text:
    A14A1222.
    FREEMAN v. THE STATE.
    (765 SE2d 631)
   Dillard, Judge.

Following trial, a jury convicted Tracey Freeman on one count of trafficking in cocaine and one count of possession of less than one ounce of marijuana. On appeal, Freeman contends that the evidence was insufficient to support the trafficking conviction because the State failed to prove that he had knowledge of the weight of the cocaine and that the trial court erred in admitting the out-of-court statements of a confidential informant, which violated his right to confrontation under the Sixth Amendment to the United States Constitution. Although we find that the evidence was sufficient to support the jury’s verdict that Freeman was guilty of trafficking, we agree that the trial court erred in admitting the confidential informant’s out-of-court statements, and, therefore, we reverse Freeman’s convictions.

Viewed in the light most favorable to the jury’s verdict, the record shows that in July 2006, Atlanta Police Department officers set up surveillance on a house located at 1718 Thoms Drive based on complaints from neighbors, who believed that illegal drug sales were occurring there. And after observing numerous individuals going in and out of the house for very brief periods of time, at all hours of the day and night, the police believed that the neighbors’ suspicions were well founded. Consequently, in the early afternoon on July 25, 2006, an officer sent a confidential informant (“Cl”) into the house to attempt to make a controlled purchase of illegal drugs. Afew minutes later, the Cl exited the house and returned to the officer, having successfully bought a small quantity of crack cocaine. Based on this information, the officer quickly obtained a search warrant for the residence.

Later that same afternoon, the officer and several other members of the Atlanta Police Department’s narcotics squad returned to the Thoms Drive address to execute the search warrant. And upon entering the house, the officers noticed that it was sparsely furnished with only one bedroom containing any furniture. In that bedroom, the officers encountered Freeman and found a small amount of marijuana and powder cocaine on a laptop computer. Additionally, in the same bedroom, the officers found clothes and shoes that appeared to belong to Freeman as well as some mail addressed to him at 1718 Thoms Drive. Consequently, Freeman was arrested. Elsewhere in the house, the officers encountered Freeman’s four uncles, whom they arrested solely on disorderly conduct charges. Shortly thereafter, a K-9 unit arrived, and the dog quickly alerted the officers to a vent on the floor in the bedroom, in which the officers found a bag containing 50.62 grams of crack cocaine.

Thereafter, Freeman was charged, via indictment, with one count of trafficking in cocaine and one count of possession of less than one ounce of marijuana. At Freeman’s trial, several of the Atlanta police officers involved in the case testified regarding their search of the house, and the lead officer also testified as to the details of the Cl’s controlled buy, which resulted in him successfully obtaining the search warrant. In addition, a GBI forensic chemist testified that the crack cocaine recovered by law enforcement weighed 50.62 grams and had a purity of 82 percent. The State also introduced similar-transaction evidence, showing that over the course of the last ten years, Freeman had five prior convictions for various illegal drug offenses, including three convictions for possession of cocaine with intent to distribute and two for possession of marijuana with intent to distribute.

Freeman testified in his own defense and claimed that he (1) did not live at the house (which was actually rented by his uncles), and (2) was only there that day to use the computer to complete his homework for culinary school. Freeman also denied having any knowledge of the cocaine or marijuana found in the bedroom. Additionally, Freeman’s mother, his girlfriend, a long-time friend, and three of his uncles testified that Freeman did not live at the 1718 Thoms Drive residence but visited there occasionally to use the computer for his school work. Nevertheless, at the trial’s conclusion, the jury found Freeman guilty on both counts, and the court imposed a 30-year sentence, with 20 years to be served in confinement. Subsequently, Freeman filed a motion for new trial, which the trial court denied after a hearing. This appeal follows.

1. Freeman contends that the evidence was insufficient to support his conviction for trafficking in cocaine because the State failed to prove that he had knowledge of the weight of the drug. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be “viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” And we do not weigh the evidence or determine witness credibility but only consider whether “a rational trier of fact could have found the defendant [ ] guilty of the charged offenses beyond a reasonable doubt.” Thus, the jury’s verdict will be upheld so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” With these guiding principles in mind, we turn now to Freeman’s specific claim of error.

At the time of Freeman’s arrest in 2006 and his trial in 2009, former OCGA § 16-13-31 (a) (l), in relevant part, provided:

Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in cocaine . . . .

And in the recently decided case of Scott v. State, the Supreme Court of Georgia held that “[t]he plain language of the version of former OCGA § 16-13-31 (a) (1) at issue dictates the conclusion that knowledge of the quantity of the drug was an element of the crime.” Specifically, our Supreme Court found that the cocaine-trafficking statute contained “express scienter requirements, that is, knowledge of the nature and amount of the drug and of being in possession of it,” and that “where ‘knowledge’ is made part of an offense, the State has the burden to prove the defendant’s guilty knowledge.” Nevertheless, a jury may find criminal intention, i.e., knowledge, “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” Indeed, both knowledge and possession may be proved, “like any other fact, by circumstantial evidence.”

And here, the evidence shows that the crack cocaine which Freeman was convicted of possessing had a purity of 82 percent and weighed 50.62 grams — nearly two times the trafficking threshold weight of 28 grams — and was packaged in a plastic bag and hidden in a vent in a bedroom that Freeman was apparently occupying. Furthermore, the jury heard evidence of five similar transactions, including Freeman’s three convictions for possession of cocaine with the intent to distribute. More specifically, in one of those previous cases, Freeman was found to be in possession of nearly 26 grams of cocaine, and in another, he was found to be in possession of 19 grams of the drug. Given these circumstances, there was sufficient evidence showing that Freeman had knowledge of the weight of the cocaine found in the search of the Thoms Drive residence.

2. Freeman also contends that the trial court erred in admitting the out-of-court statements of the Cl, arguing that this evidence violated his right to confrontation under the Sixth Amendment to the United States Constitution. We agree.

The Sixth Amendment’s Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This fundamental right is a “bedrock procedural guarantee [that] applies to both federal and state prosecutions,” and is a “concept that dates back to Roman times.” And in 2004, the Supreme Court of the United States clarified the original public meaning and scope of the right to confrontation of one’s accusers in Crawford v. Washington, holding that when the admission of “testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” But when the statement at issue is nontestimonial in nature, “the State’s normal rules regarding the admission of hearsay apply.”

Although the Supreme Court did not specifically outline the parameters for determining whether a statement can be characterized as testimonial in Crawford, it did explain that such testimony is a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Accordingly, the Confrontation Clause prohibits “the introduction of a formal statement to a government officer made in an effort to establish an evidentiary case, such as that which occurs during a police investigation.” Additionally, the Supreme Court in Crawford found that a statement might also be considered testimonial if it was “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

At the trial of this matter, during the cross-examination of the police officer who set up the Cl’s controlled buy, Freeman’s counsel asked if the Cl provided a general description of the person who sold him the crack cocaine. The officer responded that the affidavit in support of the search warrant only indicated that the Cl purchased the drugs from a “black male,” but that any additional information would have been included in his “buy report,” which he did not currently have. At that point, Freeman’s counsel requested that the State provide a copy of the buy report, and he reiterated this request a short time later after the jury was excused for the evening. The State asserted that it did not have the buy report and that, regardless, the defendant was not entitled to it. But the trial court disagreed and ruled that if the report could be located, the defendant was entitled to, at the very least, have it reviewed in camera for potential impeachment or exculpatory purposes.

The following morning, the State presented the buy report for review, having successfully located it. But upon review, Freeman’s counsel noted that in the report, the Cl indicated that he purchased the crack from a black male, whom he knew as “Trace.” Consequently, defense counsel argued that admitting the report or allowing the officer to testify as to its details would violate Freeman’s Confrontation Clause rights. However, the trial court disagreed, stating that defense counsel opened the door for this evidence when he cross-examined the officer about the vague description of the seller contained in the officer’s affidavit. The court then indicated that it would instruct the jury that the evidence was not being admitted for the truth of the matter asserted but, rather, to explain the officer’s conduct. Maintaining his objection, defense counsel asked the trial court if it thought the evidence was damaging to Freeman, to which the court responded, “[v]ery damaging.”

Thereafter, during its redirect examination of the officer, the State introduced the buy report into evidence over Freeman’s objection. At that point, the trial court instructed the jury that it could consider the contents of the report “only in the context of the credibility or impeachment or lack of impeachment of this particular witness and for no other purpose.” Subsequently, the officer testified that, based on the buy report, the Cl claimed to have purchased the crack from a suspect named Trace. And later, despite the trial court’s instruction, the State argued during closing that although the cocaine-trafficking charge did not require proof that Freeman sold crack to the Cl, “Trace is often a nickname for Tracey.” Freeman’s counsel lodged yet another objection, which the trial court overruled.

As he did during the trial, Freeman argues on appeal that the Cl’s statement in the buy report, in which he claimed to have purchased crack cocaine from someone named Trace, was testimonial, and therefore prohibited by the Confrontation Clause. As previously noted, we agree.

Quite simply, a confidential informant’s “statements to a law enforcement officer are clearly testimonial” because “[t]ips provided by confidential informants are knowingly and purposely made to authorities, accuse someone of a crime, and often are used against the accused at trial.” And the very fact that the informant is confidential — i.e., that his or her identity is not disclosed— “heightens the dangers involved in allowing a declarant to bear testimony without confrontation.” Indeed, permitting anonymous accusations of crime without “any opportunity for cross-examination would make a mockery of the Confrontation Clause.”

Here, the Cl’s statement in the buy report and the officer’s testimony regarding that statement were clearly testimonial. And although the Confrontation Clause does not bar “the use of testimonial statements for purposes other than establishing the truth of the matter asserted,” contrary to the trial court’s ruling and its subsequent instructions to the jury, the crux of the officer’s testimony— that the Cl claimed to have purchased crack cocaine from a person named “Trace” — “was not offered merely to explain why a government investigation was undertaken or to demonstrate the effect of the out-of-court statements on the officers.” Rather, the purpose of this testimony was to establish that the person named “Trace” was involved with the illegal drug activity occurring at the Thoms Drive residence. In fact, the State’s argument during closing that “Trace is often a nickname for Tracey” made this exact point and belies any contention that the statement merely provided an explanation for the lead officer’s conduct. Moreover, Freeman had no opportunity to cross-examine the CL Accordingly, the buy report and the officer’s testimony concerning its details clearly violated Freeman’s Sixth Amendment Confrontation Clause rights.

Furthermore, we disagree with the trial court’s assertion that Freeman opened the door to the admission of this evidence during his aggressive cross-examination of the lead officer as to why Freeman was targeted when there were at least four other people at the residence at the time the search warrant was executed. Defense counsel’s decision to waive a defendant’s confrontation rights must be done “intentionally and for valid, tactical purposes in order to satisfy the requirement that the waiver of a constitutional right must be clear and intentional.” But here, there was no such waiver. In fact, the record shows that Freeman’s counsel explicitly objected to the admission of the Cl’s statements, as well as the trial court’s ruling that he opened the door to such statements. And although courts at times allow “the use of otherwise inadmissible evidence, including hearsay statements, to clarify, rebut, or complete an issue opened up by defense counsel on cross-examination,” as the Supreme Court of the United States has explained, “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence ” Thus, the trial court erred in ruling that Freeman opened the door to the Cl’s statement.

Finally, while admitting evidence in violation of a defendant’s Confrontation Clause rights “is one of constitutional magnitude, it can be harmless error if the State can prove beyond a reasonable doubt that the error did not contribute to the verdict, such as when the evidence at issue is cumulative of other properly-admitted evidence or when the evidence against the defendant is overwhelming.” But here, the State cannot meet that burden. The Cl’s statement that he purchased crack cocaine from “Trace” was arguably the only direct or noncircumstantial evidence that Freeman was involved in the illegal drug activity occurring at the Thoms Drive residence. Thus, the statement was not merely cumulative of other sufficient evidence.

Nor can we characterize the remaining evidence against Freeman as overwhelming so as to satisfy us that the Cl’s statement did not contribute to the jury’s verdict. Although there was some evidence that Freeman resided at the Thoms Drive residence, Freeman and six other witnesses testified that he lived elsewhere and only went to that house to use the computer. In addition, while the 50 grams of crack cocaine were found in the same bedroom where Freeman was located at the time the officers executed the search warrant, the drugs were not found on his person but were instead hidden in a floor vent. Moreover, there was at least some evidence that four of Freeman’s uncles lived at the residence and, therefore, also would have had access to the cocaine. In fact, two of Freeman’s uncles specifically testified that the drugs belonged to a local dealer, who would store the drugs there, and in return would provide cocaine for one of the uncles. Given these circumstances, we simply cannot conclude that there is no reasonable probability the Cl’s statement that he purchased crack cocaine from “Trace” did not contribute to the jury’s guilty verdict. To the contrary, we agree with the trial court’s rather candid acknowledgment that the evidence was, in fact, “very damaging.” Accordingly, this Confrontation Clause violation was not harmless, and Freeman is entitled to a new trial.

For all of the foregoing reasons, we reverse Freeman’s convictions. Nevertheless, the State may retry Freeman without violating the Fifth Amendment prohibition against double jeopardy because, as we held in Division 1, supra, even without the Cl’s statement, the evidence at trial was sufficient to support the convictions.

Judgment reversed.

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

Decided October 30, 2014.

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Lenny I. Krick, Assistant District Attorneys, for appellee.

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

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

       See former OCGA § 16-13-31 (a) (1). The version of the statute applicable to Freeman was effective July 1, 2003 to June 30, 2012. See Ga. L. 2003, p. 177, § 4; Ga. L. 2012, p. 899, § 3-8. The present version of the statute became effective July 1, 2013. See Ga. L. 20Í3, p. 222, § 4.

        See OCGA §§ 16-13-30 (j) (1); 16-13-2 (b).

        Davenport v. State, 308 Ga. App. 140, 142 (1) (706 SE2d 757) (2011); see Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Davenport, 308 Ga. App. at 142-43(1) (punctuation omitted); see Jackson, 443 U. S. at 319 an) (B).

        Davenport, 308 Ga. App. at 143 (1) (punctuation omitted).

        See supra note 3.

       Former OCGA § 16-13-31 (a) (1) (2003) (emphasis supplied).

       295 Ga. 39 (757 SE2d 106) (2014).

        Id. at 40 (1) (footnote omitted).

        Id.

        Id.; accord Phagan v. State, 268 Ga. 272, 278 (3) (c) (486 SE2d 876) (1997).

       OCGA § 16-2-6.

        Lott v. State, 303 Ga. App. 775, 779 (1) (694 SE2d 698) (2010) (punctuation omitted); see also Abernathy v. State, 278 Ga. App. 574, 578 (630 SE2d 421) (2006) (same); cf. Waterman v. State, 114 Ga. 262, 265 (40 SE 262) (1901) (“The knowledge that the representations were false must be proven to exist before the offense charged is made out. Such knowledge may, however, be proven by circumstances, including the opportunities which the accused had to ascertain the facts; but it must be proven in some way to the satisfaction of the jury, before a conviction is authorized.”).

        See Harrison v. State, 309 Ga. App. 454, 458-59 (2) (b) (711 SE2d 35) (2011) (holding that any error in the trial court’s failure to instruct the jury that the State could convict only if it proved that defendant knew that the cocaine in his possession had a weight of 28 grams or more, was harmless, as defendant’s conviction was based on possession of a cocaine mixture that weighed far more than 28 grams and similar-transaction evidence showing that defendant had enough experience handling cocaine to know that the cocaine in his possession weighed more than 28 grams).

       U. S. Const, amend. VI; see also Ga. Const, art. 1, § 1, ¶ XIV (“Every person charged with an offense against the laws of this state . . . shall be confronted with the witnesses testifying against such person.”).

        Crawford v. Washington, 541 U. S. 36, 42 (II) (124 SCt 1354, 158 LE2d 177) (2004); see also Pointer v. Texas, 380 U. S. 400, 406 (II) (85 SCt 1065, 13 LE2d 923) (1965).

        Crawford, 541 U. S. at 43 (II) (A); see also Coy v.Iowa, 487 U. S. 1012, 1015 (108 SCt 2798, 101 LE2d 857) (1988) (“The Sixth Amendment gives a criminal defendant the right to be confronted with the witnesses against him. This language comes to us on faded parchment, with a lineage that traces back to the beginnings of Western legal culture.”) (citation and punctuation omitted); Philpot v. State, 309 Ga. App. 196, 198-99 (709 SE2d 831) (2011); Frank R. Herrmann & Brownlow M. Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 Va. J. Int’l L. 481, 483 (1994) (“The principle of confrontation, in the sense of the right of defendants to have accusing witnesses produced before them, developed along three main lines, each originating in Roman law.”).

       541 U. S. at 68 (V) (C).

        Id.; see also Michigan v. Bryant, 562 U. S. 344 (131 SCt 1143, 1153, 179 LE2d 93) (2011) (“We therefore limited the Confrontation Clause’s reach [in Crawford] to testimonial statements and held that in order for testimonial evidence to be admissible, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”) (citation and punctuation omitted); Pitts v. State, 280 Ga. 288, 288 (627 SE2d 17) (2006) (holding that “the admission of out-of-court statements that are testimonial in nature violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination”).

        Pitts, 280 Ga. at 288.

        Crawford, 541 U. S. at 51 (III) (A) (punctuation omitted).

        Pitts, 280 Ga. at 288.

        Crawford, 541 U. S. at 51-52 (III) (A); accord Pitts, 280 Ga. at 288-89.

        United States v. Lopez-Medina, 596 F3d 716, 730 (II) (A) (1) (10th Cir. 2010); see United States v. Holmes, 620 F3d 836, 841 (II) (8th Cir. 2010) (holding that statements made by a Cl to officer that led to officer’s further investigation of defendant clearly fall within the class of statements considered testimonial); United States v. Cromer, 389 F3d 662, 675 (II) (A) (6th Cir. 2004) (same).

        Cromer, 389 F3d at 675 (II) (A).

        Id.

        Id.

        Crawford, 541 U. S. at 59 (IV) n. 9.

        Cromer, 389 F3d at 676 (II) (A).

        See Holmes, 620 F3d at 840-42 (II) (holding that statements of nontestifying Cl that “Carlo,” which was defendant’s nickname, sold crack cocaine from particular residence went beyond providing background or propriety of police investigation but, rather, was offered to establish truth that defendant was a drug dealer); Cromer, 389 F3d at 676-77 (II) (A) (holding that officer’s testimony that Cl’s statement implicating a person nicknamed “Nut,” which was linked to defendant, was offered to prove the truth that defendant was involved in the sale of illegal narcotics).

        See Cromer, 389 F3d at 676-77 (II) (A) (noting that argument that Cl’s statement was only offered to explain officer’s conduct was undermined by prosecution’s demonstration that name provided by Cl was defendant’s nickname).

        See Holmes, 620 F3d at 840-42 (II) (holding that statements of nontestifying Cl were offered to establish truth that defendant was a drug dealer, was not subject to cross-examination, and, thus, violated defendant’s Confrontation Clause rights); Cromer, 389 F3d at 676-77 (II) (A) (same); see also Kimble v. State, 301 Ga. App. 237, 250 (7) (e) (687 SE2d 242) (2009) (holding that defense counsel performed deficiently, albeit with no prejudice resulting, by failing to object on Confrontation Clause grounds to officer’s testimony that informant implicated co-defendant as source of drugs); Cf. Little v. State, 280 Ga. App. 60, 63-64 (2) (633 SE2d 403) (2006) (holding that there was no Confrontation Clause violation when officer’s testimony did not actually repeat any out-of-court statement by Cl and only provided explanation for officer’s conduct in approaching defendant’s vehicle).

        Holmes, 620 F3d at 843.

        United States v. Jumping Eagle, 515 F3d 794, 801 (II) (B) (1) (8th Cir. 2008) (punctuation omitted).

        Crawford, 541 U. S. at 61 (V) (A).

        See Holmes, 620 F3d at 844 (holding that defendant did not waive his Confrontation Clause rights so as to allow admission of Cl’s statements even though defense counsel opened the door by asking officer questions on cross-examination in attempt to give jury the impression that officer had no information tying defendant to house where drugs were sold); Cromer, 389 F3d at 678-79 (II) (A) (same); see also Goins v. State, 259 Ga. App. 739, 740-41 (2) (578 SE2d 308) (2003) (holding that defendant’s cross-examination of detective did not open door to nontestifying co-defendant’s incriminating statements that violated Confrontation Clause).

        Miller v. State, 289 Ga. 854, 857 (2) (717 SE2d 179) (2011) (punctuation omitted).

        See id. at 858 (2) (a) (noting that “[t]he true test as to whether evidence is cumulative depends not only on whether it tends to establish the same fact, but it may depend on whether the new evidence is of the same or different grade.” (punctuation omitted)); Gifford v. State, 287 Ga. App. 725, 726-27 (1) (652 SE2d 610) (2007) (holding nontestifying witness’s statement violated the Confrontation Clause and was not merely cumulative as it was the only direct evidence that defendant was involved in the robbery); Senior v. State, 273 Ga. App. 383, 385 (1) (615 SE2d 220) (2005) (holding that trial court’s erroneous admission of testimonial hearsay consisting of witness’s written statement linking defendant to the burning of victim’s car was not harmless because testimony went to the core of State’s case and was not entirely cumulative of other testimony).

        See Cromer, 389 F3d at 679 (II) (A) (holding that the admission of the Cl’s statements directly tying defendant to the illegal drug activity likely impacted the trial and, therefore, was not harmless error); Miller, 289 Ga. at 858 (2) (a) (holding that error in admitting testimony that violated the defendant’s Confrontation Clause rights was not harmless given that the properly admitted evidence was not overwhelming); Gifford, 287 Ga. App. at 726-27 (1) (same); Senior, 273 Ga. App. at 385 (1) (same).

        See U. S. Const, amend. V (“. .. nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . ..”); Ga. Const, art. 1, § 1, ¶ XVIII (“No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.”).

        See Thompson v. State, 313 Ga. App. 844, 849 (1) (723 SE2d 85) (2012) (permitting retrial when sufficient evidence existed, despite reversing conviction on other ground).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A14A1271.
    JONES v. THE STATE.
    (765 SE2d 639)
   BARNES, Presiding Judge.

A jury convicted Robert Lynn Jones of aggravated battery — family violence, criminal trespass, fleeing or attempting to elude police officers, reckless driving, failure to stop at a stop sign, failure to maintain a single lane, operating an unregistered vehicle, and having taillights that did not work properly. Jones filed a motion for a new trial, which the trial court denied. On appeal, Jones challenges the sufficiency of the evidence, and he contends that the trial court erred by declining his request for a continuance and by admitting testimony by the victim that allegedly placed his character in issue. Jones further contends that his trial counsel was ineffective for failing to object when the victim testified about a prior incident when he attempted to commit suicide. For the reasons discussed below, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that Jones was married to the victim and lived with her and her two children in Athens-Clarke County. On the afternoon of Labor Day, September 4, 2006, Jones and the victim’s daughter were in the family’s pool while the victim and her son performed yard work. Jones and the victim had been drinking beer that afternoon, but the victim was not intoxicated.

While performing yard work, the victim noticed how Jones was interacting with her daughter in the pool and became uncomfortable. She accused Jones of flirting with her daughter, and he got out of the pool. When the victim repeated her accusation, Jones punched her in the face with his fist, knocking her to the ground. Once the victim got up from the ground, Jones told her to get her kids and come into the house, but she responded, “[Y]ou want to go in the house, I’ll go in the house with you but you’re not taking my kids with you.” Jones and the victim then went inside the house.

The victim could not remember what occurred after she entered the house with Jones. The victim’s next memory was waking up on the kitchen floor to the sound of her daughter crying and screaming “Mama” and “Look what you’ve done to her.” Starting to regain consciousness, the victim recalled Jones looking at her face and becoming upset. Jones began to scream that their relationship was over and went into the bedroom, where he gathered his clothes and belongings as if he were about to leave. While in the bedroom, Jones picked up a screwdriver and repeatedly stabbed a television hanging on the wall.

Continuing to scream that he was going to leave, Jones went into the kitchen and took a salt shaker from the kitchen table and threw it at another television in the living room that had been purchased with the victim’s money, causing the screen to crack. Jones then retrieved a kitchen knife and threatened to commit suicide, telling the victim, “I’m just going to end it all. I’m sorry. I’ll never be able to hurt you again.” But the victim was able to take the knife away from Jones, and at that point he fled from the house in his vehicle, a pickup truck with an attached trailer.

Police officers responded to the scene after the victim dialed 911. The officers entered the house and noted that there was blood splatter in the kitchen and master bedroom, that the two televisions had been damaged, and that there was a fist-sized hole in the door of the master bedroom. They spoke with the victim, who was shaking and crying, and she told them that Jones had punched her in both eyes and described his vehicle to them. The officers observed that the victim’s eyes were bruised and swollen shut, and one of the officers described the swelling as so extensive that each eye was “the size of a tennis ball.” A next-door neighbor also came over to the house when she saw the flashing lights outside and noted that the victim had blood on her hands, bruises and scratches on her neck, and eyes so swollen that they were “bulbous,” looked like a “bug[’]s sticking out,” and caused her to look like a “prize fighter.”

The police officers spoke with the next-door neighbor outside the victim’s house. As they spoke, the neighbor interrupted their conversation and told them that she saw Jones in his truck with the attached trailer in front of the house. Jones quickly drove away, and the officers followed him in their marked patrol cars with their blue lights and sirens activated. Jones did not stop and instead accelerated. As the police pursued him, Jones drove out of Athens-Clarke County, through Madison and Jackson Counties, and then back into Athens-Clarke County. During the police chase, which lasted approximately 15 minutes, Jones failed to stop at several stop signs, did not maintain his lane of travel, and drove at speeds reaching up to 85 mph in a 55 mph zone. Additionally, the trailer attached to Jones’ truck did not have operating taillights and did not have a properly registered license plate. Jones ultimately swerved off the road and into the woods, where he wrecked into a tree. He fled into the woods and escaped police apprehension at that time.

While the police chase was taking place, the victim was transported by ambulance to the hospital for treatment. The lead detective assigned to the case spoke with the victim at the hospital, and she explained to him what had occurred in an audio-recorded interview. The detective noted that the victim’s eyes were swollen shut, and he took multiple photographs of the injuries she had sustained when he met with her over the course of the next several days.

A physician in the emergency department noted that the victim was unable to see because of the extensive swelling around her eyes, had marks on her jaw, neck, and ear lobe, had a cut on the center of her ear, and had three cuts in the area of her eyes. The physician examined the victim’s eyeballs but did not see any damage other than the extensive swelling and bruising, and he ordered a CT scan of the victim’s face, which revealed no fractures. The victim was released from the hospital later that night but had to have someone else drive her home. As a result of the severe bruising and swelling, the victim was unable to see clearly for approximately ten days after the attack.

Two days after the attack and police chase, the police apprehended Jones. Jones was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966) and agreed to speak with the lead detective, who audio-recorded the interview. Jones told the detective that he had slapped and pushed the victim, but he denied striking her with his fist. Jones also admitted that he had been driving the truck that had crashed during the police chase.

Jones subsequently was indicted and tried for multiple offenses relating to his attack of the victim and the police chase. The victim, the next-door neighbor, the responding police officers, the emergency medical technicians, the lead detective, and the emergency room physician testified to the events as set out above. The State also introduced into evidence the audio recordings of the detective’s interviews with the victim and Jones, as well as photographs of the victim’s injuries.

Additionally, the victim testified about prior difficulties between her and Jones. She testified that they had numerous heated arguments over the course of their relationship, and on several occasions Jones had been physically abusive toward her. On two occasions, Jones choked the victim, one time to the point of causing her to lose consciousness. On another occasion, Jones struck the victim in the face, causing a black eye, and on a different occasion he pushed the victim to the ground and kicked her repeatedly in the stomach. According to the victim, Jones also had previously attempted to commit suicide during one of their heated arguments by cutting himself with a knife.

Jones elected not to testify at trial. He called one of the emergency room nurses as a defense witness in an effort to show that the victim exhibited signs of intoxication when she arrived at the hospital after the attack. However, the victim’s next-door neighbor, the emergency room physician, and the lead detective had testified for the State that the victim did not appear intoxicated that day.

After hearing all of the evidence, the jury found Jones guilty of aggravated battery — family violence for seriously disfiguring the victim’s face and eyes, criminal trespass, fleeing or attempting to elude the responding officers, reckless driving, failure to stop at a stop sign, failure to maintain a single lane, operating an unregistered vehicle, and having taillights that did not work properly. Jones filed a motion for new trial, asserting, among other things, that his trial counsel rendered ineffective assistance. The trial court conducted a hearing on the motion, but Jones did not present any witnesses at the hearing, including his trial counsel. The trial court thereafter denied Jones’ motion for a new trial, and this appeal followed.

1. Contrary to Jones’ argument on appeal, the evidence introduced at trial and summarized above authorized a rational jury to find him guilty beyond a reasonable doubt of the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). While Jones attacks the credibility of the next-door neighbor, “[q]uestions concerning the weight of the evidence and credibility of the witnesses were for the jury to decide.” Johnson v. State, 289 Ga. App. 206, 208 (656 SE2d 861) (2008). In any event, the testimony of the victim was sufficient to sustain Jones’ conviction for aggravated battery — family violence and criminal trespass, and the testimony of the responding officers was sufficient to support his convictions related to his vehicle and the police chase. See former OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”).

(a) Although somewhat unclear, Jones also appears to challenge his conviction for aggravated battery — family violence on the ground that the injuries to the victim’s face and eyes did not “seriously disfigure” her, an essential element of that offense.

“A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another ... by seriously disfiguring his or her body or a member thereof.” OCGA § 16-5-24 (a). Although OCGA § 16-5-24 does not define the term “serious disfiguring,” this Court has ruled that the crime of aggravated battery does not require that the victim’s disfigurement be permanent; however, the injury must be more severe than a mere visible or superficial wound. Notwithstanding this threshold for determining whether the disfiguring injuries meet the requisite level of seriousness to constitute an aggravated battery, we have further acknowledged that the circumstances of each aggravated battery vary; thus, whether a disfigurement is serious is almost always a question for the jury to resolve on a case-by-case basis.

(Citations omitted.) Feagin v. State, 317 Ga. App. 543, 545 (1) (731 SE2d 778) (2012). See Pierce v. State, 301 Ga. App. 167, 168 (1) (a) (687 SE2d 185) (2009); Williams v. State, 248 Ga. App. 316, 318-319 (1) (546 SE2d 74) (2001).

Here, there was testimony reflecting that as a result of being attacked by Jones, the victim had marks on her jaw, neck, and ear lobe, had a cut on the center of her ear, and had three cuts in the area of her eyes. Furthermore, as a result of the attack, the victim temporarily lost consciousness, and both of her eyes were bruised and swollen shut to such a severe extent that she was unable to see clearly for approximately ten days. One of the responding officers described the swelling as so extensive that each of the victim’s eyes was “the size of a tennis ball,” and the next-door neighbor described her eyes as so swollen that they were “bulbous,” looked like a “bug[’]s sticking out,” and caused her to look like a “prize fighter.” The trial evidence also included numerous photographs showing the injuries to the victim’s face and eyes.

Based on this evidence, particularly the fact that the victim temporarily lost consciousness and could not see clearly for several days, the jury could reasonably find that the combined injuries to the victim’s face and eyes were more than mere superficial wounds. While the victim did not sustain any facial fractures or physical damage to her eyeballs, the evidence was sufficient for the jury to determine that the victim’s disfigurement was serious and to sustain Jones’ conviction for aggravated battery •— family violence. See Penland v. State, 229 Ga. 256, 257 (1) (190 SE2d 900) (1972) (affirming aggravated battery conviction where the victim’s head was bloody, her body sustained cuts and bruises, her eyes were swollen shut, and she was incoherent when first discovered after the attack); Pierce, 301 Ga. App. at 168 (1) (a) (jury could find serious disfigurement based on the severity of the victim’s bruising, which “created knots deep under her skin” and “put the victim at risk for blood clots and deep vein thrombosis”).

(b) Jones further argues that the State failed to prove that venue was properly laid in Athens-Clarke County where he was tried.

[V]enue is a jurisdictional fact and an essential element that the State must prove beyond a reasonable doubt for every crime. The State may use both direct and circumstantial evidence to prove venue. In general, defendants should be tried in the county where the crime occurred. OCGA § 17-2-2 (a).

(Citations omitted.) Lanham v. State, 291 Ga. 625, 626 (2) (732 SE2d 72) (2012).

In the present case, one of the responding officers of the Athens-Clarke County Police Department directly testified that 1154 Hull Road, the house where Jones and the victim lived, was located in Athens-Clarke County. The officer’s testimony was sufficient to establish that venue for the offenses that Jones committed at the house, including the aggravated battery — family violence, occurred in that county. See Henry v. State, 278 Ga. 554, 555 (2) (604 SE2d 469) (2004) (direct testimony of police officers regarding location where the crime occurred was sufficient to establish venue).

With respect to the offenses relating to or arising out of the police chase, it is true that the responding officers testified that Jones drove away from his house that was located in Athens-Clarke County after the police spottedhim, drove through Madison and Jackson Counties, and then drove back into Athens-Clarke County before crashing into a tree.

But when a crime is committed in transit or in more than one county, Georgia law provides special methods for establishing venue. For example, a crime committed on or immediately adjacent to a boundary line between two counties is considered committed in either county. Moreover, in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed. . . . Furthermore, ... venue for a crime involving a vehicle may lie in any county through which the vehicle traveled.

(Punctuation andfootnotes omitted.) Short v. State, 276 Ga. App. 340, 342-343 (1) (a) (623 SE2d 195) (2005). See OCGA § 17-2-2 (b), (e), (h). Accordingly, because there was testimony that Jones’ vehicle traveled in Athens-Clarke County during the course of the police chase, there was sufficient evidence for the jury to find that venue was proper in that county. See id. Jones, therefore, cannot show that the State failed to meet its evidentiary burden of proving venue.

2. Jones also contends that the trial court erred in denying his motion for a continuance. “Denial of a motion for continuance is within the sound discretion of the trial court, and this Court will not interfere unless there was a clear abuse of discretion.” Simmons v. State, 291 Ga. 705, 706(2) (733 SE2d 280) (2012). We discern no abuse of discretion by the trial court in this case.

Jones was represented by counsel at trial, but he was permitted to personally address the trial court immediately before trial and move for a continuance. According to Jones, additional time was needed because he did not have sufficient time to meet with his defense counsel and he desired to subpoena certain medical and mental health records. Defense counsel then addressed the trial court and stated that, while she understood Jones’ concerns, she believed that she was prepared for trial. Defense counsel noted that she had spoken with Jones several times in person and on the telephone about the case, and had reviewed the full transcript from the first trial that had ultimately ended in a mistrial. Defense counsel also stated that the records sought by Jones were not necessary because she and Jones had both agreed that they did not wish to challenge his statement to law enforcement, if offered into evidence by the State, and the records would have only been relevant to that issue. After hearing from Jones and his counsel, the trial court denied the motion for a continuance.

As an initial matter, the trial court was authorized to deny Jones’ pro se motion for a continuance “because [Jones] did not have the right to assert this motion on his own, without the consent of his attorney.” Beattie v. State, 240 Ga. App. 327 (1) (523 SE2d 389) (1999). As we have repeatedly explained, “[a] criminal defendant does not have the right to represent himself and also be represented by an attorney.” Id.

In any event, the facts of the present case were neither complex nor convoluted, Jones did not offer any intricate defenses, and the evidence for all of the charges consisted of eyewitness accounts rather than forensic or other scientific evidence. Moreover, defense counsel herself stated that she was prepared for trial, particularly after reviewing the full transcript of the prior trial involving the same witnesses that had ultimately ended in a mistrial. In light of these circumstances, we cannot say that the trial court abused its discretion in denying the requested continuance. See Miller v. State, 303 Ga. App. 422, 423-424 (693 SE2d 637) (2010).

“Additionally, when there is no showing that a continuance would have benefitted the defendant, he has not established harm in the denial of the continuance.” (Footnote omitted.) Roberts v. State, 322 Ga. App. 659, 660 (1) (745 SE2d 850) (2013). At the hearing conducted on his motion for a new trial, Jones did not submit the medical and mental health records that he had claimed he needed time to subpoena before trial or otherwise present any evidence showing what benefit a continuance would have been to him. Hence, Jones has failed to demonstrate that he was harmed by the denial of his motion for a continuance. See Roberts, 322 Ga. App. at 661 (1); Miller, 303 Ga. App. at 424; Heaton v. State, 175 Ga. App. 735 (2) (334 SE2d 334) (1985). It follows that the trial court committed no error in denying Jones’ motion for a continuance.

3. Jones next argues that the trial court erred in allowing, over objection, the following question and answer during the prosecutor’s redirect examination of the victim:

Q. . . . [W]ithout telling me anything from before, was your concern for your daughter that day and why you felt uncomfortable based on something other than what happened just that day?
A. Yes ma’am.

According to Jones, the question and answer improperly placed his character in issue because it implied that he “had an inappropriate sexual relationship with the victim’s daughter,” and that it was for that reason that the victim felt uncomfortable with his interaction with her daughter in the swimming pool on the day of the attack.

We are unpersuaded. The question on redirect examination was relevant and material because it was in response to a line of questions on cross-examination during which defense counsel explored why the victim had felt uncomfortable when she saw Jones interacting with her daughter in the pool. “The conduct and extent of redirect examination of a witness in order to neutralize the effect of cross-examination is left to the trial court’s sound discretion.” Pittman v. State, 172 Ga. App. 22, 23 (2) (a) (322 SE2d 71) (1984). See Wells v. State, 243 Ga. App. 629, 630-631 (2) (534 SE2d 106) (2000) (trial court did not abuse its discretion in allowing questioning on redirect examination that “sought to explain or counter the adverse credibility inferences elicited by . . . cross-examination”).

Moreover, the victim never elaborated on the basis for her concern about Jones’ interaction with her daughter, and thus Jones’ character was, at most, incidentally placed in issue by the question and answer. As we have noted, “[m]aterial evidence is not rendered inadmissible merely because it incidentally places a defendant’s character in issue.” Johnson v. State, 263 Ga. App. 443, 446 (2) (587 SE2d 775) (2003). Consequently, the trial court did not err in admitting the question and answer on redirect examination.

4. Lastly, Jones contends that the trial court erred in denying his motion for a new trial based on the ineffective assistance of counsel. According to Jones, his trial counsel was ineffective for failing to object when the victim testified that Jones had attempted to commit suicide during one of their prior heated quarrels.

To prevail on his claim of ineffective assistance of counsel under the two-prong test enunciated in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), Jones “must show both that his counsel performed in a professionally deficient manner and that there is a reasonable probability that, but for such deficiency, the result of his trial would have been different.” Smith v. State, 292 Ga. 620, 621 (2) (740 SE2d 158) (2013). If Jones fails to prove either prong of the Strickland test, we need not address the other prong. Russell v. State, 322 Ga. App. 553, 556 (3) (b) (745 SE2d 774) (2013).

Decided October 30, 2014.

Brandon Lewis, for appellant.

Jones cannot show that his trial counsel was deficient for failing to object to the victim’s testimony regarding his previous suicide attempt. “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008). And where, as in the present case, trial counsel does not testify at the hearing on the motion for new trial, “it is extremely difficult to overcome the presumption that counsel’s conduct resulted from reasonable trial strategy.” (Citation and punctuation omitted.) Brown v. State, 288 Ga. 902, 908 (5) (708 SE2d 294) (2011).

That presumption clearly has not been overcome in this case. Evidence of prior difficulties between a victim and the defendant, “whether an assault, quarrel, or a threat,” is generally admissible in domestic violence cases even though it may incidentally bear on the defendant’s character. Appling v. State, 246 Ga. App. 556 (541 SE2d 129) (2000). Moreover, evidence, such as a defendant’s suicide threat, that is “part of the res gestae of the . .. incidents of prior difficulties between the parties” is admissible. Billington v. State, 313 Ga. App. 674, 679 (2) (b) (722 SE2d 395) (2012) (discussing the admissibility of prior difficulty evidence in domestic violence cases, including a suicide threat, in the context of an ineffective assistance claim). Here, the victim’s testimony about Jones’ prior suicide attempt was part of the res gestae of the prior difficulties evidence and thus was relevant and admissible, even if it incidentally placed Jones’ character in issue. See id. Accordingly, any objection to the victim’s testimony would have been futile, and the “[f]ailure to make a meritless objection cannot be evidence of ineffective assistance.” (Citations and punctuation omitted.) Henry v. State, 279 Ga. 615, 617 (3) (619 SE2d 609) (2005). The trial court therefore committed no error in denying Jones’ motion for a new trial on the asserted ground.

Judgment affirmed.

Boggs and Branch, JJ., concur.

Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellee.

       Because Jones was tried in 2010, the new Georgia Evidence Code does not apply to any of the evidentiary issues discussed in this case. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).

       Jones’ first trial ended in a mistrial. On appeal, Jones has not raised any issues relating to the mistrial.

       Criminal trespass was a lesser included offense of the indicted charge of criminal damage to property in the second degree — family violence, which was based on the damage caused to the television in the living room.

       The State requested and obtained entry of a nolle prosequi on a separate count in the indictment for kidnapping with bodily injury — family violence. Additionally, the jury found Jones not guilty of a separate count of aggravated battery •— family violence, and the trial court directed a verdict of acquittal on a separate count for false imprisonment — family violence.

       The provisions of former OCGA § 24-4-8 are codified in OCGA § 24-14-8 under the new Georgia Evidence Code.

       Given that it is undisputed that Jones and the victim were married at the time of the attack, Jones does not challenge the “family violence” element of his conviction. See OCGA § 16-5-24 (h) (“If the offense of aggravated battery is committed between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons excluding siblings living or formerly living in the same household, the defendant shall be punished by imprisonment for not less than three nor more than 20 years.”).


author: ANDREWS, Presiding Judge.

text:
    A14A1328.
    BLUMENSHINE v. HALL.
    (765 SE2d 647)
   ANDREWS, Presiding Judge.

Joshua F. Blumenshine appeals from the order of the Oglethorpe County Superior Court modifying custody of his minor children and determining child support obligations under OCGA § 19-6-15 and related issues.

Joshua and Michelle Blumenshine divorced in Wyoming in 2008 with three minor children the issue of their marriage — twins born on August 17, 2001 and a third child born on March 22, 2004. The Wyoming divorce decree awarded the parties joint legal custody of the children and awarded the mother physical custody subject to the father’s visitation rights. The mother relocated from Wyoming to Oglethorpe County, Georgia, and both parties subsequently married new spouses. The mother’s current married name is Michelle Leigh Hall. In April 2011, the Oglethorpe County Superior Court issued an order on Blumenshine’s petition to modify the Wyoming decree and on Hall’s counterclaim. At the time, evidence showed that Blumenshine was scheduled to live with his new wife (a member of the United States Air Force) at a military base in Germany, and Hall was scheduled to live with her new husband (a member of the United States Army) at a military base in the state of Washington. Considering the circumstances, the Court’s April 2011 modification order awarded Blumenshine and Hall joint physical and legal custody of the three children and gave each parent primary physical custody of the children for alternating years. While the children were in Blumenshine’s primary custody for the first year (June 2011 to June 2012) pursuant to the April 2011 modification order, Blumenshine filed another petition for modification of custody in December 2011 in the Oglethorpe County Superior Court seeking sole custody of the children on grounds that changed circumstances showed Hall was not fit to have the children returned to her primary custody for the next school year under the April 2011 order. Hall answered and counterclaimed alleging changed circumstances showing that she was entitled to modification of custody awarding her physical custody of the children. The December 2011 modification action and counterclaim was tried before the Superior Court, which issued a final order in November 2013 giving Hall and Blumenshine joint legal custody of the three children, giving Hall primary physical custody (subject to Blumenshine’s visitation rights), determining child support obligations pursuant to OCGA § 19-6-15, ruling that Hall had the right to claim the income tax dependency exemptions for the children, and awarding attorney fees to Hall.

Blumenshine appeals from the Superior Court’s November 2013 order. For the following reasons, we affirm the child custody determination and the ruling on dependency exemptions, reverse the child support determination, vacate the attorney fee award, and remand the case to the trial court for reconsideration of child support and attorney fees in accordance with this opinion.

1. Blumenshine contends that the Superior Court erred by changing custody and awarding physical custody of the three children to Hall.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child. . . . The evidence sufficient to warrant a modification of custody can consist of a change in material conditions which have a positive effect on the child’s welfare as well as changes which adversely affect the child.

Viskup v. Viskup, 291 Ga. 103, 105 (727 SE2d 97) (2012) (citations omitted). “A trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the child’s best interest.” Id. A court’s determination that there has been a material change in condition supporting a modification of custody will be affirmed on appeal absent abuse of discretion, and “[w]here there is any evidence to support the trial court’s ruling, a reviewing court cannot say there was an abuse of discretion.” Vines v. Vines, 292 Ga. 550, 552 (739 SE2d 374) (2013).

There was evidence to support the Superior Court’s determination that, while the children were in Blumenshine’s primary custody, he denied Hall the opportunity to have contact with the children on more than one occasion in violation of the Court’s prior custody award, and that he took actions attempting to alienate the children from Hall. Because there was evidence to support the Court’s order modifying custody between fit parents, the order awarding physical custody to Hall was not an abuse of discretion.

2. Blumenshine contends that the Superior Court erred by allocating the income tax dependency exemptions for the children to Hall.

Blumenshine contends that, because the 2008 Wyoming divorce decree awarded him the income tax dependency exemption for one of the children, the Superior Court in this case was bound by the Wyoming decree. Blumenshine does not contest the jurisdiction of the Oglethorpe County Superior Court in this case under the Uniform Child Custody Jurisdiction and Enforcement Act (OCGA § 19-9-40 et seq.). Because there was reasonable evidence of changed circumstances which supported the Superior Court’s award of physical custody of the children to Hall, the Court was not bound by the prior ruling of the Wyoming court with respect to the dependency exemption. OCGA § 19-9-93. The Court did not err in finding that the parent who was awarded physical custody of the children, Hall, was entitled to claim the dependency exemptions for the three children. Bradley v. Bradley, 270 Ga. 488, 488-489 (512 SE2d 248) (1999); Frazier v. Frazier, 280 Ga. 687, 687-688 (631 SE2d 666) (2006).

3. Blumenshine contends that the Superior Court erred by considering his new wife’s income in calculating his shared child support obligation under OCGA § 19-6-15.

The provisions of OCGA § 19-6-15 set forth the statutory framework for establishing or modifying child support obligations on an income-shares model, which divides child support between the parents on a pro rata basis. Hamlin v. Ramey, 291 Ga. App. 222, 223 (661 SE2d 593) (2008); Stoddard v. Meyer, 291 Ga. 739, 740 (732 SE2d 439) (2012). To determine a presumptive amount of child support under this framework requires a series of calculations which begins with a determination of the monthly gross income of each parent. Hamlin, 291 Ga. App. at 223; OCGA § 19-6-15 (a) (12), (b), (f).

Blumenshine contends that the Superior Court erroneously included a portion of his new wife’s income as a captain in the United States Air Force to calculate his child support obligation under OCGA § 19-6-15. We agree. The Court’s order calculating child support refers to an attached child support worksheet and addendum which shows that, in calculating Blumenshine’s child support obligation, the Court used a finding that he had a monthly gross income from salary and wages of $4,000 and also stated that the “Court uses one half of Father’s Wife’s income which significantly reduces his living expenses exclusive of BAH [military basic allowance for housing] in order to have accurate reflection of parties’ incomes and lifestyles and best interests of children.” Nothing in OCGA § 19-6-15 authorized the court to consider the income or other resources of Blumenshine’s new spouse as a part of the calculation of his child support obligation. Blumenshine’s new wife had no legal obligation to contribute, directly or indirectly, to the support of Blumenshine’s children from his prior marriage. Wood v. Wood, 166 Ga. 519, 519 (143 SE 770) (1928) (stepparent who has not assumed a duty of support by standing in loco parentis has no legal duty to support a minor stepchild). Accordingly, even if the income of Blumenshine’s new wife reduced his living expenses, contributed to a better lifestyle, or enabled him to devote more of his income to child support, the Court erred by using his new wife’s income to calculate his gross income under OCGA § 19-6-15. Under OCGA § 19-6-15 (b), the process of calculating shared child support obligations considers the income and other resources of the child’s custodial and noncustodial parents, defined in OCGA § 19-6-15 (a) (16) as persons who owe the child a legal duty to provide support as set forth in OCGA § 19-7-2. By contrast, when calculating gross income to determine shared child support obligations, OCGA § 19-6-15 (f) (2) (D) provides that the gross income of a “nonparent custodian” (defined in OCGA § 19-6-15 (a) (15) as a person with legal custody of a child or a legal right to seek, modify, or enforce child support) is excluded from the calculation.

Hall points out that, despite the fact that the Court found Blumenshine had wages and salary amounting to a monthly gross income of $4,000, the order also found that Blumenshine had a “gross monthly income earning capability” of $4,000 “based on education, earning ability, evidence at trial, and financial circumstances and lifestyle of the Father in addition to the Father’s income, resources which are used to decrease living expenses, military benefits and other considerations based on the evidence at trial and further explained [in] the [attached] child support worksheet and addendum.”

In certain circumstances, earning capacity rather than gross income may be used to determine child support, and while a party’s past income is some evidence of earning capacity, it alone is not conclusive, but must be considered along with other relevant circumstances. Duncan v. Duncan, 262 Ga. 872, 873 (1) (426 SE2d 857) (1993). Many other factors need to be examined in order to determine earning capacity, including a party’s level of education and any specialized training or skill; whether there is any evidence of the suppression of income; the presence of assets and liabilities; and the existence of other funds available to the party from which the award maybe paid. Banciu v. Banciu, 282 Ga. 616, 618 (1) (652 SE2d 552) (2007). In order to sustain an award of child support premised upon earning capacity, there must be evidence that the parent then has the ability to earn an amount sufficient to pay the award of support; otherwise, the award cannot stand.

Herrin v. Herrin, 287 Ga. 427, 428-429 (696 SE2d 626) (2010). Even if the Court determined child support on the basis that Blumenshine had the capacity to earn a monthly gross income of $4,000, it is apparent from the Court’s order that its determination was based in part on an erroneous consideration of the income of Blumenshine’s new wife.

Because evidence showed that Blumenshine’s income from military disability payments and other sources was substantially less than the monthly gross income of $4,000 calculated by the Court, and the Court erroneously considered his new wife’s income in calculating child support obligations, we reverse the Court’s ruling with respect to its determination of child support, and remand the case for reconsideration of this issue in accordance with the evidence and this opinion. Franklin v. Franklin, 294 Ga. 204, 205-207 (751 SE2d 411) (2013).

4. Blumenshine contends that the Superior Court erred by requiring him to pay for a portion of the cost of the children’s extracurricular activities such as “sports, music, camps, summer activities, after school programs, art classes, theater and plays” in addition to the presumptive amount of child support. He contends that, because the Court failed to make the necessary findings to determine that a deviation from the presumptive amount of child support should apply for payment of these extraordinary expenses, this constituted an unauthorized separate child support award outside the parameters of his statutory support obligation. OCGA §§ 19-6-15 (b) (8) (J); 19-6-15 (i) (1) (B); 19-6-15 (i) (2) (J) (ii); Turner v. Turner, 285 Ga. 866, 867-868 (684 SE2d 596) (2009), disapproved on other grounds, McCarthy v. Ashment-McCarthy, 295 Ga. 231, 233, n. 1 (758 SE2d 306) (2014). Blumenshine did not raise the Court’s failure to make these findings prior to filing the notice of appeal, and raised the issue for the first time on appeal. Accordingly, appellate review of the issue has been waived. McCarthy, 295 Ga. at 232-233. Nevertheless, because the issue of statutory child support obligations was remanded for reconsideration in Division 3, supra, the Court must also reconsider this support issue on remand in accordance with the evidence and this opinion.

5. Blumenshine contends that the Superior Court erred by awarding attorney fees to Hall without evidence sufficient to support the award.

Hall sought the award of attorney fees in her counterclaim without stating a statutory basis for the award, and the Court’s order states no statutory basis for its award of attorney fees to Hall in the amount of $15,000. In the present action to modify child custody and support, the Court was authorized to award attorney fees under OCGA § 19-9-3 (g) or OCGA § 19-6-15 (k) (5). Viskup, 291 Ga. at 106-107.

When there is more than one statutory basis for the attorney-fee award and neither the statutory basis for the award nor the findings necessary to support an award is stated in the order and a review of the record does not reveal the basis of the award, the case is remanded for an explanation of the statutory basis for the award and the entry of any findings necessary to support it.

Id. at 106. Although Hall testified as to the amount of attorney fees she had incurred, there was no evidence sufficient to prove that those fees were reasonable.

When a party seeking attorney fees has failed to present an essential element of proof, but the trial court nevertheless awarded attorney fees, we have consistently reversed or vacated that portion of the judgment awarding the attorney fees and remanded the case to the trial court to hold an evidentiary hearing to allow the party, if possible, to cure the matter.

Driver v. Sene, 327 Ga. App. 275, 279-280 (758 SE2d 613) (2014). Accordingly, we vacate the award of attorney fees and remand the case for the Court to reconsider this issue in accordance with this opinion, to state the statutory basis for any award and any necessary findings to support it, and to conduct an evidentiary hearing on the attorney fee issue. Id. at 280.

Judgment affirmed in part, reversed in part and vacated in part, and case remanded.

McFadden and Ray, JJ., concur.

Decided October 30, 2014

Regina M. Quick, David F. Ellison, for appellant.

Wiggins Norris Coffey, Shannon C. Coffey, for appellee.

       Although Hall suggested in a trial court brief that the Court could award attorney fees pursuant to OCGA § 19-6-2, that was not a proper basis for an award in this case. Viskup, 291 Ga. at 107.

       Blumenshine did not move at the bench trial to dismiss Hall’s attorney fee counterclaim on the basis of insufficient evidence. Compare Sugarloaf Mills Ltd. Partnership of Ga. v. Record Town, Inc., 306 Ga. App. 263, 265-266 (701 SE2d 881) (2010); Aldworth Co. v. England, 281 Ga. 197, 198-201 (637 SE2d 198) (2006).


author: Branch, Judge.

text:
    A14A0980.
    OWENS v. THE STATE.
    (765 SE2d 653)
   Branch, Judge.

On appeal from his conviction for felony obstruction, possession of a knife during the commission of a felony, and disorderly conduct, Timothy Owens argues that the trial court erred when it admitted recordings of the victim’s 911 calls into evidence and that the evidence was insufficient. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).

So viewed, the record shows that on the early morning of April 22, 2012, the victim called the Newton County 911 center seeking assistance as to a domestic dispute in progress at his home in Covington. The victim placed this first call, which was introduced into evidence and played for the jury, from his cell phone while he was upstairs inside his house. The victim told the operator that Owens had cursed him and slammed the refrigerator door, breaking objects stored inside, such that the victim was afraid to go downstairs in order to leave the house. While remaining connected to the 911 operator, the victim slipped his cell phone into the pocket of his shorts, went downstairs, and left the house, while Owens continued to throw things inside. As the victim left the house, Owens threw a pot at a window. Once outside, wearing only a tank top and shorts (without shoes), the victim told the 911 operator that he would walk around the area until police arrived and that he was “afraid” and “cold” and “c[ould not] live like this” anymore. Shortly afterward, when the operator reported that officers were still “ten more minutes away,” the first call was disconnected. The victim immediately called 911 a second time, confirmed that he needed officer assistance, and told the second operator that he had stopped walking in the area because he was fearful that Owens would “start looking for” him. While the victim remained on the line with the operator as instructed, he noted that Owens had a “bad temper,” recounted an outburst by Owens earlier in the week, and repeated his description of the refrigerator door and pot-throwing incidents. When the victim told the operator that he could see officers entering the front door of his house, the victim ended the second call.

On arrival, the two officers spoke to the victim, who appeared fearful and was only partially clothed, and then entered the house, where they found Owens in the kitchen washing a knife with an eight-inch blade. As the officers spoke to him, Owens laid down the knife and told them that he was upset because he and the victim were no longer having sex. When one of the officers told Owens that he would have to leave the house because the victim did not want him living there, Owens placed his hands on the breakfast bar, leaned toward the officer, and said, “Why don’t you try to make me leave [?] You can’t do it.” When the officer unsnapped his taser from its holster and approached Owens, Owens grabbed the knife and threatened the officer with it. The officer then stunned Owens with his taser. At this, Owens became compliant and was taken into custody. He was indicted on two counts of aggravated assault, four counts of possession of a knife during the commission of a felony, and one count of disorderly conduct.

Before trial, the State proffered the recordings of the victim’s 911 calls and noted that it had been unable to locate the victim. The 911 operators were also unavailable. At trial, the trial court ruled that recordings of the victim’s 911 calls were admissible as nontestimonial statements of present sense impressions. Owens’s objections to this ruling were noted for the record. Portions of the calls concerning Owens’s reputation for abad temper were redacted and not played for the jury. At trial, Owens admitted to being angry and upset on learning that the victim wanted him to leave the house, to slamming the refrigerator door twice, and to grabbing the knife with the intention of throwing it.

A jury found Owens guilty of two counts of felony obstruction, two counts of possession of a knife during the commission of a felony, and one count of disorderly conduct. The trial court declared a mistrial as to the remaining charges. Owens was sentenced to twenty years with five to serve. His motion for new trial was denied.

1. Owens first argues that the trial court violated his constitutional right to confront the witnesses against him when it admitted the 911 calls into evidence even though neither the victim nor the operators were available to testify at trial. We disagree.

(a) The Sixth Amendment to the United States Constitution as well as the Georgia Constitution guarantees a criminal defendant the right “to be confronted with the witnesses against him[.]” U. S. Constitution, Amend. VI; see also Ga. Const, of 1983, Art. I, Sec. I, Par. XIV. The Confrontation Clause “bars ‘admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’ ” Davis v. Washington, 547 U. S. 813, 821 (126 SCt 2266, 165 LE2d 224) (2006), quoting Crawford v. Washington, 541 U. S. 36, 53-54 (124 SCt 1354, 158 LE2d 177) (2004).

[Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 822 (footnote omitted). As the Supreme Court of Georgia has noted, telephone calls made to 911 centers maybe nontestimonial and therefore admissible at a later trial if “the telephone call is made to avert a crime in progress or to seek assistance in a situation involving immediate danger[.]” Pitts v. State, 280 Ga. 288, 289-290 (627 SE2d 17) (2006) (citation and footnote omitted; emphasis supplied). “[T]he determination of whether the recording of a 911 phone call is testimonial should be made on a case-by-case basis.” Id. at 289.

Here, the evidence supported the trial court’s factual determination that both of the victim’s calls to 911 were made to seek assistance in the course of a situation involving immediate danger to him. The victim initiated the first call while still in his house and maintained the connection even as he left the house with few clothes and no shoes on in an effort to avoid Owens’s threatening presence. When, for reasons which do not appear in the record, the first call ended, the victim immediately called again, reiterating to the second operator that Owens posed a threat to his safety, and remained on the line until officers arrived. The record also shows that the trial court redacted a portion of the victim’s statements characterizing Owens as having a “bad temper” and narrating events from earlier that morning, the only portion of the call which might have approached the boundary between nontestimonial and testimonial evidence. See Pitts, 280 Ga. at 291 (noting that victim’s statement that her husband was “wanted” for violating his parole “came close to providing testimonial evidence”) (footnote omitted). Because the record supported the trial court’s determination that the primary purpose common to both of the victim’s 911 calls was to seek assistance in the course of a situation involving immediate danger to him, and because the trial court properly redacted those portions of the calls arguably involving the victim’s narration of past events and his assessment of Owens’s character, the court did not err when it concluded that the 911 calls were nontestimonial. Id. at 291 (trial court did not err in admitting 911 call made by victim when “the crime was still ongoing in her immediate presence” such that “her primary purpose remained the prevention of immediate harm to herself”).

(b) Once a determination is made that a statement is nontestimonial for purposes of the Confrontation Clause, the statement is admissible if it falls under one or more exceptions to the rule against hearsay. See Thomas v. State, 284 Ga. 540, 543-544 (668 SE2d 711) (2008) (“Once a determination is made that a statement is nontestimonial in nature, ‘normal rules regarding the admission of hearsay apply,’ ” quoting Pitts, 280 Ga. at 288). We review a trial court’s decision to admit or exclude evidence only for an abuse of discretion. Cobb v. State, 302 Ga. App. 821, 823 (2) (692 SE2d 65) (2010).

Owens argues that the trial court erred by finding that the calls fell under exceptions to the hearsay rule. One exception at issue here is that for present sense impressions under OCGA § 24-8-803 (l), which authorizes the admissibility of “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter,” whether or not the declarant is or has been available for cross-examination. “The underlying theory of this exception is that the substantial contemporaneity of the event and the statement negate the likelihood of deliberate or conscious misrepresentation.” United States v. Holmes, 498 Fed. Appx. 923, 924 (11th Cir. 2012) (citation and punctuation omitted); see also United States v. Boyce, 742 F3d 792, 797 (II) (B) (7th Cir. 2014).

The entirety of both calls at issue here took place while the victim was perceiving the danger posed to him by Owens, including not only the threat of violence so long as the victim remained in his own house, but also the possibility that Owens would emerge from the house and attack the victim even as he waited for police to arrive. The trial court’s conclusion that the victim was rendering present sense impressions of an ongoing emergency is also bolstered by the fact that the victim ended the second call when officers arrived on the scene, thereby suggesting that the victim only then perceived that the most immediate danger had passed. Taken as a whole, these circumstances suggest that the victim was responding throughout the incident to his reasonable perception of a real and present danger. It follows that the trial court did not abuse its discretion when it concluded that the victim’s 911 calls were admissible under the present-sense impression exception to the hearsay rule. See Holmes, 498 Fed. Appx. at 925 (affirming trial court’s admission of recorded 911 calls as present sense impressions); United States v. Campbell, 782 FSupp. 1258, 1261 (N.D. Ill. 1991) (even though shooting incident was complete when a 911 call was made, a recording of the call was admissible as a present sense impression when the declarant “made the telephone call, describing the shooting and the defendant’s appearance almost immediately after defendant fled the store”; any delay “between the event and the telephone call does not suggest that there was time for [the declarant] to consciously reflect and to fabricate a story”).

(c) Because we conclude that the 911 calls were admissible under the present-sense impression exception to the rule against hearsay, we need not address Owens’s argument that the calls were inadmissible as excited utterances under OCGA § 24-8-803 (2).

2. Although Owens challenges the sufficiency of the evidence against him, both officers testified at trial that Owens threatened them with an eight-inch knife during the commission of their duties, and Owens himself admitted to slamming the house’s refrigerator door twice, breaking items stored in the door, while the victim remained in the house. This evidence was sufficient to sustain his conviction on two counts of felony obstruction of a law enforcement officer, two counts of possession of a knife during the commission of a crime, and one count of disorderly conduct. See OCGA §§ 16-11-106 (defining possession of a knife “having a blade of three or more inches in length” during the commission of a felony); 16-10-24 (b) (defining felony obstruction of an officer as “knowingly and willfully” obstructing that officer “in the lawful discharge of his official duties by offering or doing violence to” such officer); 16-11-39 (a) (2) (defining disorderly conduct as acting “in a violent or tumultuous manner toward another person whereby the property of such person is placed in danger of being damaged or destroyed”); Jackson, supra.

Decided November 3, 2014.

Jennifer F. Arndt, for appellant.

LaylaH. Zon, District Attorney, JillianR. Hall, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       Owens does not assert that the trial court should have redacted greater or different portions of the calls.

       “Because OCGA § 24-8-803 mirrors Rule 803 of the Federal Rules of Evidence, we will look to case law from federal courts within the Eleventh Circuit for guidance in interpreting that statute. See Ga. L. 2011, p. 99, § 1.” Ware v. Multibank 2009-1 RES-ADC Venture, 327 Ga. App. 245, 249 (2), n. 11 (758 SE2d 145) (2014).


author: MCFADDEN, Judge.

text:
    A14A0981.
    SWOPE v. GREENBRIAR MALL LIMITED PARTNERSHIP et al.
    (765 SE2d 396)
   MCFADDEN, Judge.

Michael Juniel filed a premises liability action for injuries sustained when he was shot during an armed robbery while working as a security guard at a mall. The trial court granted summary judgment to the mall ownership and management defendants on the ground of assumption of the risk. Matthew Swope, the administrator of Juniel’s estate, appeals. Because there exist no genuine issues of material fact, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant of a motion for summary judgment, we review the evidence de novo, and construe all reasonable conclusions and inferences from the evidence in the light most favorable to the nonmovant. Jones v. Barrow, 304 Ga. App. 337 (696 SE2d 363) (2010).

So construed, the evidence shows that IPC International Corporation, an independent security contractor, hired Juniel to work as a “public safety officer” at Greenbriar Mall in Atlanta. Juniel was responsible for providing public safety services at the mall, patrolling the property and deterring criminal activity. On March 31, 2007, Juniel arrived for work at 5:00 p.m., and was assigned by his supervisor to patrol a parking lot area of the mall. As Juniel walked through the mall to his assigned post, he saw several masked men near a jewelry store and approached them. One of them had a gun and aimed it toward a mall patron. Juniel intervened in the confrontation, covering the patron’s body with his own in an attempt to shield him from the gunshots. Both Juniel and the patron suffered bullet wounds in the shooting. The masked men then entered the jewelry store, shot a security guard in the store, smashed the counter, stole jewelry, and fled from the mall.

Juniel filed a premises liability action against Greenbriar Mall (2006) Limited Partnership, Hendon Properties, LLC, Hendon Property Management, LLC and O’Leary Partners, Inc. (collectively the “Greenbriar Mall defendants”), claiming that negligent management and patrol of the mall had proximately caused his injuries. The trial court granted summary judgment to the Greenbriar Mall defendants on the basis of assumption of the risk, concluding that “recovery is precluded because the risk [Juniel] encountered was one inherent in his job as a uniformed public safety officer.” This appeal followed.

1. Assumption of the risk.

The Greenbriar Mall defendants assert that the trial court correctly granted summary judgment based on the doctrine of assumption of the risk. We agree.

The general rule is that where one voluntarily and knowingly takes a risk involving imminent danger, he is precluded from recovery by reason of another’s negligence. The defense of assumption of risk requires: (1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom [;] and (3) that he voluntarily exposed himself to such risk. Stated another way: The doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury.

Baker v. Harcon, Inc., 303 Ga. App. 749, 754 (b) (694 SE2d 673) (2010) (citation and punctuation omitted).

In this case, the undisputed evidence shows that Juniel fully appreciated the danger involved, yet deliberately chose the obviously perilous course of conduct of putting himself in the armed robber’s line of fire. As Juniel acknowledged, he intentionally put himself in harm’s way and “became a human shield by covering the patron’s body in an attempt to deflect and receive as much of the bullet wounds as possible.” Because Juniel voluntarily and knowingly took a risk involving imminent danger of being shot, he is precluded from recovery under the assumption of the risk doctrine.

Swope argues that even if Juniel assumed the specific risk of being shot, he is not precluded from recovery pursuant to the rescue doctrine. However, the rescue doctrine does not apply in this case.

The rescue doctrine applies when the defendants’ negligent acts or omissions have created a condition or situation which involves imminent and urgent peril to life and property. In such instances, those negligent acts or omissions are also negligent in relationship to all others who, in the exercise of ordinary care for their own safety under the circumstances, attempt to rescue the endangered life or property by reasonably appropriate means. The doctrine of rescue necessarily contemplates an assumption of the risk inherent in the peril created by the defendants’ negligence. But the rescue doctrine would apply only if [the plaintiff] were acting simply as a volunteer, or bystander.

Griner v. Ga. Farm Bureau Mut. Ins. Co., 266 Ga. App. 289, 292 (2) (596 SE2d 758) (2004) (citations and punctuation omitted; emphasis supplied). See also Walker Hauling Co. v. Johnson, 110 Ga. App. 620, 623 (139 SE2d 496) (1964) (rescue doctrine applied to volunteer who helped fight a fire).

Pretermitting the question of whether Juniel exercised ordinary care for his own safety under the circumstances is the fact that he was not acting simply as a volunteer or bystander. Rather, the undisputed evidence shows that the only reason Juniel was on the scene was that he was on duty as a security guard or public safety officer. Since Juniel acted in his capacity as a security officer, the rescue doctrine does not apply, and instead the assumption of the risk doctrine controls. Indeed, “[t]he strength of the assumption of risk doctrine to persons employed in security is shown in Atlanta Braves v. Leslie, 190 Ga. App. 49 (378 SE2d 133) (1989).” Martin v. Gaither, 219 Ga. App. 646, 649 (466 SE2d 621) (1995).

In Atlanta Braves, as in the instant case, the plaintiff was on the defendants’ premises working in his capacity as a security guard when he was shot by an armed robber. In awarding summary judgment to the defendants in that case, this court held:

The possibility of a face-to-face encounter with a criminal is an ordinary and obvious risk incident to employment as an armed security guard. Accordingly, as a matter of law, [plaintiff] , by accepting employment as [a] security guard, assumed the risk that he would have such encounters on the stadium premises. [Plaintiff] was, in effect, hired to provide an element of the very security that he alleges was negligently lacking.

Atlanta Braves, 190 Ga. App. at 50 (1).

While Juniel was not armed, the same rationale applies to his employment as a public security officer at the mall. He acknowledged as much in his deposition, testifying that he was aware that in his capacity as a security officer he could have a face-to-face encounter with a criminal while on duty and possibly suffer injury. He had worked for many years in security, and testified, among other things, that “when you work as a security officer, for sure there’s a chance that you may encounter some criminal activity, regardless of where it is.” Indeed, as an example of such encounters, Juniel noted that approximately a year prior to the shooting in this case, he was on security duty at the mall when he tried to detain a suspected shoplifter, and had his hand sliced by the suspect with a pair of scissors. Thus, Juniel was fully aware of the dangers associated with his security work and assumed the risk of injury that he suffered.

Nevertheless, Swope argues that Juniel’s attempt to protect the store patron exceeded the scope of his employment duties, which required only that he observe and report the incident, and he thus became a volunteer as contemplated by the rescue doctrine. While Swope has not cited any Georgia cases directly on point, we note that a case from another jurisdiction has rejected the same argument in a similar context; and we find the analysis in that case persuasive. In Read v. Keyfauver, 308 P3d 1183 (Ariz. App. 2013), a law enforcement officer was injured when he went beyond his employment duties at the scene of an automobile accident by extricating the driver from the vehicle. Id. at 1185-1186. In challenging the grant of summary judgment to the driver on the officer’s claim of negligence, the officer argued that because his extraction of the driver exceeded the scope of his employment duties, which only required him to secure and investigate the accident scene, he became a volunteer and could recover damages under the rescue doctrine. Id. at 1187-1188. However, the court ruled that it was not persuaded by the argument that the officer’s conduct turned him into a volunteer because the critical question was not his conduct at the scene, but was whether he was “on the scene as a result of his on-duty obligations.” Id. at 1188. Because the officer’s employment compelled his presence at the scene in the first instance, he was not acting as a volunteer for purposes of the rescue doctrine when he removed the driver from her vehicle, and therefore “his negligence claim against her [was] barred.” Id.

While the issue was not directly addressed in Griner, supra, that case involved a plaintiff who was injured when he exceeded the duties of the job that brought him to an accident scene, and this court held that the rescue doctrine did not apply under those circumstances. In that case, a wrecker driver was called to the scene of a collision by the state patrol to use his tow truck to pull one of the vehicles, in which the driver was trapped, out of the wreckage. 266 Ga. App. at 289-290. But the towing cable snapped, rendering the tow truck “essentially useless.” Id. at 290. The tow truck driver then went beyond his towing duties by attempting to help lower the front of the trapped vehicle by sticking a knife in a tire to let the air out. Id. When he did so, the tire exploded, injuring his hand. Id. The wrecker driver claimed that the rescue doctrine permitted him to recover for his injury. However, this court rejected the claim, holding that

the rescue doctrine would apply only if [the wrecker driver] were acting simply as a volunteer, or bystander. Evidence showing that [he] was not simply a volunteer, or bystander, includes the fact that he was called to the scene by the Georgia State Patrol, in his capacity as a wrecker operator, because his name came up on the rotation list. His presence at the scene, therefore, was the result of a contractual duty.

266 Ga. App. at 292 (2).

Thus, even though the issue of whether the tow truck driver’s exceeding of his contractual duties transformed him into a volunteer was not directly addressed, this court still used a similar analysis to that used by the Arizona Court of Appeals in Read. That is, in both cases the critical question was not the plaintiff’s conduct at the scene, but whether he was there in the first place because of his on-duty or contractual obligations. As recounted above, it is undisputed that Juniel was present at the scene of the mall shooting solely because he was on duty as a security officer. Accordingly, he was not a volunteer or bystander within the meaning of the rescue doctrine, and therefore the “trial court correctly granted the defendants’ motions for summary judgment.” Griner, 266 Ga. App. at 292 (2).

2. Remaining enumerations of error.

Because of our holding above in Division 1, we need not address Juniel’s remaining arguments.

Judgment affirmed.

Andrews, R J., and Ray, J., concur.

Decided November 3, 2014.

Betts & Associates, David E. Betts, for appellant.

Cruser & Mitchell, William T Mitchell, Sean Keenan, for appellees.

       Juniel died during the pendency of the action, and Swope was substituted as a party. The record shows that the shooting occurred in March 2007, Juniel filed suit in March 2009, a suggestion of death was filed in December 2011, and a motion for substitution of party was filed in May 2012.