author: McMlLLIAN, Judge.

text:
    A15A1747.
    RAW PROPERTIES, INC. v. LAWSON et al.
    (783 SE2d 161)
   McMlLLIAN, Judge.

Raw Properties, Inc. (“RPI”) appeals the trial court’s order holding that RPI’s claims for damages against Claudia G. Lawson, DeKalb County Tax Commissioner (“Tax Commissioner”), and DeKalb County (collectively “Defendants”) are barred by the doctrine of sovereign immunity. For the reasons set forth below, we find no error and affirm.

“We review de novo a trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.” (Citation and punctuation omitted.) Ga. Dept. of Community Health v. Neal, 334 Ga. App. 851, 852 (780 SE2d 475) (2015).

In 2005, RPI acquired title to a piece of commercial property located in DeKalb County (the “Property”). At that time, RPI’s address of record was 5350 Snapfinger Woods Dr., Decatur, Georgia 30035 (“Decatur Address”). RPI later relocated to Sparta, Georgia, and in 2008, RPI returned a property tax installment payment for the Property with written notice that its address had changed to 407 Mill House Road, Sparta, Georgia 31087 (“Sparta Address”). In 2008, 2009, and 2010, RPI received its tax statements and bills for the Property at the Sparta Address.

RPI concedes that it did not timely pay the 2010 DeKalb County property taxes for the Property. And in May 2011, the DeKalb County Tax Commissioner sold the Property at a tax sale after the taxes remained unpaid. Although RPI was able to reclaim its Property from the tax sale purchaser, it was required to pay approximately $26,000 in expenses, including the statutory redemption premium. In February 2012, RPI filed suit against DeKalb County and Lawson in her official capacity as the Tax Commissioner, seeking damages for the expenses incurred in reclaiming the Property and for attorney fees. Specifically, RPI alleged that the Tax Commissioner’s office failed to comply with several statutory requirements by failing to properly send: (l)anoticeofintenttoissueafi. fa. pursuant to OCGA § 48-3-3; (2) an entry and notice of levy pursuant to OCGA §§ 48-3-9 (a) and 9-13-13; and (3) final notice of the impending tax sale pursuant to OCGA § 48-4-1 (collectively the “Notices”). RPI also alleged that one or more employees of the Tax Commissioner entered the Sparta Address on the certified mail receipt for one of the Notices, despite evidence that the notice had actually been mailed to the Decatur Address.

Defendants concede that, due to some undetermined cause, the address in the records of the Tax Commissioner was outdated, reflecting the Decatur Address rather than the Sparta Address; therefore, most, if not all, of the Notices were mailed to the Decatur Address. However, Defendants allege that beginning in March 2011, an employee in the Tax Commissioner’s office contacted RPI’s CEO via telephone regarding RPI’s delinquent property taxes and pending tax sale and continued to speak with him and/or leave messages on his voicemail through the end of April 2011. Thus, Defendants claim that RPI had actual notice of the unpaid taxes and pending tax sale.

Following discovery, the parties filed cross-motions for summary judgment. In March 2013, the trial court conducted a hearing on the motions before entering an order in July 2013 granting summary judgment in favor of Defendants. RPI timely appealed from that order. On appeal, Defendants asserted, for the first time, that RPI’s claims were barred by the doctrine of sovereign immunity. Because the trial court had not considered the issue, this Court remanded the action to the trial court to resolve the Defendants’ assertion of sovereign immunity. Following a hearing, the trial court issued a final order finding that the Defendants are immune from suit on RPI’s claims. This appeal followed.

1. RPI asserts that the trial court erred in finding that its claims against the Defendants are barred by the doctrine of sovereign immunity. The doctrine of sovereign immunity applies “to the state and all of its departments and agencies,” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e), including counties. Gilbert v. Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994). “And county officers sued in their official capacities — since a suit against a county officer in her official capacity is a suit against the county itself— enjoy the same sovereign immunity.” (Citation omitted; emphasis in original.) Layer v. Barrow County, 297 Ga. 871, 871 (1) (778 SE2d 156) (2015). This immunity “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). See Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 186 (674 SE2d 894) (2009) (no waiver found in the Community Service Act as it failed both prongs of the constitutional test).

Here, none of the notice provisions relied upon by RPI includes any language whatsoever regarding a waiver of sovereign immunity. See OCGA §§ 48-3-3; 48-3-9 (a); 48-4-1. However, RPI asserts that the General Assembly nonetheless has waived sovereign immunity with respect to its claims against the Defendants by pointing to a number of other statutes that describe how tax commissioners are authorized to act as ex officio sheriffs and how sheriffs may be held liable for making a “false return” or neglecting to make a “proper return.”

RPI turns first to OCGA § 48-5-137 (a), which grants tax collectors and tax commissioners the authority to act as “ex officio sheriffs insofar as to enable them to collect taxes due the state and county by levy and sale under tax execution.” This statute further provides:

In carrying out this Code section, tax collectors or tax commissioners shall have the power and authority to appoint one or more deputies with all the powers of the tax collectors or tax commissioners while acting as ex officio sheriffs in the levy and collection of taxes. Each deputy shall be required to give bond as may be required by the tax collectors or tax commissioners under the law. Each tax collector or tax commissioner shall be responsible for the acts of the deputy or deputies in the same manner and to the same degree as sheriffs are liable for the acts of their deputies.

OCGA § 48-5-137 (d) (emphasis supplied).

Relying on the last sentence of OCGA § 48-5-137, RPI next draws our attention to OCGA § 15-13-2 (1) and (5), which expressly waives sovereign immunity for sheriffs in an action for damages for the following specific claims:

(1) Making a false return;
(5) Neglecting to make a proper return of any writ, execution, or other process put into the hands of the sheriff.

Thus, construing OCGA §§ 48-5-137 (a) and (d) and 15-13-2 (1) and (5) together, RPI argues that the Tax Commissioner is liable as an ex officio sheriff, whose sovereign immunity is waived because the “deputies” in her office failed to mail the Notices to the correct address prior to the tax sale of the Property, and the failures to mail the Notices to the correct address and to keep accurate records of the mailings are either a “false return” or a neglect to make a “proper return” pursuant to OCGA § 15-13-2 (1) and (5).

Defendants counter that OCGA § 48-5-137 (d) does not waive the sovereign immunity for a tax commissioner acting as ex officio sheriff because the statute only provides that tax commissioners shall be “responsible” for the acts of their deputies to the same degree as sheriffs are “liable” for the acts of their deputies. According to Defendants, responsibility is much different than liability, and thus this language does not provide for a specific waiver of sovereign immunity with respect to tax commissioners. Pretermitting whether this language passes both prongs of the constitutional test required to find a waiver of sovereign immunity for a tax commissioner acting as an ex officio sheriff, we find that the acts complained of here — improperly addressed Notices and a certified mail receipt with an address where the notice was not mailed — do not fall within the categories of acts for which the General Assembly has expressly waived sovereign immunity for sheriffs.

Because statutes that provide for a waiver of sovereign immunity, such as OCGA § 15-3-2, are in derogation of the common law, they “are to be strictly construed against a finding of waiver.” (Citation and punctuation omitted; emphasis in original.) Bd. of Commr. of Putnam County v. Barefoot, 313 Ga. App. 406, 409 (1) (721 SE2d 612) (2011). See also State Bd. of Ed. v. Drury, 263 Ga. 429, 430 (1) (437 SE2d 290) (1993) (“In this state, sovereign immunity has constitutional status and that doctrine cannot be abrogated by this court.”) (citation and punctuation omitted). Here, RPI has pointed to no authority that an improperly addressed notice is the legal equivalent of a “false return,” and we find none. Cf. Fain v. Hutto, 236 Ga. 915, 918 (3) (225 SE2d 893) (1976) (finding difference between a false return of service and service that is legally insufficient). Nor do we find authority that an improperly addressed notice constitutes legal neglect to make a “proper return.”

To the contrary, although the statutes relied upon by RPI do not define the term “return,” we find that a “return” as used in this context is a term of art. We note that OCGA § 15-13-2 (5) limits its scope to returns “of any writ, execution, or other process put into the hands of the sheriff.” Moreover, OCGA § 15-16-10 (a) (1) provides that it is a sheriff’s duty “[t]o execute and return the processes and orders of the courts and of officers of competent authority, if not void, with due diligence, when delivered to him for that purpose, according to this Code.” Likewise, OCGA § 15-13-14 provides that “[i]f any sheriff or other officer fails to make a proper return of all writs, executions, and other processes put into his hands ..., he shall be liable for contempt and may be fined, imprisoned, or removed from office in the manner prescribed by the Constitution and laws of this state.” See also OCGA §§ 15-16-15 (allowing sheriff or other executing officer to amend returns to conform to facts of case); 15-16-16 (when sheriff or other executing officer fails to make an official return, court may order entry or return nunc pro tunc to conform to the facts at the time entry should have been made); 15-16-21 (b) (5), (13), and (c) (setting out sheriff’s fees for search and return of nulla bona, taking and returning counter affidavit when summary process to dispossess tenant or intruder is resisted, and executing and returning any warrant or serving a citation).

Thus, a review of the statutory obligations of sheriffs with respect to “returns” reveals that in context, OCGA § 15-13-2 (1) and (5) refer to the return of processes and other orders of the court, not simply mailing notices to an incorrect address or inputting an address on a certified mail receipt that does not reflect where the notice was actually mailed. See also Black’s Law Dictionary (defining “return” as “[t]he act of a sheriff, constable, or other ministerial officer, in delivering back to the court a writ, notice, or other paper, which he was required to serve or execute, with a brief account of his doings under the mandate, the time and mode of service or execution, or his failure to accomplish it, as the case may be”).

Accordingly, guided by our Supreme Court’s directive that “implied waivers of governmental immunity should not be favored,” we find that under the circumstances of this case, RPI has not met its burden of proof to establish a waiver of the Defendants’ sovereign immunity. (Citation and punctuation omitted.) Currid, 285 Ga. at 186. The trial court did not err in finding that RPI’s claims against Defendants are barred by the doctrine of sovereign immunity.

Decided February 24, 2016

Robinson & Blazer, John E. Robinson, Gregory H. Blazer, for appellant.

Laura K. Johnson, John E. Jones, Jr., Bennett D. Bryan, for appellees.

2. RPI also reasserts its enumerations of error set forth in its prior appeal in Case No. A14A0175. However, because we affirm the trial court’s order finding the Defendants are immune to RPI’s claims for the reasons set forth in Division 1, we need not address those remaining enumerations.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       At the time RPI filed its action, OCGA § 48-3-3 provided, in pertinent part:
      (b) The tax collector or tax commissioner shall issue executions for nonpayment of taxes collectable by the tax collector or tax commissioner at any time after 30 days have elapsed since giving notice as provided in subsection (c)...
      (c) As soon as the last day for the payment of taxes has arrived, the tax collector or tax commissioner shall notify in writing the taxpayer of the fact that the taxes have not been paid and that, unless paid, an execution shall be issued; provided, however, that notice shall not be required for taxes due on personal property and executions may be issued on the day next following the day when taxes are due.
      (e) (1) Whenever technologically feasible, the tax collector or tax commissioner, at the time tax bills or any subsequent delinquent notices are mailed, shall also mail such bills or notices to any new owner that at that time appear in the records of the county board of assessors. The bills or notices shall be mailed to the address of record as found in the county hoard of assessors’ records.

       OCGA § 48-3-9 (a) provides:
      Whenever any real estate is levied upon by the sheriff for taxes, it shall be the sheriff’s duty before proceeding to advertise the property for sale as provided by law to give 20 days’ written notice of the levy to the record owner of the property and the record owner of each security deed and mortgage affecting such property as provided in subsection (b) of this Code section. The period of 20 days shall begin to run from the time the notice is personally delivered or, when delivered by registered or certified mail or statutory overnight delivery as provided in this Code section, from the date of its mailing. The notice shall contain a description of the land levied upon, the name of the owner of the land, the year or years for which the taxes were assessed, and a statement of the amount of the taxes due, together with the accrued cost. The notice shall be delivered to the owner and any secured parties entitled to notice either in person or by registered or certified mail or statutory overnight delivery, with return receipt requested, at the address given on the list. The sheriff shall keep a copy of the notice on which he or she shall enter the date the notice was delivered and how, where, and to whom the notice was delivered.

       OCGA § 9-13-13 (b)states that an officer “levying onland under an execution, within five days thereafter, shall leave a written notice of the levy with the tenant in possession of the land, if any.” However, “if the defendant is not in possession, the officer shall also leave a written notice with the defendant if he is in the county or shall transmit the notice by mail to the defendant within the time aforesaid.” Id.

       OCGA § 48-4-1 provides, in pertinent part:
      (a) (1) Except as otherwise provided in this title, when a levy is made upon real or personal property, the property shall be advertised and sold in the same manner as provided for executions and judicial sales. Except as otherwise provided in this title, the sale of real or personal property under a tax execution shall be made in the same manner as provided for judicial sales; provided, however, that in addition to such other notice as may be required by law, in any sale under a tax execution made pursuant to this chapter, the defendant shall be given ten days’ written notice of such sale by registered or certified mail or statutory overnight delivery. The notice required by this Code section shall be sent:
      (A) In cases of executions issued by a county officer for ad valorem taxes, to the defendant’s last known address as listed in the records of the tax commissioner of the county that issued the tax execution;
      (B) In cases of executions issued by a municipal officer for ad valorem taxes, to the defendant’s last known address as listed in the records of the municipal officer of the municipality that issued the tax execution; or
      (C) In cases of executions issued by a state officer, to the defendant’s last known address as listed in the records of the department headed by the issuing officer.

       The Defendants also assert that they advertised the pending tax sale in the Champion newspaper for four consecutive weeks prior to the tax sale. And on May 2,2011, an agent of the Tax Commissioner posted notice of the pending tax sale at the Property affixed to the sign in front of the building.

       Although Defendants did not raise the issue in the trial court before the first appeal, this failure does not constitute a waiver. Because sovereign immunity implicates the trial court’s subject matter jurisdiction to try the case, it cannot be waived and may be raised at any time either in the trial court or on appeal. See Dept. of Transp. v. Kovalcik, 328 Ga. App. 185, 190 (1) (b) (761 SE2d 584) (2014).

       RPI also asserts that in Brooks v. Rooney, 11 Ga. 423 (1852), our Supreme Court held that a sheriff may be liable for damages for neglect of laws in the advertisement of a sale of property. However, under our current Georgia Constitution, only an act of the General Assembly can waive the sovereign immunity of the state and its departments and agencies. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e); Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 597-98 (2) (755 SE2d 184) (2014) (setting out history of sovereign immunity in Georgia).

       See Currid, 285 Ga. at 186 (“sovereign immunity is waived by any legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver”) (citation and punctuation omitted; emphasis in original).

       Although RPI argues that if the trial court’s decision is affirmed, tax authorities in Georgia will have no obligation or incentive to follow the statutory requirements governing the seizure and sale of property for taxes, RPI is not without other recourse. On remand, the trial court permitted RPI to amend its complaint to add Lawson as a defendant in her individual capacity. In addition, sovereign immunity is not a bar to an unconstitutional taking claim. See, e.g., Layer, 297 Ga. at 872-73 (2). We offer no opinion as to the merits of any further action that RPI might take.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A15A2265.
    BECKER v. THE STATE.
    (783 SE2d 166)
   PHIPPS, Presiding Judge.

In February 2013, Richard Becker was found guilty of possession of methamphetamine and obstruction of an officer, and the trial court sentenced him as a recidivist to fifteen years, with the first seven years to be served in confinement and the remaining years to be served on probation. Becker challenges the sentence imposed for the possession of methamphetamine charge. Because, as the state points out in its appeal brief, the record reflects that the trial court erroneously believed that it had no discretion in sentencing Becker to the maximum period of time prescribed for the punishment of possession of methamphetamine, the case must be remanded for resen-tencing.

1. The trial court sentenced Becker as a recidivist pursuant to OCGA § 17-10-7 (a) and (c). OCGA § 17-10-7 (a) pertinently provides: “[A]ny person who, after having been convicted of a felony offense ... commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he ... stands convicted”; but the “trial judge may... probate or suspend the maximum sentence prescribed for the offense.” OCGA § 17-10-7 (c) pertinently provides that a defendant convicted of a fourth felony “shall... serve the maximum time provided in the sentence of the judge” and “shall not be eligible for parole until the maximum sentence has been served.”

OCGA § 17-10-7 (b.l) provides: “Subsections (a) and (c) of this Code section shall not apply to a second or any subsequent conviction for any violation of subsection (a) . . . of Code Section 16-13-30.” In 2012, the General Assembly added subsection (b.l) to OCGA § 17-10-7; in the same Act, the General Assembly added language to subsections (a) and (c) of OCGA § 17-10-7, providing that (a) and (c) applied “[ejxcept as otherwise provided in subsection ... (b.l).” Subsection (b.l) and the revisions to subsections (a) and (c) became effective on July 1, 2012, and apply to offenses which occurred on or after that date.

In this case, the crimes were committed in August 2012. Therefore, pursuant to the then newly-enacted subsection (b.l) and to the revisions to subsections (a) and (c), the trial court erred in sentencing Becker as a recidivist pursuant to OCGA § 17-10-7 (a) and (c), and in believing that it was required to impose upon Becker the maximum sentence for possession of methamphetamine. Accordingly, the sentence imposed by the trial court for possession of methamphetamine is vacated, and the case is remanded for resentencing as to that count.

2. Because we are vacating Becker’s sentence for possession of methamphetamine and remanding this case for resentencing as to that count, Becker’s contention that the trial court abused its discretion when it denied his request to reduce his sentence for possession of methamphetamine on the basis that the sentence was grossly disproportionate to the underlying crime and was cruel and unusual punishment is rendered moot.

Decided February 24, 2016.

Long D. Vo, for appellant.

Herbert E. Franklin, Jr., District Attorney, Matthew C. Brown, Assistant District Attorney, for appellee.

Judgment affirmed, sentence affirmed in part and vacated in part, and case remanded for resentencing.

Doyle, C. J., and Boggs, J., concur.

       See OCGA §§ 16-13-30 (a), (c) (2012); 16-13-26 (3) (B) (2012); Ga. L. 2012, pp. 899, 915, 949, §§ 3-7A (a), (c), 9-1 (a).

       Becker was sentenced to 15 years for possession of methamphetamine, and 12 months (concurrent) for obstruction of an officer.

       See Ga. L. 2012, pp. 899, 926, 949, §§ 4-4, 9-1 (a).

       Id.

       See von Thomas v. State, 293 Ga. 669, 570, n. 1 (748 SE2d 446) (2013); see generally Hobbs v. State, 334 Ga. App. 241, 244-246 (3) (a) (779 SE2d 15) (2015); Pardon v. State, 322 Ga. App. 393, 399 (3) (745 SE2d 658) (2013).

       See Hobbs, supra at 246 (3) (a); Holland v. State, 310 Ga. App. 623, 629-630 (5) (714 SE2d 126) (2011).

       See Hobbs, supra at 246-247 (3) (b); Holland, supra at 630 (6).


author: Dillard, Judge.

text:
    A15A2378.
    SWANSON et al. v. TACKLING et al.
    (783 SE2d 167)
   Dillard, Judge.

In this interlocutory appeal, Julia and Dave Swanson appeal the trial court’s denial of their motion for summary judgment in Jessica Tackling’s personal-injury action seeking to hold them liable for serious injuries that her minor son sustained when he was bitten by their dog. On appeal, the Swansons argue that they are entitled to summary judgment because the record is devoid of any evidence that their dog had a propensity to bite or act aggressively toward a person. We agree that the trial court erred in denying their motion for summary judgment, and for the reasons set forth infra, reverse.

Viewed in the light most favorable to Tackling (i.e., the nonmov-ing party), the evidence shows that on April 26, 2012, she traveled with her seven-year-old son, J. R., and her then-boyfriend, Matthew Day, to spend a weekend with the Swansons, who are Day’s mother and stepfather. Upon their arrival, Julia greeted them and then introduced them to the Swansons’ great danés, Gussy and Willow, who were “gated off” in another room at the time. While Gussy sniffed J. R. and “seemed to be fine,” Willow put her head over the gate “pretty close” to J. R. and “barked directly in his face.” Willow’s conduct made Tackling uncomfortable, and when they went to their bedroom for the evening, she told Day that she “did not want Willow loose around [J. R.] at any given time.” However, Tackling did not share this information with either of the Swansons.

The next morning, Julia and J. R. awoke early and went to the store to buy doughnuts for breakfast. While at the store, Julia purchased stuffed bunnies for the dogs because Willow “loved stuffed animals” and the bunnies were on sale for Easter. After breakfast, J. R. asked Julia if he could give Willow one of the bunnies, and Julia let Willow, who was outside, into the sunroom where J. R. was holding the bunny under his arm. As soon as Willow came into the sunroom, she approached J. R. and, in an attempt to retrieve the bunny, bit his arm. When J. R. began to scream and cry, he bent his head down, and Willow also bit him on the head. Day, who was nearby, immediately restrained Willow and took her outside. This entire incident happened in a matter of seconds. Tackling, who heard J. R. screaming from another room, ran to the sunroom and took him to another room. At this point, J. R. began going into shock, and Tackling removed his sweatshirt to look for wounds. She first noticed a wound on his arm, but when J. R. indicated that he felt dizzy, Tackling then saw a gash in his head that went “down the side of his face.” After discovering these wounds, Tackling, Day, and Julia rushed J. R. to the hospital, where he was treated for his injuries.

Approximately two years later, on March 24, 2014, Tackling, in her individual capacity and in her capacity as J. R.’s mother, next friend, custodial parent, and natural guardian, filed a personal-injury complaint against the Swansons, asserting that J. R.’s “serious and permanently disfiguring injuries” resulted from their “failure to maintain proper control over [Willow] as required by law,” and that this failure occurred despite their knowledge of the dog’s vicious propensities. Discovery ensued, and on November 13, 2014, the Swan-sons moved for summary judgment, arguing that they could not be held liable for J. R.’s injuries because it was undisputed that, prior to the incident with J. R., Willow had never displayed any vicious tendencies. The trial court denied their motion, summarily concluding that there were genuine issues of material fact to be decided by a jury. Thereafter, the trial court granted the Swansons a certificate for immediate review, and this Court granted their application for an interlocutory appeal. This appeal follows.

At the outset, we note that summary judgment is appropriate when “the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” And a defendant meets this burden when the court is shown that “the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” Finally, if the moving party satisfies this burden, the nonmoving party cannot rest on its pleadings, but “must point to specific evidence giving rise to a triable issue.” With these guiding principles in mind, we turn now to the Swansons’ specific enumeration of error.

In their sole claim of error, the Swansons argue that they are entitled to summary judgment because there is no evidence that Willow ever displayed vicious behavior or evinced a propensity to bite anyone prior to biting J. R. We agree.

Although Tackling’s complaint does not specify which statute her personal-injury action is based upon, we note that, in a dog-bite case, a plaintiff can recover based on a dangerous-animal-liability theory under OCGA § 51-2-7 or a premises-liability theory under OCGA § 51-3-1. But as we have previously explained,

[i]n a typical dog bite case, regardless of whether the cause of action is based on the premises [-] liability statute (OCGA § 51-3-1) or the dangerous[-] animal[-]liability statute (OCGA § 51-2-7), a plaintiff must produce evidence of the vicious propensity of the dog in order to show that the owner of the premises had superior knowledge of the danger.

Further, to infer the requisite knowledge there “must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury.” And although a dog owner “need not be aware of the dog’s propensity to do the exact same act that caused the injury [at] issue,” the prior incident must be the same type as the incident at issue. Lastly, it is well settled that “a dog’s menacing behavior alone does not demonstrate its vicious propensity or place its owner on notice of such propensity.”

In the case sub judice, there is no evidence whatsoever of a prior incident in which Willow exhibited behavior even remotely similar to biting, attacking, or otherwise injuring a person. In fact, the Swan-sons’ undisputed testimony was that, prior to biting J. R., Willow had never bitten, chased, jumped on, nipped at, or even growled at anyone. Additionally, Dave, who was primarily responsible for the dogs, testified that, before this incident, he would have allowed Willow to be around small children, and that he “never would have expected Willow to bite [a] kid.” Similarly, Day testified that he was unaware of any incident, prior to the one with J. R., in which Willow acted in a threatening, vicious, or harassing nature toward anyone. And while Tackling repeatedly asserts on appeal that the Swansons were aware of Willow’s propensity to bite someone, she does not identify any prior incident when Willow exhibited aggressive or vicious behavior. To be sure, Willow barked in J. R.’s face when he arrived at the Swansons’ home, but such behavior is insufficient to put the Swansons on notice that the dog would later attack and bite him.

Tackling, nevertheless, argues that the Swansons were on notice of Willow’s propensity to attack a child merely because she was protective of her toys and would “go after” them. But as previously noted, the law required Tackling to offer evidence of a prior incident that is of the same type as the incident at issue. This, she has not done. Moreover, the undisputed evidence was that Willow went after or fetched her toys in a playful manner only if someone threw them. Suffice it to say, playing fetch bears no similarity to the act of biting someone.

Tackling further argues that, under our recent decision in Green v. Wilson, the Swansons are not “as a matter of law, absolved from responsibility for their negligence and the resulting injury to [J. R.] simply because they had never in the past loosed the dog and allowed the [gjreat [d] ane to attack a child holding its toy resulting in the child being bitten.” But Green is readily distinguishable from the instant case because, although the dog in Green had not previously engaged in the exact same behavior that caused the plaintiff’s injury (i.e., jumping over a fence and chasing the plaintiff), there was evidence that “on at least one occasion,” the dog had lunged at the dog owners’ housekeepers while one of its owners held the dog back. Under these particular circumstances, we held in Green that “evidence of the incident in which [the dog], while restrained, lunged aggressively at a housecleaner raises a genuine issue of material fact as to whether a prudent person would anticipate that [the dog] would chase someone if unrestrained.” But here, as previously discussed, Tackling has not identified any specific prior “incident” that could have possibly placed the Swansons on notice of Willow’s propensity to bite or attack anyone.

Lastly, Tackling argues that, even in the absence of a “leash law” or the Swansons’ prior knowledge of their dog’s propensity to injure, they are not entitled to summary judgment because Georgia courts have allowed “an injured victim to recover [when] a person voluntarily undertakes to restrain a dog and fails to do so, causing injury.” And while it is certainly true that “a person may be held liable for the negligent performance of a voluntary undertaking,” there is no evidence of any such undertaking in this case. Indeed, each of the “voluntary undertaking” cases that Tackling relies upon involves an affirmative promise by the dog owner to restrain the dog while the injured person was at his or her home to perform a job. But here, although Tackling advised Day that she did not want Willow to be on the loose around J. R., there is no evidence that she asked either of the Swansons to restrain Willow or that they promised to do so.

Decided February 24, 2016.

In sum, Tackling has identified no evidence that Willow had ever bitten or attempted to bite anyone before, that she had a tendency to attack humans, or that the Swansons otherwise had knowledge about her temperament that would have placed them on notice that she would bite someone. Thus, while we have the greatest sympathy for the injuries suffered by J. R., the trial court nevertheless erred in denying the Swansons’ motion for summary judgment.

For all of the foregoing reasons, we reverse the trial court’s denial of summary judgment to the Swansons.

Judgment reversed.

Ellington, P. J., and McFadden, J., concur.

Gardner, Willis, Sweat & Handelman, Donald A. Sweat, for appellants.

Vansant & Corriere, Alfred N. Corriere, for appellees.

        See, e.g., Garden City v. Herrera, 329 Ga. App. 756, 757 (766 SE2d 150) (2014).

        Garden City, 329 Ga. App. at 758 (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See OCGA § 51-2-7 (“A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.”). We note that there is no evidence, and Tackling has not alleged, that the Swansons were subject to any ordinance requiring Willow to be at heel or on a leash when she bit J. R.

        See OCGA § 51-3-1 (“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”); see also Custer v. Coward, 293 Ga. App. 316, 319 (2) (667 SE2d 135) (2008) (acknowledging, in a dog-bite case, that the plaintiff’s cause of action could be based either on the premises-liability statute or the dangerous-animal-liability statute); Wade v. Am. Nat’l. Ins. Co., 246 Ga. App. 458, 461 (1) (540 SE2d 671) (2000) (same). Notably, although Tackling’s complaint did not indicate which theory of liability she was suing under, she references both OCGA § 51-3-1 and OCGA § 51-2-7 in her appellate brief.

        Abundant Animal Care, LLC v. Gray, 316 Ga. App. 193, 195 (1) (728 SE2d 822) (2012) (punctuation omitted); accord Custer, 293 Ga. App. at 319 (2).

        Stennette v. Miller, 316 Ga. App. 425, 428 (1) (b) (729 SE2d 559) (2012) (punctuation omitted) (emphasis supplied); accord Kringle v. Elliott, 301 Ga. App. 1, 2 (686 SE2d 665) (2009); Durham v. Mooney, 234 Ga. App. 772, 773 (1) (507 SE2d 877) (1998).

       Durham, 234 Ga. App. at 773 (1); accord Torrance v. Brennan, 209 Ga. App. 65, 67 (2) (432 SE2d 658) (1993).

        See Kringle, 301 Ga. App. at 2 (“[I]n order to infer the requisite knowledge!,] there must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury.” (punctuation omitted) (emphasis supplied)); Durham, 234 Ga. App. at 773 (1) (same); Rowlette v. Paul, 219 Ga. App. 597, 599 (466 SE2d 37) (1995) (noting that “[i]t is not enough, however, that the possessor of the animal has reason to know that it has a propensity to do harm in one or more specific ways; it is necessary that he have reason to know of its propensity to do harm of the type which it inflicts” (punctuation omitted)); Sutton v. Sutton, 145 Ga. App. 22, 25 (1) (243 SE2d 310) (1978) (noting that the proper test is “whether the one incident was of such nature as to cause a reasonably prudent person to believe that the animal was sufficiently dangerous as to be likely to cause an injury at a later time”).

        Stennette, 316 Ga. App. at 429 (1) (b); accord Wade, 246 Ga. App. at 460 (1).

        See Phiel v. Boston, 262 Ga. App. 814, 816-17 (1) (586 SE2d 718) (2003) (holding that a dog’s behavior of barking and growling amounted only to menacing behavior insufficient to notify the owner of the dog’s propensity to bite); Durham, 234 Ga. App. at 773 (1) (holding that barking and growling, at most, amounted to menacing behavior, which does not establish a vicious propensity).

        See Kringle, 301 Ga. App. at 2; Durham, 234 Ga. App. at 773 (1); Rowlette, 219 Ga. App. at 599; Sutton, 145 Ga. App. at 25 (1).

        See supra footnote 10 & accompanying text.

       333 Ga. App. 631 (773 SE2d 872) (2015) (physical precedent only), cert, granted (S15G1888) (Jan. 11, 2016). The Supreme Court of Georgia granted certiorari in Green to consider whether the Court of Appeals erred “when it reversed the award of summary judgment to the appellant[.]”

        See Green, 333 Ga. App. at 633.

        See id.

        Stennette, 316 Ga. App. at 430 (3) (punctuation omitted); accord Osowski v. Smith, 262 Ga. App. 538, 540 (1) (586 SE2d 71) (2003).

        See Stennette, 316 Ga. App. at 430-31 (3) (holding that the evidence created a genuine issue of material fact as to whether the dog owner had undertaken a duty to keep the dogs away from a housekeeper when the housekeeper had asked the dog owner to confine the dog while she cleaned the house and the dog owner complied with her request on previous occasions); Osowski, 262 Ga. App. at 538, 540-41 (1) (holding that there was a jury question regarding whether the dog owner had voluntarily undertaken to restrain his dogs when there was evidence that the injured party, a technician who was at the dog owner’s home to install cable television, expressed concern about the dogs and the dog owner promised to “retain” the dogs if the technician wanted him to do so and stated that he “would take care of it”); see also Abundant Animal Care, LLC, 316 Ga. App. at 196 (2) (“One of the essential elements of [a voluntary-undertaking] claim is reasonable reliance by the injured person upon the voluntary undertaking.”).

       In her brief, Tackling summarily asserts that there was “some evidence the defendants affirmatively agreed to restrain the dog,” but she provides no record citations to support this conclusory assertion.

        See Stennette, 316 Ga. App. at 428-29 (1) (b) (holding that the owner of a dog who bit the plaintiff was entitled to summary judgment when, although the dog had previously jumped on the plaintiff in an “aggressive manner,” the dog did not attempt to bite or scratch, and the plaintiff conceded that she was unaware of any prior instance when the dog had bitten a person); Abundant Animal Care, LLC, 316 Ga. App. at 195-96 (1) (holding that an animal clinic was entitled to summary judgment in a personal-injury action in which the plaintiff was bitten by one of its dogs when it was undisputed that the dog had never bitten or harmed anyone before the relevant incident); Huff v. Dyer, 297 Ga. App. 761, 763 (1) (678 SE2d 206) (2009) (noting that evidence that a dog barked at a child amounted only to menacing behavior and did not serve as evidence of the dog’s vicious propensity); Custer, 293 Ga. App. at 319 (1), (2) (holding that dog owners were entitled to summary judgment either under the premises-liability or dangerous-animal-liability theories when the dog that bit the plaintiff had never previously attacked or bitten a human and the owners had no superior knowledge of the dog’s propensity to bite); Wade, 246 Ga. App. at 460 (1) (holding that the defendant dog owner was entitled to summary judgment in a dog-bite case because, even though there was evidence that the dog ‘harked and growled at strangers at the fence, the record [was] devoid of evidence of previous attacks on people or animals”).


text:
    A15A1721.
    SPOONE v. THE STATE.
    (783 SE2d 342)
   PHIPPS, Presiding Judge.

Following a bench trial, the probate court found Eric Spoone guilty of DUI and other traffic offenses. Spoone appealed to superior court, challenging the denial of his motion to suppress, but the superior court affirmed the probate court’s ruling. Spoone now appeals here, arguing that the DUI evidence against him should have been suppressed because it resulted from a police officer’s illegal entry into his home. Because there was evidence to support the probate court’s finding that Spoone’s mother consented to the officer’s entry, we affirm.

An appellate court reviewing a trial court’s ruling on a motion to suppress is guided by three principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

The record shows the following undisputed facts. In the early morning hours of June 14, 2013, a deputy with the Franklin County Sheriff’s Office responded to a 911 call reporting a single-car accident in which the vehicle had left the scene. When the deputy arrived, he saw that a telephone pole had been struck and “flipped,” and he noticed a trail of oil or other vehicular fluid leading away from the pole. The deputy spoke with the caller, who said that his neighbor — Spoone — had been driving a truck that hit the pole. The deputy followed the trail of fluid to a truck parked in Spoone’s driveway that was emitting smoke and showed “very extensive damage.”

The deputy knocked on the front door of the house and spoke with Spoone’s mother. The deputy then proceeded to the basement, where he found Spoone bleeding from the head. Spoone and his mother accompanied the deputy outside to view the truck, after which the deputy summoned a Georgia State Patrol trooper to investigate the accident and an ambulance to evaluate Spoone’s head injury. The deputy noticed that Spoone smelled strongly of alcohol, had bloodshot eyes, and was unsteady on his feet. The trooper arrived about 30 minutes later and, after a brief investigation, arrested Spoone for DUI. Spoone consented to chemical testing of his blood, which showed a blood-alcohol content of0.209 grams. He was later cited for multiple traffic offenses and scheduled for a nonjury trial in probate court.

Spoone moved to suppress the evidence discovered as a result of the deputy’s warrantless entry into his residence, and the probate court combined the hearing on that motion with the bench trial. At trial, the deputy and Spoone’s mother gave differing accounts of the circumstances leading to his entry into the residence. The deputy testified that after he knocked on the door of the residence, the mother opened it and the deputy told her that Spoone’s truck had been in a “bad accident just up the road.” The mother responded that Spoone was inside the house, but she did not think he had been involved in an accident. The deputy said, “[D]o you mind if we go down and check on [him] to make sure he’s okay due to the damage of the vehicle and the pole?” According to the deputy, the mother agreed and escorted him downstairs to the basement, where they encountered Spoone. The deputy testified that the mother consented to his entry into the residence, never said she did not want him there, and never asked him to leave. The deputy also stated that Spoone and his mother agreed to step outside with him to look at the truck.

Spoone’s mother, on the other hand, testified that after knocking on the door, the deputy immediately asked her to come outside to view the truck, which she did even though walking was painful for her due to a recent surgery. The mother stated that she told the deputy that Spoone was downstairs and that she would summon him if the deputy would wait at the doorway. The mother denied inviting the deputy inside. But, according to the mother, the deputy followed her downstairs without her permission, and she did not realize he was behind her until she reached the basement staircase. The mother further testified that upon entering the basement, the deputy promptly handcuffed Spoone and led him outside. The mother conceded that she “depend [ed] totally” on her son to provide her with transportation and other care and that she would have to switch doctors if he were unable to drive.

After the trial, the probate court entered a written order denying Spoone’s motion to suppress, finding that “the consent to enter the residence was given voluntarily, [Spoone] was not under arrest and voluntarily consented to leaving the sanctity of the residence.” The court also found Spoone guilty of DUI and three other traffic offenses. Spoone appealed to the superior court, which affirmed the probate court’s rulings. He now seeks review here.

1. Spoone argues that the probate court erred by finding that the deputy’s entry into his residence was consensual. We disagree.

“Fundamentally, there exists a justified expectation of privacy against unreasonable intrusions into the home. Therefore, an uncon-sented police entry into the home constitutes a search within the meaning of the Fourth Amendment.” A warrantless entry into and search of a residence may be authorized by the consent of a person possessing common authority over the premises, but the state bears the burden of proving that such “consent was voluntary under the totality of the circumstances.” Faced with conflicting accounts, the probate court credited the deputy’s testimony over the mother’s and concluded that the mother had consented to the deputy’s entry. In addition, as the superior court noted in affirming the probate court, the mother was dependent upon Spoone and therefore wanted him to avoid a DUI conviction, whereas the deputy had no motive to lie. Evaluating the credibility of the witnesses was a matter for the probate court, and we have no basis for disturbing its determination on appeal. The evidence presented at the hearing/trial authorized the probate court to determine that the mother consented to the deputy’s entry into the residence, and consequently the court did not err by denying Spoone’s motion to suppress.

Decided February 25, 2016.

McDonald & Cody, Samuel J. Sliger, for appellant.

D. Parks White, District Attorney, Brian J. Atkinson, Assistant District Attorney, for appellee.

2. Spoone also argues that the probate court failed to apply a “totality of the circumstances” analysis to the question of whether his mother gave valid consent. But the absence of exhaustive findings in the probate court’s order concerning every circumstance potentially relevant to the voluntariness of consent does not mean that the court applied the wrong standard. The court explicitly stated that its finding of voluntary consent was “[b]ased upon all the evidence and testimony of the witnesses,” and Spoone fails to indicate any relevant circumstance that the court did not consider.

3. Finally, Spoone maintains that the deputy’s entry into the home was not authorized by any exigent circumstances. But we need not consider the possibility of exigent circumstances, as the probate court found that the entry was justified by consent.

Judgment affirmed.

Doyle, C. J., and Rickman, J., concur.

        Miller v. State, 288 Ga. 286 (1) (702 SE2d 888) (2010) (citation omitted).

       Specifically, Spoone was charged with DUI, failure to maintain lane, leaving the scene of an accident, failure to use a safety belt, failure to notify the owner upon striking a fixture, and driving on the wrong side of the roadway.

        Pledger v. State, 257 Ga. App. 794, 797 (572 SE2d 348) (2002) (citations and emphasis omitted).

       Spoone does not challenge his mother’s authority to consent to the deputy’s entry.

        Pledger, 257 Ga. App. at 797; Brown v. State, 261 Ga. App. 351, 353 (1) (582 SE2d 516) (2003).

       See State v. Rowell, 299 Ga. App. 238, 240 (682 SE2d 343) (2009) (“When the outcome of a motion to suppress depends on the credibility of the witnesses or on disputed facts, and the trial court has not committed an error of law, the court’s ruling will not be disturbed on appeal.”) (footnote omitted); Buckholts v. State, 247 Ga. App. 697, 699 (2) (545 SE2d 99) (2001) (finding no clear error in trial court’s “credibility determination” that defendant voluntarily consented to search).


text:
    A15A1804.
    SAMUELS v. THE STATE.
    (783 SE2d 344)
   Dillard, Judge.

Following trial, a jury convicted Martina Samuels of one count of driving under the influence of alcohol to the extent it was less safe for her do to so (DUI less safe) and one count of disorderly conduct. On appeal, Samuels contends that the trial court erred in admitting hospital records because these records constituted hearsay and violated her right to confrontation, and in failing to rebuke the State’s prosecutor and provide sufficient curative instructions when the prosecutor made improper comments during closing argument. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that around 10:30 p.m. onMay 22,2012, the Savannah-Chatham Metropolitan Police Department received a 911 call from a motorist traveling on a nearby section of the interstate, indicating that another vehicle had been involved in an accident. Within a few minutes, a dispatched patrol officer arrived on the scene and observed that an SUV had crashed into the guardrail on the shoulder of the interstate, spun around, and come to rest facing oncoming traffic. Upon making contact with the driver of the SUV (ultimately identified as Samuels) and the three passengers, the officer determined that no one seemed to be seriously injured. However, the officer also noticed an alcoholic-beverage odor upon speaking with Samuels.

Shortly thereafter, two other patrol officers arrived on the scene, and both also noticed an alcoholic-beverage odor when speaking to Samuels. In addition, one of the officers observed that Samuels seemed unsteady on her feet and slurred her speech. Samuels admitted to drinking a beer earlier that afternoon, and one of the officers administered an alco-sensor breath test, which returned a positive result. One of the officers then asked Samuels to perform the ABC test, which she failed. Consequently, the officers decided that Samuels was impaired and, therefore, arrested her for DUI less safe. At that point, Samuels became belligerent and began punching one of the officers. But the officers quickly subdued and handcuffed her, and EMTs then transported her to the hospital. There, Samuels refused treatment and the State-administered breath test, and one of the officers took her to jail after hospital staff confirmed that she was not seriously injured.

The State later charged Samuels, via accusation, with one count each of DUI less safe, endangering a child by DUI, driving too fast for conditions, disorderly conduct, and simple battery. At Samuels’s trial, the three police officers who were dispatched to the scene of the accident testified regarding their investigation, and the State introduced, over Samuels’s objection, hospital records, which were completed the night of the accident and which noted that Samuels presented as “intoxicated.” Samuels also testified in her own defense, and at the conclusion of her trial, the jury convicted her on the charges of DUI less safe and disorderly conduct but acquitted her on all the other charges. Subsequently, Samuels filed a motion for new trial, which the trial court denied. This appeal follows.

1. In her first enumeration of error, Samuels contends that the trial court erred in admitting the hospital records, which stated that she presented as “intoxicated.” Specifically, she argues that the records constituted inadmissible hearsay, not subject to the business-records exception, and violated the Sixth Amendment’s Confrontation Clause. We disagree.

At the outset, we note that, as a general rule, “admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” Turning first to Samuels’s contention that the hospital records violated her Sixth Amendment right to confront witnesses, in Crawford v. Washington, the Supreme Court of the United States held that “the admission of out-of-court statements that are testimonial in nature violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.” And statements are “testimonial in nature” when their “primary purpose” is to “establish or prove past events potentially relevant to later criminal prosecution.” Nevertheless, statements made by witnesses to questions of investigating officers are “nontestimonial when they are made primarily to enable police assistance to meet an ongoing emergency.”

Here, the hospital records at issue consist primarily of an “Emergency Department Assessment Sheet,” which on the first page under “Triage/Initial Assessment” notes that “PT PRESENTS TO ER S/P MVC AND INTOXICATED. NEEDS TO BE CLEARED TO GO TO JAIL.” Samuels argues that the admission of this document violated the Confrontation Clause because no one responsible for completing the form testified at trial. However, the Supreme Court of Georgia has specifically held that “[m]edical records created for treatment purposes are not testimonial.” And in this matter, Samuels’s hospital records are not testimonial in nature because “the circumstances surrounding their creation and the statements and actions of the parties objectively indicate that the records were prepared with a primary purpose of facilitating [her] medical care.” Indeed, despite describing Samuels as intoxicated, the records at issue were not requested by the investigating police officers for the purpose of aiding the State’s prosecution, but rather, were simply emergency room intake forms that are completed for every incoming patient. Given these particular circumstances, the hospital records were not testimonial in nature, and thus, their admission did not violate Samuels’s rights under the Confrontation Clause.

Turning now to Samuels’s hearsay objection to the records, this Court has previously held that “[o]nce a determination is made that a statement is nontestimonial for purposes of the Confrontation Clause, the statement is admissible if it falls under one or more exceptions to the rule against hearsay.” In this matter, prior to Samuels’s trial, the State filed a notice of its intent to offer records into evidence under OCGA §§ 24-8-803 and 24-9-902. And following pretrial argument, the trial court ruled that the hospital records were admissible under OCGA § 24-8-803 (6), the business-records exception to hearsay. Samuels argues that the trial court erred in doing so, but we disagree.

In considering this aspect of Samuels’s argument, we necessarily begin our analysis with the text of OCGA § 24-8-803 (6), which provides:

Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness and subject to the provisions of Chapter 7 of this title, a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902 or by any other statute permitting certification. The term “business” as used in this paragraph includes any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit....

As this Court has previously explained, because our new Evidence Code is comparable to the Federal Rules of Evidence, this Court will “give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” And those courts have held that “hospital records, including medical opinions, are . . . admitted under [Federal Rule of Evidence 803 (6)], which expressly permits ‘opinions’ and ‘diagnoses.’ ” Given this construction of Federal Rule of Evidence 803 (6), the fact that OCGA § 24-8-803 (6) is nearly identically worded, and, as previously noted, the fact that these records were made to facilitate Samuels’s treatment and not in anticipation of prosecution, the trial court did not err in admitting the hospital records under OCGA § 24-8-803 (6).

2. Samuels also contends that the trial court erred in failing to rebuke the State’s prosecutor and failing to provide sufficiently curative instructions when the prosecutor claimed during closing argument that the hospital records indicated Samuels had a history of alcohol abuse. We disagree.

OCGA § 17-8-75 provides that when

counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

And it is well established that the decision of whether to grant a mistrial because of improper conduct by counsel rests with the trial court, and such decision will not be overturned absent a manifest abuse of discretion. Indeed, this Court has repeatedly held that

if the trial judge acts immediately, and in the exercise of his discretion takes such action as in his judgment prevents harm to the accused as a result of such improper statements, a new trial will not be granted unless it is clear that such action failed to eliminate from consideration of the jury such improper statements.

In this matter, during closing argument, the State’s prosecutor apparently showed a slide to the jury stating that the hospital records indicated that Samuels had a history of alcohol abuse. Samuels’s counsel objected, and, during a bench conference, the prosecutor reiterated that the written comment was based on information in the hospital records. Samuels’s counsel argued that the records contained no such indication, and the trial court agreed. Consequently, the court instructed the jury as follows:

Ladies and gentlemen of the jury, there is no evidence in this case of past alcohol abuse. There’s none. I think there was just a misreading of that hospital record, and you can look at it, but it was just a mistake about what it says. But there’s no — there’s no evidence in this case about any past alcohol abuse, by the defendant in this case. Okay?

Thereafter, the trial court allowed the prosecutor to resume her closing argument.

On appeal, Samuels argues that the trial court erred in failing to rebuke the State’s prosecutor for presenting the above-referenced slide and for providing an insufficient curative instruction. However, Samuels did not object after the court provided the instruction. In fact, a short time later, while discussing another objection, Samuels’s counsel stated that the court’s instruction “was appropriate for the response about alcohol abuse.” And it is well established that “[i]f the trial court’s curative instructions are not sufficient, defendant should seek additional relief.” This, Samuels failed to do; and this failure waives appellate review of the matter, “including complaints about improper comments in closing argument.”

But even setting aside Samuels’s waiver of the issue, given that the trial court sustained Samuels’s obj ection and specifically instructed the jury that the prosecutor’s argument in this regard was not supported by the evidence, Samuels’s argument on appeal lacks merit. Indeed, while Samuels claims that the court nevertheless erred by not also rebuking the prosecutor in addition to providing a curative instruction, the Supreme Court of Georgia has held that when “the instruction by the court to the jury to disregard the remarks was full, it in effect amounted to a rebuke of counsel.” Accordingly, Samuels’s argument in this regard presents no grounds for reversal.

Decided February 25, 2016.

Justin D. Maines, for appellant.

3. Samuels similarly contends that the trial court failed to properly apply O CGA § 17-8-75 when it overruled her objection to the prosecutor’s comment during closing argument that the hospital records indicated Samuels was intoxicated. Yet again, we disagree.

During the State’s closing, the State’s prosecutor summarized the evidence against Samuels and argued that “[w]e also have the medical report . . . [and] it says precisely what [defense counsel] referred to in his closing argument: ‘Patient presents to E.R. motor vehicle collision and intoxicated. Needs to be cleared to go to jail.’ ” Shortly thereafter, the prosecutor added: “And a lay person could tell she was intoxicated. That’s exactly what the doctor put in the report.” Samuels objected, but the trial court overruled the objection.

Samuels now contends that the trial court erred in overruling her objection and, in doing so, compounded its earlier error in admitting the hospital records into evidence. But although it is improper for an attorney during closing arguments to introduce facts that are not in evidence, “counsel may draw reasonable inferences or deductions from the evidence.” And as discussed in Division 1, supra, the court did not err in admitting the hospital records. Given these particular circumstances, the prosecutor merely made reasonable inferences from properly admitted evidence. Thus, Samuels’s contention in this regard likewise lacks merit.

For all of the foregoing reasons, Samuels’s convictions are affirmed.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.

MegE. Heap, District Attorney, Andre Pretorius, VandanaMurty, Assistant District Attorneys, for appellee.

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

        See U. S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.”); see also Ga. Const, art. 1, § 1, Par. XIV (“Every person charged with an offense against the laws of this state... shall be confronted with the witnesses testifying against such person.”).

        Adams v. State, 316 Ga. App. 1, 3 (1) (728 SE2d 260) (2012) (punctuation omitted); accord Smith v. State, 302 Ga. App. 128, 130 (1) (690 SE2d 449) (2010).

       541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004).

        Hester v. State, 283 Ga. 367, 370 (4) (659 SE2d 600) (2008) (punctuation omitted); accord Pitts v. State, 280 Ga. 288, 288 (627 SE2d 17) (2006).

        Hartzler v. State, 332 Ga. App. 674, 678-79 (2) (774 SE2d 738) (2015) (punctuation omitted); accord Cuyuch v. State, 284 Ga. 290, 291-92 (2) (667 SE2d 85) (2008).

        Hartzler, 332 Ga. App. at 679 (2) (punctuation omitted); accord Cuyuch, 284 Ga. at 292 (2).

        Bowling v. State, 289 Ga. 881, 888 (3) (717 SE2d 190) (2011); accord Hartzler, 332 Ga. App. at 679 (2); see also Melendez-Diaz v. Massachusetts, 557 U. S. 305, 312 (III) n.2 (129 SCt 2527, 174 LE2d 314) (2009) (noting that medical records for treatment purposes are not testimonial in nature).

        Bowling, 289 Ga. at 887 (3); see also Hartzler, 332 Ga. App. at 679-80 (2) (holding that defendant’s medical records, and testimony regarding the blood-test results contained in his medical records, were not testimonial in nature, and thus, their admission did not violate the Confrontation Clause).

        See Bowling, 289 Ga. at 887-88 (3) (holding that admission of defendant’s medical records did not violate the Confrontation Clause when they were prepared for the primary purpose of facilitating his medical care); Hartzler, 332 Ga. App. at 679-80 (2) (same).

        Owens v. State, 329 Ga. App. 455, 458 (1) (b) (765 SE2d 653) (2014); see also Thomas v. State, 284 Ga. 540, 543-44 (668 SE2d 711) (2008) (“Once a determination is made that a statement is nontestimonial in nature, normal rules regarding the admission of hearsay apply.”) (citation and punctuation omitted).

       Because this case was tried after January 1, 2013, our new Evidence Code applies. See Ga. L. 2011, pp. 99, 214, § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013).

       OCGA § 24-9-902 (11) provides:
      The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under paragraph (6) of Code Section 24-8-803 if accompanied by a written declaration of its custodian or other qualified person certifying that the record... [w] as made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of such matters; [w]as kept in the course of the regularly conducted activity; and [w]as made by the regularly conducted activity as a regular practice. . . .
      It is worth noting that Samuels does not argue that the State failed to comply with this statute in submitting the records for admission.

        Curry v. State, 330 Ga. App. 610, 613 (1) (768 SE2d 791) (2015) (punctuation omitted); see, e.g., Williams v. State, 328 Ga. App. 876, 879 (1) n.14 (763 SE2d 261) (2014).

        Manocchio v. Moran, 919 F2d 770, 780 (I) (D) (2) (1st Cir. 1990); see also United States v. Hall, 419 F3d 980, 987 (II) (A) (9th Cir. 2005) (holding that medical records from a hospital visit were kept in the ordinary course of business and are “classic exceptions” to the hearsay rule under Federal Rule of Evidence 803 (6)). Cf. Corbett v. State, 266 Ga. 561, 565 (3) (468 SE2d 757) (1996) (noting that under Georgia’s former business exception rule, which unlike OCGA § 24-8-803 (6) did not expressly permit opinions, hospital records were admissible to the extent they were made in the regular course of business but would constitute hearsay to the extent they contained opinions of third parties not before the court).

        See Fed. R. Evid. 803 (6) (“The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness ... [a] record of an act, event, condition, opinion, or diagnosis if . . . the record was made at or near the time by — or from information transmitted by — someone with knowledge; the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; making the record was a regular practice of that activity; all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902 (11) or (12) or with a statute permitting certification; and the opponent does not show that the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness.”).

        See Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence p. 275 (2d ed. 2014) (noting that OCGA § 24-8-803 (6) “closely tracks its federal counterpart”).

        See Hall, 419 F3d at 987 (II) (A) (holding that medical records from a hospital visit were kept in the ordinary course of business and are “classic exceptions” to the hearsay rule pursuant to Federal Rule of Evidence 803 (6)). Cf. Thompson v. State, 332 Ga. App. 204, 208-10 (1) (770 SE2d 364) (2015) (holding that loss-prevention report prepared by store after shoplifting incident was nevertheless not made in anticipation of prosecution and, therefore, was admissible under OCGA § 24-8-803 (6)).

        Campbell v. State, 329 Ga. App. 317, 317-18 (1) (764 SE2d 895) (2014); accord Pullin v. State, 258 Ga. App. 37, 42 (3) (572 SE2d 722) (2002).

        Campbell, 329 Ga. App. at 318 (1) (punctuation omitted).

        Stubbs v. State, 315 Ga.App. 482, 484 (2) (727 SE2d 229) (2012) (punctuation omitted); see Garcia v. State, 271 Ga. App. 794, 796 (2) (611 SE2d 92) (2005).

        Stubbs, 315 Ga. App. at 484 (2) (punctuation omitted).

        See Campbell, 329 Ga. App. at 318(1) (holding that trial court did not abuse its discretion when it sustained defendant’s objection, rebuked the prosecutor, and instructed the jury to not consider the prosecutor’s statement that was not supported by the evidence).

        Ward v. State, 252 Ga. 85, 89 (2) (311 SE2d 449) (1984); see also Counts v. Moorehead, 232 Ga. 220, 221 (1) (206 SE2d 40) (1974).

        Messick v. State, 276 Ga. 528, 529 (2) (580 SE2d 213) (2003).

        See id. (holding that prosecutor’s statement during closing argument was a proper inference from the evidence and, therefore, did not warrant rehuke and curative instruction under OCGA § 17-8-75); Tolbert v. State, 313 Ga. App. 46, 57-58 (5) (720 SE2d 244) (2011) (same).


text:
    A15A1907.
    COOPER v. COULTER.
    (783 SE2d 350)
   PHIPPS, Presiding Judge.

Michael Cooper appeals from the trial court’s order denying him custody of his nine-year-old son and modifying his visitation privileges. Finding no error, we affirm.

Viewed favorably to the trial court’s ruling, the evidence shows that Tabitha Coulter and Cooper had a brief relationship that produced one child, L. C. Cooper legitimated L. C., and the parties entered into a custody arrangement that placed L. C. in Coulter’s custody, awarded Cooper visitation rights, and required Cooper to pay child support. Although Cooper did not always exercise his visitation privileges, he spent more time with L. C. as the child grew older, including weekend visits.

In May 2014, L. C. gave Coulter a handwritten note detailing issues he had with his father. The note stated, among other things, that Cooper had “jiggle[d] his privates ... in front of” L. C., taken baths with him, and slept naked in the bed with him. Shortly after the outcry, Coulter reported the allegations to the police. Cooper denied any misconduct, and no criminal charges were filed. Coulter, however, noticed that L. C. appeared scared when discussing his father. Concerned about L. C.’s safety, Coulter obtained an ex parte restraining order on June 6, 2014, suspending Cooper’s visitation privileges. Coulter also filed a complaint for permanent modification and suspension of the privileges. In response, Cooper counterclaimed for custody of L. C., asserting that Coulter had poisoned L. C.’s mind against him and was engaged in an inappropriate, meretricious relationship.

The trial court held a bench trial on the competing claims. L. C. testified and confirmed that he wrote the note, asserting that he was “[t]ired of all that stuff happening” when he visited his father. Although he had asked his father not to behave in this manner, Cooper refused to stop. L. C. stated that he was scared of Cooper, whom he did not want to see again.

Cooper denied the allegations at the bench trial, and his attorney implied that Coulter had coached L. C. to lie so that she could prevent Cooper from seeing his son. Coulter testified, however, that she did not tell L. C. what to say, did not know about L. C.’s allegations until he reported them, and had not plotted to falsify the allegations against Cooper. L. C. similarly testified that no one told him to make the allegations.

The evidence further shows that, despite a provision in the custody decree prohibiting romantic overnight guests, both Coulter and Cooper had engaged in live-in relationships. Cooper lived with his girlfriend for several years after the decree was entered, and Coulter resided with her now ex-husband, Aaron Hartung, for a period of time before they were married. Coulter also admitted that, at the time of trial, a woman with whom she was romantically involved lived with her. Coulter asserted that she and her partner were in a committed relationship and planned to marry through a civil ceremony. L. C., who referred to Coulter’s partner as “stepmom,” testified that their relationship did not bother him.

Based on the evidence presented, the trial court determined that a material change of circumstances had occurred that supported modification of the custody decree’s visitation provisions. Specifically, the court ordered that for six months, Cooper’s visitation be exercised in a supervised environment coordinated by Four Points, an outside family agency. After six months, Cooper would have unsupervised visits with L. C. on weekend days for eight weeks. The decree’s original overnight visitation schedule would recommence following that period. The trial court implemented this graduated visitation plan “for the benefit of” L. C., noting that it had “concern[s] about [L. C.’s] emotional well-being.” Although the trial court did not alter Coulter’s custody, it concluded that she had “willfully violated the wholesome environment clause” of the decree. It further found that she could “purge herself by fully cooperating with Four Points.”

1. Cooper argues on appeal that the trial court erred in refusing to place L. C. in his custody. We disagree. A custody modification petition should be granted only “if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award.” The trial court exercises its discretion in determining whether a sufficient material change has occurred, and we will not reverse that determination absent abuse.

According to Cooper, Coulter’s live-in relationship with her partner authorized a change in custody. Coulter does not dispute that her relationship violated the “overnight guest” prohibition in the custody decree. But it is clear that both parties ran afoul of the prohibition. And such live-in relationships, by themselves, do not warrant a custody change. The relationship must affect the child’s welfare to support modification.

Cooper did not offer any evidence that Coulter’s romantic relationships negatively impacted L. C. On the contrary, the record shows that he had a strong bond with his ex-stepfather, referred to his mother’s domestic partner as “stepmom,” and was not concerned by their relationship. Although Coulter and her partner kissed and hugged in front of L. C., there is no evidence that he saw them engage in sexual activity. The trial court did not abuse its discretion in refusing to alter Coulter’s custody on this basis.

Cooper further argues that the trial court should have awarded him custody because Coulter “poisoned” L. C. against him and encouraged L. C. to falsely claim that Cooper engaged in inappropriate conduct. L. C. testified, however, that the alleged misconduct did occur, and Coulter insisted that she was not engaged in a “plot” against Cooper. Moreover, both asserted that Coulter did not tell L. C. to make the allegations. L. C. stated that he wanted no contact with his father or his father’s family, but he attributed that decision to his father’s behavior, not his mother’s influence. And although L. C. sometimes referred to Hartung as “Dad,” thought of Hartung’s nieces and nephews as “cousins,” and called his mother’s domestic partner “stepmom,” he understood his actual relationship to these individuals and was not confused by the situation. Given this evidence, the trial court was authorized to reject Cooper’s claim that Coulter “poisoned” L. C. against him or encouraged L. C. to lie.

2. Cooper contends that the trial court erroneously modified his visitation privileges. Again, we disagree. The record shows that L. C. had become fearful of his father and did not want to visit him. The trial court declined to suspend Cooper’s visitation entirely. But it expressed concern for L. C.’s emotional well-being and concluded that, under the circumstances, a graduated approach to visitation would benefit the child. The trial court did not abuse its discretion in finding that a modified visitation plan served L. C.’s best interests.

Decided February 25, 2016.

Joseph E. Willard, Jr., for appellant.

J. Michael Giglio, for appellee.

3. Cooper claims that the trial court should have made specific findings of fact and conclusions of law with respect to the visitation issue. Cooper, however, approved the form of the trial court’s final order. “[Ajfter approving the form of [an] order, a party cannot complain of the court’s failure to include findings of fact and conclusions of law.”

4. Finally, Cooper argues that the trial court erred in not holding Coulter in contempt for violating the custody decree’s wholesome environment clause. The language of the trial court’s order belies this claim. Although the order does not use the word “contempt,” it explicitly found that Coulter had wilfully violated the clause and that she could “purge herself” by taking certain steps. The court clearly deemed Coulter in contempt. To find otherwise would elevate form over substance, which we decline to do. Accordingly, this claim of error lacks merit.

Judgment affirmed.

Doyle, C. J., and Boggs, J., concur.

       See Driver v. Sene, 327 Ga. App. 275, 276 (758 SE2d 613) (2014).

        Kuehn v. Key, 325 Ga. App. 512, 513 (1) (754 SE2d 103) (2014) (punctuation and footnote omitted).

       See id.

       See Livesay v. Hilley, 190 Ga. App. 655, 656-657 (2) (379 SE2d 557) (1989).

       See Hayes v. Hayes, 199 Ga. App. 132, 133 (404 SE2d 276) (1991) (meritricious relationship did not warrant change in custody); Livesay, supra (trial court erred in removing custody from mother based on mother’s relationship with live-in boyfriend where record contained no evidence that relationship adversely impacted child’s welfare).

       See Kuehn, supra at 517 (we will not reverse a change-of-custody decision that is supported by any evidence). See also Lewis v. Lewis, 252 Ga. App. 539, 543 (2) (557 SE2d 40) (2001) (“It is not our function to second-guess the trial court in cases such as this, which turn largely on questions of credibility and judgments as to the welfare of the child. The trial court is in the best position to make determinations on these issues, and we will not overrule its judgment if there is any reasonable evidence to support it.”) (citation and punctuation omitted).

       See Vines v. Vines, 292 Ga. 550, 552 (2) (739 SE2d 374) (2013) (trial court’s discretion in resolving visitation issues will not be disturbed on appeal absent abuse); Cannella v. Graham, 325 Ga. App. 596 (754 SE2d 385) (2014) (standard applied in deciding visitation rights is best interests of the child). See also Gildar v. Gildar, 309 Ga. App. 730, 731 (710 SE2d 913) (2011) (“If reasonable evidence exists in the record to support the trial court’s decision to change visitation rights, then the decision of that court will stand.”) (punctuation omitted).

        Wang v. Liu, 292 Ga. 568, 572 (1) (740 SE2d 136) (2013) (punctuation and footnote omitted).

       See Ansell v. Ansell, 328 Ga. App. 586, 592 (3) (759 SE2d 916) (2014) (“The essence of civil contempt is willful disobedience of a prior court order.”) (punctuation and footnote omitted).

       See In the Interest of U. B., 246 Ga. App. 328, 332 (3) (540 SE2d 278) (2000) (refusing to elevate form over substance).


text:
    A15A2007.
    GOODRUM v. THE STATE.
    (783 SE2d 354)
   PHIPPS, Presiding Judge.

A jury found Jonquae Rique Goodrum guilty of aggravated assault. Goodrum filed a motion for new trial, which the trial court denied. He now appeals, challenging the sufficiency of the evidence, the wording of his indictment, and the effectiveness of trial counsel. For reasons that follow, we affirm.

1. When reviewing a challenge to the sufficiency of the evidence, we construe the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt.

So viewed, the evidence shows that Goodrum and the victim dated for a few weeks in late December 2012 and early January 2013. After they ended their relationship, the victim often found Goodrum waiting for her outside her home. On these occasions, Goodrum acted aggressively toward the victim, chasing her, threatening her, and banging on her doors and windows.

On the evening of January 23, 2013, the victim received numerous calls and text messages from Goodrum, which she did not answer. At approximately 11:00 p.m., Goodrum texted her that he would kill himself if she did not respond to him. The victim wrote back, asking if he needed her to call someone to help him. She then went to sleep. Shortly after midnight, Goodrum kicked in the door to her home. The victim awoke and immediately called 911. While the 911 operator was still on the line, Goodrum jumped on the victim and began choking her with his hands, making it difficult for her to breathe.

Two officers responded to the 911 call. As they arrived, they heard the victim scream and observed that the front door was broken. Inside, they found Goodrum with his hands wrapped around the victim’s throat. One of the officers pulled Goodrum off the victim, who was gasping for air, and arrested him. Following the incident, the victim had red marks on her neck where Goodrum’s hands had been.

An assault occurs when someone attempts to violently injure another person or commits an act that places another in reasonable apprehension of immediate violent injury. An assault becomes aggravated if it is carried out “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” As we have held, the use of hands to choke a victim can satisfy the deadly weapon or dangerous object element of aggravated assault. Whether the use of hands rises to this level is a question for the jury.

The evidence shows that Goodrum jumped on top of the victim and choked her with his hands until a police officer pulled him off of her. At the time, she was gasping for breath, and the pressure around her throat left red marks. Under these circumstances, the jury was authorized to find that Goodrum committed aggravated assault by using his hands as a deadly weapon or object likely to result in serious bodily injury. The evidence, therefore, was sufficient to support his aggravated assault conviction.

2. Goodrum contends that he should not have been indicted for aggravated assault because the statutory language in effect at the time of his 2013 offense did not prohibit “choking.” In 2014, the legislature amended OCGA § 16-5-21 to specifically provide that aggravated assault occurs when a person assaults “[w]ith any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation.” The former version of the statute contained no reference to strangulation. But this does not mean that prior to 2014, choking or strangulation could not support an aggravated assault conviction. On the contrary, we consistently held the opposite.

Goodrum also argues that because his indictment mentioned “choking,” the jury was unable to find him guilty of any lesser included offense. We disagree. The indictment charged that Goodrum committed aggravated assault “with [his] hands, an object which when used offensively against a person is likely to result in serious bodily injury by choking said person.” The trial court read the indictment to the jury. It then defined aggravated assault, extensively discussing the necessary elements of the crime. It further instructed the jury on the lesser offenses of simple assault and battery.

Fully apprised of its options, the jury could have determined that Goodrum was guilty only of a lesser offense. It did not do so, however, and the evidence supported its conclusion that Goodrum committed aggravated assault. Accordingly, he is not entitled to reversal on this ground.

3. Finally, Goodrum asserts that he received ineffective assistance of counsel at trial. To prevail on this claim, Goodrum must show that trial counsel’s performance was deficient and that, but for the deficiency, “there is a reasonable probability that the outcome of the trial would have been more favorable to him.” This showing requires Goodrum to overcome the strong presumption that counsel’s performance fell within the wide range of reasonable professional conduct.

(a) Goodrum first argues that trial counsel posed inappropriate questions during voir dire. Specifically, the record shows that counsel asked a potential juror for detailed information about a prior experience with domestic violence. The prosecutor interrupted the questioning, requested a bench conference, and stated: “I just don’t know that we need to go into this much detail.” The trial court agreed, noting: “I think you run the risk of possibly influencing the other members of the panel when you start getting into that much detail.” Defense counsel explained that he wanted to explore whether the individual had a past experience that might keep him from being a proper juror. The trial court, however, restricted counsel’s line of inquiry to avoid the “very real risk” of tainting the pool, and counsel lodged an objection “to not being allowed to go into full details.” When voir dire resumed, the trial court again admonished counsel not to bring out details of any prospective juror’s experience with domestic violence.

According to Goodrum, trial counsel “conducted voir dire in a manner that tainted the jury pool.” But counsel’s decision regarding how to question potential jurors was clearly a matter of trial strategy. And matters of reasonable trial strategy “do not equate with ineffective assistance of counsel.” Moreover, even if counsel’s methods were not reasonable, Goodrum has offered no evidence that those methods actually impacted the trial or prejudiced him in any way. The trial court, therefore, properly rejected this ineffective assistance claim.

(b) Goodrum also contends that he is entitled to a new trial because counsel failed to subpoena to trial an individual named “Kenneth,” who allegedly witnessed his altercation with the victim. Goodrum, however, did not call “Kenneth” as a witness at the hearing on his motion for new trial, and he provided no other evidence as to what this individual’s testimony might have been. He thus cannot demonstrate that counsel’s failure to present the testimony at trial prejudiced him.

(c) Goodrum asserts — without any supporting argument — that trial counsel did not adequately prepare him for trial. Counsel testified, however, that he met with Goodrum several times, including one long initial interview, and they discussed “every aspect of the case.” Goodrum claimed at the new trial hearing that he asked counsel for more meetings. But he offered no insight into what additional steps counsel should have taken to prepare him for trial, and he demonstrated no reasonable probability that the trial outcome would have changed had counsel acted differently. Accordingly, the trial court properly rejected this claim.

(d) Finally, Goodrum contends that counsel should have challenged his indictment because the act of “choking” did not give rise to aggravated assault at the time of the offense. As discussed in Division 2, however, even before the legislature amended OCGA § 16-5-21 in 2014, using hands to choke a victim could support an aggravated assault conviction. Trial counsel was not ineffective in failing to pursue this meritless argument.

Judgment affirmed.

Boggs and Mercier, JJ., concur.

Decided February 25, 2016.

Jonathan P. Waters, for appellant.

K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.

        Hall v. State, 292 Ga. App. 544, 545 (664 SE2d 882) (2008).

       Id.

       OCGA § 16-5-20 (a).

       OCGA § 16-5-21 (a) (2) (2013). Although the aggravated assault statute was amended effective July 1,2014, the prior version applies to the offense at issue here. See Gipson v. State, 332 Ga. App. 309, 312 (1), n. 2 (772 SE2d 402) (2015).

         Hall, supra at 546-547 (1).

        Richards v. State, 222 Ga. App. 853, 854 (1) (a) (476 SE2d 598) (1996).

       See Whitley v. State, 307 Ga. App. 553, 555-557 (707 SE2d 375) (2011) (choking with hands authorized aggravated assault conviction); Hall, supra at 547 (1) (aggravated assault conviction supported by victim’s testimony that defendant strangled her with one hand while placing the other hand over her mouth and nose); Richards, supra (evidence that defendant choked victim with hands until she passed out supported guilty verdict on aggravated assault charge).

       OCGA § 16-5-21 (b) (3).

       See OCGA § 16-5-21 (a) (2) (2013).

       See, e.g., Whitley, supra; Hall, supra; Richards, supra.

       See Smith v. State, 226 Ga. App. 150, 151 (2) (485 SE2d 538) (1997) (where evidence supported finding of guilt on crime charged, jury authorized to reject option of convicting on lesser included offense).

        Benson v. State, 294 Ga. 618, 622 (3) (754 SE2d 23) (2014).

       See Leon v. State, 237 Ga. App. 99, 105 (4) (513 SE2d 227) (1999).

       Id. (citation and punctuation omitted); see also Morgan v. State, 276 Ga. 72, 77 (9) (575 SE2d 468) (2003) (“The content of trial counsel’s voir dire of the jury venire can be a matter of trial strategy.”).

       See Benson, supra at 622 (3) (a) (ineffective assistance claim failed where defendant demonstrated no reasonable probability that counsel’s allegedly deficient performance during voir dire impacted trial).

        See Boatwright v. State, 281 Ga. App. 560, 561-562 (2) (636 SE2d 719) (2006) (defendant cannot demonstrate that trial counsel’s failure to subpoena witness to trial prejudiced him unless he calls witness to testify at new trial hearing or otherwise proves what trial testimony would have been).

       See Williams v. State, 281 Ga. 196, 196-197 (637 SE2d 25) (2006) (trial court did not err in rejecting deficient trial preparation claim where evidence showed, among other things, that counsel met with defendant several times before trial to discuss evidence); Hinkle v. State, 282 Ga. App. 328, 329 (2) (638 SE2d 781) (2006) (no ineffective assistance when defendant “fails to indicate what other steps counsel might have taken or how such additional preparation would have altered the outcome of the trial”).

       See Trimble v. State, 297 Ga. 180, 183 (5) (b) (773 SE2d 188) (2015) (“[TJrial counsel cannot be held ineffective for failing to pursue a meritless motion.”).