assertion contradicts their arguments in the court below. The record shows that, during the hearing on the original motions to exclude Buchan’s testimony, the plaintiffs’ counsel argued as follows:

[T]his is a system, a gas system. Gas comes out of the ground somewhere, I don’t know. It’s a pipe across the country and it ends up in Trenton, Georgia. And all of these defendants had a role in this system. And so what Mr. Buchan brings fundamentally to the jury in this case is an understanding of this system. . . . He’s an expert in pipeline safety systems, regulations. And so he’s going to be able to help the jury understand things that I think most jurors and I know myself don’t completely understand: How this system works first of all, and then what the regulations are related to this system. And so — what are those laws out there? And then he’s also going to remind the jury that simply adhering to regulations doesn’t mean that you’ve conformed with your legal duty under our system of law. ... So these are the kinds of things that Mr. Buchan will help the jury understand. . . . [Tjhat’s the whole reason we have expert witnesses in our system, is to help the jury understand the things that they can’t understand. . . .
Dealing with standard of care issues____Fundamentally, [the issues presented in this case are] similar to the kind of issues that arise frequently in medical malpractice [cases]____ The defendants have got a standard of care expert whom they want to put [on the stand] and have the jury hear him say, this is the standard of care and the defendants didn’t breach it. Well, we want to put up an expert who’s going to say this is the standard of care and the defendants did breach that standard of care. . . .
[W]e’re dealing with an industry that’s . . . undergone enormous transition in the last fifteen or twenty years in the deregulation process. And I’m not sure anybody understandfs] exactly how the natural gas industry works these days. I know I don’t. And I’ve been studying [the industry] for the better part of a couple of years . . . [a]nd I still, even when I look at my gas bill at home, I’m not exactly sure where this money’s going. So that’s where the expert can bring some explanation to a jury and help them understand how ... the deregulation process has led us to the point where we are today, and what that point is, and who’s supposed to be ultimately responsible for the safety of the gas that comes out of the ground and comes into our homes. . . . [T]hat’s where this court has the discretion to allow Mr. Buchan to help the jury understand a sense of where the process is now, where the gas industry is now and define what some duties are along the way, that . . . will eventually be specific to the various defendants here.

(Emphasis supplied.) Counsel concluded by arguing that Buchan’s testimony was necessary to help the jury understand the regulations that created certain duties for each of the defendants and whether they breached those duties, due to the “complicated nature” of this case and the “interplay” between the responsibilities of each of the defendants.

Accordingly, under the circumstances presented in this case, including the plaintiffs’ admission in the court below that expert testimony is necessary to show that AGLC violated any applicable regulations or standards of care, we conclude that the trial court did not err in ruling that the plaintiffs’ allegations of negligence by AGLC involved specialized matters that are beyond the ken of ordinary laypersons. Thus, we find no error in the trial court’s ruling that, without admissible expert testimony, the plaintiffs could not prevail on their claims against AGLC and that AGLC was entitled to judgment as a matter of law on their complaints. See Hamilton-King v. HNTB Ga., 311 Ga. App. 202, 203, 204 (1), 205 (2) (715 SE2d 476) (2011) (finding that the plaintiffs had failed to assert simple negligence claims against the defendants and noting that, in response to the defendants’ motions for summary judgment, the plaintiffs consistently asserted that their claims were based upon allegations of professional negligence and that they never argued that their claims were also based on ordinary negligence).

Decided November 18, 2013

Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, C. King Askew, Samuel L. Lucas, Norman S. Fletcher, Ansel F. Beacham III, for appellants.

Magruder & Sumner, J. Clinton Sumner, Jr., John A. Owens, King & Spalding, Susan M. Clare, W. Ray Persons, Simon A. Rodell, Thompson Hine, Russell J. Rogers, for appellee.

Judgments affirmed.

Phipps, C. J., and Branch, J., concur.

       Anderson is acting in his capacity as administrator for the estate of Joshua Ryan Anderson.

       The resident is not a party to the instant appeals.
      In addition, there is no evidence that AGLC had any knowledge that someone had stopped the flow of gas to Tinker’s residents by turning the master meter off prior to the day of the explosion or that the resident turned the gas back on that day.

       There is no evidence that the master meter was defective or malfunctioning on the day of the explosion.

       The plaintiffs also asserted claims against AGLC for trespass; vicarious liability for Tinker’s negligence (as AGLC’s agent); liability pursuant to a joint venture; and strict liability under OCGA § 51-1-11.

       The plaintiffs also asserted claims against Tinker for creating and maintaining a nuisance; liability pursuant to a joint venture; and negligent entrustment.

       See footnote 13, infra, regarding the Georgia General Assembly’s subsequent adoption of a new Evidence Code.

        Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993) (identifying certain factors that are relevant in determining the reliability of expert witness testimony).

       The plaintiffs’ claims against Tinker remain pending in the trial court.

       “The determination of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.” (Citation and punctuation omitted.) HNTB Ga. v. Hamilton-King, 287 Ga. at 642 (1).

       The plaintiffs’ counsel also argued that Buchan’s testimony as an expert witness was necessary to help the jury understand how the natural gas pipeline system operates, the regulations that apply to companies like AGLC and Tinker, and how AGLC and Tinker violated the applicable standards of care. See Division 2, infra, regarding this argument.

       In so arguing, the defendants emphasized the major, inherent differences between the nature of propane gas versus natural gas, as well as how propane gas versus natural gas is transported and delivered to customers.

       In Hamilton-King v. HNTB Ga., the plaintiffs were injured when they were involved in an automobile collision on a bridge that was undergoing construction. 296 Ga. App. at 864. This Court considered whether the trial court properly excluded the testimony of the plaintiffs’ expert witness, who was an experienced civil engineer. Id. at 864-865. The trial court had ruled that, although the witness was qualified to testify as an expert regarding traffic control measures on highway construction sites, the plaintiffs had failed to show that the witness’ opinions were reliable under former OCGA § 24-9-67.1 (b). Id. at 865-866. Specifically, the trial court ruled that the witness’ “use of engineering judgment. . . was inadequate to support his opinion that the bridge configuration violated the standard of care applicable to such projects”; that, because the witness did not provide evidence of similar accidents on the bridge at issue, his opinion had not been properly tested; and that “the documents upon which [the witness] had relied did not show that his opinions regarding the lack of shoulders and lighting on the bridge had been generally accepted.” Id. at 865-866. As a result, the trial court concluded that the witness’ opinions, which were “products of his exercise of engineering judgment” and which, under the evidence presented, could not be validated against accepted standards, tested, or reviewed, were not reliable under former OCGA § 24-9-67.1 (b) (2) and (3), and were, therefore, inadmissible. (Punctuation omitted.) Id. at 866.
      On appeal, however, this Court reversed the trial court’s ruling, holding that the application of the Daubert factors in determining the admissibility of expert testimony is intended to be flexible and that “those factors may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” (Punctuation andfootnote omitted.) Hamilton-King v. HNTB Ga., 296 Ga. App. at 868 (1). This Court ruled that “[disputes as to an expert’s credentials are properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility. The weight given to expert testimony in negligence cases is for the trier of fact who can, but is not required to give it controlling influence.” (Punctuation and footnotes omitted.) Id. at 869 (1). Consequently, this Court concluded that the trial court had abused its discretion by excluding the witness’ testimony Id.

       Former OCGA § 24-9-67.1 (b) provided as follows:
      If scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if:
      (1) The testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial;
      (2) The testimony is the product of reliable principles and methods; and
      (3) The witness has applied the principles and methods reliably to the facts of the case.
      In 2011, the Georgia General Assembly repealed the Evidence Code in its entirety and replaced it with a new Evidence Code, the provisions of which became effective on January 1, 2013, and apply to any motion, hearing or trial commenced on or after such date. Ga. L. 2011, p. 99, §§ 1, 101. Pursuant to that legislative act, former OCGA § 24-9-67.1 (b) was essentially reenacted as OCGA § 24-7-702 (b), which provides, in relevant part, as follows:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if:
      (1) The testimony is based upon sufficient facts or data;
      (2) The testimony is the product of reliable principles and methods; and
      (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

        See Mason v. Home Depot USA, 283 Ga. 271,279-280 (5) (658 SE2d 603) (2008) (expert’s testimony based solely on personal experience and opinion unsupported by scientific journals or reliable testing procedures was not the product of reliable principles and methods).

        See Kumho Tire Co. v. Carmichael, 526 U. S. 137, 141-142 (119 SCt 1167, 143 LE2d 238) (1999) (trial court is granted “the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination”).

       Contrary to the plaintiffs’ contention, the record shows that Buchan failed to identify any applicable natural gas regulation that AGLC violated in this case, nor did he identify any violations of applicable propane gas industry standard practices. In fact, the trial court specifically ruled that the “regulations cited by the Plaintiffs either are not applicable [in this case] or do not require the activities Buchan asserts [AGLC] should have engaged in here.” Moreover, as noted above, the Georgia Public Service Commission found that there was no evidence that AGLC committed any violations of the applicable pipeline safety regulations.

       See generally Ga. Cas. & Surety Co. v. Atmos Energy Corp., 2007 U. S. Dist. LEXIS 89122 (M.D. Ga. 2007) (In a ease arising from an explosion following a natural gas leak, the plaintiffs alleged that the defendant failed to prevent and/or properly respond to a gas leak. The plaintiffs’ expert, Buchan, opined that the defendant did not comply with applicable federal pipeline safety regulations or industry practices. The defendant moved to exclude Buchan’s testimony, challenging his qualifications and the reliability of his conclusions. The court concluded that Buchan was qualified to testify as an expert only as to the content and importance of the federal statutes and regulations governing pipeline safety, but his opinions as to whether the defendant violated applicable regulations or was otherwise negligent and whether such violations or negligent acts were a proximate cause of the explosion were unreliable and, thus, inadmissible.).

        Kumho Tire Co. v. Carmichael, 526 U. S. at 152.

       See footnote 9, supra.

       The plaintiffs do not challenge the grant of summary judgment to AGLC on their remaining claims.

       Cf. McGarity v. Hart Elec. Membership Corp., 307 Ga. App. 739, 745-747 (2) (706 SE2d 676) (2011) (The plaintiff was injured when he came into contact with an exposed live electrical wire owned and maintained by an electric company. He contended that the company failed to inspect the electrical equipment for at least five years before the incident. This Court held that the issue presented was whether the frequency of the inspections was reasonable under the circumstances, not whether inspections had been properly performed. It ruled that, because the reasonableness of the frequency of inspections is an issue that is routinely decided by jurors, the plaintiff was not required to present expert testimony on that issue.).


author: Phipps, Chief Judge.

text:
    A13A0837.
    CODY v. THE STATE.
    (752 SE2d 36)
   Phipps, Chief Judge.

A jury found Mark Waddess Cody guilty of committing against his son’s half-sister, S. H., six crimes: aggravated sodomy; two counts of aggravated child molestation; child molestation; and two counts of false imprisonment. Additionally, relating to his conduct during his arrest in connection with S. H.’s allegations, the jury found Cody guilty of obstruction of an officer and giving a false name to an officer. Convicted of these eight offenses, Cody contends that the trial court erred by admitting in evidence his police statement, by commenting on the evidence, by imposing certain sentences under an inapplicable version of a statute, by failing to merge certain offenses for sentencing purposes, and by sentencing him as a recidivist. Because Cody has shown no merit in any contention, we affirm.

The trial evidence showed the following. On February 6, 2008, S. H.’s mother took her to the hospital because the seven-year-old complained of a stomach ache and had a foul-smelling, brownish vaginal discharge. Results of lab testing upon vaginal swabs from S. H. showed that she had contracted chlamydia. S. H.’s treating physician, who was qualified at trial as an expert in pediatric medicine, testified that chlamydia was typically contracted by sexual contact, and could cause abdominal pain and vaginal discharge. The discharge, the physician explained, had resulted from the cervix being infected with chlamydia.

Upon learning the diagnosis, S. H.’s mother asked S. H. whether anyone had inappropriately touched her; the child answered no. But S. H.’s mother pressed S. H., specifically asking whether anyone had placed his penis in her private part; she responded that a boy at a playground had done so. When her mother continued to ask questions, S. H. began crying and told her mother that, when she was five years old, Cody made her lie on their sofa at their “University” apartment while he touched her vagina and made her suck and play with his penis. S. H. told her mother that on a later occasion at their “Scottsdale” [sic] home, Cody held her down on her mother’s bed and put his penis in her buttocks. And S. H. told her mother that on a third occasion, Cody pulled her nightgown up and her underwear down and put his penis in her buttocks, again while in her mother’s bedroom; on that occasion, her brother had answered her calls for help.

S. H.’s mother testified that Cody was the father of her other child, a boy about three years older than S. H., and that Cody often visited their home. Occasionally, Cody spent the night; she had continued a sexual relationship with Cody. Upon hearing S. H.’s allegations, the mother reported the disclosures and the medical diagnosis to the police.

Thereafter, on February 14, 2008, a social worker conducted a forensic interview of S. H. During the interview, S. H. described that, starting when she was five years old, Cody had touched her privates on three different occasions. She also stated that Cody had “humped” her, describing that “humping” meant “when somebody gets on top of you and goes up and down.” S. H. recounted further that Cody had put his penis in her buttocks and that “I screamed my brother’s name because it hurt.” A video-audio recording of S. H.’s interview with the social worker was later played for the jury.

A warrant was issued for Cody’s arrest. On March 3, 2008, two uniformed officers in a marked patrol vehicle spotted Cody walking through a residential community. They exited the patrol vehicle, approached him, and asked him his name. Cody replied that his name was “Mark Smith.” When one of the officers nevertheless handcuffed one of Cody’s wrists, Cody jerked away from the officer’s grasp, struck the officer in the chest, then fled on foot. The two officers gave chase and apprehended Cody, who was then fully handcuffed and placed in the back seat of the patrol vehicle. Another officer arrived at the scene, and in response to that officer’s questions, Cody gave his correct name.

Cody was transported to a police station, where he was led into an interview room. Cody executed a form, acknowledging that he had been advised of, understood, and waived his Miranda rights. He then gave a statement to a police detective. During his statement, Cody said that he was 30 years old. He denied ever inappropriately touching S. H., denied ever having contracted chlamydia, and denied having had any sexually transmitted disease within the previous two years. Cody’s police interview was audio-recorded and later played for the jury. After the police interview, a sample of Cody’s urine was collected and tested for chlamydia; the results were negative.

At the time of the trial, S. H. was eight years old and in the third grade. She recalled that Cody often visited their home. She testified about three different episodes during which Cody had inappropriately touched her. The first episode occurred when she was living at University apartments. She and her brother were watching television in their mother’s bedroom; her mother was also there, but was asleep. Cody called S. H. into the living room, put her on the sofa, then put his private part into her mouth. S. H. testified, “He made me suck it.” Also, S. H. testified, Cody “put his hand on my private — on the front of my private part.... He was touching the front of my private part.” Afterward, Cody told S. H. not to tell her mother, and then he left the residence.

The second episode occurred when she was living in Scottdale. S. H. recalled that she was then six years old. Her mother was at work; her brother had gone to the store with their grandmother; she had been left at home alone with Cody. “That day [Cody] was trying to hump me,” she recalled. S. H. testified that she was wearing her nightgown and lying on her mother’s bed. Cody entered the bedroom, wearing only a t-shirt and boxers. He removed his clothing, pulled down her panties, got on top of her body and “was trying to hump me.” Afterward, he told her not to tell her mother or he and her mother would beat her.

The third episode occurred when she and her brother were alone with Cody at their Scottdale home. Cody directed S. H. into her mother’s bedroom, and she complied. She was wearing a nightgown and panties; she lay on her mother’s bed and began watching television. Her brother was in his bedroom, playing a video game. Cody went to his son’s bedroom and told the boy to turn up the volume on the game. Then Cody entered the bedroom with S. H. S. H. testified that Cody got on the bed and “came behind me and pulled me towards his private part.” Cody lifted her nightgown, pulled down her panties, and “put his private part in my back part.” She yelled for her brother, who came to the bedroom, pulled her from under Cody and out of the covers, then returned to his bedroom. S. H. recalled that Cody picked her up and put her back into the bed. Cody attempted to get on top of her again; she called for her brother; her brother returned to the room and pulled her out again. Afterward, Cody told S. H. not to tell her mother what had occurred, and threatened to beat her if she told her mother.

S. H. testified about the day her mother asked her whether anyone had inappropriately touched her. She initially answered that no one had inappropriately touched her, then she said that a boy at a playground had done so. S. H. testified that she had told those lies because “I was scared from what [Cody] had said to me.”

S. H.’s brother was 11 years old and in the sixth grade at the time of the trial. The boy recalled that his father, Cody, would sometimes visit and spend time with him and S. H. at their home. The boy recalled an occasion when Cody and S. H. were in his mother’s bed under the covers and he tried to pull S. H. out of the bed, but Cody was holding her. The boy had been in his bedroom, playing a video game; Cody had come to his room and instructed him to turn up the volume on the game, and the boy had complied. Cody then went to the mother’s bedroom with S. H., and soon S. H. was calling for him. When he went to that bedroom, he found Cody and S. H. “under the cover... [r]ight there next to each other.... They was touching.” The boy pulled the cover off the two, and saw that Cody’s arms and legs were around S. H. Cody was wearing only a t-shirt and underwear. The boy testified that he began “trying to pull her out from under the cover because he was holding her.” Later, after he had returned to his room, S. H. called him again; he returned to his mother’s bedroom, where he again tried to pull S. H. away from his father.

The jury returned guilty verdicts on all eight counts of the indictment: Count 1, aggravated sodomy, by performing a sexual act involving the sex organs of Cody and the anus of S. H.; Count 2, aggravated child molestation, by inserting his penis into S. H.’s anus, causing injury and pain to child’s anus; Count 3, aggravated child molestation, by touching his penis to S. H.’s vagina; Count 4, false imprisonment, by confining and detaining S. H., said act being separate and distinct from the act alleged in Count 5; Count 5, child molestation, by rubbing his penis on S. H.’s vaginal area, with the intent to arouse and satisfy his sexual desires; Count 6, false imprisonment, by confining and detaining S. H., said act being separate and distinct from the act alleged in Count 3; Count 7, obstruction of an officer, by obstructing and hindering a law enforcement officer in the lawful discharge of the officer’s official duties by striking and running from the officer; and Count 8, giving a false name, by providing the false name to an officer in the lawful discharge of his official duties and with the intent to mislead the officer as to his identity.

1. Cody contends that the trial court erred by failing to exclude his police statement. He concedes that he was properly informed of his rights under Miranda v. Arizona. However, Cody claims that he unambiguously asserted his right to counsel, but was not afforded counsel before giving the statement. Therefore, he claims that his police statement was inadmissible.

Because Cody’s police interview was audiotaped and there are no relevant controverted facts in the record, the trial court’s application of the law to the undisputed facts is subject to de novo appellate review.

At the beginning of the interview, the detective stated his name, the date and time, and that he and Cody were in a police interview room. In response to the detective’s questions, Cody stated his name, that he was not under the influence of any drug or alcohol, that he could read and write English, that he had attended school through the eleventh grade, and that he had thereafter earned his GED. Cody initialed a form acknowledging that information. The detective then provided Cody a “Statement of Miranda Rights” form, which the detective read aloud after asking Cody to follow along, then asked Cody to sign a form so as to acknowledge that “I have read the above statement of my rights and I understand each of those rights.” The detective then asked Cody, “You understand, right? Okay, sign right there [on the form].” The following colloquy ensued:

CODY: Can I get a lawyer now? Right now?
DETECTIVE: We won’t be able to provide you one right now.
We can, uh, we can, you can ask for a public defender and we can do the interview later. That’s your choice.
CODY: I would rather go on and get this over with, man, ’cause I don’t understand why she is doing this.
DETECTIVE: Okay. Before we, uh — I’m, tell you what, let’s just go ahead with this part of the line then we’ll clarify that up what you said. Uh, this is the waiver of rights, saying, having these rights in mind, you waive and give up these rights and willingly make a statement. So, for us to — uh, for you to make a statement, talk about you know what may be going on here, if you feel that she’s doing something to you, or, or if you have any information to give me, I would definitely love to get that information, because I’m not going to have it without talking to you. But uh, uh, again you know you’re gonna have to, uh, uh, sign the form and be ready to talk.
[Cody signs form.]
CODY: [Unclear]
DETECTIVE: Okay. Last thing I just want to uh, clarify what you said. Uh, uh, I can’t provide a lawyer this second, what we could do is you can ask a public defender to come at a later time, and the interview can be conducted at a later time. You’ve indicated that you’d like to not do that and you want to just go ahead and make a statement now and talk about this now, is that correct?
CODY: Um, yeah.
DETECTIVE: That’s correct?
CODY: Yeah. I want to know what’s going on. I don’t know what’s going on. I do not even know what the charges is.

From there, the detective proceeded with substantive questions pertaining to S. H.’s allegations.

On appeal, Cody claims that, although he denied during the interview ever sexually or otherwise inappropriately touching S. H. and also denied having contracted any sexually transmitted disease within the preceding two years, harmful facts were nonetheless revealed during the interview. Cody cites his statements that he had contracted and been cured of a sexually transmitted disease (although not chlamydia) during his teenage years; that he had been in the bed with S. H. while the two of them and his son watched movies, wrestled or played together; and that S. H. may have seen him shirtless, but wearing undershorts.

Cody maintains that the jury should not have been presented with his incriminating police statement, arguing that, upon being advised of his Miranda rights, he unambiguously invoked his right to counsel with the statements: “Can I get a lawyer now? Right now?” “A suspect who asks for a lawyer at any time during a custodial interrogation may not be subjected to further questioning by law enforcement until an attorney has been made available or until the suspect reinitiates the conversation.” Thus, even when an arrested suspect has unequivocally invoked his right to counsel, it does not necessarily follow that any subsequent police statement must be excluded. “Instead, the law requires analysis of whether, after a request for counsel, the police subjected the defendant to further interrogation, and, if so, whether the additional questioning was initiated by the defendant rather than the police.”

Even accepting (for the sake of argument) Cody’s claim that his statements — “Can I get a lawyer now? Right now?” — constituted an unambiguous request for counsel, the circumstances require us to consider whether the detective subjected Cody to further interrogation and whether the additional questioning was initiated by Cody rather than the detective.

In this context, “interrogation” is defined as “express questioning by law enforcement officers” or its functional equivalent — “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”

“The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.”

Here, the detective’s immediate response to Cody’s questions — “Can I get a lawyer now? Right now?” •— did not fall within that definition of “interrogation.” The detective’s response neither expressly questioned Cody nor equated to words or actions that the detective should have known were reasonably likely to elicit incriminating information from Cody. Furthermore, the additional questioning that ensued was initiated by Cody; that is, after hearing the detective’s response, Cody revealed to the detective, “I would rather go on and get this over with . . . .”

A divided U. S. Supreme Court addressed the issue of “initiating conversation” in Oregon v. Bradshaw. [] A four-justice plurality held that an accused initiates conversation when he “evince [s] a willingness and a desire for a generalized discussion about the investigation.’^] Four other justices believed that an accused initiates conversation when he “reopens the dialogue about the subject matter of the criminal investigation.’^] Eight of the nine justices agreed that the “initiation” question was the first of a two-step process for determining whether an accused had waived the right to counsel — even if the accused initiated the conversation, there must then be an inquiry whether a valid waiver of the rights to counsel and to remain silent occurred.

“Whether there was a waiver of the previously-invoked right to counsel is based upon the totality of the circumstances.”

Here, after Cody revealed that he “would rather go on and get this over with,” the detective’s statements and actions were permissibly aimed at clarifying Cody’s apparent decision to waive the right to counsel and the right to remain silent, and thus proceed with the interrogation without counsel. Indeed, Cody thereupon affirmed his decision — orally and by executing a written waiver — to give up those rights and proceed with un-counseled interrogation. Under the totality of these circumstances, the trial court did not err in admitting Cody’s police statement.

2. Cody contends that the trial court violated OCGA § 17-8-57 during the final charge when it instructed the jury regarding Count 3 of the indictment. That count alleged that Cody committed aggravated child molestation, by “touching his penis to [S. H.’s] vagina, with the intent to arouse and satisfy the sexual desires of the accused; said act causing physical injury to the child, to wit: giving the child a sexually transmitted disease.”

Cody specifically contests these instructions:

For the purpose of aggravated child molestation in determining whether the child was injured, you may consider whether said child contracted a sexually transmitted disease from the defendant. The question of whether or not the child contracted a sexually transmitted disease from the defendant is a determination solely for you, the jury, to decide.

According to Cody, these instructions violated OCGA § 17-8-57 because the trial court effectively told the “jury that if Appellant had given the alleged victim a sexually transmitted disease, then this fact could satisfy the essential element of physical injury as alleged.”

Cody cites no authority that OCGA § 17-8-57 was thereby violated, and we find none. Having read as a whole the trial court’s final charge, we conclude that the flagged language did not violate the cited statute.

3. Cody contends that the “life” sentences imposed on the two counts of aggravated child molestation were not authorized by law.

Cody points out that, effective July 1, 2006, the General Assembly amended OCGA § 16-6-4 so as to allow a sentence of life in prison. Prior thereto, the statute provided for punishment of “imprisonment for not less than ten nor more than 30 years.” Citing Ewell v. State, Cody claims that the “life” sentences must be vacated and the case remanded for resentencing, asserting that, given the evidence, a possibility exists that the jury found him guilty of crimes that occurred before the amendment’s July 1, 2006 effective date, such that the “life” sentences were not authorized. This claim is without merit.

The two counts of aggravated child molestation each alleged that the offenses occurred after the July 1, 2006 effective date: “between the 1st day of November, 2006, and the 30th day of September, 2007, the exact date of the offense being unknown.” Regarding those counts, S. H. testified that the underlying episodes occurred at their Scottdale home. S. H.’s mother’s testified that the family (the mother, S. H., and S. H.’s brother) moved (out of the University apartments and) to their Scottdale home in September 2006.

Given the foregoing, the trial court did not err in sentencing Cody pursuant to that version of OCGA § 16-6-4 effective July 1, 2006; Cody’s reliance upon Ewell is misplaced, as that case is inapposite.

4. Citing Drinkard v. Walker, Cody contends that the trial court erred by failing to merge various counts.

(a) Cody argues that the trial court should have merged Count 1, which alleged that he committed aggravated sodomy (by performing a sexual act involving his sex organs and S. H.’s anus), into Count 2, which alleged that he committed aggravated child molestation (by inserting his penis into S. H.’s anus, an act that caused injury and pain to the child). Cody posits that both counts were “based on the same act of sodomy,” and that Count 2 merely “alleged the additional elements of Appellant’s intent to arouse and satisfy his sexual desires and the causing of physical injury to the victim, to wit: pain to the victim’s anus.”

There is no merit in this argument. Supporting two separate convictions, the state adduced S. H.’s testimony and out-of-court statements concerning Cody’s sexual conduct during the second and third episodes.

(b) Cody contends that the trial court erred by failing to merge Count 5, which alleged child molestation (by rubbing his penis on S. H.’s vaginal area), into Count 3, which alleged aggravated child molestation (by touching his penis to S. H.’s vagina, thereby causing injury of sexually transmitted disease). Cody posits, “The only additional element in Count [3] was that [he] caused physical injury to the child, to wit: a sexually transmitted disease.”

There is no merit in this argument. Supporting two separate convictions, the state adduced S. H.’s testimony and out-of-court statements concerning Cody’s sexual conduct during the second and third episodes.

5. Cody contends that the trial court erred by sentencing him as a recidivist under OCGA § 17-10-7 (a).

Seeking recidivist punishment, the state introduced at the sentencing hearing certified copies of two previous felony convictions for Cody: a 1995 burglary conviction and a 2004 second-degree criminal damage to property conviction.

(a) Although conceding that he had been convicted of prior felony offenses, Cody argues that he had not been “sentenced to confinement in a penal institution” as contemplated by OCGA § 17-10-7 (a), citing that his prior sentences were either wholly or in part suspended or probated. This argument has already been rejected. “Since [Cody] was sentenced to . . . confinement in a penal institution with the privilege of serving it on probation, his sentence was in compliance with OCGA § 17-10-7 (a).”

Decided November 19, 2013

Brian Steel, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

(b) Cody asserts that the trial court failed to exercise its discretion to consider whether to probate or suspend the maximum sentences of life imprisonment, as authorized by OCGA § 17-10-7 (a). “Unless affirmative evidence shows otherwise, the trial court is presumed to have exercised its discretion in imposing sentence.” Cody cites no such evidence; moreover, the transcript of the sentencing hearing reveals that the trial court expressly noted the language affording judicial discretion. Cody has demonstrated no basis for disturbing the sentences imposed.

Judgment affirmed.

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

       Cody neither testified, nor called any witness.

       384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

        McDougal v. State, 277 Ga. 493, 497 (1) (591 SE2d 788) (2004) (determining that, where almost the entire exchange between police and the accused was audiotaped and no question had been raised about witness credibility, and the evidence was uncontroverted, the trial court’s application of the law to undisputed facts was subject to de novo appellate review); see State v. Brown, 287 Ga. 473, 476 (2) (697 SE2d 192) (2010); Taylor v. State, 274 Ga. 269, 272 (1) (553 SE2d 598) (2001).

       The officer read, as was provided upon the form:
      You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him/her present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.

        Taylor, supra at 271-272 (1) (emphasis supplied), citing Edwards v. Arizona, 451 U. S. 477, 484-485 (101 SCt 1880, 68 LE2d 378) (1981) (holding, inter alia, that during a custodial interrogation, where accused has expressed the desire to deal with the police only through counsel, the accused “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police”).

        Brown, supra, citing Edwards, supra, and McDougal, supra at 498 (1).

        Brown, supra (emphasis in original).

       See Taylor, supra at 271-272 (1) (recognizing that a suspect’s desire for counsel may not be ambiguous simply because it was articulated in the form of a question, and noting that “it is common for people to ask for things by saying ‘Can I have...?’”). See generally Davis v. United States, 512 U. S. 452, 458-459 (114 SCt 2350, 129 LE2d 362) (1994) (explaining that whether a defendant has invoked his right to counsel is an objective inquiry).

        See Brown, supra; see Smith v. Illinois, 469 U. S. 91, 98 (105 SCt 490, 83 LE2d 488) (1984) (instructing that invocation of counsel and waiver of counsel are entirely distinct inquiries).

        Brown, supra at 476-477 (2) (citations and punctuation omitted).

        Rhode Island v. Innis, 446 U. S. 291, 301 (II) (A) (100 SCt 1682, 64 LE2d 297) (1980); see Brown, supra at 477 (2).

       See Brown, supra (determining that, after the suspect invoked his right to counsel, the detectives’ words and actions that answered or deflected a number of direct questions from the suspect regarding what he would be charged with, when he could go home, whether he would be arrested, when he could use the phone, how the victim was doing, and where he would go next, did not constitute interrogation or its functional equivalent); United States v. Briggs, 273 F3d 737, 740-741 (7th Cir. 2001) (“Apolice officer’s response to a direct inquiry hy the defendant does not constitute ‘interrogation.’ ”) (citations and punctuation omitted), cited in Brown, supra at 477 (2). See generally Miranda, supra at 474 (rejecting the suggestion “that each police station must have a ‘station house lawyer’ present at all times to advise prisoners”).

       See generally Innis, supra (“ ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.”); Cook v. State, 270 Ga. 820, 825 (2) (514 SE2d 657) (1999) (noting that the “[United States] Supreme Court has expressed particular concern about deceit or trickery during a police interrogation, such as using psychological ploys ... to subjugate the individual to the will of the examiner”).

       See Walton v. State, 267 Ga. 713, 716-718 (3), (4) (482 SE2d 330) (1997) (explaining that an accused may waive his previously-invoked right to counsel if he “initiates further communication, exchanges, or conversations with the police” and that “an accused’s response to an officer’s answer to a question posed by the accused is not the product of custodial interrogation”), disapproved on other grounds, Toomer v. State, 292 Ga. 49, 57 (2) (c) (734 SE2d 333) (2012). Cf. Taylor, supra at 271-272 (1) (determining that the arrested suspect’s statement, “Can I have a lawyer present when I [tell police my version of what happened]?” followed by “Okay” when told she could, was an unambiguous request for counsel).

       462 U. S. 1039 (103 SCt 2830, 77 LE2d 405) (1983).

       Id. at 1045-1046.

       Id. at 1054 (Marshall, J., dissenting).

        Walton, supra at 716 (3), citing Bradshaw, supra at 1044-1045, 1055, n. 2; see McDougal, supra at 499-500 (1).

        McDougal, supra at 500 (1) (footnote omitted).

       See Smith, supra at 100 (explaining that statements subsequent to a request for counsel are relevant to the distinct question of waiver of counsel); Walton, supra; see further Brown, supra at 477-480 (2). See generally Davis, supra at 461 (II) (noting that, “when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney”).

       See Bradshaw, supra at 1045-1047 (concluding that suspect waived previously-invoked right to counsel after suspect reinitiated conversation and was informed by officer that he did not have to speak to the police and suspect indicated that he understood); Brockman v. State, 263 Ga. 637, 639 (1) (b) (436 SE2d 316) (1993) (concluding that suspect waived previously-invoked right to counsel when he re-initiated conversation with police, volunteered information, was re-advised of his Miranda rights, and executed a written waiver); Sanders v. State, 182 Ga. App. 581, 582-583 (1) (356 SE2d 537) (1987) (determining that suspect waived previously-invoked right to counsel when he reinitiated conversation with the police, was reminded that he had asked for a lawyer, and said he wanted to continue making a statement); cf. McDougal, supra at 500 (1) (finding no waiver of previously-invoked right to counsel, where suspect summoned detectives but made no mention of an attorney, and suspect’s only statements were in response to detective’s interrogation).

       See Bradshaw, supra; Brown, supra at 480 (2); Brockman, supra; Sanders, supra. See generally Davis, supra (reiterating that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may question a suspect until and unless the suspect clearly requests an attorney); Gonzalez v. State, 283 Ga. App. 843, 845-848 (2) (b) (643 SE2d 8) (2007) (rejecting appellant’s argument that she requested, but was denied, an attorney, where she stated at the start of the police interview, inter alia, “If I talk to a lawyer uh when is he gonna be present? ... So I can talk to him right now?” followed by “But I don’t know” when told that she could, and where the police officer advised the accused that “the court will appoint you an attorney. But uh that’s not gonna happen today. It’s a big decision to make. But it’s your choice you know,” and accused ultimately said, “Ask me questions.”).

       (“It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused....”)

       Nor does Cody claim that he challenged the sufficiency of the indictment on the ground that the count failed to allege the material element of “physical injury” under OCGA § 16-6-4 (c) when it charged that he gave the victim a “sexually transmitted disease.”

       See Carter v. State, 269 Ga. 891,893 (6) (506 SE2d 124) (1998) (rejecting contention that language in final charge violated OCGA § 17-8-57, where a review of the charge as a whole revealed that the charge did not attempt to tell the jury what had been shown by the evidence, but instead made clear that jury was the ultimate arbiter of fact).

       Ga. L. 2006, p. 379, §§ 11, 30.

       OCGA § 16-6-4 (d) (1) (2005); Ga. L. 1997, p. 1578, § 1.

       318 Ga. App. 812, 817 (3) (b) (734 SE2d 792) (2012).

       See Fleming v. State, 271 Ga. 587, 590 (523 SE2d 315) (1999) (“[I]n general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission” and that “a law is ex post facto if it inflicts upon the party a greater punishment than the law annexed to the crime at the time it was committed.”) (citations and punctuation omitted).

       Cody points out the trial court instructed the jury during its final charge, “The exact date of a crime is not a material allegation of the indictment. The crime may be proved to have taken place on any date prior to the return of the indictment solongas the date is within the applicable statute of limitations.”

       Compare Ewell, supra at 817 (3) (b) (determining that a possibility existed that the jury convicted the appellant based on acts that occurred prior to the enactment of the life sentence provision, where “the date range in the indictment... spanfned] both versions of OCGA § 16-6-4 (d),” and where “[a]t trial, neither the evidence presented nor [the victim’s] testimony identified a specific date or dates within the range listed in the indictment on which the [aggravated child molestation] occurred”).

       281 Ga. 211, 215-217 (636 SE2d 530) (2006) (holding that certain offenses may be merged and multiple punishment may be precluded, when the same conduct establishes the commission of more than one crime).

       See Yates v. State, 298 Ga. App. 727, 730 (3) (681 SE2d 190) (2009) (distinguishing Drinkard, supra, and explaining that “where the crimes charged are based on more than one separate act or transaction, no merger is required”).

       See id.

       See, e.g., Cook v. State, 305 Ga. App. 516, 518(2) (699 SE2d 831) (2010); Johnson v. State, 272 Ga. App. 294, 295 (3) (612 SE2d 29) (2005); Bennett v. State, 132 Ga. App. 397, 398-399 (3) (208 SE2d 181) (1974).

        Cook, supra, 305 Ga. App. at 518 (2).

        Paige v. State, 277 Ga. App. 687, 688-689 (2) (627 SE2d 370) (2006) (citation and punctuation omitted).

       See Morrison v. State, 256 Ga. App. 23, 26 (5) (567 SE2d 360) (2002) (interpreting OCGA § 17-10-7 (a) as providing that an individual who has previously been convicted of a felony shall be sentenced upon conviction of a subsequent felony to the maximum prescribed punishment for that offense, although the trial court may suspend or probate part or all of the sentence).