text:
    A13A1094.
    THE STATE v. COOPER et al.
    (749 SE2d 35)
   MCFADDEN, Judge.

The state indicted Christopher Cooper on two counts of aggravated assault for striking two persons with a crow bar, Latrenia Walls on two counts of aggravated assault for striking two persons with a crow bar, and Lonell Walls on one count of simple battery for striking someone with his fists. In pleas in bar, the defendants moved for immunity from prosecution under OCGA § 16-3-24.2, arguing that they had acted in defense of themselves and others. At the hearing on the motions, the state chose not to put on any evidence or cross-examine any defense witnesses. After the hearing, the state moved to reopen the evidence. In the order on appeal, the trial court granted the defendants’ motions for immunity and denied the state’s motion to reopen the evidence. The hearing evidence authorized the trial court to find that the defendants reasonably believed that there was a danger of imminent death or great bodily injury to one or more of their group and that the force they used was necessary to defend themselves from a violent attack, entitling them to immunity. And the state has not shown that the trial court abused its discretion in declining to reopen the evidence. Accordingly, we affirm.

1. Motions for immunity from prosecution.

In their motions for immunity from prosecution, the defendants argued that they used force in accordance with OCGA § 16-3-21. That Code section provides, in pertinent part:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, ... a person is justified in using force which is intended to or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

OCGA § 16-3-21 (a). A person who uses force in accordance with OCGA § 16-3-21 “shall be immune from criminal prosecution therefor,” except in certain circumstances not at issue here. OCGA § 16-3-24.2. “The issue of immunity is a question for the trial court prior to trial, with the defendant bearing the burden of showing by a preponderance of the evidence that he is entitled to immunity.” Hipp v. State, 293 Ga. 415, 418 (746 SE2d 95) (2013) (citations omitted). Accord Bunn v. State, 284 Ga. 410, 413 (3) (667 SE2d 605) (2008). On appeal, “we must view the evidence in the light most favorable to the trial court’s ruling and accept the trial court’s findings of fact and credibility determinations if there is any evidence to support them.” Sifuentes v. State, 293 Ga. 441, 444 (2) (746 SE2d 127) (2013) (citation omitted).

Because the state presented no evidence, the evidence that the defendants presented at the hearing was uncontroverted. See Hipp, 293 Ga. at 415. Viewed most favorably to the trial court’s ruling, that evidence showed that on August 3, 2010, Robert and Ryan Blount began making racial comments and slurs toward Cooper and his girlfriend outside of his girlfriend’s workplace. Cooper did not respond to the remarks but notified his uncle and aunt, Lonell and Latrenia Walls, who came to the scene. The Blounts briefly left the scene, then returned and, without provocation, tried to “jump” Cooper.

Lonell Walls intervened, stepping between Cooper and Robert Blount to prevent Robert Blount from attacking Cooper. Lonell Walls began “wrestling” with Robert Blount. As the two men struggled, Robert Blount threatened to kill Cooper and tried to charge at him. He used racial epithets in his threat.

Meanwhile, Ryan Blount hit Cooper from behind, and Cooper fell to the ground, bleeding. Latrenia Walls, who was standing near a truck, picked up a crow bar. She did not, however, advance toward anyone or try to strike anyone or do anything else with the crow bar, and it appeared to witnesses that she was holding the crow bar to prevent the Blounts from attacking her. Ryan Blount rushed toward the truck and began struggling with Latrenia Walls for the crow bar. Latrenia Walls called out for help. Ryan Blount pulled the crow bar out of her hand, and Cooper’s girlfriend thought Ryan Blount might strike Latrenia Walls with it. Cooper intervened and took the crow bar away from Ryan Blount. Robert Blount then broke away from Lonell Walls and charged at Cooper. Cooper swung the crow bar, hitting Robert Blount on the leg. Cooper did not strike Ryan Blount with the crow bar.

Cooper’s girlfriend, who witnessed these events, testified that she was afraid and that Cooper appeared to be afraid, as well. She also testified that she believed Robert Blount had the ability at that time to carry out his threat to kill Cooper.

Notwithstanding this testimony, the state argues that “the record is devoid of any evidence to support a finding that the [defendants] were acting in self-defense or defense of others.” We acknowledge that, had the state cross-examined the defense witnesses or presented evidence of its own, a different picture of the altercation might have emerged. As it stands, however, the uncontroverted evidence clearly was sufficient to support the conclusions both that Cooper, Latrenia Walls and Lonell Walls reasonably believed that there was a danger of imminent death or great bodily injury to one or more of their group and that the force they used was necessary to defend themselves from a violent attack. See State v. Green, 289 Ga. 802, 804 (1) (716 SE2d 194) (2011).

We disagree with the state that these conclusions depend upon improper witness opinion as to the ultimate issue of whether the defendants acted in defense of themselves or others. See generally Melear v. State, 159 Ga. App. 574, 577 (2) (284 SE2d 79) (1981) (“Apprehensions or opinions of third parties, that the accused is in imminent danger, are not relevant. But facts from which apprehension might reasonably be inferred, as distinct from opinion, are relevant when stated or shown by third parties”) (citations and punctuation omitted). We also disagree with the state that the trial court was required to find the defendants’ response to the Blounts’ attack and threats to he excessive. In the cases cited by the state for this proposition, we upheld trial courts’ findings of no justification or immunity. E.g., Harris v. State, 274 Ga. 422, 423 (1) (554 SE2d 458) (2001) (jury was authorized to find that defendant’s act of stabbing victim multiple times, killing him, was excessive and not reasonably necessary to defend against victim’s sexual assault of defendant, and thus defendant’s act was not justified); In the Interest of Q. M. L., 257 Ga. App. 22, 24 (2) (570 SE2d 92) (2002) (trial court was authorized to find that juvenile’s act of repeatedly stabbing unarmed victim and struggling to be released from persons holding her so that she could “kill” victim, even though victim was not attacking her at that point, was an excessive response to victim’s act of striking juvenile from behind with her hands). The evidence in this case can be construed in a manner to support the trial court’s conclusion that the defendants’ actions were justified.

“Accordingly, the evidence was sufficient for the trial court to determine that [the defendants] met [their] burden of proving that [they were] entitled to immunity from prosecution pursuant to OCGA § 16-3-24.2.” Green, 289 Ga. at 804 (1) (citation omitted). See also State v. Yapo, 296 Ga. App. 158, 160 (2) (674 SE2d 44) (2009) (where testimony provided some evidence that defendant’s actions were justified under OCGA § 16-3-21 (a) and state chose to present no contrary testimony, trial court properly held that defendant was immune from prosecution for those actions).

2. The state’s motion to reopen the evidence.

After the hearing on the defendants’ motions for immunity, but before the trial court ruled on those motions, the state moved to reopen the evidence. In support of its motion, the state argued that “[a] review of the case law appears to demand the testimony of the victims,” and that “[a]ny error in the [sjtate’s presentations on the motion[s] would only hurt the victims in this case, and is due [to] the [s]tate’s misinterpretation of the law.” The state made no proffer of the testimony that Robert or Ryan Blount would provide.

Whether to reopen the evidence falls within the sound discretion of the trial court and the exercise of that discretion will not be disturbed on appeal absent an abuse of discretion. The failure to include in the record a proffer of the testimony for which a party seeks to have the evidence reopened precludes the reviewing court from ascertaining whether harm resulted from the decision not to reopen the evidence.

Danenberg v. State, 291 Ga. 439, 443 (5) (729 SE2d 315) (2012) (citations omitted).

The state argues that the trial court could have exercised its discretion to give the state a second chance in light of the state’s mistakes at the immunity hearing, and it argues that the trial court’s refusal to do so was unfair to the Blounts. The trial court did not overstep the bounds of its discretion. See Tweedell v. State, 218 Ga. App. 518, 519 (2) (462 SE2d 181) (1995) (no abuse of discretion in trial court’s refusal to allow defendant to reopen evidence after resting when defense counsel inadvertently failed to call defendant to testify). See generally State v. Lynch, 286 Ga. 98, 104-105 (686 SE2d 244) (2009) (Nahmias, J., concurring specially) (noting that, while it might be preferable for trial court to reopen evidence in Jackson-Denno hearing where prosecutor’s performance left “much to be desired” and murder victim’s family could be left dissatisfied by decision not to reopen evidence, that decision remained within trial court’s discretion). We find no abuse of discretion in the decision of the trial court not to reopen the evidence to permit the state to introduce evidence on immunity when the state failed to do so in the first instance and failed to make a proffer to the trial court as to the omitted evidence. See Danenberg, 291 Ga. at 443 (5); Tweedell, 218 Ga. App. at 519-520 (2).

Decided September 26, 2013.

Richard E. Currie, District Attorney, for appellant.

James A. Yancey, Jr., for appellees.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

       The trial court decided this case under Georgia’s former Evidence Code. Under the new Evidence Code, except as to certain expert witness testimony, “testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact.” OCGA § 24-7-704 (a). See generally OCGA § 24-7-701 (a) (setting forth rules for lay witness testimony regarding the witness’s opinions and inferences).


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A13A1158.
    IN THE Interest OF H. B. et al., children.
    (749 SE2d 38)
   MCFADDEN, Judge.

The mother of H. B., R. B. and D. G. appeals from a juvenile court order finding the children to be deprived. Because there is not clear and convincing evidence of deprivation, we reverse.

On appeal from a juvenile court order finding deprivation, we review the evidence from the juvenile court hearing in the light most favorable to the court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the children were deprived. In the Interest of D. W., 318 Ga. App. 725 (734 SE2d 543) (2012). We do not weigh the evidence or determine the credibility of witnesses, and instead defer to the juvenile court’s findings of fact and affirm unless the appellate standard is not met. In the Interest of B. M. B., 241 Ga. App. 609 (527 SE2d 250) (1999).

So viewed, the evidence presented at the hearing in this case showed that in September 2010 and May 2012, the Department of Family and Children Services investigated allegations of lack of supervision by the mother. In both instances, the department found no mistreatment of the children, and the cases were closed. In October 2012, the department investigated an alleged incident of domestic violence between the mother and her boyfriend. The incident began when the mother found the boyfriend asleep and intoxicated on her couch, and she told him to get out of the house. During the argument, the boyfriend hit the mother several times, pulled her hair and threw a concrete block through the back door, breaking a window. The boyfriend fled from the house, and the mother called the police, who later found and arrested the boyfriend. The children were at home during the incident and either saw or heard the alleged altercation. According to a police officer who briefly spoke to the children that day, they were “shook up” from what had taken place. After the boyfriend had been released from custody on bond, a department caseworker investigating the incident visited the home and found the boyfriend there by himself. His bond was later revoked, but he was eventually released again from custody. The mother, on advice of her attorney, refused to sign a safety plan prepared by the department.

After the hearing, the juvenile court issued its order finding that the children are deprived “in that they are without proper parental care or control, subsistence, education as required by law or other care or control necessary for their physical, mental, or emotional or moral well being.” The court entered a temporary custody disposition, ordering that H. B. and R. B. remain with the mother’s former husband, and that D. G. be placed with the paternal grandmother. The mother filed this appeal.

1. Insufficient evidence of deprivation or parental unfitness.

The mother asserts that the juvenile court erred in finding that the children are deprived and that she is an unfit parent. We agree.

Pursuant to OCGA § 15-11-2 (8) (A), a deprived child is one who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals. But a finding that a child is deprived does not necessarily result in a loss of custody by the parent. It has been held that to authorize even a loss of temporary custody by a child’s parent on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. Furthermore, proof of unfitness must be shown by clear and convincing evidence as this standard recognizes the importance of the familial bond and helps eliminate the risk that a factfinder might base his determination on a few isolated instances of unusual conduct or idiosyncratic behavior. It follows that only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.

In the Interest of H. S., 285 Ga. App. 839, 841 (648 SE2d 143) (2007) (citations and punctuation omitted).

In this case, the evidence presented at the hearing showed only the single incident of domestic violence during which the mother was the victim of a physical attack by her boyfriend. There was no evidence of any other incidents of violence between the mother and her boyfriend, nor was there evidence of any domestic violence directed toward the children. The department offered no evidence that the children suffered any emotional or physical harm from the incident, other than the police officer’s testimony that the children were “shook up” on the day of the incident. Moreover, the department caseworker testified that there was no evidence that the children were not being provided with adequate food, shelter and education as required by law.

The instant case is similar to and controlled by our recent decision in In the Interest of S. M., 321 Ga. App. 827 (743 SE2d 497) (2013), reversing a juvenile court finding of deprivation based on a single incident of domestic violence. In that case,

the record demonstrate[d] only a single, albeit highly inappropriate incident in which two of the children observed the boyfriend pull a gun on the mother and believed that they heard a gunshot____Other than evidence that [the children] were understandably upset that morning at school, the [department] provided no evidence that the children suffered any emotional or physical harm from the incident or that it had any other effect on them. Although some evidence existed... that the boyfriend had been angry and intoxicated on prior occasions, the [department] presented no evidence of any other instances of physical abuse between the boyfriend and the mother. Notably, the [department] presented absolutely no evidence of any physical, emotional or mental abuse of the children.

Id. at 832 (citations and punctuation omitted).

The department argues that it was not the mother’s status as a victim of domestic violence that caused the children’s deprivation, but that it was her failure thereafter to protect them by not “meeting with the [department’s personnel and instead allow[ing] her abuser to return to her home.” The arguments are unpersuasive. As acknowledged by the department caseworker at the hearing, the mother was under no obligation to meet with the department and sign its proposed safety plan. With regard to allowing the boyfriend to return to her home, the evidence showed only that he was at the home on one occasion after the incident, and that neither the mother nor the children were there at the time. As the caseworker testified, on that occasion the children were not at any risk from him because “[t]hey weren’t there.” There simply is no evidence to support the department’s allegation that the mother has failed to protect her children.

“Moreover, even if the evidence was sufficient to show that the [children were] in some way deprived, it was wholly insufficient to establish that the mother was unfit.” In the Interest of D. S., 283 Ga. App. 767, 770 (642 SE2d 431) (2007) (citation and punctuation omitted). In the one instance of domestic violence witnessed by the children, the evidence shows that the mother immediately contacted the. police to report the incident. And as recited above, there is no evidence that the mother is not providing adequate food, shelter and education to the children.

Decided September 26, 2013.

Pasley & Nuce, Adam R. Nagel, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Wilson H. Bush, Assistant Attorney General, for appellee.

Accordingly,

even viewing the record in the light most favorable to the [juvenile] court’s finding of deprivation and acknowledging the serious nature of the [lone] incident at issue, we find that the record in this case lacks clear and convincing evidence to support the [juvenile] court’s finding that the children were deprived within the meaning of the law.

In the Interest of S. M., supra at 833. See also In the Interest ofH. S., supra at 842-843 (reversing deprivation finding where child witnessed one incident of domestic violence between mother and father during which the father grabbed child’s arm and father had previously hit child on the head); In the Interest of C. L. Z., 283 Ga. App. 247, 249 (641 SE2d 243) (2007) (reversing deprivation finding where evidence “did not show that this was anything other than an isolated . . . outburst”).

2. Remaining enumerations.

Because of our holding above in Division 1, we need not reach the appellant mother’s remaining enumerations of error.

Judgment reversed.

Doyle, R J., and Boggs, J., concur.


author: BARNES, Presiding Judge.

text:
    A13A1279.
    CLEMENT v. THE STATE.
    (749 SE2d 41)
   BARNES, Presiding Judge.

A jury convicted Victor Lamar Clement of misdemeanor theft by taking and criminal damage to property in the second degree, and the trial court denied his motion for new trial. On appeal, Clement contends that there was insufficient evidence to convict him of criminal damage to property in the second degree because the State failed to prove that the damage exceeded $500, an essential element of the indicted crime. We are constrained to agree with Clement and therefore vacate his conviction for criminal damage to property in the second degree. However, because the evidence was sufficient to support a conviction of the lesser included offense of criminal trespass to property, we remand the case with direction that the trial court enter a conviction and sentence for that lesser offense.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to support the verdict. See Bryan v. State, 271 Ga. App. 60 (1) (608 SE2d 648) (2004). So viewed, the evidence showed that shortly after midnight on November 17, 2011, one of Clement’s neighbors was on his way to a convenience store when he drove over a strand of telephone wire lying across the road. The neighbor saw Clement in his black Mustang by the side of the road near the wire, and he immediately called 911 to report the suspicious activity. A few minutes later, the neighbor returned home from the store and noticed that the Mustang was now parked near Clement’s mobile home, which was approximately a quarter of a mile from where the telephone wire was lying in the road. The neighbor again called 911 and reported the location of the Mustang.

The police responded to the 911 calls and apprehended Clement as he was walking down the center of the road, heading away from his mobile home and back toward the downed telephone wire. In addition to the wire on the road, officers found wire along the side of the road and in a ditch. The wire had been cut from a telephone line running across the road to a telephone post in a pasture.

Based on the neighbor’s second 911 call, officers also responded to the property where Clement’s mobile home was located and where his Mustang was parked. The officers obtained consent to search the property and the Mustang. While walking around the property, officers found approximately 30 feet of cut telephone wire rolled up in a 55-gallon “burn barrel.” The officers, who noted that the ground near where the telephone line had been cut was wet with dew, also found a pair of freshly muddy boots in Clement’s Mustang.

Clement was indicted and tried on charges of felony theft by taking and criminal damage to property in the second degree. With regard to the latter charge, the indictment alleged that Clement intentionally damaged the property of AT&T by cutting and removing utility and telephone line cable. At the ensuing jury trial, Clement’s neighbor and the responding officers testified to the events previously discussed. The State also called as witnesses two AT&T employees, a digital technician and a network manager for construction and engineering.

The AT&T digital technician testified that the telephone wire found in the burn barrel was from the same strand of wire that had been cut from the line running across the road into the pasture and that the wire belonged to AT&T. He further testified that the cut wire was composed of strands of fiber optic cable and copper cable, but that both types of cable appear the same from the outside. However, unlike fiber optic cable, copper cable can be sold for recycling once the insulation is burned off.

The AT&T network manager testified that a total of 200 feet of fiber optic cable and 50 feet of copper cable had been cut from the telephone line running across the road into the pasture. AT&T technicians had to replace the cut telephone line and repair the damaged ends of the existing line to return telecommunications services to its customers. The replacement and repair work required two AT&T crews, “a placing [crew] and a splicing crew,” that together spent eight hours on the job. The network manager, whose “role in this particular case [was] to calculate the financial end of repairing the damage,” testified that AT&T had incurred a total of $384 in costs for replacement materials and $1,929 in labor expenses.

With respect to the $1,929 in labor expenses, the network manager testified that he used a “loaded labor rate” to calculate the expense associated with each of the AT&T technicians who performed the repairs to the telephone line, apparently by multiplying the hours worked by each technician times the loaded labor rate for that technician. The manager explained that he did not calculate the loaded labor rate itself for each technician; rather, the loaded labor rate was set out in a chart created and provided to him by the AT&T asset protection department, and he simply applied the rates laid out in the chart to arrive at the labor expenses associated with each AT&T technician involved in the repair work. The loaded labor rate chart developed by the asset protection department and relied upon by the manager to calculate the labor expenses was not introduced into evidence at trial, and no one from the asset protection department was called as a witness.

When asked what was included in the loaded labor rate, the manager indicated that the extent of his knowledge was limited because he simply got the number from the asset protection department. The manager explained, “It’s all inclusive of everything that the employee has. The time, the trucks, the fuel, the tools. I’m sure there are a number of things. That is what I’m aware of insofar as the loaded labor rate goes.” When later asked if the loaded labor rate for a technician included “his truck, his tools, his insurance on his vehicle and other items,” the manager answered in the affirmative.

Upon the close of the State’s case-in-chief, the trial court reduced the felony theft by taking count to a misdemeanor after the State agreed that there was insufficient evidence to support a felony charge. Clement also moved for a directed verdict on the count for criminal damage to property in the second degree, contending that the State had failed to prove through competent evidence that the damage exceeded $500, an essential element of the crime. Clement argued that the only competent evidence of damage was the network manager’s testimony that AT&T incurred $384 in costs for replacement materials. As to the network manager’s testimony regarding his calculation of $1,929 in labor expenses, Clement argued that the testimony was hearsay and lacked probative value because the figure came from a chart created by a third party that was never introduced into evidence by the State. Clement also argued that the $ 1,929 figure included expenses that could not be considered when determining the value of the damaged property. The trial court denied Clement’s motion for a directed verdict, but ultimately charged the jury on the lesser included offense of criminal trespass to property.

After hearing all of the evidence, the jury found Clement guilty of misdemeanor theft by taking and criminal damage to property in the second degree. Clement filed a motion for new trial, which the trial court denied. This appeal followed in which Clement challenges the sufficiency of the evidence for his criminal damage to property conviction.

When evaluating the sufficiency of the evidence,

we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010). Moreover, in determining whether the evidence was sufficient to support the verdict, we cannot consider hearsay testimony, which is wholly without probative value even if introduced without objection. See Feagin v. State, 317 Ga. App. 543, 548 (3) (731 SE2d 778) (2012); Jackson v. State, 306 Ga. App. 33, 36 (1) (b) (701 SE2d 481) (2010).

To sustain a conviction for criminal damage to property in the second degree, the State must present competent evidence showing that the defendant intentionally caused in excess of $500 in damage to the property of another person without his or her consent. See OCGA § 16-7-23 (a) (1); In the Interest of A. F., 236 Ga. App. 60 (1) (510 SE2d 910) (1999). “One proper method for proving the value of the damage is evidence of the cost to repair the property.” Polite v. State, 273 Ga. App. 235, 237 (2) (614 SE2d 849) (2005).

Here, as part of the State’s effort to show the cost of the repairs to the telephone line, the network manager opined that AT&T had incurred $1,929 in labor expenses in carrying out those repairs. Significantly, however, if a witness serves as a mere conduit for someone else’s opinion, the witness’s testimony constitutes inadmissible hearsay. See Nash v. Compass Bank, 296 Ga. App. 874, 876 (a) (676 SE2d 28) (2009); Cantrell v. Northeast Ga. Med. Center, 235 Ga. App. 365, 369-370 (4) (508 SE2d 716) (1998). A witness acts as a mere conduit and does not provide “an independent expression of opinion” if his or her testimony is “derived purely from a mechanical application of a formula” found in a document prepared by another. See Dept. of Transp. v. Brand, 149 Ga. App. 547, 547-548 (1) (254 SE2d 873) (1979), overruled in part on other grounds by MARTA v. Dendy, 250 Ga. 538, 541-542 (1) (a) (299 SE2d 876) (1983). See also Dept. of Transp. v. Fitzpatrick, 184 Ga. App. 249, 250 (2) (361 SE2d 241) (1987) (testimony of witness “who, in effect, merely testified from . . . documents rather than from personal knowledge” was inadmissible hearsay).

Applying these principles to the case-at-hand, we conclude that the network manager’s opinion testimony regarding the $1,929 in labor expenses incurred by AT&T constituted inadmissible hearsay and was wholly without probative value. The record reflects that the manager did not have personal knowledge of the labor expenses that were incurred, but rather calculated the expenses by mechanically applying the “loaded labor rate” contained in a chart prepared by others that was not introduced into evidence. Under these circumstances, the manager was merely a conduit for the opinion of others, namely the AT&T assets protection department, which created the chart used by AT&T for calculating labor expenses associated with its technicians performing repair work. Consequently, the manager’s testimony regarding the $1,929 in labor expenses was not competent evidence and could not be considered in determining the costs of the repair to the telephone line.

Furthermore, even if the network manager’s testimony regarding AT&T’s labor expenses served as competent evidence, it nevertheless could not be considered in calculating the damage to the property under binding precedent of this Court. In Waldrop v. State, 231 Ga. App. 164, 164-166 (498 SE2d 337) (1998), a case addressing whether there was sufficient evidence to prove criminal damage to property in the second degree, we held that the expenses incurred by the owner of the damaged property for the owner’s labor in dealing with the damage “cannot be used as a substitute for the value of the damage to the property” and thus cannot be considered in determining whether the damage exceeds $500. We reasoned that including the owner’s labor in the damage calculus would constitute an improper “expansion of the meaning of the statute” because “the crime in its essence is ‘criminal damage to property,’ not total expenses of the owner in connection with property damage.” (Citation omitted.) Id. at 165. Based on our Waldrop decision, the expenses incurred by AT&T for its own labor in dealing with the damage to the telephone line could not be considered in determining whether the damage exceeded $500.

For these combined reasons, we conclude that the only probative evidence of damage to the property presented by the State was the network manager’s testimony that AT&T had incurred $384 in costs for replacement materials. It follows that the State failed to establish that the damage exceeded $500, an essential element of the crime of criminal damage to property in the second degree, and that Clement’s conviction on that count must be vacated.

Nevertheless, the evidence is sufficient to support a conviction of the lesser included offense of criminal trespass to property under OCGA § 16-7-21 (a) “because there is clear evidence that [Clement] intentionally damaged the property of another without consent of that other person and the damage to the property was $500 or less.” In the Interest of J. T., 285 Ga. App. 465, 466 (2) (646 SE2d 523) (2007). Accordingly, we remand this case with direction that the trial court enter a conviction and sentence for criminal trespass to property. See id.; Waters v. State, 252 Ga. App. 194, 197 (4) (555 SE2d 859) (2001).

Judgment affirmed in part and vacated in part, and case remanded with direction.

Miller, J., concurs. Ray, J., concurs in judgment only.

Decided September 26, 2013.

Jimmonique R. S. Rodgers, for appellant.

Leigh E. Patterson, District Attorney, Kay A. Wetherington, Assistant District Attorney, for appellee.

       In 2011, the Georgia General Assembly repealed the existing Evidence Code and replaced it with a new Evidence Code, which became effective on January 1, 2013 and applies “to any motion made or hearing or trial commenced on or after such date.” Ga. L. 2011, p. 99, § 101. Because Clement’s trial occurred in August 2012, the new Evidence Code does not apply to the hearsay issues raised in the present case.


text:
    A13A1562.
    KENDRICK v. THE STATE.
    (749 SE2d 45)
   MCFADDEN, Judge.

Josephine Kendrick appeals her misdemeanor conviction for obstructing an officer, arguing that the evidence is insufficient to support the conviction and that the trial court erred by refusing to give a requested jury charge. We find that the evidence is sufficient to support the conviction. We also find that the trial court’s charge adequately covered the legal principle embodied in the requested charge. We therefore affirm Kendrick’s conviction.

1. Sufficiency of the evidence.

When a defendant challenges the sufficiency of the evidence supporting her criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence shows that Leonard Mixon, a patrol sergeant for the city of Perry, stopped a car driven by a Mr. Holmes because the brake light and tag light were not working. Holmes had three passengers in his car. As he was speaking with Holmes, Mixon smelled alcohol and began investigating Holmes for driving under the influence.

A short time after Mixon had stopped Holmes, Kendrick pulled into the parking lot of an adjacent business. She began walking toward the traffic stop. Mixon told Kendrick that Holmes was okay and instructed her to return to her car. Kendrick ignored him. He repeated his instruction, but she again ignored him. Mixon told Kendrick, “Don’t come over here, I got a lot going on,” and he asked her to go back to her car. Finally Mixon told Kendrick that he would arrest her. He tried to put her in handcuffs, but she snatched her arm away. When an officer whom Mixon had called for backup arrived, Mixon told Kendrick for the third or fourth time that she was under arrest. She responded, “No, I’m not,” and “started kind of snatching away and going crazy to the point where [the] arm [of the backup officer] literally got stuck underneath her on the back of the car.” A video recording of the encounter was played for the jury.

Mixon wanted Kendrick to return to her car because of the number of people involved in the traffic stop and because he was the only officer on the scene, which was on the verge of becoming chaotic. Her refusal to obey Mixon’s command interfered with his ability to perform his DUI investigation.

OCGA § 16-10-24 (a) provides that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” “Whether [Kendrick’s] comments and actions . . . obstructed or hindered the [sergeant] was for the trier of fact to decide. The evidence was sufficient to enable a rational trier of fact to find that [Kendrick] obstructed or hindered the law enforcement official.” Jarvis v. State, 294 Ga. App. 482, 485 (1) (669 SE2d 477) (2008) (citation omitted). See also Turner v. State, 274 Ga. App. 731, 733 (1) (b) (618 SE2d 607) (2005) (evidence that defendant repeatedly ignored officer’s command to stay in the vehicle was sufficient to sustain defendant’s conviction for misdemeanor obstruction); Imperial v. State, 218 Ga. App. 440, 441 (461 SE2d 596) (1995) (refusal to obey lawful command as officer attempted to secure crowded area was sufficient to support misdemeanor obstruction conviction).

2. Jury charge.

Kendrick argues that the trial court erred by refusing to charge the jury that “[something more than mere disagreement or remonstrance must be shown.” We disagree. The requested charge is simply a corollary to the requirement that the state prove every element of the crime charged. See Muhammad v. State, 243 Ga. 404, 406 (1) (254 SE2d 356) (1979) (“[T]he rule that mere presence without more is insufficient to convict is really a corollary to the requirement that the state prove each element of the offense charged.”). The trial court charged the jury on the elements of the offense, including that “[t]he accused must have knowingly and willfully obstructed or hindered the officer,” and that the state had the burden of proving every element of the crime as charged beyond a reasonable doubt. The charge as a whole adequately covered the principle of law embodied in the requested charge and provided Kendrick the support to which she was entitled for her argument to the jury that she should have been acquitted because the state proved only disagreement or remonstrance. Thus, the trial court did not err by refusing to give the requested charge. Gresham v. State, 303 Ga. App. 682, 688 (3) (695 SE2d 73) (2010); Stephens v. State, 214 Ga. App. 183, 185 (3) (447 SE2d 26) (1994) (“When the jury charge given substantially covers the principles in the requested charge, it is not error to fail to give the requested charge.”).

Decided September 26, 2013.

Daniel K. Franck, for appellant.

AmyE. Smith, Solicitor-General, GinaM. Stout, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


author: Miller, Judge.

text:
    A13A0836.
    WEDEMEYER v. GULFSTREAM AEROSPACE CORPORATION.
    (749 SE2d 241)
   Miller, Judge.

John Scott Wedemeyer sued Gulfstream Aerospace Corporation, his former employer, for defamation and tortious interference with a business expectancy. Gulfstream moved to dismiss, arguing, inter alia, that Wedemeyer was compelled to arbitrate his claims based on the parties’ arbitration agreement that covered all employment-related claims, including claims for intentional torts and defamation. After conducting two hearings on the matter and carefully reviewing the record, the trial court granted Gulfstream’s motion to compel arbitration and dismissed the case with prejudice. Wedemeyer appeals, contending that the trial court erred in compelling arbitration. For the reasons that follow, we affirm.

“Georgia courts are required to uphold valid arbitration provisions in contracts[.]” (Citation and punctuation omitted.) Bishop Contracting Co. v. Center Bros., 213 Ga. App. 804, 805 (1) (445 SE2d 780) (1994). “The standard of review from the denial of a motion to compel arbitration is whether the trial court was correct as a matter of law.” (Footnote omitted.) D. S. Ameri Constr. Corp. v. Simpson, 271 Ga. App. 825, 826 (611 SE2d 103) (2005). “Unless the parties clearly and unmistakably provide otherwise,” the arbitrability is undeniably an issue for judicial determination. (Citations omitted.) AT&T Technologies v. Communications Workers of America, 475 U. S. 643, 649 (II) (106 SCt 1415, 89 LE2d 648) (1986).

The record shows that Gulfstream manufactures and services Gulfstream aircraft and is headquartered in Chatham County, Georgia. In 2007, Gulfstream hired Wedemeyer as a production test pilot. Upon his employment, Wedemeyer agreed to abide by Gulfstream’s Dispute Resolution Policy (hereinafter the “Arbitration Agreement”), which set forth a four-level process culminating in binding arbitration of all employment-related claims, including claims for intentional torts and defamation.

The Arbitration Agreement pertinently provides:

PURPOSE [:] This policy (“DRP” or the “Policy”) applies... to all employees who were employed by the Company while the Policy or any version was in effect (collectively referred as the “Employee” or “Employees”). . . .
DRP is a structured dispute resolution process that applies to Covered Claims and consists of four levels: Level 1: Human Resources Review;... Level 2\ Management Panel Review; . . . Level 3: Mediation[;] . . . Level 4: Arbitration[.] Employees must complete each level of the process before proceeding to the next level. The Company may elect to bypass one or more steps prior to arbitration for disputes with applicants for employment, with former employees, or if the Company is the initiating party.
Covered Claims are employment-related claims between an individual Employee and the Companyf.] . . . Covered Claims involve a claim of a legal right, obligation or entitlement regarding or arising from the employment relationship. Covered Claims include, but are not limited to, the following: (1) Claims relating to involuntary terminations [;] ... (5) Tort claims, intentional torts, negligence, defamation, invasion of privacy, infliction or emotional distress [.] . . .
Claims excluded from the DRP are the following:... 5. Claims against the Company . . . which do not have any relationship to the Employee’s work or relationship to the Companyf.] . . .
Exclusivity of the Dispute Resolution Policy[:] The DRP is the sole and exclusive forum and remedy for all Covered Claims. The Employee and Company agree and hereby waive any right to jury trial for any Covered Claim.
Agreement to Arbitrate in Interstate Commerce[:] This Policy is an agreement to arbitrate pursuant to the Federal Arbitration Act [FAA], 9 U.S.C.A. Sections 1-14[.] . . .

(Emphasis supplied.)

On February 14, 2011, Wedemeyer was piloting a crew airplane during a production test flight in Appleton, Wisconsin. Upon landing, the plane experienced several system failures. Wedemeyer and his co-pilot’s response to those issues caused the plane to depart the runway, resulting in damage to the plane. Gulfstream immediately grounded Wedemeyer and subsequently terminated his employment.

Wedemeyer sued Gulfstream, alleging that Gulfstream’s dissemination of false conclusions that he was at fault for the incident had cost him numerous pilot positions. Wedemeyer further alleged that Gulfstream’s actions after his employment tortiously interfered with a legitimate business expectancy and that he had lost income from Gulfstream’s improper acts. Wedemeyer also alleged that Gulf-stream defamed him during a pilots’ meeting that was held during the evening on the day Wedemeyer was fired. Thereafter, a number of Gulfstream pilots allegedly warned various third parties and Gulf-stream counseled its employees to not have anything to do with Wedemeyer because he was suing Gulfstream.

Gulfstream moved to dismiss this action and compel arbitration. The trial court granted the motion and dismissed Wedemeyer’s suit.

1. In his sole enumeration of error, Wedemeyer contends that the trial court erred by compelling arbitration because he was not subject to the Arbitration Agreement when his claims against Gulfstream arose and his claims are not covered claims under the Agreement. We disagree.

“Arbitration ... is a matter of consent, not coercion,” Volt Information Sciences v. Bd. of Trustees of Leland Stanford Junior University, 489 U. S. 468, 479 (109 SCt 1248, 103 LE2d 488) (1989), and a party can be compelled to arbitrate only upon a showing that he entered into an enforceable agreement to arbitrate. Life Care Centers of America v. Smith, 298 Ga. App. 739, 741 (1) (681 SE2d 182) (2009). Here, we think there is sufficient evidence of the existence of an enforceable agreement between Wedemeyer and Gulfstream to arbitrate.

“Arbitration in Georgia is a matter of contract. As such, the construction of an arbitration clause in a contract is subject to the ordinary rules of contract construction.” (Citations and punctuation omitted.) SCSJ Enterprises v. Hansen & Hansen Enterprises, 319 Ga. App. 210, 212 (1) (734 SE2d 214) (2012).

First, we must determine if the contract language is ambiguous, and, if so, then we apply the appropriate rules of construction set forth in OCGA § 13-2-2. Where the language of a contract is plain and unambiguous, however, no construction is required or permissible and the terms of the contract must be given an interpretation of ordinary significance.

(Citation and punctuation omitted.) Richard Bowers & Co. v. Creel, 280 Ga. App. 199, 200-201 (1) (633 SE2d 555) (2006); see also Canton Plaza v. Regions Bank, 315 Ga. App. 303, 308-309 (3) (732 SE2d 449) (2012) (the contract alone is looked to where the language is clear and unambiguous). Moreover, “[i]n construing any contract, words carry their usual and common meaning, and the construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” (Punctuation and footnote omitted.) Mattocks v. Matus, 266 Ga. 346, 349 (1) (466 SE2d 840) (1996); see also OCGA § 13-2-2 (4).

Contrary to Wedemeyer’s contention, the Arbitration Agreement is not limited to disputes involving only applicants or current Gulf-stream employees. Notably, the contract language at issue here unambiguously provides that the Arbitration Agreement applies to all employees who were employed by Gulfstream while the Arbitration Agreement or any version was in effect. There is no dispute that Wedemeyer was an employee when the contract was in effect. The contract language also provides that Gulfstream may elect to bypass one or more steps prior to arbitration for disputes with former employees. Moreover, covered claims include claims relating to involuntary discharge, i.e., claims brought by a former employee, not an applicant or current employee. Applying the tenets of contract construction as set forth above, it is clear that the Arbitration Agreement applies to disputes involving former Gulfstream employees.

2. Having decided that the Arbitration Agreement applies to former employees, we must next consider whether Wedemeyer’s claims arise from his employment at Gulfstream. We conclude that they do.

[W]here parties have entered into a valid arbitration agreement, the trial court must determine whether the claims covered by the agreement are actually arbitrable before submitting them to an arbitrator. But in fulfilling this gatekeeping duty, the trial court shall not consider whether the claim with respect to which arbitration is sought is tenable nor otherwise pass upon the merits of the dispute. OCGA § 9-9-4 (d).

(Punctuation and footnote omitted.) Dunaway v. UAP/GA AG. Chem., 301 Ga. App. 282, 285 (1) (687 SE2d 211) (2009). As set forth above, the Arbitration Agreement is an agreement to arbitrate covered claims pursuant to the FAA.

The [FAA] establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.

(Citation and punctuation omitted.) DiMambro-Northend Assocs. v. Blanck-Alvarez, Inc., 251 Ga. 704, 707 (1) (309 SE2d 364) (1983); see also BellSouth Corp. v. Forsee, 265 Ga. App. 589, 590-591 (595 SE2d 99) (2004). Moreover,

[u]nder Georgia law, where a contract provides that a [claim] must arise out of a specified [relationship], it does not mean proximate cause in the strict legal sense but instead encompasses almost any causal connection or relationship. Indeed, nothing more than a slight causal connection is required to show that a [claim] arose out of a specified [relationship] set forth in a contract.

(Citations and punctuation omitted; emphasis supplied.) Lawyers Title Ins. Corp. v. New Freedom Mtg. Corp., 285 Ga. App. 22, 30 (2) (645 SE2d 536) (2007).

Here, the Arbitration Agreement unambiguously states that covered claims are claims regarding or arising from the employment relationship, including claims related to involuntary termination, defamation and intentional torts. In contrast, claims that are excluded from arbitration include claims against Gulfstream which do not have any relationship to an employee’s work or relationship to Gulfstream. Wedemeyer’s claims for defamation, tortious interference with a business expectancy and lost income, all arise from the incident that occurred during his employment with Gulfstream and that gave rise to his termination. Namely, his claims are based on Gulfstream’s alleged actions and statements following Gulfstream’s determination that he was at fault for the February 2011 airplane incident. Accordingly, there is at least a slight causal connection between Wedemeyer’s claims and his employment with Gulfstream. In granting Gulfstream’s motion to compel arbitration, the trial court conducted a thorough review of the parties’ arguments, properly fulfilled its gatekeeping role and properly resolved any doubts concerning the scope of arbitrable issues.

In sum, we hold that the Arbitration Agreement clearly applies to the employment-related claims brought by Wedemeyer, and the trial court properly granted Gulfstream’s motion to compel arbitration because there is a causal connection between Wedemeyer’s claims and his employment with Gulfstream.

Decided September 27, 2013

Savage, Turner, Pinson & Karsman, Brent J. Savage, for appellant.

Hunter, Maclean, Exley & Dunn, Shawn A. Kachmar, for appellee.

Judgment affirmed.

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

       We reject Wedemeyer’s contention that Gulfstream is estopped from asserting that his claims for defamation, tortious interference and lost income are covered by the Arbitration Agreement. Contrary to Wedemeyer’s contention, Gulfstream did not admit that these claims do not qualify as covered claims in a June 2011 letter to Wedemeyer’s counsel. At that time, Wedemeyer’s sole pending claim under the Arbitration Agreement was a challenge to Gulf-stream’s decision to terminate his employment, and the letter merely confirmed a conversation between the parties concerning that claim.

       Wedemeyer’s contention that the FAA does not apply to employment contracts is meritless. See Circuit City Stores v. Adams, 532 U. S. 105, 111 (II) (A), 119 (II) (B) (121 SCt 1302, 149 LE2d 234) (2001) (holding that the FAA is applicable to all employment contracts except those involving workers engaged in the movement of goods in interstate commerce); see also Weeks v. Harden Mfg. Corp., 291 F3d 1307, 1314 (II) (11th Cir. 2002). Moreover, Gulfstream’s Arbitration Agreement is an enforceable agreement to arbitrate and its “provisions are reasonably designed to resolve claims as quickly and efficiently as possible, consistent with the goals of arbitration!.]” Caley v. Gulfstream Aerospace Corp., 428 F3d 1359, 1379 (II) (C) (4) (11th Cir. 2005) (interpreting the same DRP at issue in this case).

       Contrary to Wedemeyer’s contention, the decisions of the United States Court of Appeals for the Second Circuit in Coudert v. Paine Webber Jackson & Curtis, 705 F2d 78 (2nd Cir. 1983) and Fuller v. Guthrie, 565 F2d 259 (2nd Cir. 1977), do not require a different result. Unlike this case, the plaintiff in Coudert voluntarily resigned, and the arbitration agreement in Fuller did not expressly include intentional torts and defamation. Moreover, the subsequent decision in Fleck v. E.F. Hutton Group, Inc., 891 F2d 1047, 1052 (2nd Cir. 1989), questioned the decision in Coudert and held that certain statements made after an employee’s termination were arbitrable because they were made during communications that an employer would foreseeably make upon an employee’s termination. It is reasonably foreseeable here that, following the incident, Gulfstream would make statements regarding Wedemeyer’s alleged fault for the incident. Proving the truth or falsity of those statements will require the presentation of evidence integrally related to Wedemeyer’s employment with Gulfstream; therefore arbitration is required. See Fleck, supra, 891 F2d at 1053.


text:
    A13A0992.
    OLIVER v. THE STATE.
    (748 SE2d 510)
   Miller, Judge.

Following a jury trial, Jonathan Oliver was convicted of aggravated battery (OCGA § 16-5-24 (a)), aggravated assault (OCGA § 16-5-21 (a) (2)), and cruelty to children (OCGA § 16-5-70 (b)). Oliver appeals from the denial of his motion for a new trial, challenging the sufficiency of the evidence and arguing that he received ineffective assistance from his trial counsel. We discern no error and affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh the evidence nor judge the credibility of witnesses.

(Citation omitted.) Bryant v. State, 320 Ga. App. 838 (740 SE2d 772) (2013).

So viewed, the evidence shows that Oliver and Brittany Lee have a daughter together. On March 4, 2010, Lee left their two-year-old daughter and Lee’s seven-month-old son, J. L., in Oliver’s care at Oliver’s mother’s house. According to Lee, J. L. was acting normal when she left him, and she had observed no bruises or bite marks on his body when she dressed him the previous evening. Lee spoke with Oliver around 11:00 a.m., and he told her that J. L. had fallen and hit his face on the fireplace. Later in the day, Lee received a call from an investigator, who told her to come to the house right away. Lee spoke with Oliver’s mother, who told her that J. L. was being airlifted to Memorial Health University Medical Center in Savannah. Lee then spoke with Oliver, and he told her that J. L. slipped under the water in the bathtub and stopped breathing.

Brian Shearouse, a deputy sheriff with the Effingham County Sheriff’s Department, was one of the first responders to arrive at Lee’s residence in response to a 911 call concerning the possible drowning of a child. When he arrived, he found J. L. lying on a counter wearing only a diaper. He observed that J. L. had begun to turn blue from below his nose to his chin. Shearouse could detect J. L.’s heartbeat, but the child was not breathing. After checking for any obstruction in J. L.’s airway, Shearouse administered rescue breaths until paramedics arrived. During this time, Shearouse observed occasional spontaneous breaths, but J. L. was otherwise motionless and unresponsive. Shearouse overheard Oliver say that he was giving J. L. a bath when J. L. slipped under the water. When Shearouse ran his hand over J. L.’s hair, it was dry to the touch.

Oliver initially told law enforcement officers that he was bathing J. L. and sitting in the bathtub holding J. L. in his lap when J. L. slipped from his grasp and his face slipped under the water for approximately two seconds. Oliver also stated that when he got J. L. out of the bath, J. L. became stiff and stopped breathing. Oliver stated that he panicked and ran for the phone, leaving J. L. on the counter, and started CPR while he called 911. Oliver subsequently told police that a few hours before his bath, J. L. had fallen while trying to pull himself up on the fireplace hearth and bruised his cheek. Oliver also added that he had collapsed with J. L. in his arms while carrying J. L. from the bedroom to the kitchen after J. L. stopped breathing. In a subsequent interview at the hospital, Oliver stated that earlier in the day J. L. might have struck his head on the underside of a coffee table while attempting to stand. At the conclusion of the interview at the hospital, Oliver was placed under arrest. In a post-arrest interview, Oliver stated that he had forgotten to tell other investigators that J. L. also had fallen off the bed that day.

Dr. Thomas McKee, the pediatric intensive care doctor who treated J. L. during the first 24 hours of his hospitalization in Savannah, testified that a CT scan showed a skull fracture on the right side of J. L.’s head and a subdural hematoma. Due to his head injuries, J. L. was comatose and needed medication to support his blood pressure. Dr. McKee observed bruises on J. L.’s face and a mark on his back that appeared to be a human bite mark. Dr. McKee testified that J. L.’s injuries resulted from severe trauma and were not consistent with the history provided by Oliver. Dr. McKee stated that the type of force that would cause J. L.’s injuries would be a “purposeful injury from a larger individual, an adult, or a high speed automobile accident, or a fall from a second story window, something of that nature.”

Dr. Donna Evans, the medical director of the Child Protection Team at Memorial, consulted on J. L.’s case. Dr. Evans testified that the bruises on J. L.’s face could not have occurred from a single fall on a fireplace hearth. Dr. Evans testified that injuries as serious as J. L.’s would require emergency medical intervention shortly after they occurred. Dr. Evans stated that J. L. suffered inflicted trauma to the face, a skull fracture, and tearing of the bridging veins in the brain. In her opinion, J. L. was “traumatized, brutalized [and] suffered a final blow to the head, which cracked the skull.”

Lee testified that following J. L.’s injuries and hospitalization in March 2010, he had no voluntary movement, was fed through a tube in his stomach, and required daily breathing treatments and occasional deep suctioning of the lungs.

1. Oliver contends that the evidence was insufficient to support his convictions because Dr. Evans performed an inadequate review of the facts and records. These issues went to the weight and credibility of her testimony, which was for the jury to decide. See Lewis v. State, 292 Ga. App. 257, 262 (1) (a) (663 SE2d 721) (2008). Further, the State also presented, among other evidence, the testimony of Dr. McKee, who opined that J. L.’s injuries resulted from severe trauma and were not consistent with the history provided by Oliver, and evidence concerning Oliver’s evolving account of the events on the day J. L. was injured while under Oliver’s sole supervision. We conclude that the evidence was sufficient for the jury to conclude that J. L.’s injuries were not accidental and to find Oliver guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Oliver argues that he received ineffective assistance from his trial counsel because his trial counsel failed to conduct a reasonable investigation into the medical evidence regarding J. L.’s injuries or to retain medical experts to rebut the testimony of the State’s medical experts. We disagree.

To establish an ineffective assistance of counsel claim, the defendant must show that counsel’s performance was deficient and the deficient performance prejudiced the defense. There is a strong presumption that counsel’s conduct falls within the range of sound trial strategy and reasonable professional judgment.

(Citations omitted.) Bright v. State, 292 Ga. 273, 274 (2) (736 SE2d 380) (2013). “[W]here trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome the presumption that counsel’s conduct resulted from reasonable trial strategy.” (Citation and punctuation omitted.) Brown v. State, 288 Ga. 902, 908 (5) (708 SE2d 294) (2011); Bass v. State, 309 Ga. App. 601, 606 (3) (710 SE2d 818) (2011). In reviewing a trial court’s ruling on an ineffective assistance claim, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citations and punctuation omitted.) Holloman v. State, 293 Ga. 151, 154 (4) (744 SE2d 59) (2013).

At the hearing on Oliver’s motion for new trial, Oliver called two expert witnesses. Dr. Roger McClendon, chief of neuropathology and chief of surgical pathology at Duke University Medical School, testified that the CT scan of J. L.’s head revealed not only an acute subdural hematoma but also a chronic subdural hematoma that was at least three weeks old and apparently had caused an accumulation of cerebral spinal fluid around the brain. In Dr. McClendon’s opinion, this type of prior brain injury would make someone more susceptible to an acute subdural hematoma. Dr. McClendon admitted, however, that he could not testify that J. L.’s injuries were not intentionally inflicted.

Dr. Michael R. Papciak, an Atlanta pediatrician, testified that J. L. was developmental^ delayed, hadreduced muscle tone, andhad episodes of stopping breathing and possible seizures at three weeks and five months of age. Dr. Papciak stated that when CPR is performed on a child, a mask is placed on the face, which can result in bruising. Like Dr. McClendon, Dr. Papciak testified that the CT scan of J. L.’s head revealed fluid consistent with an older brain injury and that such an injury would have made the brain more susceptible to bleeding. Dr. Papciak concluded that Oliver’s fall while holding J. L. and “everything else I described about the child” were “possible or probable reasons” for J. L.’s injuries. Dr. Papciak testified that Oliver toldhimthat when he fell with J. L. while running to call 911, his body landed on top of the child. Dr. Evans testified at trial, however, that Oliver told her that he fell to his knees and hit his elbows and J. L. then rolled out of his arms.

While he presented expert testimony, Oliver did not subpoena his trial counsel to testify at the motion for new trial hearing. Thus, the only relevant statement by trial counsel in the record is the following statement at trial:

Judge, the only other thing that I would place on the record is the fact that when we received this case, I submitted this medical evidence, all of it, to a physician to use as a possible expert witness in the case. However, for trial tactical reasons, we did not call that expert. I just wanted the record to indicate that.

Decisions regarding

how to deal with the presentation of an expert witness by the opposing side, including whether to present counter expert testimony, to rely upon cross-examination, to forego cross-examination and/or to forego development of certain expert opinion, is a matter of trial strategy which, if reasonable, cannot be the basis for a successful ineffective assistance of counsel claim.

(Citation and punctuation omitted.) Brown v. State, 292 Ga. 454, 456-457 (2) (738 SE2d 591) (2013) (trial counsel not deficient for discontinuing search for expert after trauma nurse and physician she consulted both expressed doubts about theory that child’s initial brain injury was accidental); Gawlak v. State, 310 Ga. App. 757, 759 (2) (a) (714 SE2d 354) (2011) (trial counsel’s decision to forego presentation of counter expert testimony regarding child interview techniques and typical behavior of molested children was strategic, and appellant failed to prove decision was unreasonable). The record here reflects that Oliver’s trial counsel dealt with the State’s experts by cross-examining them. Trial counsel cross-examined Dr. McKee about the significance of J. L.’s prior lung problems, the possibility of a prior skull fracture, and whether accidental falls could cause a skull fracture. Trial counsel raised similar issues with Dr. Evans and also questioned her regarding, inter alia, her inability to specify the exact age of J. L.’s bruises and her history of being called to testify by the prosecution.

Without his counsel’s testimony at the motion for new trial hearing, Oliver could not rebut trial counsel’s statement that the decision not to utilize an expert witness was strategic. Additionally, Oliver could not overcome the strong presumption that trial counsel’s investigation into the medical evidence and decisions regarding how to deal with the State’s experts fell within the range of sound trial strategy and reasonable professional judgment. See Bass, supra, 309 Ga. App. at 607 (3) (c) (appellant failed to establish that his counsel was deficient in failing to employ expert when he did not call trial counsel to testify at motion for new trial hearing); Nichols v. State, 253 Ga. App. 512, 515-516 (2) (559 SE2d 538) (2002) (without trial counsel’s testimony at hearing on motion to withdraw guilty plea, this Court must presume that trial counsel’s decisions concerning psychological testing of appellant and pursuit of a medical defense were strategic and not deficient). Given that Oliver failed to establish that his trial counsel’s performance was deficient, the trial court did not err in rejecting Oliver’s ineffective assistance of counsel claim.

Decided September 27, 2013.

Ashleigh B. Merchant, for appellant.

Richard A. Mallard, District Attorney, Brian A. Deal, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The jury found Oliver guilty on two counts of aggravated battery, Counts 1 and 2 of the indictment. The trial court merged Count 2 into Count 1.


author: Dillard, Judge.

text:
    A13A1240.
    ARNOLD v. THE STATE.
    (749 SE2d 245)
   Dillard, Judge.

In 1999, Bernard Arnold, Sr., pleaded guilty to charges of kidnapping, rape, and possession of a firearm during the commission of a crime and received a sentence of 15 years in prison. After a successful habeas challenge, Arnold withdrew his plea and was granted a jury trial. The jury acquitted Arnold of the rape and possession charges, but convicted him on one count of kidnapping, after which the trial court imposed a twenty-year sentence. On appeal, Arnold argues that (1) his post-trial sentence constitutes an unconstitutionally vindictive punishment because it is greater than the sentence he received following his guilty plea; (2) the evidence was insufficient to support his kidnapping conviction; and (3) he is entitled to a new trial because the trial court erroneously charged the jury on the crime of kidnapping. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that around 3:00 a.m. on October 17,1998, the victim— Arnold’s ex-girlfriend and the mother of his son—was awakened by the sound of her front door being broken open. She immediately leapt out of bed and sprinted to the closet where she stored her gun, while at the same time calling out to her 16-year-old son in the next room that someone was breaking into the house. And as she was attempting to turn the safety off on the gun, Arnold—who bursted into her bedroom—pushed her onto the bed. A struggle then ensued, resulting in Arnold grabbing the victim (who stood at 4'9" tall and weighed 125 pounds) by the waist and pulling her outside into the yard.

Arnold then proceeded to drag the victim, who was kicking and screaming, around the side of the house and into the neighbor’s back yard. The victim’s son heard her screams and witnessed Arnold dragging his mother across the neighbor’s yard. The victim testified that while she was being dragged around the yard, Arnold gained control of the gun and threatened to kill her.

The son, fearing for his mother’s safety, grabbed a baseball bat and attempted to go to her rescue, but the victim—who wanted to protect her son from harm—demanded that he stay away. The son then ran back inside the house and attempted to call 911, but the telephone line had been cut, so he dashed across the street to a friend’s house, where that friend called 911. The son and his friend, both now armed with baseball bats, returned to the scene and attempted to aid the victim, but she again insisted that they stay away. The victim testified that Arnold raped and orally sodomized her while they were in the neighbor’s yard, and then fled “[w]hen he finished.” Shortly thereafter, the police arrived.

Arnold was arrested later that day and indicted on the charges of, inter alia, kidnapping, rape, and possession of a firearm during the commission of a crime. He subsequently pleaded guilty to each of the charges and was sentenced to fifteen years confinement for kidnapping, twenty years for rape, and five years for possession of a firearm. In 2007, the Supreme Court of Georgia granted Arnold habeas relief after concluding that the record failed to show he had been informed that by pleading guilty, he was waiving his privilege against compulsory self-incrimination. Consequently, he was permitted to withdraw his guilty plea and receive a jury trial.

In August 2008, a jury convicted Arnold on one count of kidnapping, but acquitted him of the rape and possession charges. The trial court sentenced Arnold to serve 20 years in confinement. Arnold filed a motion for new trial, which was denied. This appeal follows.

At the outset, we note that on an appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. And we do not “weigh the evidence or resolve issues of witness credibility,” but focus solely on whether “the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” With these guiding principles in mind, we will now address each of Arnold’s enumerations of error in turn.

1. Arnold first contends that the trial judge was not permitted to increase his sentence for kidnapping from 15 years to 20 years following the trial because to do so was unconstitutionally vindictive under North Carolina v. Pearce. We disagree.

In Pearce, the Supreme Court of the United States held that due process prohibits vindictiveness from playing any part in a new sentence imposed by a trial court after a criminal defendant has successfully attacked his conviction and obtained a new trial. Consequently, the Court announced a general requirement that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” Otherwise, a presumption of vindictiveness arises that “may be overcome only by objective information justifying the increased sentence.”

la Alabama v. Smith, however, the Supreme Court limited its holding in Pearce, concluding that the presumption of vindictiveness has no application to a sentence imposed after a trial that is greater than one imposed after a guilty plea. In reaching this conclusion, the Court reasoned that

in the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged^] [t]he defendant’s conduct during trial may give the judge insights into his moral character and suitability for rehabilitation[;] [and] [finally, after trial, the factors that may have indicated leniency as consideration for the guilty plea are no longer present.

And that is exactly what happened in the case sub judice. During the sentencing hearing, the trial judge—who had not imposed the original 15-year sentence—explicitly stated that his decision to impose a 20-year sentence was not a “knee-jerk reaction,” but was instead carefully decided after hearing testimony from the victim and her family, and after considering “much more” evidence than was presented at the plea hearing. And indeed, in contrast to the extensive evidence presented at trial, the plea hearing consisted only of the prosecutor’s representation that “the defendant did abduct [the victim] without lawful authority or warrant, and hold [the victim] against her will.” It follows, then, that there is not a reasonable likelihood that vindictiveness played any role whatsoever in the judge’s decision and Arnold’s due-process rights were not violated by the imposition of a greater sentence.

2. Arnold next contends that the evidence of kidnapping was insufficient to sustain his conviction. Specifically, he argues that there was insufficient evidence of asportation. We disagree.

A person commits the offense of kidnapping “when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” At the time of Arnold’s conviction in August 2008, the law permitted the element of asportation to be proven by evidence that the victim was moved in any way, even if only slightly. However, in November 2008, our Supreme Court decided Garza v. State, in which it adopted a new test to determine when movement is sufficient to constitute asportation. This test, first articulated by the Third Circuit in Government of Virgin Islands v. Berry, requires the consideration of four factors:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

In analyzing these factors, it is not necessary that every one be satisfied in the State’s favor in order to find asportation. Rather, the heart of Garza’s analysis is “whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address — i.e., movement serving to substantially isolate the victim from protection or rescue — or merely . . . attendant to some other crime.” This means that, for instance, even a minimal movement that enhances the control of the perpetrator over the victim will constitute asportation when it is not an inherent part of a separate offense.

Here, the evidence of Arnold’s movement of the victim was sufficient to sustain the asportation element of the kidnapping conviction. Although the time and distance spanned by Arnold’s forceful dragging of the victim out of the house, through the yard, and into the neighbor’s yard may not have been lengthy, the movement was of sufficient duration to satisfy the first Garza factor. Further, the movement did not occur during the commission of a separate offense; rather, the evidence shows the alleged rape (for which Arnold was acquitted) occurred after the victim was dragged into the neighbor’s yard. Nor was the movement inherent to the alleged rape. And finally, even though the victim’s son ultimately awoke and discovered the victim in the neighbor’s yard, Arnold enhanced his control over her by taking her out of the house, into the darkness, and away from her son’s protection, successfully making any potential intervention by him more difficult.

Because the movement in question here was sufficient in duration, unrelated to a separate offense, and increased the danger to the victim, it was “in the nature of the evil the kidnapping statute was originally intended to address” and not “merely a criminologically insignificant circumstance attendant to some other crime.” Consequently, it was sufficient under Garza for a jury to find beyond a reasonable doubt that Arnold committed the crime of kidnapping.

Decided September 27, 2013

John G. Edwards, for appellant.

J. David Miller, District Attorney, Tracy K. Chapman, Jessica W. Clark, Assistant District Attorneys, for appellee.

3. Finally, Arnold contends that the trial court improperly instructed the jury on the issue of asportation and that he is therefore entitled to a new trial. Although we agree that the charge given by the trial court was erroneous, this error does not entitle Arnold to a new trial.

The charge given to the jury was a correct statement of the law on asportation at the time of Arnold’s trial: “Only the slightest movement of the victim is required to constitute the necessary element of asportation.” But because Garza applies retroactively, Arnold was entitled to a jury instruction consistent with that rule, rendering the given charge erroneous. We therefore must decide whether it is “highly probable that the error did not contribute to the judgment.”

As discussed in Division 2, supra, Arnold forcefully dragged the victim from her bedroom, through and out of her house, across her yard, and into her neighbor’s yard in the darkness of the early morning hours. His movements of her were not an inherent or integral part of any other offense, and the movements presented a significant danger to the victim in that they enhanced Arnold’s control over her and decreased her chance of rescue by her teenage son. Based upon this evidence, we conclude it highly probable that the error of the trial court in not instructing the jury to consider the Garza factors of asportation in no way contributed to the judgment of guilt on the charge of kidnapping.

For all of the foregoing reasons, we affirm Arnold’s conviction.

Judgment affirmed.

Andrews, P. J., and McMillian, J., concur.

        See Calloway v. Stale, 313 Ga. App. 708, 710 (722 SE2d 422) (2012) (“[Ajfter a defendant has been convicted, we view the evidence in the light most favorable to the jury’s verdict....” (punctuation omitted)).

        See Arnold, v. Howerton, 282 Ga. 66 (646 SE2d 75) (2007).

       The judge who presided over the trial was not the same judge who previously accepted Arnold’s plea and sentenced him during the plea hearing.

         Calloway, 313 Ga. App. at 710.

        Crawford v. State, 297 Ga. App. 187, 188 (1) (676 SE2d 843) (2009).

        Calloway, 313 Ga. App. at 710 (punctuation omitted).

       395 U. S. 711 (89 SCt 2072, 23 LE2d 656) (1969) (limited by Alabama v. Smith, 490 U. S. 794 (109 SCt 2201, 104 LE2d 865) (1989)).

        Id. at 725 (II) (C) (“Due process of law... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.”); see also State v. Hudson, 293 Ga. 656, 657 (748 SE2d 910) (2013) (noting that “due process prohibits trial courts from penalizing criminal defendants for undertaking successful post-trial challenges to their convictions or sentences”).

        Pearce, 395 U. S. at 726 (II) (C).

        Texas v. McCullough, 475 U. S. 134, 142 (III) (106 SCt 976, 89 LE2d 104) (1986) (punctuation omitted).

       490 U. S. 794 (109 SCt 2201, 104 LE2d 865) (1989).

        Id. at 803; see also Hudson, 293 Ga. at 659 (“[I]t is now clear beyond question that the evil Pearce sought to prevent was sentencing judge vindictiveness, not the mere imposition of an enhanced sentence on retrial or remand.”).

       Smith, 490 U. S. at 801 (citation omitted).

       While our conclusion is, perhaps, bolstered by the fact that the trial judge who imposed the sentence before us on appeal is different from the trial judge who imposed the vacated sentence, we wish to make clear that nothing in this opinion should be construed as suggesting that a trial judge whose sentence is successfully challenged by a criminal defendant is somehow incapable of imposing a subsequent sentence free from any vindictiveness.

        Smith, 490 U. S. at 801; Townes v. State, 298 Ga. App. 185, 190 (679 SE2d 772) (2009) (finding no grounds for presumption of vindictiveness when defendant turned down plea for ten-year sentence and was subsequently convicted and sentenced to 111 years); Kelley v. State, 248 Ga. App. 721, 724 (2) (548 SE2d 357) (2001) (holding Pearce presumption does not apply when first sentence is imposed after a guilty plea and the second is imposed after trial).

       Arnold also argues that, because the victim had a gun, the evidence was insufficient to show that he abducted her against her will. However, the testimony at trial showed that the victim stood at 4'9" tall, weighed 125 pounds, was unable to turn off the safety on the gun, and was kicking and screaming as Arnold (6'1" tall and 225 pounds) dragged her through the yard. The jury was entitled to conclude from that evidence that the victim did not voluntarily go with Arnold into the yard. See Parson v. State, 245 Ga. App. 902, 904 (539 SE2d 234) (2000) (noting that the issue as to whether a victim has been held voluntarily or against her will is an issue for jury resolution).

       OCGA § 16-5-40 (a).

        See generally Lyons v. State, 282 Ga. 588, 591 (1) (652 SE2d 525) (2007) (“The requirement of asportation to prove kidnapping is satisfied if there is movement of the victim, however slight that movement is.”); Mullins v. State, 280 Ga. App. 689, 690 (1) (634 SE2d 850) (2006) (“[T]he distance which a kidnapper abducts his victim is without legal significance. Only the slightest movement of the victim is required to constitute the necessary element of asportation.” (punctuation omitted)).

       284 Ga. 696 (670 SE2d 73) (2008). Even though Arnold was convicted before the decision in Garza, by overruling the slight-movement standard, the rule announced in Garza marked a substantive change to the law and, therefore, is applied retroactively. See Hammond v. State, 289 Ga. 142, 144 (1) (710 SE2d 124) (2011). We note that the General Assembly amended the kidnapping statute in 2009 to provide that slight movement is sufficient to prove asportation. See OCGA § 16-5-40 (b); Ga. L. 2009, p. 331, § 1. However, because the crime in the case sub judice was committed well before that amendment became effective, see OCGA § 1-3-4, the amended statute is not applicable here.

        See Garza, 284 Ga. at 702 (1).

       604 F2d 221, 227 (IV) (3d Cir. 1979).

        Garza, 284 Ga. at 702 (1).

        See, e.g., Sipplen v. State, 312 Ga. App. 342, 343 (1) (718 SE2d 571) (2011) (“Not all of the elements under the Garza test must favor the [S]tate to prove asportation.”); accord Abernathy v. State, 299 Ga. App. 897, 900 (1) (685 SE2d 734) (2009).

        Garza, 284 Ga. at 702 (1).

        Compare Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28) (2009) (finding asportation when victims were moved from one room to another after a robbery had been committed), and Wright v. State, 300 Ga. App. 32, 34 (1) (684 SE2d 102) (2009) (finding asportation when, in the course of a robbery but not necessary to it, victims were placed inside a car), with Goolsby v. State, 311 Ga. App. 650, 654 (1) (718 SE2d 9) (2011) (finding no asportation when movement of victim to sofa allowed defendant to have control over her, but such control was necessary to the separate offense).

        See Williams v. State, 291 Ga. 501, 503 (1) (b) (732 SE2d 47) (2012). Compare Henderson, 285 Ga. at 245 (5) (“[T]he movement of the victims from one room to another within the duplex was of minimal duration.”); Garza, 284 Ga. at 703 (2) (holding victim’s fall to the floor and subsequent rise to sit in chair were of minimal duration).

       Because the factors are satisfied regardless, we need not decide here whether an offense for which Arnold was acquitted qualifies as a “separate offense” under Garza’s second and third factors. See Williams, 291 Ga. at 504 (1) (b), n.4.

        See id. at 503-04 (1) (b) (holding that movement which occurred before victim was beaten did not occur during the commission of aggravated battery offense).

        See Goolsby, 311 Ga. App. at 655 (2) (holding movement from front door to bedroom where rape was committed was not inherent to the commission of the rape).

        See Williams, 291 Ga. at 504 (1) (b) (holding jury authorized to conclude that taking victim from trailer where other people were present to secluded location outside of trailer in the middle of the night presented significant additional danger to the victim).

        Garza, 284 Ga. at 702 (1) (punctuation omitted).

       See note 18, supra.

        See Hammond, 289 Ga. at 144 (2); see also Abernathy, 299 Ga. App. at 902 (2) (concluding jury instruction on “slight movement” given before Garza was in error); Goolsby, 311 Ga. App. at 655 (3) (holding that jury instruction which comported with the definition of asportation at the time of trial but failed to comport with Garza was error).

        Hammond, 289 Ga. at 144 (2) (punctuation omitted).

        See, e.g., id. at 145 (2) (holding that because evidence was sufficient under Garza standard, highly probable erroneous instruction did not contribute to judgment); Dixon v. State, 303 Ga. App. 517, 521 (2) (693 SE2d 900) (2010) (same); Abernathy, 299 Ga. App. at 902 (2) (same).