text:
    A13A1939.
    IN RE ESTATE OF FARKAS.
    (753 SE2d 137)
   Miller, Judge.

In his will, Sam Farkas named his brother Leonard Farkas as the executor of his estate and his daughter Lorie Farkas Van Linden as successor executor. Farkas also made a codicil stating that the executor was not to receive any fees for work done as executor of the estate. Following Sam’s death, Lorie filed a petition to probate the will and codicil in solemn form. In the petition, Lorie asked to be appointed as executor, rather than Leonard, because his involvement in several suits against the estate and money he owed to the estate created conflicts of interest. Following a hearing, the probate court entered an order admitting the will to probate and appointing Lorie as the executor, finding that there were grounds upon which to question Leonard’s fitness to serve in that capacity. Leonard appeals from that ruling.

1. Before turning to the merits of Leonard’s appeal, we must first examine this Court’s jurisdiction over this appeal. “It is the duty of this Court on its own motion to inquire into its jurisdiction.” (Citation and punctuation omitted.) Cooper v. Spotts, 309 Ga. App. 361 (1) (710 SE2d 159) (2011).

The Constitution of the State of Georgia of 1983, Article VI, Section VI, Paragraph III (3), confers upon the Supreme Court of Georgia jurisdiction in “[a]ll cases involving wills.” The Supreme Court of Georgia has interpreted this language to mean only those cases where the validity or construction of a will is the main issue on appeal. See In re Estate of Lott, 251 Ga. 461 (306 SE2d 920) (1983). Here, the issue on appeal concerns the appointment of the executor, and does not concern the validity or construction of the will. Therefore, we have jurisdiction over the appeal. See Darnell v. Tate, 209 Ga. 23, 26-27 (64 SE2d 582) (1951) (transferring appeal to this Court because the issue on appeal concerned appointment of executor).

2. In several enumerations of error, Leonard, representing himself, generally contends that the trial court erred in appointing Lorie as the executor and finding that he was unfit to serve in that capacity.

“Unless adjudged unfit, nominated executors shall have the right to qualify in the order set out in the will.” OCGA § 53-6-10 (b); see also In re Estate of Bagley, 239 Ga. App. 877, 879 (1) (522 SE2d 281) (1999) (probate court is not required to appoint a named executor). Generally, a probate court has broad discretion in disqualifying a named executor. See In re Estate of Moriarty, 262 Ga. App. 241, 242 (2) (585 SE2d 182) (2003). We review a probate court’s determination regarding whether one is fit to serve as an executor for an abuse of discretion. See id. On appeal, the relevant question is whether the probate court had grounds to conclude that there was good cause for its determination to disqualify an executor. Cf. id. (good cause must be shown to remove executor).

Where the personal interests of the representative of an estate conflict, or might conflict, with the interest of the estate or the beneficiaries, such fact may be sufficient grounds for removal. We will not set aside the prohate court’s findings of fact unless the findings are clearly erroneous.

Decided December 13, 2013.

Leonard Farkas, pro se.

Watson Spence, Gregory L. Fullerton, for appellee.

(Punctuation and footnotes omitted.) Ray v. Nat. Health Investors, Inc., 280 Ga. App. 44, 50-51 (5) (633 SE2d 388) (2006).

Here, although the probate court conducted an evidentiary hearing on Lorie’s petition, including her request to disqualify Leonard as executor, the hearing was not transcribed. In his enumerations of error, Leonard generally argues that the evidence introduced at the hearing did not support the trial court’s findings. Since our review of Leonard’s claims would require us to review the evidence submitted at the hearing, which we are unable to do, we must affirm.

When a transcript of the evidence is necessary, as it is here, and the appellant omits it from the record or fails to submit a statutorily authorized substitute, we must assume that the evidence supported the grant of [relief]. As the appellant^ Leonard] had the burden to affirmatively show error by the record. This [he] failed to do.

(Citation, punctuation and footnote omitted.) Jackman v. LaSalle Bank, N.A., 299 Ga. App. 894, 896 (1) (683 SE2d 925) (2009). Accordingly, this case is affirmed because, in the absence of a transcript, we must assume that the evidence adduced at the hearing supported the trial court’s findings. Murray v. Hooks, 313 Ga. App. 485, 485-486 (722 SE2d 82) (2011).

Judgment affirmed.

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

       Leonard is admitted to practice law in the State of Georgia.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A13A2456.
    WILSON v. THE STATE.
    (753 SE2d 141)
   Miller, Judge.

Following a jury trial, Narium Wilson was convicted of selling cocaine (OCGA § 16-13-30 (b) (2002)). Wilson appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his conviction. For the reasons that follow, we affirm.

Viewed in the light most favorable to conviction, the evidence shows that in November 2002, the Glynn/Brunswick narcotics team was conducting a street level undercover operation in Glynn County. On the afternoon of November 19, 2002, Wilson approached an undercover officer in Glynn County and asked if the officer had a spare cigarette. The officer said he did not have one, and told Wilson that he had $50 and was looking for some “hard, crack cocaine.” Wilson got into the officer’s vehicle, and they traveled to a nearby residence. Wilson entered the residence and returned with several pieces of suspected crack cocaine which he sold to the officer for $50. The sale was recorded on videotape by a camera hidden in the officer’s vehicle, and a transcript of the videotape was included in the trial record and played for the jury.

After receiving the suspected cocaine, the officer drove to a predetermined location and gave the drugs to a member of the narcotics team, who marked the drugs and field tested them. The narcotics team member then placed the drugs in the evidence locker at the police department. The drugs field-tested positive for cocaine. Subsequent crime lab testing confirmed that the drugs were in fact cocaine.

Between the night of November 19 and the night of November 20, a Glynn County police captain and other officers made several trips through the area looking for Wilson and other individuals who matched the description of people the police had made buys from. Finally, while driving through the neighborhood shortly before midnight on November 20, the captain saw Wilson leave the house where the buy took place.

About a half block from the residence, the captain got out of his vehicle, identified himself as a Glynn County police officer and said he wanted to speak with Wilson. Wilson voluntarily spoke with the officer for a few minutes. The captain asked for Wilson’s driver’s license, told Wilson that he was not the person the captain was looking for, and let Wilson go on his way. The officer did not arrest Wilson at that time because he did not want to jeopardize the ongoing undercover investigation, which involved other cases. Wilson was subsequently indicted and convicted of selling cocaine to the undercover officer.

Wilson contends that the evidence was insufficient evidence to support his conviction, because the state failed to present evidence as to what occurred before or after the videotaped drug transaction, or evidence of proper search procedures to ensure that the officer did not possess the drugs on his person or in his vehicle prior to the transaction. We do not agree.

Decided December 13, 2013.

Gilbert, Harrell, Sumerford & Martin, James O. Hodges VI, Margaret E. Sumrall, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Liberty M. Haray, Assistant District Attorneys, for appellee.

It is unlawful for any person to sell cocaine or any derivative thereof. See OCGA §§ 16-13-30 (b) (2002), 16-13-26 (1) (D) (2002). The evidence as set forth above, including the undercover officer’s testimony that Wilson sold him a substance that tested positive for cocaine, was sufficient for the jury to find beyond a reasonable doubt that Wilson sold cocaine to the undercover officer. See Johnson v. State, 289 Ga. App. 206, 208 (656 SE2d 861) (2008) (agent’s testimony regarding drug sale transaction, combined with evidence of positive field and crime lab testing was sufficient to authorize defendant’s conviction for sale of cocaine); Collins v. State, 278 Ga. App. 103, 104 (1) (a) (628 SE2d 148) (2006) (positive field test results are alone sufficient to sustain conviction for selling cocaine).

Although Wilson argues that the State failed to eliminate the possibility that the undercover officer obtained the cocaine from someone other than Wilson, the officer’s testimony alone was sufficient to establish that Wilson engaged in a hand-to-hand sale of suspected drugs, which later tested positive for cocaine. See Samuels v. State, 223 Ga. App. 275, 275-276 (1) (477 SE2d 414) (1996) (testimony of single witness is generally sufficient to establish a fact and lack of corroboration only goes to weight of evidence and witness’s credibility which is solely in purview of jury). Nevertheless, the videotape and the testimony of the narcotics team member, who marked the drugs and field tested them, corroborated the undercover officer’s testimony. Accordingly, we affirm Wilson’s conviction.

Judgment affirmed.

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

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).


author: Phipps, Chief Judge. BRANCH, Judge,

text:
    A13A0912.
    CITY OF ATLANTA et al. v. MITCHAM.
    (751 SE2d 598)
   Phipps, Chief Judge.

Barto Mitcham filed a negligence action against the City of Atlanta (“City”) and George Turner (in Turner’s official capacity as “Police Chief for City of Atlanta”), alleging that Mitcham was injured as a result of the City’s and Turner’s failure to provide the medical care he needed while he was in their custody. The City and Turner appeal from the trial court’s denial of their motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Finding no error, we affirm.

Amotion to dismiss brought under OCGA § 9-11-12 (b) (6) for failure to state a claim upon which relief can be granted should be granted only when the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

“We review the denial of a motion to dismiss de novo.”

In his complaint, Mitcham pertinently alleged the following. In October 2010, Mitcham was in the custody of the Atlanta Police Department, having been arrested for “hit and run.” While in custody, Mitcham became ill and was taken to a hospital in connection with “low blood sugar associated with diabetes.” Upon Mitcham’s discharge from the hospital, the City and Turner were notified of the need to monitor Mitcham’s blood sugar levels and instructed to provide him with insulin on a regular schedule. The City and Turner failed to monitor and properly regulate Mitcham’s insulin levels as instructed, and Mitcham became ill and received serious and permanent injuries as a result of the City’s and Turner’s negligence.

Citing OCGA § 36-33-1 (b), the City and Turner moved to dismiss the action for failure to state a claim, asserting that the City is entitled to sovereign immunity because it was “engaged in the performance of [a] governmental function at the time [Mitcham] allegedly suffered his injuries”; and that Turner is entitled to sovereign or governmental immunity because he was sued in his official capacity, and the claim against him is thus equivalent to the claim against the City.

Mitcham countered that the provision of adequate medical attention to inmates under the City’s and Turner’s custody and control was, instead, a ministerial act; thus, the City and Turner are not entitled to sovereign immunity. The trial court agreed, and denied the motion to dismiss.

“The trial court’s ruling on the motion to dismiss on sovereign immunity grounds is reviewed de novo, while factual findings are sustained if there is evidence supporting them.”

Under OCGA § 36-33-1 (b): “Municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable.” In other words, “[mjunicipalities are not liable for negligence in the performance of [their] governmental, as opposed to their ministerial [,] functions,” but “sovereign immunity of municipal corporations is waived when [the municipal corporations] negligently perform ministerial duties.” A governmental function has been characterized as one which involves “the exercise of deliberate judgment and wide discretion.” “A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.”

A government unit’s function of providing adequate medical care for inmates under its custody has been held to be ministerial in nature. In Cantrell v. Thurman, this court concluded:

Providing adequate medical attention for inmates under defendants’ custody and control is a ministerial act by the sheriff and his or her deputies and does not involve the exercise of discretion to provide medical care, because medical care is a fundamental right and is not discretionary ...; thus, such act is not subject to either sovereign immunity or official immunity.

Although Cantrell involved a sheriff’s duty to furnish medical aid to persons confined in the jail, the responsibility to furnish needed medical attention to an inmate in custody is not limited to sheriffs; “it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to . . . furnish[ ] him... any needed medical and hospital attention.” As the Supreme Court of Georgia recognized in Murphy v. Bajjani,

[t]he United States Supreme Court has ruled that “the [U. S.] Constitution imposes upon the State affirmative duties of care and protection [including medical care] with respect to particular individuals ... when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself.”

Thus, the provision of medical care to inmates in the City’s and Turner’s custody was a ministerial act and, because it was a ministerial act, sovereign immunity was waived pursuant to OCGA § 36-33-1 (b).

The City and Turner assert that Cantrell is inapposite because that case involved a federal claim brought pursuant to 42 USC § 1983, while the instant case does not. The assertion is without merit, because Cantrell involved not only a federal claim, but negligence claims based on state law; the court’s discussion of the provision of adequate medical care in that case concerned state law.

The City and Turner also contend that the duty to provide medical care in this case was not ministerial because “[mjinisterial or proprietary functions are performed in the municipality’s private character and for public business purposes,” that “the term ministerial means proprietary,” and that “what is significant is whether the character of the enterprise is ‘primarily a source of revenue,’ rather than being used primarily for the benefit of the public.” But our courts do not define “ministerial” so narrowly; indeed, we do not always employ a revenue-based analysis in determining whether an act is ministerial. Notably, the authorities upon which the City and Turner rely as support for their revenue-based analysis did not involve the provision of medical attention to inmates under the custody and control of a governmental entity.

The trial court did not err by denying the City’s and Turner’s motion to dismiss for failure to state a claim based on sovereign immunity.

Judgment affirmed.

Ellington, P. J., concurs. Branch, J., concurs specially.

BRANCH, Judge,

concurring specially.

Although I agree with the majority that the trial court correctly denied the motion to dismiss at this stage of the proceedings, I concur in the judgment only because I disagree with the reasoning of the majority opinion.

As the Supreme Court of Georgia has recently reiterated, municipalities are protected by sovereign immunity unless that immunity is specifically waived by statute:

Sovereign immunity applies to municipalities, unless the General Assembly waives it by law. Ga. Const, of 1983, Art. IX, Sec. II, Par. IX. Waiver of a municipality’s sovereign immunity in tort law is narrow, and only the General Assembly has the authority to enact a law that specifically provides for such a waiver. Any waiver of sovereign immunity is solely a matter of legislative grace. There is no authority for a waiver of sovereign immunity beyond the legislative scheme.

(Citations omitted.) Owens v. City of Greenville, 290 Ga. 557, 559-560 (3) (722 SE2d 755) (2012), quoting Godfrey v. Ga. Interlocal Risk Mgmt. Agency, 290 Ga. 211, 214 (719 SE2d 412) (2011). OCGA § 36-33-1 (b) includes such a waiver as to municipalities, but it is limited:

Municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable.

This Code section has been consistently interpreted to mean that “[a] municipality is immune from liability for the negligent performance of its governmental duties, but may be held liable for negligence in the performance of its ministerial duties.” (Citations omitted.) Sinkfield v. Pike, 201 Ga. App. 652, 653 (3) (411 SE2d 889) (1991); Mayor and Aldermen of Savannah v. Jones, 149 Ga. 139 (1) (99 SE 294) (1919) (same).

The question here is whether providing medical services to a detainee is a governmental duty or a ministerial duty of the city. It has been explained that “[a] municipal corporation in the exercise of its corporate functions performs two classes of service: (1) governmental duties; and (2) private corporate, or ministerial, duties.” Jones, supra at 141. An earlier Supreme Court case provides a discussion of the difference between the two classes of service.

It has been held that “[t]he operation of a police department, including the degree of training and supervision to be provided its officers, is a discretionary governmental function of the municipality as opposed to a ministerial, proprietary, or administratively routine function.” (Citations omitted.) McDay v. City of Atlanta, 204 Ga. App. 621 (1) (420 SE2d 75) (1992). But, as pointed out by the majority, in a case involving counties (as opposed to municipalities), it has been held that providing medical care to persons in governmental custody is a ministerial act. See, e.g., Cantrell v. Thurman, 231 Ga. App. 510 (499 SE2d 416) (1998) (the provision of adequate medical care by a county sheriff “is a ministerial act . . . [that] does not involve the exercise of discretion”). But see Graham v. Cobb County, 316 Ga. App. 738, 742 (1) (b) (i) (730 SE2d 439) (2012) (trial court correctly determined that the state law claims against county for failure to provide adequate medical care to a detainee were barred by sovereign immunity).

Decided November 20, 2013

Reconsideration denied December 16, 2013

Weissman, Nowack, Curry & Wilco, Jin T Kim, Laura S. Burton, for appellants.

Shaun R. Cade, for appellee.

Moreover, Cantrell is distinguishable because questions of sovereign immunity and its waiver for municipalities and counties are based on different provisions of the Georgia Constitution and different statutes; and other cases cited by the majority blur the distinction between the meaning of “ministerial duties” as pertinent to sovereign immunity and “ministerial acts” as pertinent to official immunity. Also, an argument could be made and discovery may show that a municipal police department is engaged in governmental actions when it provides health care to detainees, in part because it is required to do so by OCGA § 42-5-2 (a).

Here, the majority opinion fails to provide clarity regarding the distinctions raised above. I therefore concur in the judgment only.

        Common Cause of Ga. v. City of Atlanta, 279 Ga. 480, 481 (614 SE2d 761) (2005) (citations and punctuation omitted).

        Walker v. Gowen Stores, 322 Ga. App. 376, 377 (745 SE2d 287) (2013) (citation omitted).

       OCGA § 36-33-1 (b) provides: “Municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable.”

       See OCGA § 36-33-1 (b). “Legislative or judicial” duties, as set out in the foregoing statute, are sometimes referred to as “governmental” duties. See, e.g., Sinkfield v. Pike, 201 Ga. App. 652, 653 (3) (411 SE2d 889) (1991) (“A municipality is immune from liability for the negligent performance of its governmental duties, but may be held liable for negligence in the performance of its ministerial duties. OCGA § 36-33-1 (b).”) (citation omitted).

       See Gilbert v. Richardson, 264 Ga. 744, 750 (4), 754 (7) (452 SE2d 476) (1994) (a sheriff being sued in his official capacity is entitled to the benefit of the county’s sovereign immunity defense; further, noting that the term “governmental immunity’ is synonymous with “sovereign immunity’ — both refer to the immunity provided governmental entities); Conley v. Dawson, 257 Ga. App. 665, 667 (1) (572 SE2d 34) (2002) (any cause of action averred against a municipal police officer in his official capacity is in reality a suit against the municipality).

        Coosa Valley Technical College v. West, 299 Ga. App. 171, 172 (682 SE2d 187) (2009) (citation and punctuation omitted).

        Naraine v. City of Atlanta, 306 Ga. App. 561, 562 (1) (a) (703 SE2d 31) (2010) (citation and punctuation omitted); Cantrell v. Thurman, 231 Ga. App. 510, 514 (4) (499 SE2d 416) (1998).

        Rogers v. City of Atlanta, 61 Ga. App. 444, 446 (6 SE2d 144) (1939).

        Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990) (using said definition to determine that a county that had engaged in the physical execution of the work of opening, closing, or repairing a street was discharging ministerial duties, though the county’s decision regarding when a street should be opened, closed or repaired was exercising legislative or judicial functions); see generally Common Cause of Ga., supra at 482-483 (2).

       Supra.

        Cantrell, supra at 514 (4) (citing OCGA § 42-4-4 (a) (2), pertinently providing that the sheriff shall provide persons confined in the jail with medical aid, and OCGA § 42-5-2 (a)); see Macon-Bibb County Hospital Auth. v. Houston County, 207 Ga. App. 530, 532 (3) (428 SE2d 374) (1993) (rejecting county’s claim that it was immune to suit for payment of inmate’s medical care costs, holding that “[t]he county’s immunity was waived by the legislature’s enactment of OCGA § 42-5-2, and its responsibility to pay all medical and hospital expenses may not be avoided by the defense of sovereign immunity”). Compare Gish v. Thomas, 302 Ga. App. 854, 862-864 (4) (691 SE2d 900) (2010) (holding that OCGA § 42-5-2 does not contain a waiver of sovereign immunity for claims brought pursuant to OCGA § 42-5-2; the court did not examine whether OCGA § 36-33-1 contains a waiver of sovereign immunity or whether a municipal corporation’s duty to provide medical care to an inmate is a ministerial duty within the meaning of OCGA § 36-33-1).

       See Cantrell, supra.

       OCGA § 42-5-2 (a) (also pertinently providing that it is the responsibility of the governmental unit having physical custody of the inmate to bear the costs of such medical care); see generally Johnson v. City of Carrollton, 249 Ga. 173, 177 (4) (288 SE2d 565) (1982) (applying OCGA § 42-5-2 (a) (former Ga. Code Ann. § 77-309 (e)), it was the city’s responsibility to pay medical expenses for an inmate in its custody); Cherokee County v. North Cobb Surgical Assoc., 221 Ga. App. 496, 498-499 (2) (c) (471 SE2d 561) (1996) (affirming grant of summary judgment to medical service provider in suit against county to recover payment for medical services provided to an inmate; court noted that a sheriff owes a prisoner in his custody a duty to render necessary medical aid, and that the legislature intended that government entities should pay for medical expenses incurred by inmates in their custody).

       282 Ga. 197 (647 SE2d 54) (2007).

       Id. at 202 (3) (citation omitted).

       See OCGA § 36-33-1 (b); Cantrell, supra at 513-514 (3), (4); Macon-Bibb County Hosp. Auth., supra.

       For this principle, they cite Mayor & Aldermen of Savannah v. Jordan, 142 Ga. 409, 410-411 (83 SE 109) (1914) (in case against city for employee’s injuries resulting from a defect in cart he was using to clean streets: “where the municipality undertakes to perform for the State duties which the State itself might perform, but which have been delegated to the municipality, — such, for instance, as devolve upon the board of health of a city under its charter, for the protection of life and health and comfort of the community, — and in the exercise of such function ... a private citizen is injured by the negligence of the servants of the department ... , no cause of action arises against such municipality. On the other hand, a municipality is civilly liable for damages arising for neglect to perform... acts... in its private character for business purposes, and for its own advantage or profit, although such act may enure to the ultimate benefit of the citizen.”) (citations and punctuation omitted).

       See, e.g., Joyce, supra; Naraine, supra at 563 (1) (b) (municipalities generally have a ministerial duty to keep their streets in repair); Roquemore v. City of Forsyth, 274 Ga. App. 420, 422-423 (617 SE2d 644) (2005) (while a city’s decision regarding whether to provide lighting on a particular city street is a discretionary function, a city’s failure to repair or maintain a malfunctioning streetlight is a ministerial duty, for which there is liability after actual or constructive notice); Mayor & Aldermen of Savannah, supra at 414 (finding that the city’s duty to keep streets clean was a governmental function because clearing streets of contaminants that bred disease and imperiled public health concerned the entire public). And see generally Common Cause of Ga., supra at 482; Cantrell, supra at 514 (4).

       See Mayor & Aldermen of Savannah, supra; City of Atlanta v. Chambers, 205 Ga. App. 834, 835-837 (2) (424 SE2d 19) (1992) (reversing grant of summary judgment to plaintiffs on municipal immunity defense where the plaintiffs failed to produce evidence that the city’s garbage collection service functioned primarily as a source of revenue and thus came within an exception to the general rule of municipal immunity for negligence resulting from the collection of garbage); and City of Gainesville v. Pritchett, 129 Ga. App. 475, 476 (1) (199 SE2d 889) (1973) (affirming trial court’s denial of summary judgment to city in nuisance action involving a ski jump; noting that the distinction between governmental and ministerial duties was inapplicable to nuisance claims).

       See Cantrell, supra; see generally Walker, supra at 378.

       The above law also applies to municipal officials acting in their official capacity. See Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001) (“Suits against public employees in their official capacities are in reality suits against the state and, therefore, involve sovereign immunity.”) (punctuation and footnote omitted). See also Conley v. Dawson, 257 Ga. App. 665, 667 (1) (572 SE2d 34) (2002) (suit against municipal officer acting in his official capacity is a suit against the municipality).

       Amunicipal corporation has a dual character, the one public and the other private, and exercises correspondingly twofold functions, the one governmental and legislative, and the other private and ministerial. In its public character, it acts as an agency of the State, to enable it the better to govern that portion of its people residing within the municipality; and to this end there is granted to or imposed upon it, by the charter of its creation, powers and duties to be exercised and performed exclusively for public, governmental purposes. These powers are legislative and discretionary, and the municipality is exempt from liability for an injury resulting from the failure to exercise them, or from their improper or negligent exercise. In its corporate and private character there are granted unto it privileges and powers to be exercised for its private advantage, which are for public purposes in no other sense than that the public derives a common benefit from the proper discharge of the duties imposed or assumed in consideration of the privileges and powers conferred. This latter class of powers and duties are not discretionary, but ministerial and absolute; and, for an injury resulting from negligence in their exercise or performance, the municipality is liable in a civil action for damages, in the same manner as an individual or private corporation. The line of distinction is clearly drawn by the courts and text-writers, and the exemption of the municipality from liability in the one case, and its liability in the other for an injury resulting from negligence, firmly established.
      (Punctuation omitted.) Mayor and Aldermen of Savannah v. Jordan, 142 Ga. 409 (83 SE 109) (1914).

       Importantly, the term “ministerial duties” as foundin OCGA § 36-33-1 (b) shouldnotbe confused with the distinction between whether a municipal employee’s negligent act was “ministerial” or discretionary for purposes of official immunity. See Sinkfield v. Pike, 201 Ga. App. 652, 653 (3) (411 SE2d 889) (1991). Thus, this Court in Sinkfield made clear that when a city is engaged in a governmental function, “the city is immune from any liability for [the employee’s] actions regardless of whether his actions were discretionary or ministerial and even if he was negligent.” Id.

       OCGA § 42-5-2 (a) provides, in relevant part, that “it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any needed medical and hospital attention.”


author: MCMILLIAN, Judge.

text:
    A13A0118.
    A13A0932.
    FRANKS v. THE STATE. LONG v. THE STATE.
    (758 SE2d 604)
   MCMILLIAN, Judge.

Co-defendants Charles Randall Franks (“Franks”) and Richard Clayton Long (“Long”) appeal following the denial of their motions for new trial after they were each convicted of one count of attempted . trafficking by manufacturing methamphetamine. As his sole enumeration of error on appeal, Franks challenges the sufficiency of the evidence to support his conviction. Long also asserts that the evidence was insufficient to support his conviction and further argues that the trial court erred in failing to give his requested charges on the lesser included offenses of possession of a drug-related object and unlawful possession of pseudoephedrine.

Viewed in the light most favorable to the verdict, the evidence demonstrates that on or about June 4, 2010, Detective John Helton of the Dalton Police Department was investigating a report that someone had shoplifted rat poison from a grocery store. That investigation led Helton to the home of Franks’ brother, Allen. Franks arrived while Helton was talking with his brother. The Franks brothers denied any knowledge of the shoplifting incident, but Franks indicated that Long might have been involved.

Franks then escorted Helton to the nearby house where Franks said Long and he lived. Helton said that Franks hurried to get ahead of him and appeared a little fidgety and nervous. Helton also noticed that Franks appeared to have some difficulty walking, and he later discovered that Franks had recently suffered a burn on his lower left side. The injury was severe enough to require a trip to the emergency room. Franks said he was burned when a Coleman camping lantern exploded. When they got close to the house, Franks yelled to Long that he was there and he had the police with him. After speaking with Helton about the reported shoplifting, Long gave Helton consent to search the house.

Long did not own the house, but the owner allowed Long to stay there. He had been living there for about a year. The house was in poor condition. With the exception of one bedroom that was enclosed with paneling, the house had few finished interior walls, and it had no electricity or running water. The living room contained what appeared to be a fire pit where someone had cut a hole in the floor and placed rocks in it. Long had boarded up all the doors except one, which could be locked from the inside.

During the search, Helton observed a number of items in the bedroom that he believed related to a methamphetamine manufacturing lab (“meth lab”), including blister packs containing what appeared to be pseudoephedrine tablets, syringes, bottles containing tri-level liquids, jars and canisters with tubing running out of them, and an open container with a “mashed-up” substance and a potato masher inside. Helton then placed Long and Franks under arrest and notified the drug unit.

Detectives Dwayne Holmes and Shannon Ramsey of the Whitfield County Sheriff’s Office narcotics unit assisted the Dalton Police Department in investigating the reported meth lab at Long’s house. Both had special training and experience in the detection and dismantling of meth labs. When they arrived at the house, the officers noticed a chemical odor that, based upon their training and experience, they associated with a meth lab. After obtaining a search warrant, several officers on the scene, including Holmes, donned protective clothing and respirators and began removing items from the house, while Ramsey stayed outside to catalogue the items seized.

The detectives removed a number of items from the bedroom and living room area of the home that they found to be consistent with items typically found in meth labs. These items included:

— bi-level and tri-level liquids in various bottles and jars, including Mason jars;
— containers of a red liquid that appeared to be red phosphorous, a chemical used in the manufacture of methamphetamine;
— a plastic bowl containing a metal potato masher, strainer, and a reddish paste substance suspected of being red phosphorous;
— plastic bottles cut in half and containing a white powdery substance;
— a bug sprayer altered to act as a gas generator;
— canisters of Coleman fuel, which is used as a solvent to remove ephedrine from pseudoephedrine during the manufacturing process;
— coffee filters, which are often used to filter ephedrine from the soaking solution;
— several spoons with powdery residue, one of which tested positive for methamphetamine; and
— a hollowed-out light bulb, taken from a jacket pocket in the bedroom, fashioned as a smoking device with residue that tested positive for methamphetamine, as well as ephedrine and/or pseudoephedrine.

The State tendered Ray Grossman, Chief of Police of Cohutta, Georgia, as an expert in methamphetamine production and methamphetamine-related products, and the court qualified him without objection. Grossman testified that he had worked approximately 200 red phosphorous meth labs. And during special training he received from the Drug Enforcement Administration and the State, he was required to manufacture methamphetamine using the red phosphorous method. He identified the items seized as components of “an average meth lab,” and he said that these items could not be anything else but a meth lab. He explained in detail how each of the components were used in the manufacturing process. Grossman testified from his review of the crime scene photographs that the meth. lab at Long’s house was “inactive,” i.e., the methamphetamine had already been “cooked off” leaving only “remnants.” Grossman stated that in his experience it was not unusual to find components of a lab dispersed after the manufacturing process is complete. Moreover, Grossman stated that electricity was not required for a meth lab; a portable heating device, such as a Coleman camp stove, would be sufficient. He also said that it was not unusual for the smell of methamphetamine to linger after the manufacturing process is complete.

Case No. A13A0118

1. Franks argues that this evidence was insufficient to support his conviction for attempted trafficking by manufacturing methamphetamine. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court. As long as there is some evidence, even though contradicted, to support each necessary element of the [Sjtate’s case, this Court will uphold the jury’s verdict.

(Citations omitted.) Gentry v. State, 281 Ga. App. 315, 319 (2) (635 SE2d 782) (2006).

Under former OCGA § 16-13-31 (f), “[a]ny person who knowingly manufactures methamphetamine,... or any mixture containing ... methamphetamine ... in violation of this article commits the felony offense of trafficking methamphetamine. . . .” The term “[manufacture” is defined in pertinent part as “the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis .. . .” OCGA § 16-13-21 (15). And “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1.

Franks argues that the evidence was insufficient to prove that they lived at the house and argues that their “mere presence” is not sufficient to support his conviction. He also asserts that the evidence did not establish beyond a reasonable doubt that he took any substantial step toward manufacturing methamphetamine, as required for a conviction for criminal attempt.

“Mere presence, without proof of participation, is insufficient to support a conviction.” (Citation omitted.) Sherrer v. State, 289 Ga. App. 156, 159 (2) (656 SE2d 258) (2008). Rather, the State was required to show that Franks had the power and intent to exercise control over the meth lab components. Id.

[E]vidence merely showing that contraband was found in the residence occupied by the defendant is insufficient to support a conviction if it affirmatively appears from the evidence that other persons had equal access to the contraband and therefore an equal opportunity to commit the offense Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury.

(Citations omitted; emphasis in original.) Howard v. State, 291 Ga. App. 386, 388 (662 SE2d 203) (2008).

Moreover, “[a]n act constituting a ‘substantial step’ is one done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation.” (Citation and punctuation omitted.) Taylor v. State, 320 Ga. App. 596 (1) (740 SE2d 327) (2013). Nevertheless, it cannot “accurately be said that no preparations can amount to an attempt. The question, then, is one of degree, depending upon the circumstances of each case.” (Citation omitted.) Rainey v. State, 319 Ga. App. 858, 859 (1) (a) (738 SE2d 685) (2013).

Although someone else owned the house and no evidence existed that either Long or Franks had signed a formal lease, the owner testified that he allowed Long to stay there, and if Long let other people stay there, “that was his business.” Franks told Helton that he lived in the house with Long, and Long’s ex-wife testified that Franks and Long lived there at the time of their arrest. She even identified the individual beds in the bedroom where they slept. This evidence was sufficient to connect Franks and Long to the house and the rooms in which the manufacturing components and the items containing methamphetamine residue were found.

The evidence also showed that Franks appeared nervous around Helton and supported an inference that he rushed ahead to alert Long to the officer’s presence. Moreover, Grossman testified that it was not uncommon for flash fires to occur in the methamphetamine manufacturing process, and Franks had suffered a serious burn a few days earlier. Although Franks attributed his injury to a Coleman lantern explosion, police found Coleman fuel in the house, and the evidence showed that it was commonly used as a solvent in meth labs. We find that this evidence, although circumstantial, was sufficient to support a finding that Franks and Long shared joint constructive possession of the items seized. Clyde v. State, 298 Ga. App. 283, 285 (1) (680 SE2d 146) (2009); Espinoza v. State, 244 Ga. App. 96, 99 (5) (534 SE2d 824) (2000); Wilson v. State, 231 Ga. App. 525, 526 (1) (499 SE2d 911) (1998).

Here, Long and Franks were charged with trafficking by knowingly manufacturing a mixture containing less than 200 grams of methamphetamine. Grossman testified that the items seized appeared to have been used in the red phosphorous process for manufacturing methamphetamine. He said the process was complete and the lab disassembled, and the jury could have found that the items seized evidenced various steps in the manufacturing process. For example, a bug sprayer had been converted into a gas generator and the hose leading from it was stained red, probably from contact with red phosphorous or iodine according to Grossman; liquids had been poured together and had apparently separated again into various levels; a paste containing what appeared to be red phosphorous was created; plastic jugs contained residue and one appeared melted; and another had been converted into a funnel. A chemical odor associated with meth labs lingered around the house, and methamphetamine residue was found on a spoon and the light bulb smoking device near the meth lab components.

We find that this and the other evidence at trial was sufficient to support a jury finding that Franks and Long had taken a substantial step toward manufacturing methamphetamine. See Womble v. State, 290 Ga. App. 768, 770-771 (2) (660 SE2d 848) (2008) (processing and possession of methamphetamine oil constituted substantial step toward commission of manufacturing methamphetamine); Drammeh v. State, 285 Ga. App. 545, 547-548 (1) (646 SE2d 742) (2007) (circumstantial evidence sufficient to establish substantial step toward attempted marijuana trafficking where defendant merely entered a car containing large quantity of marijuana that would have been detectable from its odor and defendant refused to provide information to police). Compare Thurman v. State, 295 Ga. App. 616, 618 (1) (673 SE2d 1) (2008) (physical precedent only) (reversing conviction for criminal attempt where defendants charged with attempting to manufacture methamphetamine in the future and during a traffic stop of defendants’ car, police smelled odor associated with meth labs and search of car revealed only an unopened bottle of Heet, one pack of cold pills containing pseudoephedrine, a large unopened bottle of iodine, and some plastic tubing).

Accordingly, the evidence was sufficient to support Franks’ conviction beyond a reasonable doubt.

Case No. A13A0932

2. We find Long’s assertion that the evidence was insufficient to support his conviction to be meritless for the reasons set forth in Division 1 above.

3. Long further asserts that the trial court erred at trial in denying his written requests to charge on the lesser included offenses of possession of a drug-related object and possession of pseudoephedrine, and thus that it erred in denying his motion for new trial on this ground. In its order denying Long’s motion, the trial court acknowledged that these crimes were lesser included offenses, and that “it was error for the court to fail to give the charges requested by [Long],” but the court determined that its error was harmless.

In determining whether one crime is a lesser included offense of another crime for purposes of requests to charge, this Court held unanimously that we apply the “required evidence” test set out in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). See Stuart v. State, 318 Ga. App. 839, 842-843 (734 SE2d 814) (2012) (required evidence test applicable in determining whether jury charge on lesser included offense required). “Under the ‘required evidence’ test, the question is not whether the evidence actually presented at trial establishes the elements of the lesser crime, but whether each offense requires proof of a fact which the other does not.” (Citation omitted.) Id. at 841.

As indicted in this case, the trafficking statute, OCGA § 16-13-31 (f), required proof that the defendants manufactured a mixture of methamphetamine. Under the pertinent provisions of OCGA § 16-13-30.3 (b) (2), the crime of possession of pseudoephedrine requires proof of possession of “any amount” of pseudoephedrine with the intent to manufacture methamphetamine. And the crime of possession of a drug-related object under the pertinent language of OCGA § 16-13-32.2 (a) requires proof that a defendant used, or possessed “with the intent to use, any object or materials of any kind for the purpose of. .. manufacturing, compounding, converting, producing, processing, preparing ... a controlled substance.”

Thus, as indicted in this case, the trafficking statute required proof of at least one element that the other two statutes do not — the manufacture of a mixture of methamphetamine. And OCGA § 16-13-30.3 requires proof that the trafficking statute does not — the possession of pseudoephedrine; neither the trafficking statute nor the indictment make any reference to that drug. Similarly, we find thatOCGA § 16-13-32.2 also requires proof ofan element notrequired for the crime of trafficking as charged in this case. The trafficking statute, as indicted, does not require proof that a defendant possessed drug-related objects with the intent to use them for manufacture. Therefore, we find that the crimes set out in OCGA §§ 16-13-30.3 (b) (2) and 16-13-32.2 (a) are not lesser included offenses of the crime of trafficking in methamphetamine as indicted in this case. Cf. Myers v. State, 2012 Ark. 143 (400 SW3d 231) (2012) (possession of drug paraphernalia with the intent to manufacture methamphetamine not a lesser included offense of manufacturing methamphetamine); State v. Haynes, 3 So3d 272, 278-280 (A), (B) (Ala. Crim. App. 2008) (possession of drug paraphernalia with intent to manufacture requires proof of different elements than, and is not a lesser included offense of, manufacturing a controlled substance); State v. Schoonover, 281 Kan. 453, 501 (E) (133 P3d 48) (2006) (possession of drug paraphernalia with intent to manufacture is not a lesser included offense of manufacturing methamphetamine); Hester v. State, 362 Ark. 373, 392-393 (208 SW3d 747) (2005) (crimes of possession of pseudoephedrine and possession of drug paraphernalia with intent to manufacture not lesser included offenses of manufacturing methamphetamine); State v. Welch, 198 Ariz. 554, 558 (12 P3d 229) (2000) (possession of drug-related paraphernalia not a lesser included offense of manufacturing a dangerous drug).

Decided December 16, 2013.

Timothy L. Kimble, for appellant (case no. A13A0118).

George B. Sparks, Michael R. McCarthy, for appellant (case no. A13A0932).

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, George J. Souther, Assistant District Attorneys, for appellee.

Accordingly, we find no error in the trial court’s decision not to give the requested charges, and thus the trial court properly denied the motion for new trial.

Judgments affirmed.

Andrews, P. J., and Dillard, J., concur.

       Franks and Long were indicted jointly for trafficking by manufacturing methamphetamine, but the jury convicted them of the lesser included offense.

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Although these liquids tested negative for methamphetamine and ephedrine, a pH test indicated that the liquids were very basic, and the GBI chemist from the state crime lab testified that the liquids could have been used for extracting the methamphetamine during the manufacturing process.

         The red liquid and paste was never tested because the GBI crime lab refuses, as a matter of safety, to accept certain substances used in meth labs, including red phosphorous, iodine and lithium batteries.

       These drugs are precursors to methamphetamine in the manufacturing process.

       Grossman acknowledged, however, that the manufacturing process will not always successfully result in the production of methamphetamine.

       We do not address this issue as it applies to Franks because he did not assert it as error on appeal. We note that Franks did not submit written requests to charge on these lesser included offenses, but his trial attorney excepted to the trial court’s failure to give the charge on possession of drug-related objects as requested by Long. Pretermitting whether this would have been sufficient to preserve the issue for appeal, we nevertheless would have been required to review the failure to charge on these offenses for plain error if Franks had raised the issue on appeal. State v. Kelly, 290 Ga. 29, 32 (2) (a), n. 2 (718 SE2d 232) (2011). But “even in ‘plain error’ review, [our appellate courts] require that ‘an appealing party properly assert( ) an error.’ [Cit.]” Moore v. State, 290 Ga. 805, 808 (2), n. 3 (725 SE2d 290) (2012). See also Court of Appeals Rules 22 and 25 (regarding enumeration of errors and argument and authority).

       In applying the Drinkard test, we consider the crimes as indicted and not every possible manner of committing a particular crime. Wilson v. State, 285 Ga. 224, 226 (2) (675 SE2d 11) (2009) (“considering the wording of the count of the indictment charging [the crime] in the case at bar and the instructions given the jury by the trial court” in determining that no merger occurred); Herrera v. State, 306 Ga. App. 432, 435 (3) (702 SE2d 731) (2010) (considering crime as indicted in determining whether merger occurred).


text:
    A13A2365.
    HICKEY v. THE STATE.
    (753 SE2d 143)
   Miller, Judge.

Following a jury trial, Lorenzo Keith Hickey was convicted of felony obstruction (OCGA § 16-10-24 (b)). Hickey appeals from the denial of his motion for new trial, contending that the trial court erred in (1) excluding proffered evidence during his cross-examination of the victim, and (2) charging on misdemeanor obstruction without charging on lesser included offenses or giving the jury that option on the verdict form. Discerning no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that, shortly before noon on August 3, 2009, a fight broke out between Hickey and another detainee in one of the dorms at the Houston County Detention Center. Five or six officers responded to the fight. While one uniformed officer held the other detainee and tried to calm him down, Hickey swung a punch at the other detainee over the officer’s shoulder. The officer then grabbed Hickey by his clothing, made him back up and told him to stop. Hickey looked right at the officer, swung his arm and struck the officer in the bottom lip.

1. Hickey contends that the trial court erred in excluding proffered evidence regarding how the detention center handled Hickey and the other detainee after the fight. Specifically, Hickey argues that the proffered evidence was relevant to a determination of his intent or lack thereof. We disagree.

At trial, during his cross-examination of the officer, Hickey asked the officer what normally happens when detainees are involved in fights. The officer responded that a report is completed, and that it is handled differently if a detainee hits an officer. Hickey then asked the officer whether the detainees are normally removed from their pods, and the officer responded affirmatively. When Hickey, then tried to ask the officer what happens when detainees are removed from their pods, the trial court interrupted the cross-examination and asked counsel to approach the bench.

The trial court raised a relevancy concern regarding the line of questioning. Trial counsel argued that the procedure for handling detainees after a fight was relevant because no administrative action was taken against Hickey other than a report, whereas the other detainee involved in the fight was removed from his pod and “put in the hole.” Trial counsel argued that the proffered evidence went to intent to some degree, i.e., whether or not Hickey intentionally hit the officer. Following trial counsel’s proffer the trial court ruled that anything that happened after the fight was not relevant.

“A trial court’s rulings on the relevancy of evidence will not be disturbed unless there is an abuse of discretion.” (Citation omitted.) Agan v. State, 262 Ga. 783, 784 (426 SE2d 552) (1993).

Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has a tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.

(Citation and punctuation omitted.) Jones v. State, 276 Ga. App. 810, 816 (4) (625 SE2d 4) (2005). Irrelevant matter, however, should be excluded. Former OCGA § 24-2-1.

“A factfinder may infer that a person acted with criminal intent based upon the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” (Citation and punctuation omitted; emphasis supplied.) Butler v. State, 284 Ga. App. 802, 803 (644 SE2d 898) (2007). Here, the proffered evidence dealt with administrative actions or decisions that occurred after Hickey struck the officer. Since these actions or decisions were not part of the circumstances connected with the act for which Hickey was accused, the proffered evidence was not relevant to the issue of whether Hickey intended to strike the officer. Accordingly, the trial court did not abuse its discretion in excluding the proffered evidence.

2. Hickey also contends that the trial court erred in giving the jury an additional charge on obstruction of an officer that applied only to misdemeanor obstruction. Specifically, Hickey argues that the additional charge allowed the jury to convict Hickey for actions other than intentionally doing violence to the officer. We discern no error.

Because Hickey failed to object to the charge at trial on this basis, we review the jury charge for plain error only. See Allen v. State, 290 Ga. 743, 744-745 (3) (723 SE2d 684) (2012); OCGA § 17-8-58. “Under this standard, we must determine whether there is an error that has not been affirmatively waived, is clear and obvious, affects the defendant’s substantial rights, and seriously affects the fairness, integrity or public reputation of the judicial proceedings.” (Citation and punctuation omitted.) Durham v. State, 292 Ga. 239, 241 (3) (734 SE2d 377) (2012).

With regard to felony obstruction, the trial court charged the jury as follows:

[C]ount 1 of this indictment is obstruction of an officer. This is the definition. A person commits the offense of obstruction of an officer when that person knowingly and willfully resists, obstructs, or opposes any prison guard in the lawful discharge of the official duties by doing violence to the person of the officer.

(Emphasis supplied.) The trial court also gave the following additional charge:

Now, this offense may be committed by actions that while not otherwise unlawful have the effect of obstructing or hindering the officer while carrying out his duties. This definition does not make criminal any actions that incidentally hinder an officer. The accused must have knowingly and willfully obstructed or hindered the officer. Whether or not the actions of the defendant did hinder or impede the officer in carrying out his assigned duties, that’s for you, the jury, to decide.

Hickey argues that the additional charge applies only to misdemeanor obstruction; however, he cites no authority, and we have found none that prohibits the use of this additional charge in felony obstruction cases. Moreover, this Court views jury charges as a whole in determining whether the jury was fully and fairly instructed on the lawofthe case. See Davis v. State, 290 Ga. 757, 761 (5) (725 SE2d 280) (2012). Here, the charge as given closely tracked the language of the Code section and was substantially identical to the suggested pattern charges on obstruction. See OCGA § 16-10-24 (b); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, §§ 2.44.10-2.44.30 (4th ed. 2013). The trial court also instructed the jury on the State’s burden of proving each element of the charged crime, as well as intent, beyond a reasonable doubt. Viewing the charge as a whole, along with the pattern charges and the applicable code section, we find no plain error. See Alvarez v. State, 312 Ga. App. 552, 558-559 (3) (718 SE2d 884) (2011) (given charge as a whole, no plain error in felony obstruction charge that closely tracked language of statute and pattern charge). Accordingly, we affirm Hickey’s conviction.

Decided December 16, 2013.

Russell K. Walker, for appellant.

George H. Hartwig III, District Attorney, Venita S. McCoy, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Hickey was also convicted of battery and simple battery, however, the trial court merged those counts into his obstruction conviction for sentencing purposes.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Hickey also argues that the proffered evidence was relevant to impeach the officer’s testimony. This particular ground for admission of the proffered evidence has been waived because it was not raised in the trial court. See Williams v. State, 277 Ga. App. 106, 108 (2) (625 SE2d 509) (2005).

       The former provisions of OCGA § 24-2-1 were in effect until January 1, 2013, when Georgia’s new rules of evidence became effective. See Ga. Laws 2011, p. 99, § 2. Georgia’s new Evidence Code defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24-4-401. Since this case was tried in December 2009, the prior Evidence Code applies.

       At trial, Hickey only objected to the additional charge on the ground that there was no testimony that “anything that occurred actually impeded [the officers’] ability to do what they were doing.


author: ELLINGTON, Presiding Judge.

text:
    A13A1877.
    LAW v. BIOLAB, INC.
    (753 SE2d 446)
   ELLINGTON, Presiding Judge.

Michael Law brought this action in the State Court of Gwinnett County against BioLab, Inc., alleging that he was injured when he inhaled fumes released by a fire at BioLab’s chemical storage facility. Following a hearing, the trial court granted BioLab’s motion for summary judgment, and Law appeals. For the reasons explained below, we affirm.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c). A defendant who will not bear the burden of proof at trial can demonstrate that there is no genuine issue of material fact

by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary judgment is that a defendant. . . need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623-624 (1) (a) (697 SE2d 779) (2010).

So viewed, the record shows the following. BioLab manufactures water treatment products for swimming pools, spas, and other uses. On May 25, 2004, a fire occurred in one of the warehouses at BioLab’s facility in Conyers, where many millions of pounds of materials, including chlorine compounds, were stored. Law deposed that he was exposed to harmful gas from the BioLab distribution center fire on May 25-26, 2004. Law’s treating physician deposed that Law’s pulmonary function tests show minimal asthma and a moderate impairment in diffusion capacity, conditions which are consistent with inhalation gas exposure.

In moving for summary judgment, BioLab argued, inter alia, that there is no evidence that the fire resulted from negligence that can be attributed to BioLab. In response, Law argued that BioLab made an admission of liability when one of its vice presidents told a newspaper reporter, “We want to apologize profusely for the disruption we’ve caused.” In addition, Law argued that an inference of negligence is authorized under the doctrine of res ipsa loquitur.

1. Under Georgia’s Evidence Code, an out-of-court statement offered against a party will not be excluded under the rule against hearsay if the statement constitutes an admission. OCGA § 24-8-801 (d) (2) (A) (effective January 1, 2013); see Paul S. Milich, Georgia Rules of Evidence, § 18.10 (database updated October 2012). An admission is, inter alia,

(C) [a] statement by a person authorized by the party to make a statement concerning the subject [or] (D) [a] statement by the party’s agent or employee . . . concerning a matter within the scope of the agency or employment, made during the existence of the relationship [.]... The contents of the statement shall be considered but shall not alone be sufficient to establish the declarant’s authority under sub-paragraph (C) of this paragraph [or] the agency or employment relationship and scope thereof under subparagraph (D) of this paragraph^]

OCGA § 24-8-801 (d) (2). Even if a vague public relations apology for “the disruption” could be construed as an admission of negligence in causing the fire, Law has not identified any evidence that the statement concerned subject matter that the speaker would know by virtue of his duties. See Paul S. Milich, Georgia Rules of Evidence, § 18.10 (database updated October 2012) (For a statement to be admissible under OCGA § 24-8-801 (d) (2) (C) or (D), the subject matter of the statement must relate to what the employee would know because of the employee’s job duties.). Accordingly, the newspaper article contained no admission of negligence.

2. The expression “res ipsa loquitur”

means that the transaction speaks for itself. It is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another where it is shown that the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of [,] the thing doing the damage and [that] the accident was a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.

(Citation and punctuation omitted.) Evans v. Heard, 264 Ga. 239, 240 (442 SE2d 753) (1994). See also Doyle v. RST Constr. Specialty, 286 Ga. App. 53, 56 (648 SE2d 664) (2007) (The plaintiff must establish three elements for the doctrine of res ipsa loquitur to apply: “(1) the injury ordinarily would not occur in the absence of negligence; (2) the injury was caused by an agent or instrument within the defendant’s exclusive control; and (3) the injury was not due to any voluntary action or contribution on plaintiff’s part.”) (citation omitted). “The principal basis for application of the rule is that the occurrence involved would not have occurred but for negligence, and this negligence may properly be charged to the person in exclusive control of the instrumentality.” (Citation and punctuation omitted.) Persinger v. Step By Step Infant Dev. Center, 253 Ga. App. 768, 770 (560 SE2d 333) (2002). “[R]es ipsa loquitur should be applied with caution and only in extreme cases [.]” Hosp.Auth. of the City of St. Marys v. Eason, 222 Ga. 536, 541 (1) (150 SE2d 812) (1966). See also Watts & Colwell Builders v. Martin, 313 Ga. App. 1, 6 (2) (720 SE2d 329) (2011) (accord). Furthermore, the doctrine “does not apply when there is an intermediary cause which could have produced the injury.” (Citation and punctuation omitted.) Watts & Colwell Builders v. Martin, 313 Ga. App. at 6 (2). See also Hosp. Auth. of the City of St. Marys v. Eason, 222 Ga. at 541 (1) (accord).

Decided December 27, 2013.

Hall & Lampros, Peter A. Lampros, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Amber E. Tuggle, for appellee.

In this case, Law has not identified any rational basis for concluding that the fire in BioLab’s chemical storage facility would not have occurred in the absence of any negligence. Indeed, the fire could have been caused by arson, an act of God, or other cause without any negligent act or omission on the part of anyone. Furthermore, Law’s alleged injury, that is, his pulmonary problems, could have been produced by an intermediary cause, such as his twenty-year history of smoking one pack of cigarettes per day. Because there is no evidence from which a jury could infer that BioLab was negligent as alleged, the trial court did not err in granting BioLab’s motion for summary judgment. Noble v. Nieznany, 239 Ga. App. 547, 549 (2) (521 SE2d 472) (1999); Ellis v. Sears Roebuck & Co., 193 Ga. App. 797, 798 (1) (388 SE2d 920) (1989).

Judgment affirmed.

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

       We note that the hearing on BioLab’s motion for summary judgment took place on March 7, 2013. See Ga. L. 2011, pp. 99, 214, § 101 (The provisions of Georgia’s new Evidence Code apply “to any motion made or hearing or trial commenced on or after [January 1, 2013].”).

       See Noble v. Nieznany, 239 Ga. App. 547, 549 (2) (521 SE2d 472) (1999) (Where the evidence showed that the incident that caused the plaintiff’s injury, a houseboat explosion, occurred after a concealed fuel line leaked and allowed fumes to accumulate, the doctrine of res ipsa loquitur did not preclude summary judgment in the defendant’s favor because such an incident is not of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.); Ellis v. Sears Roebuck & Co., 193 Ga. App. 797, 798 (1) (388 SE2d 920) (1989) (Where the plaintiff’s injury occurred when an escalator malfunctioned, the doctrine of res ipsa loquitur did not raise a jury issue because the incident could have happened in the absence of any negligence, given that mechanical devices get out of working order without any negligent act or omission on the part of anyone.); Lodge v. Champion Home Builders Co., 170 Ga. App. 21, 22 (3) (315 SE2d 912) (1984) (Where the plaintiffs were injured when the heating system of a motor home malfunctioned and the motor home caught fire, the doctrine of res ipsa loquitur did not preclude summary judgment in the defendant’s favor because the fire was not necessarily of such an unusual or extraordinary nature that would not ordinarily occur in the absence of someone’s negligence and because the motor home was not in the defendant’s exclusive control.).


author: McFadden, Judge.

text:
    A13A1901.
    GARZA v. THE STATE.
    (753 SE2d 651)
   McFadden, Judge.

Nearly three years after pleading guilty in the Superior Court of Lumpkin County to a violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-4, and to the offense of aggravated assault, OCGA § 16-5-21, Reynaldo Garza, Jr., filed a motion to withdraw his plea and for a new trial, arguing that the grand jury that had indicted him was improperly constituted because its foreperson was ineligible to serve. The trial court denied the motion. We find no error. The trial court lacked jurisdiction to allow Garza to withdraw his plea because he moved to do so outside the term of court in which he was sentenced. And because Garza pled guilty, the remedy of a new trial was not available to him. Accordingly, we affirm.

1. Motion to withdraw plea.

The record shows that on January 6, 2010, Garza entered his plea and was sentenced thereon. He moved to withdraw the plea on November 1, 2012, outside the term of court in which he was sentenced. See OCGA § 15-6-3 (17.1) (C) (establishing terms of court for Lumpkin County). “It is well settled that when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea the trial court lacks jurisdiction to allow the withdrawal of the plea.” Davis v. State, 274 Ga. 865 (561 SE2d 119) (2002) (citation and punctuation omitted). Atrial court, however, may “grant a motion for withdrawal filed outside the term of court in which sentence is imposed, where that sentence is void and the motion was filed prior to resentencing.” Kaiser v. State, 285 Ga. App. 63, 69 (1) (646 SE2d 84) (2007).

Garza argues that his sentence was void because the indictment underlying his conviction was void due to the participation of an ineligible grand juror. The grand juror in question, who served as the foreperson, was ineligible to serve under OCGA § 15-12-60 (b) because he was an elected city councilman at the time of his service. In another case involving the same grand juror, our Supreme Court held that the “effect of [his] presence ... was to nullify the proceedings at which he was purportedly a grand juror.” State v. Dempsey, 290 Ga. 763, 767 (2) (727 SE2d 670) (2012). This rendered the indictment void. Id. at 764 (1).

The fact that Garza’s convictions arose from a void indictment, however, does not render his sentence void. As our Supreme Court recently explained in von Thomas v. State, 293 Ga. 569 (748 SE2d 446) (2013),

a sentence is void if the court imposes punishment that the law does not allow. Whether a sentence amounts to “punishment that the law does not allow” depends not upon the existence or validity of the factual or adjudicative predicates for the sentence, but whether the sentence imposed is one that legally follows from a finding of such factual or adjudicative predicates.

Id. at 571-572 (2) (citations and punctuation omitted). To illustrate this rule, the Court offered the example of a claim of a void sentence predicated upon a claim of an unlawful conviction:

[A] lawful sentence can be imposed only upon the adjudicative predicate of a lawful conviction. Nevertheless, we have held in several cases that a defendant cannot assert a claim that his conviction was unlawful in an untimely motion to vacate his sentence simply by dressing it up as a claim that his sentence was void. Instead, a claim that a conviction was unlawful must be asserted by a motion for new trial, direct appeal from the judgment of conviction, extraordinary motion for new trial, motion in arrest of judgment, or petition for the writ of habeas corpus.

Id. at 572 (2) (citations omitted). The Court in von Thomas also stated that claims that “can be waived . . . necessarily do not amount to claims that the sentence imposed was void, inasmuch as a sentence which is not allowed by law is void, and its illegality may not be waived.” Id. at 573 (2) (citations and punctuation omitted; emphasis in original).

Decided January 8, 2014

Arturo Corso, for appellant.

W. Jeffrey Langley, District Attorney, Francis J. Moran III, Assistant District Attorney, for appellee.

Garza’s ten-year sentence fell within the range of permitted sentences for his convictions for violating the Georgia Street Gang Terrorism and Prevention Act and for aggravated assault. See OCGA §§ 16-5-21 (b); 16-15-4 (k). Moreover, Garza’s challenge to his conviction based on the service of an ineligible person on the grand jury is a claim that can be waived. See Hill v. Stynchcombe, 225 Ga. 122, 127 (10) (166 SE2d 729) (1969) (challenges to constitution of grand jury must be made within specified time or are waived, and cannot be made for first time at new trial stage); Lumpkin v. State, 152 Ga. 229, 231 (109 SE 664) (1921) (challenge to grand jury based on service of disqualified person must be made within specified time frame, and “cannot be raised for the first time after verdict”). Cf. Harper v. State, 283 Ga. 102, 103 (1) (657 SE2d 213) (2008) (noting that “a timely challenge would be valid” to the service of the wrong person on the grand jury) (emphasis supplied). Consequently, under von Thomas, Garza’s sentence was not void because it did not amount to “punishment that the law does not allow.” von Thomas, 293 Ga. at 571-572 (2). As a result, the trial court lacked jurisdiction to allow Garza to withdraw his plea. Davis, 274 Ga. at 865.

2. Motion for new trial.

Alternatively, Garza moved for a new trial as a means of challenging the void indictment upon which he was convicted. As discussed above, the von Thomas opinion holds that a defendant must challenge the lawfulness of a conviction directly, through a vehicle such as a motion for new trial, rather than using a claim of void sentence to attack the conviction, von Thomas, 293 Ga. at 572 (2). But a motion for new trial was not available to Garza in this case, because he had pled guilty. As the trial court correctly held, “[o]ne who has entered a plea of guilty cannot move for a new trial, as there was no trial.” Davis, 21A Ga. at 866 (citation and punctuation omitted).

Judgment affirmed.

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


author: Ray, Judge.

text:
    A12A0661.
    RUTTER v. RUTTER.
    (753 SE2d 778)
    Decided January 9, 2014.

      Bray & Johnson, Roger M. Johnson, Jennifer S. Gill, for appellant.

      Hill-Macdonald, Vic B. Hill, Brad E. Macdonald, Abbott & Abbott, Robert K. Abbott, Jr., Parri S. Abbott, for appellee.

      Samuel S. Olens, Attorney General, Neis S. D. Peterson, Solicitor-General, amici curiae.
   Ray, Judge.

In Rutter v. Rutter, 294 Ga. 1 (749 SE2d 657) (2013), the Supreme Court reversed the judgment of this Court in Rutter v. Rutter, 316 Ga. App. 894 (730 SE2d 626) (2012). We therefore vacate our opinion and adopt the judgment of the Supreme Court as the opinion of this court.

Judgment affirmed.

Miller and Branch, JJ., concur.


text:
    A12A1116.
    WILLIAMS v. THE STATE.
    (753 SE2d 779)
    Decided January 9, 2014.

      Childs & Noland, Craig M. Childs, Frank H. Childs, Jr., William H. Noland, for appellant.

      Rebecca H. L. Grist, Solicitor-General, Cynthia T. Adams, OtisL. Scarbary, Assistant Solicitors-General, for appellee.
   Ray, Judge.

In Williams v. State, 293 Ga. 883 (750 SE2d 355) (2013), the Supreme Court reversed the judgment of this Court in Williams v. State, 317 Ga. App. 658 (732 SE2d 531) (2012). We therefore vacate our opinion and adopt the judgment of the Supreme Court as the opinion of this court.

Judgment affirmed.

Miller and Branch, JJ., concur.


author: DOYLE, Presiding Judge.

text:
    A13A2143.
    McCOWAN v. THE STATE.
    (753 SE2d 775)
   DOYLE, Presiding Judge.

After a jury trial, Kenyoun M. McCowan was convicted of two counts of armed robbery, four counts of aggravated assault, one count of burglary, and two counts of false imprisonment. McCowan filed a motion for new trial, which the trial court denied. He appeals, contending that the trial court erred by denying his motion to suppress his pre-trial photographic lineup identification. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia.] ] This same standard applies to our review of the trial court’s denial of [the defendant’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the record shows that on the evening of July 13, 2009, Emanuel Orr drove McCowan and Michael Kidd to a convenience store near the Stay Lodge in Rome because McCowan wanted to try and sell a firearm, which he was carrying. After the two passengers exited his vehicle (a red Ford Mustang), Orr waited in the parking lot, but only McCowan returned to the vehicle, and the two then drove to a nearby automatic teller machine (“ATM”).

In the meantime, while Orr was waiting in the parking lot for the two men to return from the convenience store, McCowan and Kidd had walked to an adj acent Stay Lodge, where they burst into the room of Rufus and Consuela Dickerson, demanding money of the Dicker-sons while McCowan brandished the firearm. McCowan left the room with the victims’ wallets and cell phones, while Kidd stayed behind to ensure that the victims had provided the correct personal identification numbers to McCowan, who returned to Orr’s vehicle to go to the ATM. McCowan was unsuccessful at withdrawing money with the cards, and he returned to Orr’s vehicle.

While McCowan was gone, however, a friend of the Dickersons arrived at the hotel, causing Kidd to flee the scene as Rufus Dickerson chased him. Rufus saw Kidd attempt to get into a red Mustang, but Orr waved Kidd away when Orr noticed Rufus chasing Kidd. Rufus noted the license plate of the Mustang, which he provided to police.

Thereafter, police contacted Orr, who identified McCowan and Kidd as perpetrators of the robbery of the Dickersons. Both of the Dickersons identified McCowan as a perpetrator from a photographic lineup, and Consuela Dickerson identified Kidd as a perpetrator from a photographic lineup.

After a jury trial, McCowan was found guilty of armed robbery, aggravated assault, burglary, and false imprisonment. Following the denial of McCowan’s motion for new trial, this appeal followed.

In his sole enumeration of error, McCowan argues that the trial court erred by denying his motion to suppress the results of the pre-trial photographic lineup because the lineup was impermissibly suggestive and was prejudicial.

When ruling on a motion to suppress, the trial court sits as the trier of facts, and its findings regarding them are not disturbed on appeal if there is any evidence to support them; the trial court’s decisions with regard to questions of fact and credibility must be accepted unless clearly erroneous, and a reviewing court construes the evidence most favorably to the trial court’s findings.

During trial, McCowan moved to suppress the results of the Dickersons’ out-of-court photographic identification of him. The State presented the officer who performed the lineups, and he testified that he prepared the photographic array of six individuals using jail photographs of individuals with similar height, weight, sex, race, hair color, and eye color of the suspects and took the lineups to the Dickersons’ room at the hotel. The officer had to prepare Kidd’s lineup using photographs on separate sheets of paper because he did not have a jail photograph in the county system. The officer separated the Dickersons, with one outside the room while the other viewed the lineups, and the two were not able to discuss the lineups between themselves.

The officer stated that he “explained to them individually that [he] needed them to look at the photographs to see if they saw the person that committed the crime against them. Their picture may or may not be on there. Don’t pick somebody if you’re not one hundred percent sure.” The officer did not tell the Dickersons that they should be looking for the individual who stayed in the room or the individual who went to the ATM, and he did not state whether either of the suspects was in custody. Consuela Dickerson picked McCowan after looking at the lineup for about 15 seconds, but Rufus “took a little bit longer... but not very long” to identify McCowan’s photograph as the perpetrator.

Testimony concerning a pre-trial identification of a defendant should be suppressed if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. The taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure. An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, “this is our suspect.”

1. McCowan contends that the lineup was impermissibly suggestive because the officer failed to admonish the victims that a photograph of the perpetrator may not appear in the lineup. The transcript of the motion to suppress, however, shows that the officer did admonish the Dickersons that the suspect may not appear in the array.

2. McCowan also contends that the lineup was impermissibly suggestive because the officer who conducted it utilized a simultaneous photo array rather than a sequential photo array used for identification of Kidd. We disagree.

Decided January 9, 2014.

Long D. Vo, for appellant.

Leigh E. Patterson, District Attorney, Suhirjahaan S. Morehead, Assistant District Attorney, for appellee.

The officer who presented the lineup of McCowan prepared it using photographs of suspects from the same location with the same background wearing similar white shirts. The officer also used photographs of similarly built individuals who had similar features. He did not indicate to the Dickersons that they should be looking for the individual who stayed with them in the room or who went to the ATM, and he even told them that the suspect may not be in the array and that they should not identify someone as a suspect unless they were 100 percent sure of their identification. The mere fact that Rufus Dickerson was unable to identify Kidd does not mean that McCowan’s lineup was impermissibly suggestive, and we decline to hold that a simultaneous lineup is impermissibly suggestive as a matter of law. Based on the testimony of the officer who prepared and presented the lineup to the Dickersons, the trial court did not err by denying the motion to suppress their out-of-court identifications of McCowan.

3. Based on our holding in Division 2 we need not address McCowan’s argument regarding the prejudicial effect of the lineup.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-8-41 (a). The aggravated assault and burglary charges merged with the armed robbery charge. The State also charged McCowan with recidivism pursuant to OCGA § 17-10-7 (a) for previously being convicted of a felony.

       OCGA § 16-5-21 (a) (1), (2).

       OCGA § 16-7-1 (b).

       OCGA § 16-5-41 (a).

       443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       (Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

       (Punctuation omitted.) Russell v. State, 319 Ga. App. 472, 473 (1) (735 SE2d 797) (2012), quoting Whitmore v. State, 289 Ga. App. 107 (657 SE2d 1) (2008).

       (Punctuation omitted.) Russell, 319 Ga. App. at 473-474 (1), quoting Brooks v. State, 285 Ga. 246, 248-249 (3) (674 SE2d 871) (2009).

       See Ivey v. State, 277 Ga. 875, 876-877 (3) (596 SE2d 612) (2004) (pre-trial identification procedure not impermissibly suggestive, even though it would have been preferable for officer to give the witness a standard admonition that lineup may or may not have had picture of perpetrator).

       See, e.g., Parker v. State, 273 Ga. App. 823, 824 (616 SE2d 139) (2005) (upholding denial of a motion to suppress in which a simultaneous array was utilized).