text:
    A14A2241.
    KIDS R KIDS INTERNATIONAL, INC. v. COPE et al.
    (769 SE2d 616)
   DOYLE, Presiding Judge.

This interlocutory appeal arises from a personal injury claim filed by Veronica Higgs Cope, as guardian and next friend of her minor child, after he sustained injuries to his face at a daycare center owned by Gonzales Foods, Inc., and franchised by Kids R Kids International, Inc. (“KRK”). The trial court denied summary judgment to KRK, and this appeal followed. For the reasons that follow, we reverse.

We review de novo a summary judgment ruling.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court 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 plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Construed in favor of Cope, the material facts relevant to this appeal show that her three-year-old son sustained injuries to his face when he collided with a metal gate in the play area at school. Cope filed a negligence action against Gonzales and KRK, alleging that the defendants failed to: (1) properly monitor and observe her son; (2) exercise reasonable care in providing services to her son; (3) properly secure the classroom; (4) properly inspect its facility; (5) keep the premises safe; and (6) protect her son from an unreasonable risk of harm of which they knew or should have known.

KRK moved for summary judgment on Cope’s negligence claims, arguing that as a franchisor, it did not own, operate, have any involvement in the day-to-day operations of the daycare center, nor have any financial interest in the facility. The trial court denied the motion, summarily concluding that “there are genuine issues of fact,” and certified its order for immediate review. KRK appeals, following our grant of its interlocutory application.

KRK argues that the trial court erred by denying its motion for summary judgment because KRK was not vicariously liable for its franchisee’s alleged negligence. We agree.

In order to impose liability on the franchisor for the obligations of the franchisee, it must be shown that: (a) the franchisor has by some act or conduct obligated itself to pay the debts of the franchisee; or (b) the franchisee is not a franchisee in fact but a mere agent or “alter ego” of the franchisor.

Here, it is undisputed that KRK was not obligated to pay the debts of Gonzales Foods, so KRK’s vicarious liability depends upon whether Gonzales Foods was an agent of KRK.

1. Actual Agency.

The historical test applied by courts in this state to determine whether an agency relationship exists is whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.

When applying this test to a franchisor-franchisee arrangement,

we must be mindful of the special relationship created by [such an] agreement, for a franchisor is faced with the problem of exercising sufficient control over a franchisee to protect the franchisor’s national identity and professional reputation, while at the same time foregoing such a degree of control that would make it vicariously liable for the acts of the franchisee and its employees.
Given this special relationship, we have held that a franchisor may protect its franchise and its trade name by setting standards governing its franchisee’s operations, and these standards may be quite detailed, specific, and strict. Moreover, the fact that a franchise agreement authorizes periodic inspections of the franchise and gives the franchisor the right to terminate the agreement for noncompliance is not enough to prove an agency relationship.

Here, the Franchise Agreement between KRK and Gonzales Foods set forth detailed standards regarding advertising, hours and days of operation, decor (including furniture and equipment), employee training, requirements for employment eligibility, and employee record retention, and it granted KRK the right to inspect the school for compliance with such standards. The Agreement also provided, however, that Gonzales Foods or the Center Director “will assume responsibility for the day-to-day management and operation of the Center Site and supervision of personnel.” Thus, because KRK “did not reserve to itself the right to control the time, manner, or method in which [Gonzales Foods], through its employees, actually executed [the] standards [required in the Franchise Agreement],” there was no evidence that Gonzales Foods was an actual agent of KRK for purposes of vicarious liability.

2. Apparent Agency. Cope alternatively seeks to hold KRK vicariously liable for Gonzales Foods’s actions under the doctrine of apparent agency.

In order to recover under a theory of apparent or ostensible agency, a plaintiff must establish three elements: (1) that the alleged principal held out another as its agent; (2) that the plaintiff justifiably relied on the care or skill of the alleged agent based upon the alleged principal’s representation; and (3) that this justifiable reliance led to the injury.

In support of her apparent agency argument, Cope maintains that “all signage and documentation” at the daycare center contained the name and trademarks of KRK and that daycare staff wore shirts bearing the KRK logo. Cope also relies upon her affidavit, in which she stated that “[n]o sign or plaque was prominently displayed inside the daycare center [that] indicated that the daycare facility was owned or operated by Gonzales Foods or any other entity other than [KRK].”

To defeat Cope’s apparent agency argument, KRK relies upon a provision in the single-page enrollment agreement Cope signed when she enrolled her son in the daycare center, in which she acknowledges that “[KRK] — No. 31 — 475 South Deshon Road — while a [KRK] franchise, is independently owned and operated and that neither [KRK] nor any [KRK] center other than the one whose name appears at the heading of this form is responsible for the actions or obligations of this [c] enter.” And in contrast to Cope’s affidavit denying such a sign, KRK provided the affidavit of an officer of Gonzales Foods stating that

[a]t the time... Cope enrolled her son in and during the time he attended the daycare/early learning center, a framed document identifying Gonzales Foods, Inc. d/b/a [KRK] No. 31 as a [franchise of [KRK] was hanging on the wall next to the front desk and was clearly visible to all persons visiting the daycare/early learning center.

We have held, however, “that merely displaying signs or a trademark may be insufficient to establish an apparent agency relationship, and that a failure to post a sign stating that someone other than the franchisor owns and operates a business is insufficient, standing alone, to show apparent agency.” To establish the required elements of apparent agency, “it is not enough that the plaintiff believe that an agency relationship exists. Neither is it sufficient that the agent represent his status as agent. It must be established that the principal held out the agent as its agent.”

Here, pretermitting whether the remaining evidence — i.e., KRK’s requirements regarding its signage at the facility and the KRK insignia on clothing worn by staff — was sufficient to establish that KRK held out Gonzales as its agent, Cope cannot demonstrate justifiable reliance given her express acknowledgment in the enrollment agreement that the daycare center was a franchise and that KRK was not responsible for the actions or inactions of the facility.

Accordingly, the trial court erred by denying summary judgment to KRK.

Judgment reversed.

Miller and Dillard, JJ., concur.

Decided March 4, 2015.

Freeman Mathis & Gary, Theodore Freeman, D. Jeffrey Grate, Michael J. Eshman, for appellant.

Cope Law Firm, Veronica H. Cope, pro se.

        See Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

       (Punctuation omitted.) Bright v. Sandstone Hospitality, LLC, 327 Ga.App. 157 (755 SE2d 899) (2014), quoting Dew v. Motel Properties, Inc., 282 Ga. App. 368 (638 SE2d 753) (2006).

       It is not clear from the trial court’s order whether it found material questions of fact remaining on the issue(s) of apparent agency, actual agency, or both.

       (Punctuation omitted.) Schlotzsky’s, Inc. v. Hyde, 245 Ga. App. 888, 888-889 (538 SE2d 561) (2000).

       (Citations and punctuation omitted.) Pizza K, Inc. v. Santagata, 249 Ga. App. 36, 37 (547 SE2d 405) (2001).

       Id.

       (Punctuation omitted.) DaimlerChrysler Motors Co., LLC v. Clemente, 294 Ga. App. 38, 45 (1) (a) (668 SE2d 737) (2008).

       The Agreement, entitled “KIDS ‘R’ KIDS FRANCHISE AGREEMENT,” clearly designates KRK as “Franchisor” and Gonzales Foods as “Franchisee.”

       KRK also relies upon a provision in Exhibit I to the Franchise Agreement, the Supply Agreement, which provides: “14. Independent Contractor. Franchisor and Franchisee agree that their relationship to one another under this Agreement shall be that of independent contractors, and that nothing contained herein or in any instrument, agreement!)] or other document delivered pursuant hereto or in connection herewith shall make either of the parties hereto the partner, joint venturer, agent [,] or employee of the other.” Cope, however, argues that the Supply Agreement is inadmissible because the specific pages thereof were not initialed by the parties. The signature page was in fact signed, and the document was labeled as “Exhibit I” of the Franchise Agreement, which was also signed by the parties. Cope has failed to point to any authority to support her contention that the lack of initials on the individual pages of the Supply Agreement invalidates the entire agreement. Nevertheless, we have not relied upon it because the language of the Franchise Agreement defeats Cope’s actual agency argument.

        Schlotzsky’s, 245 Ga. App. at 889. See also DaimlerChrysler Motors Co., LLC, 294 Ga. App. at 45-46 (1) (a); Anderson v. Turton Dev., Inc., 225 Ga. App. 270, 274 (2) (a) (483 SE2d 597) (1997). See also McMullan v. Ga. Girl Fashions, Inc., 180 Ga. App. 228, 229 (2) (348 SE2d 748) (1986) (“Where the question of agency vel non rests upon a written document and inferences deduced therefrom, as in the instant case, the issue presented is a question of law for the trial court since construction of written contracts is exclusively for the judge.”). We also note that in the Franchise Agreement, Gonzales Foods agreed to indemnify KRK against “any and all loss ... damages and liabilities.” See Bright v. Sandstone Hospitality, LLC, 327 Ga. App. 157, 158 (1) (a), n. 3 (755 SE2d 899) (2014).

       (Punctuation omitted.) Bright, 327 Ga. App. at 158 (1) (a), quoting Butkus v. Putting Greens Intl. Corp., 222 Ga. App. 661, 663 (475 SE2d 693) (1996).

       Cope points out that KRK failed to produce the sign during discovery, instead relying upon a revised copy of a template, which was revised in April 2013 and was allegedly used to create the sign.

       (Citations omitted; emphasis supplied.) Bright, 327 Ga. App. at 159 (1) (a), citing Texaco, Inc. v. Youngbey, 211 Ga. App. 789, 790 (440 SE2d 533) (1994) and Anderson, 225 Ga. App. at 275 (2) (b).

       (Citations omitted; emphasis in original.) Butkus, 222 Ga. App. at 663, citing Fortune v. Principal Financial Group, 219 Ga. App. 367, 370 (465 SE2d 698) (1995) and Watson v. Howard Johnson Franchise Systems, 216 Ga. App. 237, 238 (453 SE2d 758) (1995). See also Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 507-508 (361 SE2d 164) (1987), citing Restatement of the Law, Agency, § 267.


source: Caselaw Access Project

author: BARNES, Presiding Judge. Branch, Judge,

license: Public Domain

text:
    A14A1676.
    THE STATE v. RANDLE.
    (769 SE2d 724)
   BARNES, Presiding Judge.

The trial court granted Petitioner Randle’s request to be released from Georgia’s sex offender registration requirements. The State filed an application for discretionary appeal, which we granted. This appeal followed in which the State contends that because Randle’s underlying sexual offense involved physical contact with the genitals of the victim, it created a presumption that the victim suffered “intentional physical harm,” precluding Randle’s release from the registration requirements. See OCGA §§ 17-10-6.2 (c) (1) (D); 42-1-19 (a) (4). The State also argues more generally that Randle had the burden to establish a prima facie case for release from the registration requirements but failed to satisfy it. For the reasons discussed below, we conclude that the trial court did not abuse its discretion in releasing Randle from the registration requirements and therefore affirm.

The record reflects that in 1993, Randle entered a negotiated plea of guilty pursuant to North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970) to one count of child molestation. The indictment alleged that in 1991, Randle committed an act of child molestation by placing his hands on the genitals of a minor. Randle was 21 years old at the time of his conviction. The trial court sentenced Randle to eight years, with the first three years to be served in confinement and the remaining five years on probation. As a result of his conviction and sentence, Randle was required to register as a sex offender in Georgia under the provisions of OCGA § 42-1-12.

Randle served his sentence and was released from probation in 2001. In 2002, Randle applied for and obtained restoration of his civil and political rights (excluding certain firearm-related rights) from the State Board of Pardons and Paroles. In 2013, Randle filed a petition for release from the sex offender registration requirements pursuant to OCGA § 42-1-19 (a) (4).

The trial court conducted a hearing on Randle’s petition. At the hearing, Randle tendered certified copies of his indictment and sentence for child molestation, the transcript of his plea hearing for that offense, and his criminal history from the Georgia Crime Information Center reflecting no other arrests or convictions. The parties stipulated that Randle had completed all sex offender treatment and assessments required as part of his probation; that he had not committed any probation violations; that he “did well while on probation and as well in his treatment”; and that he had no additional criminal history.

Randle, then 42 years old, testified that he has had physical custody of his 14-year-old daughter for five years, has been working in the technology field for 15 years and provides for himself and his daughter, and continued treatment after his probation ended because he “felt that it was very helpful.” Randle testified that based on what he had learned in his treatment, he “will not put [him] self in a position where anything like this could happen again or even the perception of this [could] happen again.” Randle further testified that he has never committed any other offenses and has properly registered as a sex offender every year as required. Randle explained that he wanted to be removed from the sex offender registry so that his daughter would not be bullied by others who might find his registration online. Randle also noted that he would come home and find signs in his yard with his picture on it that stated such things as “sex offender lives here.”

On cross-examination, Randle admitted that he had pled guilty under Alford to putting his hands on the genitals of a minor and that there had been physical contact between himself and the victim. Randle further admitted on cross-examination that in light of the victim’s age, the victim probably did not like or want the contact.

Randle was the only person to testify at the hearing. The State did not present any evidence, but the prosecutor argued that Randle should not be released from the sex offender registration requirements because he had the burden of making out a prima facie case that the criteria for release had been met but had failed to do so. According to the prosecutor, the evidence of Randle’s touching of the child victim’s genitals with his hands created a presumption that the victim suffered “intentional physical harm” such that the requirement imposed by OCGA § 17-10-6.2 (c) (1) (D) for release had not been met. See OCGA § 42-1-19 (a) (4).

At the conclusion of the hearing, the trial court remarked that while the court had never before released someone from the sex offender registration requirements, the court would grant Randle’s petition under the circumstances here. The trial court noted that Randle’s offense occurred 21 years ago, there had been no other incidents since that time, and that based on Randle’s testimony at the hearing, the court was “convinced that this will never happen again.” The trial court subsequently entered an order granting Randle’s petition for release from the sex offender registration requirements pursuant to OCGA § 42-1-19 (a) (4). The State filed an application for discretionary appeal of the trial court’s order, and this Court granted the application, resulting in this appeal.

Before turning to the specific arguments raised by the State on appeal, we first address the statutory framework applicable in this case. Under Georgia law, a defendant who is required to comply with the sex offender registration requirements imposed by OCGA § 42-1-12 must do so for his entire life. OCGA § 42-1-12 (f) (6). However, a defendant may petition to he released from the lifetime registration requirements in accordance with OCGA § 42-1-19. OCGA § 42-1-12 (g). Pursuant to OCGA § 42-1-19, a defendant may file such a petition if ten years have elapsed since he completed his term of imprisonment, parole, supervised release, and probation for the underlying sexual offense, and if the six criteria set forth in OCGA § 17-10-6.2 (c) (1) (A)-(F) have been met. OCGA § 42-1-19 (a) (4), (c) (2) (A). Those six criteria are:

(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;
(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;
(C) The court has not found evidence of a relevant similar transaction;
(B) The victim did not suffer any intentional physical harm during the commission of the offense;
(E) The offense did not involve the transportation of the victim; and
(F) The victim was not physically restrained during the commission of the offense.

OCGA § 17-10-6.2 (c) (1). If these criteria are met, and “if the court finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense,” the trial court may enter an order releasing the defendant from the registration requirements. OCGA § 42-1-19 (f).

If requested by the defendant who is petitioning for release from the registration requirements, the trial court must conduct a hearing on the petition. OCGA § 42-1-19 (e). At the hearing, the trial court may consider any evidence introduced by the petitioner, prosecutor, or sheriff, as well as “[a]ny other relevant evidence.” OCGA § 42-1-19 (d) (3).

The trial court’s decision whether to grant a petition for release from the registration requirements is reviewed on appeal for an abuse of discretion. See In re Baucom, 297 Ga. App. 661, 663 (1) (678 SE2d 118) (2009); Miller v. State, 291 Ga. App. 478, 479 (1) (662 SE2d 261) (2008). Under this standard, we review the trial court’s legal conclusions de novo, and we uphold the trial court’s findings on disputed facts and witness credibility as long as they are not clearly erroneous, i.e., as long as the factual findings are supported by any evidence. See Miller, 291 Ga. App. at 479. See generally Lawrence v. Lawrence, 286 Ga. 309, 310 (1) (687 SE2d 421) (2009) (discussing abuse of discretion standard of review). Mindful of these standards, we turn to the State’s arguments.

1. The State argues that the trial court abused its discretion in releasing Randle from the sex offender registration requirements because the evidence failed to show that “[t]he victim did not suffer any intentional physical harm during the commission of the offense,” a statutory prerequisite for release. See OCGA §§ 17-10-6.2 (c) (1) (D); 42-1-19 (a) (4). According to the State, the uncontroverted evidence showed that Randle touched the genitals of the child victim with his hands, which created a presumption that the victim suffered “intentional physical harm,” precluding Randle’s release from the registration requirements. We are unpersuaded because, as we explain below, the term “intentional physical harm” as used in OCGA § 17-10-6.2 (c) (1) (D) contemplates conduct that goes beyond offensive and unwanted touching and involves the intentional infliction of physical pain or injury upon the victim. Thus, evidence of offensive and unwanted touching, without more, does not show “intentional physical harm.”

The term “intentional physical harm” is not defined by OCGA § 17-10-6.2. “In the absence of such a definition, we must look diligently for the intention ofthe General Assembly. OCGA § 1-3-1 (a)” Summerlin v. Ga. Pines Community Svc. Bd., 286 Ga. 593, 594 (2) (690 SE2d 401) (2010). In doing so, we “presume that the General Assembly meant what it said and said what it meant,” and we afford statutory terms their plain and ordinary meaning. (Punctuation and footnote omitted.) Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013). See OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.”). And “[w]here the language of a statute is plain and susceptible to only one natural and reasonable construction, [we] must construe the statute accordingly.” Chase v. State, 285 Ga. 693, 695 (2) (681 SE2d 116) (2009).

Applying these principles, we note that the word “harm” is generally and most commonly understood to mean “damage,” “injury,” or “hurt,” as reflected by the principal definition of the word in several dictionaries. See The American Heritage Dictionary of the English Language 601 (1981) (defining “harm” as “injury or damage”); Webster’s New World College Dictionary 649 (4th ed. 2001) (defining “harm” as “hurt; injury; damage”); Webster’s Third New International Dictionary of the English Language Unabridged 1034 (1976) (defining “harm” as “physical or mental damage; injury”). See also Dodds v. Dabbs, Hickman, Hill & Cannon, LLP, 324 Ga. App. 337, 346 (3) (750 SE2d 410) (2013) (noting “that dictionaries may supply the plain and ordinary meaning of a word”). Use of the phrase “intentional physical harm” in OCGA § 17-10-6.2 (c) (1) (D) has a narrower connotation because it necessarily excludes intentional damage, injury, or hurt that is emotional, psychological, or moral in character. See Black’s Law Dictionary (9th ed. 2009) (defining “physical harm” as “any physical injury or impairment of land, chattels, or the human body”). Compare OCGA § 15-11-310 (a) (5) (referring to “serious physical, mental, emotional, or moral harm to such child”); former OCGA § 15-11-94 (b) (4) (A) (iv) (referring to “serious physical, mental, emotional, or moral harm to the child”). Consequently, by its plain and ordinary meaning, the phrase “intentional physical harm” in OCGA § 17-10-6.2 (c) (1) (D) contemplates the intentional infliction of physical damage, injury, or hurt upon the victim, and thus requires evidence of something more than an offensive and unwanted touching.

We would reach the same result even if there were ambiguity in the meaning of the statutory phrase “intentional physical harm” because the canons of statutory construction would lead to the same result. Under those canons,

[a]ll statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law, and their meaning and effect is to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts.

(Footnote omitted; emphasis supplied.) Blackmon v. State, 266 Ga. App. 877, 879 (598 SE2d 542) (2004). It follows that in determining the meaning of language found in a statute, “we look to its text as well as the interpretation that courts had given to the same language at the time the statute was enacted.” Haley v. State, 289 Ga. 515, 523 (2) (b) (712 SE2d 838) (2011). See also Wilson v. Pollard, 190 Ga. 74, 80 (4) (8 SE2d 380) (1940) (“[W]here the meaning of words and phrases in a statute has been ascertained, they are to be given that same meaning when used in subsequent statutes [.]”).

OCGA § 17-10-6.2, including the subsection using the phrase “intentional physical harm,” was enacted by the General Assembly in 2006. See Ga. L. 2006, p. 379, § 21/HB 1059; Miller, 291 Ga. App. at 480 (1) (a). The phrase “intentional physical harm” is virtually identical to the phrase “intentionally causes physical harm,” which has long appeared in one of the subsections of Georgia’s simple battery statute. See OCGA § 16-5-23 (a) (2) (“A person commits the offense of simple battery when he or she . . . [i]ntentionally causes physical harm to another.”). And at the time the General Assembly enacted OCGA § 17-10-6.2, Georgia courts had repeatedly construed the phrase “intentionally causes physical harm” in the simple battery statute as “a touching that goes beyond insult to the infliction of pain or physical injury.” Hammonds v. State, 263 Ga. App. 5, 7 (2) (587 SE2d 161) (2003). See Lyman v. State, 188 Ga. App. 790, 791 (2) (374 SE2d 563) (1988); Dinnan v. State, 173 Ga. App. 191, 196 (2) (325 SE2d 851) (1984). Based on the canons of statutory construction, we presume that in adopting the phrase “intentional physical harm” in OCGA § 17-10-6.2 (c) (1) (D), the General Assembly was aware of the virtually identical language found in the simple battery statute and how that language had been construed by the courts, and intended for the courts to apply the same legal definition of the phrase as had been developed under our existing jurisprudence. See Summerlin, 286 Ga. at 594-595 (2). Consequently, we conclude that the term “intentional physical harm” as used in OCGA § 17-10-6.2 (c) (1) (D) refers to conduct by the defendant that goes beyond offensive and unwanted touching to include the intentional infliction of physical pain or injury upon the victim.

The dissent argues, however, that the phrase “intentional physical harm” in OCGA § 17-10-6.2 (c) (1) (D) should be construed to mean any physical touching of the victim by the defendant in a child molestation case. In support of this argument, the dissent emphasizes that Georgia’s aggravated child molestation statute, OCGA § 16-6-4 (c), uses the phrase “physically injures the child” and argues that the General Assembly would have used that same specific phrase if it intended for OCGA § 17-10-6.2 (c) (1) (D) to mean the intentional infliction of physical pain or injury.

The dissent’s argument is a red herring because both statutory phrases — “physically injures the child” in the aggravated child molestation statute and “intentionally causes physical harm” in the simple battery statute — have been construed to mean virtually the same thing, namely, the intentional infliction of physical injury or pain upon the victim. See Dixon v. State, 278 Ga. 4, 8 (2), n. 15 (596 SE2d 147) (2004); Hammonds, 263 Ga. App. at 7 (2). In enacting legislation, the General Assembly is presumed to know that the appellate courts of this State have construed two statutory phrases as equivalent. See State v. Kachwalla, 274 Ga. 886, 889-890 (561 SE2d 403) (2002). Thus, the fact that the General Assembly chose to use the phrase “intentional physical harm” drawn from the simple battery statute rather than the equivalent phrase “physical injury” drawn from the aggravated child molestation statute is a distinction without a difference, and has no bearing on the outcome in this case.

Additionally, we note that Georgia’s sexual battery statute, OCGA § 16-6-22.1 (b), provides that “[a] person commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.” (Emphasis supplied.) If, as the dissent argues, the General Assembly had intended for any physical touching of the victim in a child molestation case to exclude a defendant from potential release from the sex offender registration requirements, the legislature could have simply used the phrase “physical contact” drawn from the sexual battery statute. We must presume that the absence of such language, and the General Assembly’s decision instead to use the narrower phrase “intentional physical harm” in OCGA § 17-10-6.2 (c) (1) (D), “was a matter of considered choice.” (Punctuation and footnote omitted.) Gordon v. State, 316 Ga. App. 42, 46 (1) (a) (728 SE2d 720) (2012).

For these combined reasons, we conclude that the term “intentional physical harm” as used in OCGA § 17-10-6.2 (c) (1) (D) refers to conduct by the defendant involving the intentional infliction of physical pain or injury upon the victim. Consequently, contrary to the State’s argument, evidence that the underlying sexual offense involved offensive and unwanted touching of the victim does not, standing alone, create a presumption of “intentional physical harm” that precludes a defendant from satisfying the criteria for release imposed by OCGA § 17-10-6.2 (c) (1) (D).

2. The State also argues more generally that Randle had the burden to establish a prima facie case for release from the sex offender registration requirements, including a showing under OCGA § 17-10-6.2 (c) (1) (D) that “[t]he victim did not suffer any intentional physical harm during the commission of the offense,” and that the trial court abused its discretion in finding that Randle satisfied that burden. We disagree.

It is true that the burden is on the defendant petitioning for release from the sex offender registration requirements to make out a prima facie case of entitlement to release sufficient to shift the burden to the State to show the contrary. See In re Baucom, 297 Ga. App. at 663 (1); Miller, 291 Ga. App. at 481 (1) (b). But “[w]hat amount of evidence will change the onus or burden of proof is a question to be decided in each case by the sound discretion of the trial court.” (Citation and punctuation omitted.) In re Baucom, 297 Ga. App. at 663 (1). Moreover, the statutory criteria for release found in OCGA § 17-10-6.2 (c) (1) are stated in the negative, and because “[i]t is often impossible to prove a negative, . . . the degree of proof required to support a negative proposition and to shift the burden must vary, according to the circumstances of the case.” Hyer v. C.E. Holmes & Co., 12 Ga. App. 837, 847 (79 SE 58) (1913). And if the defendant petitioning for release presents evidence of circumstances from which it could reasonably be inferred “that the negative is in truth the fact,” the burden shifts to the State to show “that the negative does not exist.” Woods v. State, 233 Ga. 347, 348 (1) (a) (211 SE2d 300) (1974) (discussing burden-shifting where case involves “proof of a negative”).

Here, after considering the parties’ stipulations, the certified records tendered into court, and Randle’s testimony, the trial court found that Randle had satisfied his prima facie burden of entitlement to release from the sex offender registration requirements. In light of the evidence as previously summarized in this opinion, we cannot say that the trial court abused its discretion. With respect to OCGA § 17-10-6.2 (c) (1) (D), there was evidence that the underlying child molestation offense consisted of Randle touching the genitals of the child victim with his hands, and the trial court was authorized to infer from this circumstance that there was no intentional infliction of physical pain or injury upon the victim, and thus that the sexual offense did not rise to the level of “intentional physical harm” so as to preclude release from the registration requirements. See Division 1, supra; Clark v. State, 328 Ga. App. 268, 271 (3) (761 SE2d 826) (2014) (physical precedent only) (offense that was committed by touching victim “did not involve . . . any of the . . . factors listed in OCGA § 17-10-6.2 (c) (1)”). Accordingly, the trial court’s order granting Randle’s petition for release is affirmed.

Judgment affirmed.

Miller and Boggs, JJ., concur. Doyle, P. J., concurs in judgment only. Ellington, P. J., Dillard and Branch, JJ., dissent.

Branch, Judge,

dissenting.

Randle entered a guilty plea to a charge of child molestation in 1993. Randle now petitions to be released from sex offender registry requirements pursuant to OCGA § 42-1-19 (a) (4), which a judge may grant if certain conditions are met, including that “[t]he victim did not suffer any intentional physical harm during the commission of the offense,” OCGA § 17-10-6.2 (c) (1) (D), and that “the court finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense.” OCGA § 42-1-19 (f). The trial court granted Randle’s petition and the State appealed, arguing that Randle, who touched the genitals of a ten-year-old boy, cannot show that his victim did not suffer “intentional physical harm.” The majority would affirm, holding that “evidence of offensive and unwanted touching, without more, does not show ‘intentional physical harm.’ ” I respectfully dissent because Randle’s touching of the genitals of his child victim amounted to “intentional physical harm” such that he is not eligible to be released from sex offender registry requirements.

“For purposes of statutory interpretation, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.” Vines v. State, 269 Ga. 438, 440 (499 SE2d 630) (1998). The majority’s reliance on law relating to the crimes of battery and sexual battery to define “intentional physical harm” is thus misplaced; instead, we should consult the child molestation statutes to address the unique harms caused by sexual crimes against a child.

A person commits child molestation if that person “[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1) (emphasis supplied). The crime of child molestation thus includes sexually motivated acts that involve both touching and not touching a child. The crime of aggravated child molestation, however, occurs when a person “commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c) (emphasis supplied). If the General Assembly had intended that child molestation cases involving the mere touching of a child be excluded from the category of crimes involving “intentional physical harm,” OCGA § 17-10-6.2 (c) (1) (D), it certainly could have referred to a distinction between such touching and physical injury, just as it did in the aggravated child molestation statute, OCGA § 16-6-4 (c). But it did not, a decision which we must assume was “a matter of considered choice.” Gordon v. State, 316 Ga. App. 42, 46 (1) (a) (728 SE2d 720) (2012) (punctuation and footnote omitted). Likewise, the legislature’s decision not to use the phrase “physical contact,” as in the sexual battery statute that does not necessarily involve a child victim, see OCGA § 16-6-22.1 (b), does not compel the conclusion that in the specific context of authorizing a deviation from a mandatory minimum sentence for a child molester, the term “intentional physical harm” excludes an intentional touching of the victim. The distinctive element of the crime of child molestation, as opposed to the lesser included offense of sexual battery, is that the act or touching occur for the purpose of arousing the sexual desires of either the aggressor or the child victim. See OCGA §§ 16-6-4 (a) (1), 16-6-22.1 (b), (d). Randle was convicted of this crime, not sexual battery, and neither we nor the trial court may ignore his established history of touching a child with the intent of gratifying his own sexual desires.

Decided March 5, 2015

Peter J. Skandalakis, District Attorney, Robert W. Mooradian, Assistant District Attorney, for appellant.

The Kirk Law Firm, Christa L. Kirk, for appellee.

The majority’s citations to the law of battery and sexual battery are thus inapposite, and its conclusion that the term “intentional physical harm” necessarily encompasses physical pain or injury to a child victim is error. OCGA §§ 17-10-6.2 and 42-1-19 (a) (4) authorize a trial court to deviate from a mandatory minimum sentence imposed on a child molester only when that molestation does not involve touching a child. As this case does involve such physical touching, Randle is not eligible for release from sex offender registry requirements. I therefore dissent.

I am authorized to state that Presiding Judge Ellington and Judge Dillard join in this dissent.

       While there was no mandatory sexual offender registry in Georgia when Randle was convicted and sentenced, the General Assembly established such a registry in 1996. See Ga. L. 1996, p. 1520, § 1. See also Jefferson v. State, 308 Ga. App. 549 (707 SE2d 496) (2011) (noting that Georgia’s “sex offender registration statute did not become law until 1996”).

       The State further argues that the trial court did not consider all of the statutory criteria for release imposed by OCGA § 17-10-6.2 (c) (1) in concluding that Randle should be released from the sex offender registration requirements pursuant to OCGA § 42-1-19 (a) (4). While the trial court’s order states without elaboration that Randle was eligible for release under OCGA § 42-1-19 (a) (4), the court was not required to include written findings of fact and conclusions of law in its order. See In re Baucom, 297 Ga. App. at 663-664 (1). And absent any showing to the contrary, we presume that the trial court followed the law when it granted Randle’s petition. See Lee v. State, 324 Ga. App. 28, 31 (1) (749 SE2d 32) (2013); Rivers v. State, 270 Ga. App. 633, 636 (1), n. 5 (607 SE2d 144) (2004).

       I am also deeply skeptical of the trial court’s certitude that Randle “will never” molest a child again. That Randle has not been accused of child molestation since his release in 2001 does not show that he will never re-offend. When the General Assembly adopted OCGA § 17-10-6.2 in 2006 for the punishment of sexual offenders (and included the same criteria for sentencing consideration as set forth in OCGA § 42-1-19 (a) (4)), it noted that “sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely ... to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes.” Ga. L. 2006, p. 379, § 1. Further, Randle’s victim was a young boy; that Randle has not attacked his daughter is hardly conclusive proof that he has not or will not re-offend.


author: MCFADDEN, Judge.

text:
    A14A1801.
    BURNS v. STATE OF GEORGIA DEPARTMENT OF ADMINISTRATIVE SERVICES et al.
    (769 SE2d 733)
   MCFADDEN, Judge.

This is a discretionary, pro se appeal from the superior court’s order setting aside an award of temporary total disability benefits made to LaVerne Burns by the State Board of Workers’ Compensation (the Board). As a threshold matter, Burns argues that defendants State of Georgia and the State of Georgia Department of Administrative Services (collectively, the employer) failed to timely appeal the award to the superior court. The record, however, shows otherwise. As to the merits, Burns argues that it was error for the superior court to set aside the award. We agree, because the superior court apparently did not have before her the transcript of the relevant evidentiary hearing when she ruled to set aside the award, and because the superior court incorrectly held that Burns had to demonstrate certain facts not required by the law. Accordingly, we reverse the superior court’s order and remand the case to the superior court for further proceedings not inconsistent with this opinion.

1. Procedural posture.

Burns, a receptionist for the State of Georgia Department of Administrative Services, was injured at work in December 2009 when the chair in which she was sitting collapsed. She received workers’ compensation benefits in connection with that injury. Nevertheless, she continued to work in her position until October 30, 2012, when the employer terminated her employment. Burns then sought temporary total disability benefits. See OCGA § 34-9-104. The employer challenged this request on the ground that Burns’s employment was terminated for reasons unrelated to her injury and because she had not sought another job.

After an evidentiary hearing, an Administrative Law Judge (ALJ) awarded Burns temporary total disability benefits. The ALJ specifically found that Burns was a credible witness, that “the reasons given by the [ejmployer to justify [Burns’s] termination were pretextual, and that [Burns] was terminated due to her work injury.” Because the “real reason for [Burns’s] termination [was] her work-related injury and claim,” the ALJ determined that Burns had “carried her burden of proving, by a preponderance of the evidence, that she is entitled to temporary total disability benefits.”

The employer appealed the award to the Board’s Appellate Division, which found that the evidence authorized the award and upheld it. The employer then appealed the award to the superior court. The superior court rejected Burns’s challenge to the timeliness of the appeal and held that, to obtain benefits, Burns was required to show either that she had searched for another position or that she had been working in a restricted capacity when her employment was terminated. Finding that Burns had not made either showing, the superior court set aside the award. The superior court expressly “d[id] not reach the ALJ’s determination that the reasons given for [Burns’s] termination were pretextual,” indicating that the superior court found that the existence of pretext was not relevant to her decision to set aside the award.

2. Timeliness of appeal to superior court.

We find no merit in Burns’s argument that the employer’s appeal to the superior court was untimely. The record shows that the Board’s Appellate Division issued the order upholding the ALJ’s award on August 15, 2013, and that the Board received the employer’s written application for appeal to the superior court 19 days later, on September 3, 2013. This constituted a timely-filed appeal. See OCGA § 34-9-100 (e) (1) (appeal from workers’ compensation award is deemed filed on date actually received by Workers’ Compensation Board); OCGA § 34-9-105 (b) (parties to workers’ compensation dispute may appeal award to superior court within 20 days of date of award, and any such appeal shall be filed with the Workers’ Compensation Board in writing).

3. Propriety of set-aside.

Burns argues that the superior court improperly set aside her workers’ compensation award. A superior court may set aside the findings made by the members of the Board only if it is found that:

(1) The members acted without or in excess of their powers; (2) The decision was procured by fraud; (3) The facts found by the members do not support the decision; (4) There is not sufficient competent evidence in the record to warrant the members making the decision; or (5) The decision is contrary to law.

OCGA § 34-9-105 (c). The superior court in this case found that the Board’s decision lacked sufficient evidentiary support and was contrary to law. This was error for two reasons.

(a) First, it appears from the record that the superior court did not have the transcript of the relevant evidentiary hearing before her when she ruled to set aside the award. That hearing took place on February 26,2013. Although the Board was required to transmit this transcript to the superior court, see OCGA § 34-9-105 (b), the record contains no transcript of a hearing on that date. Instead, the record contains the transcript of a different hearing from April 2010, well before the employer terminated Burns’s employment.

In other circumstances we would respond to the absence of a transcript by employing the presumption of regularity or by finding that an appellant had failed in the duty to show error. See Reed v. Reed, 295 Ga. 574, 577-578 (2) (761 SE2d 326) (2014). But in the workers’ compensation context there is authority for the proposition that the burden to perfect the record is on the State Board of Workers’ Compensation. See Aetna Cas. & Surety Co. v. Nuckolls, 69 Ga. App. 649, 652-653 (26 SE2d 473) (1943) (appellant who had no role in failing of Department of Industrial Relations (predecessor to State Board of Workers’ Compensation) to timely transmit record to superior court should not suffer for that failing). But see Abdul-Hakim v. Mead School & Office Products, 267 Ga. App. 121, 124 (1) (598 SE2d 808) (2004) (holding — without addressing Nuckolls — that, in the absence of transcript of hearing in workers’ compensation case, appellate court must presume board’s findings were supported by-sufficient evidence). And the parties here have not undertaken to explain the absence of a transcript. So we do not undertake in today’s opinion to resolve the tension between Nuckolls and Abdul-Hakim.

For today it is enough to reaffirm that, in reviewing the Board’s award of workers’ compensation benefits, the superior court was required “to construe the evidence in a light most favorable to the party prevailing before the State Board.” YKK (USA), Inc. v. Patterson, 287 Ga. App. 537 (652 SE2d 187) (2007) (citation omitted). Without a transcript of the relevant evidentiary hearing, the superior court could not perform this function, and it was error for the superior court to set aside the Board’s decision on the basis of insufficient evidence under those circumstances. See id. (“It is axiomatic that the findings of the Board, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this (c)ourt has any authority to substitute itself as a fact finding body in lieu of the Board.”) (citation omitted). Consequently, as explained below, we remand for further proceedings consistent with our opinion.

(b) Second the superior court misconstrued the relevant law in setting aside the award, thereby rejecting the Board’s correct legal analysis and holding that Burns had the burden of showing more than the law requires. Even though we are remanding this case for the trial court to consider the complete record in her decision, we address this legal question now so that, on remand, the trial court can apply the correct law in her review of the award.

The trial court held that, to obtain benefits, Burns was required to show either that she had searched for another position or that she had been working in a restricted capacity when her employment was terminated. The law does not impose those requirements on Burns. The superior court based its holding on the decision in Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995), in which our Supreme Court held that a claimant seeking workers’ compensation benefits based on a change in condition must show, among other things, that he or she has “made a diligent, but unsuccessful effort to secure suitable employment following termination.” Id. at 828. But in Padgett v. Waffle House, Inc., 269 Ga. 105 (498 SE2d 499) (1998), the Supreme Court clarified that this rule represented a way of proving the necessary element of causation in this type of workers’ compensation claim; it is not a separate element of the claim. The Supreme Court explained that Maloney

involved a claimant who was terminated for reasons unrelated to her disability. Applying the rule stated in Maloney without regard for this factual difference ignores the underlying rationale of Maloney. The concern addressed in Maloney is that benefits should be awarded only where the economic change for the worse is proximately caused by the work-related injury. Proof of a diligent job search allows the board to infer this critical causal connection where the termination is for reasons wholly unrelated to the injury. However, by proving that the work-related injury is the proximate cause of the termination, the claimant establishes the causal link between injury and worsened economic condition. The causal link is the important element rather than the method of proving it.

Padgett, 269 Ga. at 106 (1) (citation omitted). “A finding that the reasons for the termination were a pretext to avoid continued payment of benefits would satisfy the proximate cause requirement.” Id. at 107 (3), n. 9 (citation omitted). See also Minter v. Tyson Foods, 271 Ga. App. 185, 187 (1), n. 5 (609 SE2d 137) (2004) (under Padgett, employee who is terminated from employment for reasons directly related to job injury is not required to establish that she made diligent effort to find employment elsewhere before becoming entitled to workers’ compensation benefits).

The superior court held that Padgett “applies only to individuals who are unable to complete all the requirements of their position based upon a work injury, and are then discharged based on their inability to comply with all such requirements.” We disagree. The court in Padgett held that if an employer refuses to provide suitable work to an employee due to the employee’s work-related injury, the employer must instead pay temporary total disability benefits to the employee. Id. at 106-107 (2). Although Padgett discussed this principle in the context of an employee with modified job duties, see id., we see no reason why the Padgett rule should not also apply to employees who can perform their job duties without modification, if — as the Board found here — the employer refuses to provide that work due to the work-related injury. The causal link between the work-related injury and worsened economic condition can be established in either instance.

Accordingly, the dispositive issue is not whether Burns sought new employment or whether she was working under restrictions when the employer terminated her employment, but whether she demonstrated the necessary causal link between her work-related injury and her worsened economic condition. The facts found by the Board — that the employer gave pretextual reasons for terminating Burns’s employment, which instead was due in part to Burns’s work-related injury — established this causal link. Padgett, 269 Ga. at 106, 107 (1), (3) & n. 9. Because the superior court miscontrued Padgett, however, she did not view the issue of pretext to be relevant to her decision. The superior court expressly did not address whether there was any evidence to support the Board’s findings on pretext, nor could the superior court have addressed that question given the absence of the evidentiary hearing transcript from the superior court record.

Decided March 5, 2015

LaVerne Burns, pro se.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Brown W. Dennis, Jr., J. Travis Hall, Assistant Attorneys General, for appellee.

Consequently, we reverse the order setting aside the workers’ compensation award and remand the case to the superior court for further proceedings not inconsistent with this opinion, which may include a determination of the reasons for the absence of the relevant hearing transcript and whether to draw any presumptions from that absence. Compare Abdul-Hakim v. Mead School & Office Products, supra, 267 Ga. App. 121 with Aetna Cas. & Surety Co. v. Nuckolls, supra, 69 Ga. App. 649. See also Columbus Foundries v. Moore, 175 Ga. App. 387, 390 (333 SE2d 212) (1985) (reversing superior court’s reversal of Board’s decision in workers’ compensation case, which superior court had based on erroneous jurisdictional ruling, and remanding to superior court for that court to review Board’s decision under proper standard).

Judgment reversed and case remanded.

Andrews, P. J., concurs. Ray, J., concurs in judgment only.


author: Phipps, Chief Judge.

text:
    A14A2129.
    In the Interest of C. M., a child.
    (769 SE2d 737)
   Phipps, Chief Judge.

This appeal arises from a disposition order of the Juvenile Court of Polk County placing C. M., then 14 years old, in the custody of the Department of Juvenile Justice (“DJJ”) for an initial period of up to 36 months, with 12 months of the custodial period to be spent in restrictive custody in a facility managed by the Georgia Department of Corrections. C. M. contends that: (1) the juvenile court’s decision to revoke a prior sentence of probation and to place him in restrictive custody was arbitrary and “precludes treatment and rehabilitation in a less restrictive setting”; (2) his due process rights were violated when the court, in entering the disposition order, relied on a document that was “attached [to] and made a part of the decision, after the conclusion of the disposition hearing”; and (3) the juvenile court violated his Fifth Amendment rights by commenting on his failure to testify or to deny that he had committed an offense. We affirm.

Viewed in favor of the juvenile court’s order, the record shows the following. On August21,2013, a petition was filed in the Juvenile Court of Polk County, alleging that on May 23,2013, C. M. committed acts that, if committed by an adult, would have constituted the offenses of simple battery, obstruction of an officer, and disrupting a public school. Subsequently, on January 2,2014, another petition was filed in the Juvenile Court of Polk County, alleging that between December 28, 2013 and December 29, 2013, C. M. was a runaway child and was ungovernable, and that on December 29, 2013, he committed an act that, if committed by an adult, would have constituted the offense of aggravated assault.

On February 27, 2014, C. M. entered admissions to acts alleged in both the August 2013 and January 2014 petitions. Regarding the August 2013 petition, C. M. admitted that on May 23, 2013 he had committed an act that, if committed by an adult, would have constituted the offense of obstruction of an officer, in that he refused to comply with an officer’s lawful command to “move” when the officer was attempting to escort him out of the school principal’s office. The state dismissed the simple battery and disrupting public school allegations. Regarding the January 2014 petition, C. M. admitted that on December 29, 2013 he had committed an act that, if committed by an adult, would have constituted the offense of aggravated assault, in that he did “make an assault upon [his brother] with a deadly weapon, to wit: a pocket knife by pointing the knife at him and saying ‘[I] have something for you.’ ” The state dismissed the runaway and ungovernable allegations of the January 2014 petition. The juvenile court entered a disposition of probation for 24 months, and noted that “[t]he State announced it did not wish to seek any restrictive custody on the Designated felony offense.”

On March 24, 2014, a petition was filed in the Juvenile Court of Polk County, alleging that on March 7, 2014, C. M. committed three acts of violation of probation, three acts of contempt of juvenile court, and acts that, if committed by an adult, would have constituted the offenses of two counts of making terroristic threats. As to the latter charges, the petition alleged that C. M. “did threaten to commit aggravated assault a crime of violence, with the purpose of terrorizing [a teacher],” and that he “did threaten to damage, by shooting up, a residence, the property of [the teacher], with the purpose of terrorizing [the teacher].” When the petition was filed, C. M.’s whereabouts were unknown, and a warrant was issued for his arrest and detention; C. M. was placed in detention on March 18, 2014. The state subsequently filed a motion to revoke the disposition of probation previously entered on the delinquent act of aggravated assault, a class B designated felony act, and to resentence him on that charge.

On April 3, 2014, C. M. was adjudicated delinquent for committing on March 7, 2014 two acts of contempt of court, two acts of violation of probation, and for committing acts that, if committed by an adult, would have constituted the offenses of two counts of making terroristic threats. C. M. was acquitted of one act of violation of probation and of one act of contempt. The court continued disposition in order for a behavioral health evaluation to be completed, “to provide the juvenile court with information and recommendations relevant to the behavioral health status and mental health treatment needs” of C. M. The court ordered that C. M. would “remain in Rome RYDC pending disposition, at his request.” A psychological evaluation was filed with the court, and the next day, a disposition hearing was held.

At the disposition hearing, the school resource officer, a police officer with the Rockmart Police Department, testified regarding school disciplinary records for C. M. spanning the period from November 2012 to C. M.’s expulsion from school in March 2014. A copy of C. M.’s school disciplinary report was admitted in evidence without objection. The report showed log entries for C. M., including acts of defiance of authority, fighting, inappropriate behavior, threats, “Bullying/Profanity,” and for the terroristic threats incident which, the report showed, led to C. M.’s expulsion from school. Printouts from C. M.’s Facebook page were admitted in evidence, two of which showed C. M. holding what appeared to be a firearm. The officer testified that he was aware that C. M. had been expelled from school, believed that C. M. could benefit from being in an institution that could offer him an educational program, and believed that C. M. should be held in restrictive custody. When questioned on cross-examination about “other educational alternatives that are out there,” such as “online schooling” and “home schooling,” the officer responded, “as far as the homeschooling, let’s be honest, [C. M.’s mother] didn’t even know he was gone or where he was at, so I don’t think he’s going to be getting any homeschooling.” The teacher who was the victim of the terroristic threats testified that she felt “[s]cared” after the incident, and that she would not want C. M. to be out of restrictive custody.

C. M.’s probation officer testified that C. M. had not been on probation long enough for her to get to know him before the terroristic threats incident occurred and C. M. was placed in detention. The probation officer testified that one of her contacts at the RYDC informed her that C. M. had been “written up” on March 25 for being involved in a fight. The probation officer testified that she had not completed a current “DAI” or “risk assessment” on C. M., but that she could later furnish one to the court. Notwithstanding, the probation officer testified that, in her estimation and based on her knowledge of the acts for which C. M. had been adjudicated delinquent, C. M.’s DAI score would be close to 20, which would place him in a high risk level classification. The court asked the probation officer to “run [a DAI] and get one to me, and furnish it to everybody else so they’ll have one,” by 5:00 the next day. Immediately thereafter, the court informed C. M., through his counsel, that it did not anticipate making a ruling on the state’s request for restrictive custody until it had received a current DAI for C. M., as one of the factors the court had to consider was the “risk level of such child that is calculated by a risk assessment.” Counsel did not object in any way; she replied, “I understand that.” At the end of the hearing, the court reiterated that it was asking DJJ to provide a current DAI, and the court would “get an order out by no later than next Friday.”

In the psychological evaluation, the psychologist wrote that there were

few pro-social role models for [C. M.] since he is part of a gang and both of his elder brothers are incarcerated. It is unclear what role his mother’s boyfriend plays in the family and his maternal grandfather is apparently quite sick, however, [C. M.] is in need of a strong pro-social role model.

The psychologist continued:

There are currently no educational plans in place for [C. M.] and he reportedly still experiences some problems with anger. Without any direction in life it is likely that [C. M.] will continue to act in ways that result in interventions from law enforcement. Hence, a very structured program of activity is needed.

1. C. M. contends that the juvenile court’s decision to revoke a prior disposition of probation and to place him in restrictive custody was arbitrary and “precludes treatment and rehabilitation in a less restrictive setting,” in violation of OCGA § 15-11-504.

Subsection (a) of OCGA § 15-11-504 lists places where “[a]n alleged delinquent child may be detained,” and subsection (b) provides that “[placement shall be made in the least restrictive facility available consistent with the best interests of the child.” But as C. M. had already been adjudicated delinquent, OCGA § 15-11-504 was not applicable to his disposition.

Regarding the issue of whether a juvenile should be placed in restrictive custody, OCGA § 15-11-602 (a) and (b) pertinently provide: “When a child is adjudicated to have committed a . . . class B designated felony act, the order of disposition shall . . . include a finding, based on a preponderance of the evidence, of whether such child requires placement in restrictive custody.” OCGA § 15-11-602 (b) further expressly provides that in determining whether placement in restrictive custody is required, the court shall consider and make specific written findings of fact as to each of the following factors, pertinently:

(1) The age and maturity of such child; (2) The needs and best interests of such child; (3) The record, background, and risk level of such child as calculated by a risk assessment, including, but not limited to, information disclosed in the probation investigation, diagnostic assessment, school records, and dependency records; (4) The nature and circumstances of the offense, including whether any injury involved was inflicted by such child or another participant, the culpability of such child or another participant in planning and carrying out the offense, and the existence of any aggravating or mitigating factors; (5) The need for protection of the community; [and] (6) The age and physical condition of the victim [.]

In this case, the juvenile court made findings as to each factor set forth above, and C. M. does not contend otherwise. “The weight to be accorded each factor, and the ultimate decision about whether restrictive custody is warranted, is committed to the sound discretion of the juvenile court.”

As it concerns the first factor, the age and maturity of the child, the court found that C. M. was 14 years old, was “extremely immature,” was “susceptible to temptations to follow a ‘gangster’lifestyle,” and had had multiple “run-ins” with authority figures. As to the second factor, the needs and best interests of the child, the court found that according to the psychological evaluation, C. M. has had no positive male role models in his life. Referring to C. M.’s school disciplinary report, the court also found that C. M. had been permanently expelled from school, based on “a series of aggressive and violent behavior” in incidents wherein he displayed “inappropriate behavior, defiance of authority, fighting, threats, bullying, and/or profanity, and the terroristic threats incident for which he was adjudicated [delinquent].” The court found that C. M. appeared to have no structure in his life, and that his mother had admitted that she could not control him. The court found that photographs printed from C. M.’s Facebook page depicted C. M. with what appeared to be an automatic pistol and other firearms, making menacing gestures, and with what appeared to be a marijuana cigarette “hanging out of his mouth.”

The court found that the psychologist who conducted the psychological evaluation recommended individual and family therapy and a structured educational program, and that the psychologist opined that “without any direction in his life, it is likely that [C. M.] will continue to act in ways that result in interventions from law enforcement.” The court found that the psychological evaluation reflected that C. M. had admitted using marijuana and being involved in gang activity for a number of years, and that the school resource officer had also testified about possible gang involvement. The court noted that, “[s]trangely, however, [the psychologist] does not recommend detention, despite [his] findings regarding gang activity, a need for structure, and a history of aggressive behavior.” The evidence led the court to conclude that C. M. “desperately needs structure, discipline, and positive male role models in his life, to stay away from temptations to commit crimes,” and that the needed structure could only be provided in detention.

As it concerns the third factor — the record, background, and risk level of the child — the court noted that it had recounted C. M.’s record when it made findings as to the first two factors. The court found that according to C. M.’s probation officer, C. M.’s risk assessment score was close to 20, which placed C. M. at a high risk level, and that, consistent with the probation officer’s testimony, a completed DAI document the probation officer provided to the court after the disposition hearing showed that C. M.’s DAI score was 21, indicating a high risk level.

As to the fourth factor, the nature and circumstances of the offense, the court reiterated the acts upon which C. M. had been adjudicated delinquent, pointing out that C. M. had sent a text message threatening to shoot up the house of one of his teachers. The court found that the teacher was not injured as a result of the act, but that she was afraid of C. M., that she was visibly nervous and shaking during the disposition hearing, and that she did not want to be around C. M. The court observed that C. M. did not testify at the disposition hearing, but that he had never denied sending the threatening text message; the court found that it appeared that C. M. had sent the threatening message himself and that no other persons were involved. The court found it significant that two witnesses who had testified at the adjudication hearing were “extremely reluctant to do so, and one even had to be threatened with contempt if he did not answer the State’s questions.” The court found that the incident involving the terroristic threats had occurred just ten days after C. M. had been placed on probation for aggravated assault. The court found that C. M. did not present any mitigating factors to the court.

As to the fifth factor, the court found that the need for protection of the community was “significant.” The court found that C. M. had been expelled from school, and had “no other activities or interests that occupy him during the day,” leaving C. M. “essentially free to roam the streets of the City and do as he pleases.” The court found that C. M.’s Facebook photographs showed that he led a dangerous life; that C. M. had been involved in an altercation with his brother with a knife; that C. M. had obstructed law enforcement officers in the discharge of their official duties; and that many of the witnesses who testified were afraid of C. M. As it concerns the sixth factor, the age and physical condition of the terroristic threats victim, the court found that the victim had not been injured.

Based on the court’s findings with regard to the requisite factors, the court concluded that restrictive custody was appropriate, and that it was in C. M.’s “best interest to receive control and assistance to prevent him from entering the adult system.” In this case, the court was authorized to find that C. M.’s school disciplinary record; record of delinquency including acts of violence, aggression, and intimidation; violations of probation while living at home; immaturity; susceptibility to temptation; use of marijuana; lack of positive male role models in his life; lack of structure in his life; expulsion from school; and absence of other activities to occupy his time during the day demonstrated that restrictive custody was in his best interests, as well as the community’s, and was not arbitrary.

Therefore, we conclude that the court complied with OCGA § 15-11-602 (a) and (b), and that the court did not abuse its discretion in ordering C. M. to serve 12 months in restrictive custody.

2. C. M. contends that his due process rights were violated when the court, in entering the disposition order from which this appeal is taken, relied on a DAI document that was “attached [to] and made a part of the decision, after the conclusion of the disposition hearing.”

As C. M. states in his appeal brief (and the evidence established), the probation officer testified that C. M. “had a DAI score of about 20, placing him in the high risk category.” Therefore the introduction of the DAI document, even if error, was merely cumulative of the probation officer’s testimony, and presents no basis for reversal. Moreover, “[C. M.] cannot object to the admission of evidence for the first time on appeal.” At the disposition hearing, counsel for C. M. never objected in any manner to the court’s ruling that it would issue an order after it had received the DAI document from the probation officer.

3. C. M. contends that the juvenile court violated his Fifth Amendment right to remain silent by commenting on his failure to testify or failure to deny that he had committed an offense. In the division of the disposition order entitled “The Nature and Circumstances of the Offense,” the juvenile court wrote, inter alia, that: “The child did not testify in the hearing, but has never denied sending the messages.”

Decided March 5, 2015.

Mushiya Kabemba-Warren, for appellant.

Jack Browning, District Attorney, Dustin S. Strobel, Assistant District Attorney, for appellee.

One of the factors the court must consider and with regard to which the court must make specific written findings of facts is:

The nature and circumstances of the offense, including whether any injury involved was inflicted by such child or another participant, the culpability of such child or another participant in planning and carrying out the offense, and the existence of any aggravating or mitigating factors [.]

The complained-of comment was followed by: “It appears that the child sent the threat himself, that no other offenders were involved.” At the end of the paragraph that included both sentences the court concluded, “The child did not present any mitigating factors.” A fair reading of the complained-of remarks, in context, establishes that they were not addressed to C. M.’s exercise of his fundamental right, but to the court’s determination of whether C. M. had acted alone (or with another participant), and to the existence of aggravating or mitigating evidence; the juvenile court was required to make such factual findings in rendering its disposition. We find no error.

Judgment affirmed.

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

       See In the Interest of D. C., 324 Ga. App. 95 (748 SE2d 514) (2013).

       OCGA § 16-5-21.

       This act constituted a class B designated felony act, as there was no evidence or allegation that the act actually resulted in serious bodily injury. See OCGA §§ 15-11-2 (13) (A); 16-5-21 (b) (2).

       “DAI” is an initialism for “Detention Assessment Instrument.” A Detention Assessment Instrument is a tool used to calculate a child’s risk level, and aid in a detention decision.

       A child with a detention assessment score of 12 or more on the DAI is classified as “High Risk,” and detention is recommended.

        In the Interest of D. C., supra at 98 (citation and punctuation omitted).

       See In the Interest of D. C., supra at 99.

       See generally id.; In the Interest of C. T., 197 Ga. App. 300, 302 (2) (398 SE2d 286) (1990) (adjudication for a designated felony act authorized juvenile court to place child in restrictive custody despite recommendations for non-restrictive custody). See also OCGA § 15-11-602 (d) (1) (child adjudicated for a class B designated felony act may be placed in DJJ custody for “an initial period of up to 36 months; provided, however, that not more than 18 months of such custodial period shall be spent in restrictive custody”).

       See generally Baghose v. State, 309 Ga. App. 599-600 (1) (711 SE2d 110) (2011). See also Welch v. State, 237 Ga. 665, 676 (12) (229 SE2d 390) (1976) (“Where the evidence erroneously admitted is merely cumulative of properly admitted evidence, no harm is suffered by the accused.”) (citations omitted); In the Interest of M. E. A., 253 Ga. App. 531, 533 (2) (559 SE2d 759) (2002) (“harm as well as error must be shown in order for us to reverse the juvenile court’s adjudication”) (footnote omitted); In the Interest of C. T., supra at 301 (1) (“Harm as well as error must be shown to authorize reversal.”) (citation omitted).

        Lambert v. Jones, 250 Ga. 603, 606 (299 SE2d 716) (1983) (citations omitted).

       See id. at 605-606.

       OCGA § 15-11-602 (b) (4).

       See generally Wakily v. State, 225 Ga. App. 56 (8) (483 SE2d 313) (1997); Cottingham v. State, 213 Ga. App. 637 (1) (445 SE2d 384) (1994).


author: McMillian, Judge.

text:
    A14A2187.
    DUCKETT v. THE STATE.
    (769 SE2d 743)
   McMillian, Judge.

Appellant Alaneua Duckett was arrested and charged with aggravated assault, making terroristic threats, simple battery, and criminal trespass following an incident at a hair salon. She represented herself at trial, and a jury found her not guilty of simple battery and guilty of the remaining charges. Duckett, who is now represented by counsel, appeals from the denial of her motion for new trial, arguing that the trial court erred by allowing her to represent herself without first determining if she was competent to do so and by failing to sua sponte investigate her competency during trial.

The evidence, construed to support the jury’s verdict, shows that the incident giving rise to the charges against Duckett occurred on Duckett’s first day at work as a stylist at a hair salon owned by Lynn Dozier. Duckett arrived at work on time, but the other salon employee, Shaquera Joyner, was late arriving to open the salon, and Duckett became upset. Joyner called Dozier to tell her that Duckett was upset, and Dozier told Joyner that she was on her way and that Joyner should ignore Duckett until she arrived.

By the time Dozier arrived, customers had come into the salon, and both Duckett and Joyner were styling hair. Dozier came over to watch Duckett work and attempted to correct the technique Duckett was using to do a “weave.” Duckett became upset, told Dozier she could look at the customer’s hair after she finished, and took Dozier’s hand and moved it out of the way.

The altercation between the women escalated, and at some point Duckett grabbed a pair of scissors and held them in a threatening manner. Duckett threw items around the shop, picked up a hot iron, or “stove,” and began slinging it around, hitting the wall and a mirror, which broke. Duckett verbally threatened Dozier, telling her that she was going to “whip [her] ass” and words to similar effect.

Joyner called 911, and Officer Timothy Roessel responded to the call. Officer Roessel testified that when he arrived, several women were yelling at each other, and that he could not immediately discern which of the women was the “suspect.” He said that several of the women started pointing at Duckett, and he placed her under arrest.

At some point after she was arraigned and her case had been placed on a trial calendar, Duckett informed the prosecuting attorney’s office that she wished to represent herself and called and demanded a jury trial. The prosecuting attorney brought the matter to the trial court’s attention, and the trial court proceeded to hold a Faretta hearing to advise Duckett of her rights as required by State and federal law. See, e.g., Faretta v. California, 422 U.S. 806 (V) (95 SCt 2525, 45 LE2d 562) (1975); Lamar v. State, 278 Ga. 150, 152 (1) (b) (598 SE2d 488) (2004); Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981). The transcript from the hearing shows that the trial court properly advised Duckett of the charges against her, the punishments she was possibly facing, her right to appointed counsel, and repeatedly warned her of the hazards of proceeding pro se, citing specific examples of how an attorney could better advocate on her behalf and protect her rights. Despite these admonitions and warnings, Duckett continued to insist that she wanted to represent herself, making statements to the effect that it was unnecessary for her to have counsel because the charges against her were fabricated and frivolous. The trial court again cautioned Duckett, “Do you know how many people have been found guilty of things that they say never happened,” but Duckett continued to insist that the State did not have a case against her. The trial court persisted in its efforts to persuade Duckett she needed counsel, but Duckett expressed her confidence that the trial court would ensure that the law was followed and that correct legal rulings would be made. She again reiterated that she did not need a lawyer and that she did not want a lawyer even if the court offered her appointed counsel.

At that point in the hearing, the trial court briefly questioned Duckett about her education, and she explained that she was a two-year college graduate, but that her credits continued to roll over and that she had not yet met all the requirements to reach her goal of becoming a phlebotomist. Following this exchange, the trial court asked Duckett if she was “absolutely sure” that she wanted to represent herself if the case went to trial the following week, and she responded that she was sure and that she thought they should proceed.

The trial court allowed Duckett to proceed pro se at trial, and she was ultimately convicted of all the charges against her except simple battery. At the sentencing hearing, Duckett revealed for the first time that she suffers from schizophrenia, is bipolar, and has been receiving disability benefits for 13 years. The trial court questioned Duckett concerning her mental illness, and then noted on the record, among other observations, that

from beginning, middle to end of these proceedings, [Duckett] presented herself as someone who obviously suffered from mental illness, which explains the attitude she took toward the Court, and to the other parties in this case, and her single-minded approach of refusing assistance of counsel, and refusing imprecations of the Court to do certain things for her own benefit. [And] I think a lot of both your behavior during the legal process, and your behavior at the hair salon, was due to your mental illness.

The trial court also stated that due to Duckett’s circumstances it was showing her “a significant degree of mercy” by rejecting the State’s recommendation and sentencing Duckett under the First Offender Act to five years, to serve 60 days minus time already served, with the remainder to be served on probation. Further, the court required Duckett to receive mental health treatment as directed by her probation officer.

The trial court also advised Duckett of the steps she should follow to obtain appointed counsel to pursue an appeal, and the court appointed counsel to represent Duckett in post-trial matters several weeks later. Appointed counsel filed a motion for new trial on July 2013, asserting the general grounds, with a reservation to amend the motion after counsel had the opportunity to review the trial transcript. However, counsel did not amend the motion after she reviewed the transcript, choosing instead to notify the trial court that she had “determined that no possible appellate issues in this case require an evidentiary hearing and that any ground in her appeal will be covered by the general grounds cited in her Motion for New Trial.”

Despite counsel’s entreaty to summarily deny the motion, the trial court entered a detailed order, finding, among other things, that his review of the record did not disclose that he had committed error by upholding Duckett’s right to self-representation or by failing to sua sponte halt the trial and sentencing when it became apparent that Duckett had mental health issues. Citing Indiana v. Edwards, 554 U.S. 164 (128 SCt 2379, 171 LE2d 345) (2008), the trial court found that although Duckett suffers from some degree of mental or emotional illness that affects her conduct, her illness was not so severe that she could not conduct the trial proceedings by herself. Duckett now appeals from the denial of her motion for new trial.

1. In related enumerations of error, Duckett asserts that the trial court should have made a finding regarding her competency before allowing Duckett to represent herself at trial and further that the trial court erred when it failed to sua sponte investigate her competency after it allegedly became apparent that she suffered from a mental illness.

“It is impermissible as a matter of constitutional law for a mentally incompetent person to be subjected to trial, regardless of whether that person is tried while represented by counsel or while acting pro se.” Lamar, 278 Ga. at 151. A trial court has the duty to inquire into a defendant’s competence “when information becomes known to it, prior to or at the time of the trial, sufficient to raise a bona fide doubt regarding the defendant’s competence.” (Citation omitted.) Biggs v. State, 281 Ga. 627, 629-630 (642 SE2d 74) (2007). Moreover, after conviction, a defendant may seek a hearing regarding the issue of competency at the time of trial. “In this regard, a defendant may argue that he was denied procedural due process based on the trial court’s failure to resolve the issue of competency before or during trial or he may argue that his substantive due process rights were violated because he was tried while incompetent.” Id. at 630.

Although Duckett does not clearly delineate her arguments as those involving procedural or substantive due process, it appears that she is asserting both violations in this case. With respect to whether Duckett’s procedural due process rights were violated, the focus of that inquiry is

whether the trial court received information [prior to or during trial] which, objectively considered, should reasonably have raised a doubt about the defendant’s competency and alerted the trial court to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense.

Traylor v. State, 280 Ga. 400, 404 (627 SE2d 594) (2006). This information includes “any evidence of the defendant’s irrational behavior, the defendant’s demeanor at trial, and any prior medical opinion regarding the defendant’s competence to stand trial.” Id.

Duckett does not contend that the trial court had any direct information at the time of the advisement hearing concerning her mental capacity, but now argues that certain statements she made during the hearing should have alerted the trial court that it needed to make an additional inquiry into her competency. Among other things, Duckett points to a statement at the beginning of the hearing that she was “trying to make it through this,” her repeated affirmations that she did not need a lawyer because the charges against her were baseless and false, and what she describes as obviously nonsensical statements about her educational background, such as her assertion that she is a college graduate, but that her credits continue to “roll over.” Further, Duckett contends that if the trial court had made the proper inquiry and questioned her prior to allowing her to proceed pro se, the court would have discovered that she suffers from a mental illness, as she revealed to the court at the sentencing hearing.

But the statements Duckett points to as proof of her incompetency were, when read in context, either appropriate, innocuous, or simply indicative of an intransigent belief in her innocence, which, as the trial court noted, while misguided, is not uncommon. Thus, while it is obvious that the trial court had some justifiable concerns about Duckett’s ability to proceed without counsel, we do not believe that the particular circumstances here show that Duckett is entitled to a new trial due to the trial court’s failure to conduct a competency hearing prior to allowing Duckett to represent herself at trial.

Duckett also argues that even if her conduct during the advisement of rights hearing did not alert the trial court to the need to conduct a competency hearing, her conduct throughout the trial should have alerted the trial judge to the need to halt the trial and conduct a sua sponte investigation into her competency. In addition, Duckett points to the trial court’s remarks at the sentencing hearing, which she argues demonstrates that the court was aware she was mentally ill and incapable of conducting her own defense.

But the fact that the trial court became aware during the trial that Duckett suffered from some degree of mental instability does not necessarily mean that the trial court should have stopped the trial and overridden Duckett’s decision to conduct her own defense. Likewise, the trial court was not required to stop the trial just because it became apparent that Duckett may have benefitted from counsel.

As noted above, the trial court made a specific finding in its order denying Duckett’s motion for new trial that Duckett’s mental illness was not so severe that she should be denied her right to represent herself. In support of its ruling, the trial court noted that Duckett was acquitted of the charge of simple battery, raised reasonable points in her defense, presented an alternative explanation for the incident, and succeeded in admitting numerous items of evidence over the State’s objection. These findings are supported by our review of the trial transcript. The fact that Duckett took some missteps at trial and remained intransigent in her defense did not require the trial court to halt the trial and inquire into her mental state or to sua sponte conclude that Duckett was not mentally competent to represent herself. Haygood v. State, 289 Ga. App. 187, 190 (1) (656 SE2d 541) (2008) (trial court not required to inquire into defendant’s competency when alleged irrational behavior or demeanor was not such to alert the trial court that defendant was incompetent and court had no evidence of any prior medical opinion indicative of incompetency); Traylor, 280 Ga. at 404-405 (4) (a) (although trial court knew that defendant was developmental^ disabled and that he had some difficulty in responding to the court’s question, court was not required to conduct competency hearing when defendant’s behavior not irrational or demeanor unusual). Accordingly, this contention presents no grounds for reversal.

2. With respect to Duckett’s claim that she was, in fact, not competent to represent herself at trial, resulting in a violation of her substantive due process rights, she asserts that the trial court erred in finding post-trial that “although [Duckett] suffers from a mental or emotional illness that affects her conduct, it was not so severe that this court should have overrode her wish to represent herself.” This finding necessarily carries with it a determination that Duckett was competent to stand trial. And as held by the United States Supreme Court in Godinez v. Moran, 509 U.S. 389 (113 SCt 2680, 125 LE2d 321) (1993), and reiterated by our Supreme Court, “[t]he standard of mental competency to stand trial is the same as the standard of mental competency to waive the right to counsel.” Lamar, 278 Ga. at 151.

When . . . the factfinder has made a determination of competency, the appropriate standard of appellate review is whether after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was incompetent to stand trial.

Biggs, 281 Ga. at 630. Construing the evidence in the light most favorable to the State and given that Duckett, through counsel, declined to present any additional evidence at the motion for new trial stage, including any medical evidence of incompetency, we conclude that the trial court was authorized to find that Duckett was competent to stand trial and to represent herself at trial.

Relying on the United States Supreme Court’s decision in Edwards, Duckett contends that the trial court failed to properly evaluate and weigh her mental incapacity in allowing her to waive her constitutional right to counsel and proceed pro se at trial. Duckett is correct that an accused who is competent to stand trial and insists on representing herself may nonetheless be required to accept the services of counsel on the ground that she lacks the mental capacity to conduct her own defense at trial. Edwards, 554 U.S. at 177-178. See also Sheppard v. State, 297 Ga. App. 806, 809 (1) (678 SE2d 509) (2009) (applying Edwards). As the Court in Edwards explained:

We consequently conclude that the [U.S.] Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so.

Edwards, 554 U.S. at 177-178.

But Edwards does not, as Duckett argues, impose a higher level of scrutiny of an accused’s competence to self-represent at trial or create any additional duty on the part of the trial judge to inquire into an accused’s competence. Instead, Edwards holds that it is constitutionally permissible for a state to deny a defendant the right to proceed without counsel at trial on the grounds that the defendant, though competent to stand trial, is not sufficiently competent to represent herself at trial because of a severe mental illness. In so holding, the Edwards Court emphasized that “the trial judge ... will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.” Id. at 177. Accordingly, under Edwards, we discern no error in the trial court’s determination that although Duckett apparently suffered from a mental illness, it was not so severe that the trial court should override her desire to self-represent at trial. See Sheppard, 297 Ga. App. at 809 (1).

Decided March 5, 2015.

Mary Erickson, for appellant.

Brian K. Fortner, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

       Although Duckett does not challenge the sufficiency of the evidence, we have independently examined the evidence presented at trial and find it more than sufficient to authorize Duckett’s conviction of the charges for which she was found guilty under the standard of Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Duckett argues that she was obviously confused about how to conduct voir dire and that during the trial she made no objections, interjected irrelevant and sometimes damaging information through her cross-examination of the witnesses, introduced two witness statements that corroborated the State’s version of events, and gave the jury negative information about herself.

       Although not crystal clear, it appears that Duckett’s defense was that Dozier hired her with the intent of either not paying her or taking advantage of her in some way.

       Duckett only challenges the trial court’s finding that she had the mental competency to waive counsel and does not assert on appeal that the trial court otherwise failed to properly advise of the “dangers and disadvantages” in representing herself under Faretta.

       We note that federal courts that have considered this issue agree that Edwards does not impose a higher standard for evaluating competence to self-represent at trial as a matter of federal constitutional law. See, e.g., Wright v. Bowersox, 720 F3d 979, 986 (8th Cir. 2013) (“Edwards did not announce a new constitutional rule for determining competency when a defendant wishes to waive his right to counsel; it merely allows, but does not require, states to have a heightened standard.”); United States v. Bernard, 708 F3d 583, 590 (4th Cir. 2013) (“To the extent Appellant suggests the district court was constitutionally compelled to deny him the right, Edwards announces no such rule.”); United States v. Turner, 644 F3d 713, 724 (8th Cir. 2011) (“Edwards does not require that a trial judge: (1) conduct an inquiry into the competency of every defendant who requests to proceed pro se, or (2) hold a hearing prior to making a competency determination.”); United States v. Johnson, 610 F3d 1138, 1145 (9th Cir. 2010) (Edwards does not answer the question of “when, if ever, the Constitution requires a court to impose counsel on a ‘gray area’ defendant despite a voluntary and knowing waiver”); United States v. deShazer, 554 F3d 1281, 1289-1290 (10th Cir. 2009) (“To the extent that [defendant] suggests that the district court was duty-bound to deny him the right [to waive counsel], we do not read Edwards as announcing such a new rule.”); United States v. Posadas-Aguilera, 336 Fed. Appx. 970, n. 5 (11th Cir. 2009) (agreeing with Seventh Circuit that although the Constitution allows a trial judge to “ block (a defendant’s) request to go it alone, but it certainly (doesn’t) require it’ ”). See generally Sheppard v. Kemp, No. CV413-274, 2014 WL 7034594, at *3 (S.D. Ga. 2014) (citing federal appellate and district court cases).