text:
    A11A1170.
    R. R. DONNELLEY et al. v. OGLETREE.
    (718 SE2d 825)
   Miller, Presiding Judge.

In this workers’ compensation action, claimant Tedral Ogletree filed a claim for reinstatement of medical and temporary total disability (“TTD”) income benefits from his former employer, R. R. Donnelley, and its insurer, AIG International Insurance Company c/o Gallagher Bassett Services (collectively, “R. R. Donnelley” or “the employer”). Ogletree claimed that he sustained a compensable fictional new accident arising out of and in the course of his employment with R. R. Donnelley, and that he was unable to obtain suitable subsequent employment due to the aggravation of his injury. Following an evidentiary hearing, a State Board of Workers’ Compensation administrative law judge (“ALJ”) issued an award in Ogletree’s favor, finding that Ogletree had sustained a fictional new accident and that Ogletree had performed a diligent, but unsuccessful, search for suitable employment, as required under Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995). The Board’s appellate division affirmed the ALJ’s findings as to a fictional new accident, but reversed the award of TTD benefits based upon its finding that Ogletree had not performed a diligent job search. On further appeal, the superior court affirmed the Board’s finding of a fictional new accident. The superior court, however, reversed the Board’s finding that Ogletree had not performed a diligent job search and reinstated the ALJ’s award. We granted R. R. Donnelley’s application for discretionary appeal. For the reasons that follow, we affirm the superior court’s decision.

On appeal of an award or denial of workers’ compensation benefits, the superior court may not substitute its findings for the appellate division’s findings of fact[.] . . . Even if the appellate division’s re weighing of the evidence resulted in a conclusion different from that of the ALJ, the superior court must affirm the appellate division if there is any evidence to support its conclusion.

(Punctuation and footnotes omitted.) Medders v. Smith, 245 Ga. App. 323, 325 (1) (537 SE2d 153) (2000). However, the appellate division’s decisions based on erroneous legal theories are subject to the de novo standard of review. Trent Tube v. Hurston, 261 Ga. App. 525 (583 SE2d 198) (2003).

The record evidence shows that Ogletree began working for the employer in March 1997 as an assistant pressman. Ogletree’s duties required repetitive lifting of heavy stock, as well as bending, stretching, and pulling. On October 10, 2002, Ogletree suffered a work-related injury to his neck and upper extremities. Ogletree underwent carpal tunnel surgery and received wage, medical, and permanent partial disability (“PPD”) benefits.

Ogletree returned to work in June 2003 on a light-duty basis with permanent restrictions from his treating physician of no lifting, pushing, or pulling more than 15 pounds. He then began to work in the Fulfillment Department, which required him to bend, stack, and lift boxes. Some of the boxes that Ogletree lifted weighed as much as 30 pounds, and he exceeded his work restrictions 40% of the time. Ogletree complained to his supervisors of increasing pain in his upper extremities as he continued to work.

Ogletree was relocated to the Quality Control Department. His duties in that department required him to lift panels between 15 and 30 pounds, which exceeded his permanent work restrictions. Ogle-tree stated that, as he continued trying to perform his work duties, his condition worsened. Ogletree again complained to his supervisors about his increasing pain, but no one modified his duties. Ogletree received a poor performance review because he “was not moving fast enough.” Ogletree testified that his performance was slow due to the injury and pain in his neck and back, the numbness in his arm, and sharp pains in his hands.

Ogletree subsequently began working in the DocuTech Department. His duties included stuffing envelopes, placing the envelopes into boxes, and loading the boxes into carts. Some of the boxes that Ogletree lifted, pulled, and pushed weighed between 50 and 60 pounds. Again, Ogletree complained to his supervisors regarding the pain he felt while working. He stated that the pain started in his neck, extended down his arm and hand, and moved down his lower back into his leg.

Medical records from Ogletree’s treating physicians documented Ogletree’s injuries. On July 3, 2007, Ogletree underwent an MRI, which revealed that Ogletree was suffering from “multi[-]level degenerative disc disease. The discs [were] partially collapsed at all of the C3-4, C4-5, and C6-7 levels. Marginal osteophytes [were] formed at those levels as well, and . . . there [was] multi[-]level spinal stenosis, and some cord compression.” In December 2007, Ogletree’s physician noted that the results of a CT myelogram showed that Ogletree had a vertebral artery anomaly at C4, multi-level spondy-losis and disc degeneration, and foraminal stenosis at C3-4 and C6-7.

On April 17, 2008, Ogletree was laid off as a result of the employer’s reduced workload and the elimination of the DocuTech Department. Following his layoff, Ogletree began searching for work using the internet, newspaper, and the Georgia Department of Labor’s website. Ogletree testified that he applied for quality control and government jobs that were within his physical restrictions, and he listed approximately 24 jobs for which he submitted applications. Some of the prospective employers did not respond to his applications, and about half of the prospective employers responded via e-mail advising that the positions had been filled by other applicants. Ogletree did not have any interviews and did not personally visit any potential employers.

In October 2008, Ogletree underwent a lumbar fusion surgery. He filed a claim for TTD benefits for the period from April 17, 2008 and continuing based upon an alleged “fictional new accident” that was manifested at the time of his layoff.

The Board’s ALJ entered an award and findings in Ogletree’s favor, but the appellate division reversed, in part, the ALJ’s findings. Upon further review, the superior court reversed the appellate division’s decision in part and reinstated the ALJ’s award.

1. R. R. Donnelley contends that the superior court erred in affirming the Board’s finding that Ogletree had sustained a fictional new accident on April 17, 2008. It contends that Ogletree instead had a change in condition. We discern no error.

In Central State Hosp. v. James, 147 Ga. App. 308, 309-310 (1) (a)-(c) (248 SE2d 678) (1978), this Court described three situations that have evolved in distinguishing between a new injury or a change in condition:

(a) One instance is where the claimant is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing to work subsequent to his injury. Our courts have held that the one-year statute of limitation begins to run from the date the claimant was forced to cease his employment. They base this holding on the theory that the date of the “new accident” is the date that the disability manifests itself. Mallory v. American Cas. Co., 114 Ga. App. 641 (152 SE2d 592) [(1966)]; Blackwell v. Liberty Mut. Ins. Co., 230 Ga. 174 (196 SE2d 129) [(1973)].
(b) A second example is where the claimant sustains a second accident as the result of a specific job-related incident which aggravates a pre-existing condition which resulted from a prior accident. In these circumstances the second accident which aggravated the pre-existing condition is a new injury, if the second accident at least partially precipitated the claimant’s disability. Aetna Cas. &c. Co. v. Cagle, 106 Ga. App. 440 (126 SE2d 907) [(1962)]. This is true whether the claimant is immediately disabled or if he continues to work after the second accident and his condition gradually worsens until he is forced to cease his employment. Pacific Employers Ins. Co. v. Ivey, 118 Ga. App. 299 (163 SE2d 435) [(1968)].
(c) A third situation is where the claimant sustains an injury and is awarded compensation during his period of disability. Subsequent thereto he returns to his employment performing his normal duties or ordinary work. Then as a result of the wear and tear of ordinary life and the activity connected with performing his normal duties and not because of a specific job-related incident his condition gradually worsens to the point that he can no longer continue to perform his ordinary work. This gradual worsening or deterioration would constitute a change in his condition and not a new accident. St. Paul Fire &c. Ins. Co. v. Hughes, 125 Ga. App. 328 (187 SE2d 551) [(1972)]; Garner v. Atlantic Building Systems, Inc., 142 Ga. App. 517 (236 SE2d 183) [(1977)].

(Punctuation omitted; emphasis supplied.) James, supra, 147 Ga. App. at 309-310 (1) (a)-(c). We have further ruled that a specific incident is not a prerequisite to a finding of a new accident based upon an aggravation of a pre-existing injury. See Beers Constr. Co. v. Stephens, 162 Ga. App. 87, 91 (2) (290 SE2d 181) (1982). A “new accident” occurs when there is the intervention of new circumstances imposed upon the claimant. See Certain v. U. S. Fidelity & Guaranty Co., 153 Ga. App. 571, 573 (266 SE2d 263) (1980). Regardless of whether the claimant has claims against a single employer or against two different employers, the analysis and application of the foregoing principles are the same. See Beers Constr. Co., supra, 162 Ga. App. at 89 (2).

Here, the ALJ, the Board’s appellate division, and the superior court found that the preponderance of the competent and credible evidence established that Ogletree had sustained a fictional “new accident” on April 17, 2008, the date that he was laid off and ceased to work. The ALJ specifically found that Ogletree had sustained an on-the-job injury on October 10, 2002 and thereafter experienced a gradual worsening of his condition as he continued to perform light-duty work that exceeded his physical restrictions. The evidence supported these findings.

We recognize that the circumstances presented in this case do not fall squarely within either of the three situations described in James, supra, 147 Ga. App. at 309-310 (1) (a)-(c). Notably, however, the situations described in James were not meant to be exclusive; rather, they were the situations “which most frequently occur” in the workers’ compensation context. Id. at 309 (1). Based upon the record evidence, the Board was authorized to find that the circumstances in this case were most similar to the first situation described in James and that Ogletree sustained a “new accident” since his physical activity in continuing to work seriously aggravated his condition. See Ga. Pacific Corp. v. Cross, 275 Ga. App. 664, 664-665 (1) (621 SE2d 586) (2005); Beers Constr. Co., supra, 162 Ga. App. at 89-90 (2); James, supra, 147 Ga. App. at 309 (1) (a).

Contrary to R. R. Donnelley’s arguments, the evidence in this case did not require a finding that Ogletree sustained a change in condition. As noted in James, supra, 147 Ga. App. at 309 (1) (c), and Beers Constr. Co., supra, 162 Ga. App. at 89-90 (2), a change in condition occurs when the claimant’s disability results from his performance of “usual,” “normal,” or “ordinary” work duties. In contrast, a “new accident” occurs when there is the intervention of new circumstances imposed upon the claimant. See Certain, 153 Ga. App. at 573. When Ogletree returned to work after his initial work injury, he was no longer performing normal or ordinary duties. The ALJ found that Ogletree was performing under new circumstances that were more strenuous and exceeded his light duty work restrictions. Therefore, the superior court properly affirmed the Board’s determination that a “new accident,” rather than a change in condition, occurred. See Beers Constr. Co., supra, 162 Ga. App. at 89-90 (2); Certain, 153 Ga. App. at 573-574.

The Board was further authorized to conclude that Ogletree’s “new accident” date was April 17, 2008, when he was laid off and ceased to work. The date of the “new accident” is deemed to be when the disability manifests itself. See Mallory, supra, 114 Ga. App. at 643 (4); Blackwell, supra, 230 Ga. at 176. When a claimant attempts to continue working even though he is injured, the disability may manifest itself when he is forced to stop working. See Ga. Pacific Corp., supra, 275 Ga. App. at 665 (2); United Parcel Svc. v. Culpepper, 219 Ga. App. 534, 535 (465 SE2d 709) (1995). “The purpose of this rule is to avoid penalizing a claimant who attempted to continue working even though he was injured to some extent.” (Citation and punctuation omitted.) Ga. Pacific Corp., supra, 275 Ga. App. at 665 (2). The disability may also manifest itself when the claimant is unable to obtain suitable employment elsewhere as a result of the injury. See, e.g., Maloney v. Gordon County Farms, 265 Ga. 825, 826-827 (462 SE2d 606) (1995). Here, the evidence supported a finding that Ogletree continued trying to work even though he was injured and that he was unable to find suitable employment thereafter in light of his condition and restrictions. The Board therefore was authorized to find that the disability manifested itself when he ceased working on April 17, 2008. See Ga. Pacific Corp., supra, 275 Ga. App. at 665 (2). See, e.g., Maloney, supra, 265 Ga. at 826-827.

2. R. R. Donnelley further contends that the superior court erred in reversing the Board’s finding that Ogletree had not performed a diligent job search under the Maloney standard. We disagree.

Under Maloney, supra, 265 Ga. at 828, a claimant may receive workers’ compensation benefits if he establishes by a preponderance of the evidence that he

[(i)] suffered a loss of earning power as a result of a compensable work-related injury; [(h)] continues to suffer physical limitations attributable to that injury; and [(iii)] has made a diligent, but unsuccessful effort to secure suitable employment following termination. Once evidence is offered in support of the foregoing, the board may in its discretion draw reasonable inferences from that evidence that despite the claimant’s good faith efforts, his or her inability to obtain suitable employment was proximately caused by the continuing disability.

(Punctuation omitted; emphasis supplied.) Id.

R. R. Donnelley’s claim of error pertains to the third element under Maloney requiring Ogletree to show that he made a diligent effort to secure suitable employment following his injury and layoff. The undisputed evidence established that after being laid off, Ogle-tree searched for work using the internet, newspaper, and the Georgia Department of Labor’s website. He applied for approximately 24 jobs, but was unsuccessful in his efforts to secure suitable employment. Although the ALJ found that Ogletree had satisfied his burden of proof under the Maloney standard based upon the evidence, the Board’s appellate division reversed and concluded that Ogletree failed to establish a diligent job search since he did not have any interviews and did not personally visit any potential employers. The superior court reversed the decision of the appellate division in this regard, ruling that the appellate division relied upon an erroneous legal theory in reaching its conclusion. We agree.

As previously stated, no deference is owed to the appellate division’s conclusions that are based upon an erroneous legal theory. See Trent Tube, supra, 261 Ga. App. at 525. When the Board’s decisions are based upon an erroneous legal theory, we review the issue de novo. Id. As noted by the superior court, the appellate division’s decision requiring Ogletree to secure interviews and in-person site visits with the prospective employers imposed an additional burden on Ogletree beyond what is required under Maloney. Significantly, Ogletree gave uncontroverted testimony that he followed the Georgia Department of Labor’s instructions during his job search. Ogletree, as an applicant, did not control the hiring process. There was no evidence reflecting that Ogletree, rather than the prospective employers, controlled whether he was extended opportunities for interviews or in-person site visits.

In Maloney, the Court overruled cases that imposed an additional burden on the claimant to prove the reasons why he or she was not hired by a prospective employer, noting that such requirement created an often impossible burden on the claimant in contravention of the liberal interpretation to be given to the Workers’ Compensation Act. See Maloney, supra, 265 Ga. at 827-828. Since the appellate division’s decision similarly imposed an additional burden upon Ogletree with respect to matters that were beyond his control and inconsistent with the instructions that he was given during the hiring process, its decision was erroneous. See, e.g., id. The decision, therefore, was properly reversed.

3. Lastly, R. R. Donnelley argues that the superior court erred in affirming the Board’s finding that Ogletree had suffered a compensable lower back injury since there was no notice that Ogletree was asserting such a claim. Again, no error has been shown.

“Under the Workers’ Compensation Act[,] the employer is entitled to notice and an opportunity to be heard prior to being required to pay benefits.” (Citation and punctuation omitted.) Cypress Ins. Co. v. Duncan, 281 Ga. App. 469, 472 (4) (636 SE2d 159) (2006); Holliday v. Jacky Jones Lincoln-Mercury, 251 Ga. App. 493, 495 (1) (554 SE2d 286) (2001). R. R. Donnelley, however, has not shown that the notice requirement was breached in this case. Ogletree’s notice of claim and request for a hearing gave notice that he was seeking medical and TTD benefits as a result of the October 10, 2002 and April 17, 2008 accident dates. The notice generally listed “Multiple Body Parts (Including Body Systems and Body Parts)” as being the body parts injured, and otherwise specified that Ogletree’s neck and bilateral upper extremities were the injured body parts. At the hearing, Ogletree testified without objection that his injuries included his lower back. Significantly, R. R. Donnelley’s own post-hearing brief submitted to the ALJ made reference to the fact that “Ogletree reported increased symptoms, including pain in his lower back.” In light of this evidence, R. R. Donnelley’s claim that it lacked notice and an opportunity to be heard regarding the lower back injury is without merit. Compare Cypress Ins. Co., supra, 281 Ga. App. at 472 (4) (concluding that the claimant was not entitled to an award of permanent partial disability benefits since that issue was not raised by either party); Holliday, supra, 251 Ga. App. at 495-496 (1) (concluding that the claimant was not entitled to an award of permanent partial disability benefits since there was no clear indication that such issue was being raised).

Decided October 20, 2011

Reconsideration denied November 10, 2011

Swift, Currie, McGhee & Hiers, Douglas L. Clayton, for appellants.

Morgan & Morgan, Ronald C. Conner, Kenneth M. Brock, for appellee.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       During the course of Ogletree’s employment, the employer R. R. Donnelley changed ownership and was formerly known as IPD Printing Company and Wallace Computer Services, Inc. The employer’s former insurer was American Casualty Company of Reading c/o CNA Claimplus.

       The issue of whether Ogletree suffered a “new accident” or a change in condition is pertinent to the determination of whether his claim was time-barred and whether the new insurer, AIG, is liable for payment of the claim. See OCGA § 34-9-82 (a) (“The right to compensation shall be barred unless a claim therefore is filed within one year after injury, . . . one year after the date of the last remedial treatment furnished by the employer!,] or within two years after the date of the last payment of weekly benefits.”); Ga. Pacific Corp. v. Cross, 275 Ga. App. 664, 664-665 (1), (2) (621 SE2d 586) (2005). Ogletree filed his notice of claim for the April 17, 2008 “new accident” on December 17, 2008, within the required statutory deadline.

       The fact that Ogletree was laid off from his employment with R. R. Donnelley does not preclude his entitlement to benefits. See King v. Piedmont-Warner Dev., 177 Ga. App. 176 (338 SE2d 758) (1985).


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A11A0815.
    ARDIS et al. v. FAIRHAVEN FUNERAL HOME & CREMATORY, INC.
    (718 SE2d 843)
   Doyle, Judge.

Kimberly Ardis, Donna Kendrick, and Bridgett Bland (collectively “the Appellants”) filed a complaint against Fairhaven Funeral Home & Crematory, Inc. (“Fairhaven”), alleging that Fairhaven failed to disclose that a portion of the fees paid by the Appellants for obituary services covered the cost of having Fairhaven’s contact information and business logo (collectively “logo”) included at the bottom of each obituary, thereby causing the Appellants and other customers to unknowingly incur additional fees for the obituaries, which could have been avoided without inclusion of the logo. The Appellants filed a motion for class certification based on this claim, which motion the trial court denied. This appeal followed, and for the reasons below, we affirm.

In their lawsuit, the Appellants alleged that Fairhaven provided obituary services to its customers, which included forwarding the obituaries to the Savannah Morning News for pricing and publication. The Appellants contended that Fairhaven failed to disclose to its customers that a portion of the obituary fees was used to cover publication costs associated with inclusion of the Fairhaven logo in each obituary.

In their class certification motion, the Appellants sought to serve as representatives of the class of

[a] 11 customers of Fairhaven ... in the preceding four (4) years who have paid for obituary services and have suffered damages due to Fairhaven’s concealment of the fact that a portion of the fee paid for such services went towards an advertisement for Fairhaven in the obituary notices found in the Savannah Morning News.

The Appellants filed a brief in support of their motion, explaining that the advertisement at issue consisted of Fairhaven’s contact information followed by a diamond-shaped branding logo. The Appellants contended that the Savannah Morning News charged between $12.00 and $64.50 for inclusion of the logo depending on whether the customer’s obituary was fewer than 20 lines or more than 20 lines respectively.

Fairhaven responded to the motion, arguing that the trial court should deny the class certification motion because adjudicating the misrepresentation claim would require an individualized inquiry into whether each purported class member relied to their detriment on Fairhaven’s failure to disclose the inclusion of its logo. Moreover, Fairhaven contended that it was unaware of the newspaper’s policy to provide 20 free lines of text, and it merely passed on the final cost quoted by the newspaper to its customers.

Certification of a class action is a matter of discretion with the trial judge, and, absent abuse of that discretion, we will not disturb the trial court’s decision. We apply the clearly erroneous standard of review to the trial court’s ruling, and we must affirm if the ruling is supported by any evidence. We will not reverse the factual findings in a trial court’s class certification order unless they are clearly erroneous.

In order to receive class certification, the complainant must first fulfill the requirements set forth in OCGA § 9-11-23 (a) by establishing that

(1) [t]he class is so numerous that joinder of all members is impracticable; (2) [t]here are questions of law or fact common to the class; (3) [tjhe claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) [t]he representative parties will fairly and adequately protect the interests of the class.

Additionally, OCGA § 9-11-23 (b) requires that proposed class members establish that one of the following elements exists: (1) separate prosecutions would create a risk of either (A) inconsistent or varying adjudications; or (B) adjudications with respect to individual members of the class would impair or impede other members’ ability to protect their interests; (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class; or (3) questions of law or fact common to the members of the class predominate over any questions affecting only individual members, making a class action superior to other methods of adjudication. Here, the complainants chose to proceed under OCGA § 9-11-23 (b) (1) and (b) (3).

After a hearing on the motion to certify the class, the trial court issued an order finding that the proposed class had satisfied the requirements of numerosity, typicality, and adequacy of representation in OCGA § 9-11-23 (a) (1), (a) (3) and (a) (4). Nevertheless, the court denied the motion because the proposed class failed to satisfy the requirement for commonality in OCGA § 9-11-23 (a) (2) and the Appellants failed to establish sufficient risks of separate prosecution or the predominance of any common questions as required by OCGA § 9-11-23 (b) (1) and (b) (3).

1. The Appellants argue that the trial court abused its discretion by determining that the proposed class failed to meet the commonality requirement of OCGA § 9-11-23 (a) (2). We disagree and affirm.

In order to determine whether the trial court erred by finding that the commonality requirement was not met, this Court must determine whether the Appellants were similarly situated. Thus, review of the trial court’s determination that the proposed class did not satisfy OCGA § 9-11-23 (b) (3) requires us to analyze the misrepresentation claim against Fairhaven.

The tort of misrepresentation requires a plaintiff to establish

(1) that the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; [and] (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.

“In general, claims of fraud based upon oral misrepresentations are not appropriate for class treatment because the reliance element must be proved factually for each individual class member.”

As tbe trial court determined, such proof in this case would require an inquiry of every class member to determine whether they were told that the obituary fee included a charge for the logo and, if not, whether they would have declined to include the logo in the event they were given such information. As the Supreme Court of Georgia explained in Carnett’s, Inc. v. Hammond, “a common question is not enough when the answer may vary with each class member and is determinative of whether the member is properly part of the class.” There is some evidence present in the record to support the trial court’s finding, and therefore, we cannot say that it is clearly erroneous.

Decided November 10, 2011.

Savage & Turner, Robert B. Turner, Christopher D. Britt, for appellants.

Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Vera S. Edenfield, for appellee.

The Appellants contend that in this case, the trial court erred because it is possible to establish that Fairhaven intentionally concealed inclusion of the logo and its pass-through cost to customers because the record evidence shows that Fairhaven did not include the logo on the obituary proofs it forwarded to customers and because Fairhaven claimed that it was not aware of the cost of including the logo in the obituary. Nevertheless, this evidence is not sufficient to establish as a matter of law that the trial court should have granted the Appellants’ motion for class certification. Accordingly, we affirm the trial court’s denial of class certification.

2. Based on our holding in Division 1, we need not address the Appellants’ argument that the trial court erred by determining that the common issues lacked predominance over the individual issues pursuant to OCGA § 9-11-23 (b) (3).

Judgment affirmed.

Ellington, C. J., and Miller, E J., concur.

       (Citation and punctuation omitted.) Liberty Lending Svcs. v. Canada, 293 Ga. App. 731, 735 (1) (668 SE2d 3) (2008). See also Carnett’s, Inc. v. Hammond, 279 Ga. 125, 127 (3) (610 SE2d 529) (2005) (the Appellant “bearl.s] the burden of proving that class certification is appropriate.”) Moreover, a trial court’s denial of class certification will be affirmed if right for any reason. See Duffy v. The Landings Assn., 254 Ga. App. 506, 509 (1) (563 SE2d 174) (2002).

       Fairhaven conceded at the hearing the issues of numerosity and counsel’s adequacy.

       We note that the Appellants only were required to fulfill one of the requirements listed in OCGA § 9-11-23 (b).

       See Peck v. Lanier Golf Club, Inc., 304 Ga. App. 868, 871 (1) (697 SE2d 922) (2010).

       (Punctuation omitted.) Ekstedt v. Charter Medical Corp., 192 Ga. App. 248 (384 SE2d 276) (1989).

       (Punctuation omitted.) Fortis Ins. Co. v. Kahn, 299 Ga. App. 319, 322-323 (2) (a) (683 SE2d 4) (2009).

       See Perez v. Atlanta Check Cashers, Inc., 302 Ga. App. 864, 868-869 (692 SE2d 670) (2010) (holding that lack of evidence establishing class-wide lack of consent supported trial court’s determination that class certification was inappropriate); Life Ins. Co. v. Meeks, 274 Ga. App. 212, 217-218 (3) (b) (617 SE2d 179) (2005) (holding that class certification was inappropriate because of the individualized questions required). Compare with Fortis Ins. Co., 299 Ga. App. at 323 (2) (b) (holding that standardized, uniform, written documents containing alleged misrepresentation supported the trial court’s determination that predominance prong was met in class certification motion alleging misrepresentation).

        Carnett’s, Inc., 279 Ga. at 129 (4).

       Compare with Fortis Ins. Co., 299 Ga. App. at 322-323 (2) (a) (holding that trial court’s certification of class was not an abuse of discretion because standardized documents allowed jury to presume reliance on the part of the class members).

       See Garnett’s, Inc., 279 Ga. at 127-128 (3) (holding that trial court acted within its discretion in refusing to certify a class where individual issue of whether each class member received an unsolicited fax transmission was central to determining who was member of proposed class, and thus, the Court of Appeals erred by reversing the trial court’s denial of the motion); Perez, 302 Ga. App. at 870-871 (circumstantial evidence of identity theft and fraud on the part of former employer did not require reversal of the trial court’s denial of class certification because individualized proof of lack of consent would remain).


text:
    A11A0972.
    PROCTER v. GWINNETT PULMONARY GROUP & ASSOCIATES, P.C. et al.
    (718 SE2d 860)
   Doyle, Judge.

Sharon R. Procter appeals from the trial court’s dismissal of her medical malpractice and negligence claims filed against Gwinnett Pulmonary Group, EC. & Associates, PC., Dr. Sarah J. Hayat, and Shelly Hilliard (“the Defendants”) on the ground that Procter failed to timely file an expert affidavit pursuant to OCGA § 9-11-9.1. For the reasons that follow, we affirm in part and reverse in part.

Procter filed a pro se complaint against the Defendants, contending that on January 8, 2008, the Defendants violated the standard of care when Hilliard administered to Procter a drug via a bronchonebulizer, which caused Procter to lose her voice. After filing her complaint on January 8, 2010, Procter filed a motion for extension to file an expert affidavit pursuant to OCGA § 9-11-9.1, which affidavit Procter later filed on February 8, 2010. The Defendants answered and moved to dismiss Procter’s claims on the basis that she had failed to file contemporaneously with her complaint the expert affidavit.

Procter, now represented by counsel, appeals the trial court’s dismissal of her claims. “A motion to dismiss should only be granted if the allegations of the complaint, when construed in the light most favorable to the plaintiff with all doubts resolved in the plaintiffs favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.”

1. Procter first argues that the trial court erred by dismissing her claims against Hilliard for failure to file an expert affidavit pursuant to OCGA § 9-11-9.1 because Hilliard is not a licensed professional for whom an affidavit is required. We agree and reverse the trial court’s grant of the motion to dismiss as to Procter’s claims against Hilliard.

In their appellate brief, the Defendants urge this Court to disregard Procter’s argument because she failed to raise it before the trial court. Nevertheless, “OCGA § 9-11-9.1 . . . imposes an initial pleading requirement on the plaintiff in a malpractice action,” and “[i]n reviewing the grant of a motion to dismiss [for failure to state a claim], it is the duty of the appellate court to construe the pleadings in the light most favorable to the appellant with all doubts resolved in appellant’s favor.” “Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.” Thus, it was incumbent upon the Defendants to establish before the trial court that Procter failed to state a claim, and our reversal is based upon our application of the correct standard of review of Procter’s complaint.

Decided November 10, 2011.

Beverly R. Adams, for appellant.

In her complaint, Procter alleges that Hilliard, whom she characterizes as a “technician,” performed negligent acts that led to her injuries. OCGA § 9-11-9.1 (a) requires the contemporaneous filing of an expert affidavit only in professional malpractice claims asserted against certain professionals, and “technician” does not fall into any of the categories of professionals enumerated within the Code section. Thus, taking the allegations of the complaint in the light most favorable to Procter, she was not required to file an expert affidavit in order to state a claim against Hilliard. Accordingly, we reverse as to Procter’s claims against Hilliard and any derivative claims against Gwinnett Pulmonary Group.

2. Procter maintains that the trial court erred by dismissing her claims against Dr. Hayat for failure to file an expert affidavit with her complaint because the trial court erroneously found that the 45-day extension pursuant to OCGA § 9-11-9.1 (b) did not apply to Procter as a pro se litigant. We disagree. In Peck v. Bishop, this Court previously determined that a pro se litigant is not permitted an extension under this Code section. Accordingly, this enumeration is without merit, and the trial court’s dismissals of Procter’s claims related to Dr. Hayat and derivative clams against Georgia Pulmonary Group are affirmed.

3. Based on our determination in Division 1, we do not reach Procter’s remaining enumeration.

Judgment affirmed in part and reversed in part.

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

Owen, Gleaton, Egan, Jones & Sweeney, Melissa Phillips Reading, Rolfe M. Martin, for appellees.

       (Punctuation omitted.) Barnes v. Turner, 278 Ga. 788, 789 (1) (606 SE2d 849) (2004).

       (Emphasis omitted.) Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992).

       (Punctuation omitted.) Barnes, 278 Ga. at 789, n. 6.

         Bowen, 203 Ga. App. at 123-124.

       Cf. Beasley v. Northside Hosp., 289 Ga. App. 685, 688, n. 6 (658 SE2d 233) (2008) (noting that “[i]t is the evidence of record, not the assertions and objections made by counsel at the hearing, that determines the validity or invalidity of the grant of [a motion]”) citing Dental One Assoc. v. JKR Realty Assoc., 269 Ga. 616, 617 (1) (501 SE2d 497) (1998) and Falanga v. Kirschner & Venker, 286 Ga. App. 92, 97 (1) (b) (648 SE2d 690) (2007). Compare with Heard v. City of Villa Rica, 306 Ga. App. 291, 293-294 (701 SE2d 915) (2010).

       See OCGA § 9-11-9.1 (g) (listing architects, attorneys at law, audiologists, certified public accountants, chiropractors, clinical social workers, dentists, dietitians, land surveryors, marriage and family therapists, medical doctors, nurses, occupational therapists, optometrists, osteopathic physicians, pharmacists, physical therapists, physicians’ assistants, podiatrists, professional counselors, professional engineers, psychologists, radiological technicians, respiratory therapists, speech-language pathologists, or veterinarians).

       See, e.g., Pattman v. Mann, 307 Ga. App. 413, 417, n. 13 (701 SE2d 232) (2010) (stating that the “affidavit requirement does not apply to any acts committed by [the lab technologist], who is not recognized as a ‘professional’ under Georgia law”).

       See, e.g., OCGA § 9-11-9.1 (a) (2); PN Express v. Zegel, 304 Ga. App. 672, 680 (5) (697 SE2d 226) (2010).

       294 Ga. App. 132, 133-134 (2) (668 SE2d 558) (2008).


author: Miller, Presiding Judge.

text:
    A11A1003.
    BROWN v. THE STATE.
    (718 SE2d 847)
   Miller, Presiding Judge.

Following a jury trial, Mark Brown was found guilty of criminal attempt to commit entering an automobile (OCGA §§ 16-4-1, 16-8-18) and loitering or prowling (OCGA § 16-11-36). Brown filed a motion for new trial, which he subsequently amended. The trial court denied Brown’s motion, and Brown filed this appeal. Brown contends that (i) the evidence was insufficient to support his conviction of attempt to commit entering an automobile; (ii) the trial court erred by denying Brown’s motion for a directed verdict of acquittal as to loitering or prowling; and (iii) the trial court erred by sentencing Brown to consecutive confinement on the loitering or prowling charge because it should have merged into the conviction on attempt to commit entering an automobile. For the reasons stated below, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497, 497 (699 SE2d 819) (2010).

So viewed, the evidence shows that an on-duty security guard for Athens Security Agents was patrolling a sorority house at the University of Georgia. No men resided at the sorority house. At approximately 2:00 a.m., the security guard noticed a man in the back parking lot of the sorority house, who was standing with his hand on the door of a vehicle parked in the lot. The security guard watched the man try to pull the vehicle’s door open several times. The security guard began approaching the man and asked him who he was and what he was doing. As the security guard was approaching him, however, and before the man was able to get the vehicle door open, he fled from the parking lot. The security guard called the police.

The responding officer met the security guard at the sorority house parking lot and obtained a description of the man. After the description was dispatched over the radio, another officer in the area observed a man matching the description enter a nearby sandwich shop. The responding officer and security guard went to the sandwich shop, where the security guard identified Brown as the man he saw in the sorority house parking lot and Brown was arrested. The security guard later provided an in-court identification of Brown.

1. Brown contends that there is insufficient evidence to support his conviction for attempt to commit entering an automobile.

[T]his 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 [S]tate’s case, this Court will uphold the jury’s verdict.

(Punctuation and footnote omitted.) Heard v. State, 299 Ga. App. 44, 44 (1) (681 SE2d 701) (2009).

“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. A person commits the crime of entering an automobile by entering any such automobile with the intent to commit a theft. OCGA § 16-8-18.

Brown contends that lifting the door handle of a vehicle did not constitute a substantial step toward the offense of entering an automobile, and that there was insufficient evidence of intent because the State failed to set forth testimony that the vehicle was damaged or that it contained any valuables. Brown’s arguments are meritless.

The substantial step language of OCGA § 16-4-1 shifts the emphasis from what remains to be done to what the actor has already done. The fact that further steps must be taken before the crime can be completed does not preclude such a finding that the steps already undertaken are substantial. In addition to assuring firmness of criminal purpose, the requirement of a substantial step will remove very remote preparatory acts from the ambit of attempt liability and the relatively stringent sanctions imposed for attempts.

(Citation and punctuation omitted.) Evans v. State, 216 Ga. App. 21, 22 (1) (453 SE2d 100) (1995). Brown’s act of repeatedly pulling at a vehicle’s door handle amounts to more than a mere preparatory act, and is instead an act “proximately leading to the consummation of the crime of entering an automobile.” Id. (concluding for purposes of attempt to enter an automobile, that defendants went beyond remote acts of preparation when they drove to the shopping center parking lots in search of a specific car to enter). Moreover, the lack of evidence that the vehicle was damaged or that it contained valuables “does not automatically result in a lack of evidence from which intent may be inferred.” Pound v. State, 230 Ga. App. 467, 468 (2) (496 SE2d 769) (1998). Indeed, “[t]he intent to commit a theft [as is required for the crime of entering automobile] may also be inferred by appellant’s . . . action of attempting to break into an area of an automobile in which valuables might be stored.” Id.

Here, contrary to Brown’s arguments, there was sufficient evidence to sustain his conviction. Brown was seen repeatedly pulling on the door handle of a vehicle parked in a sorority house parking lot at 2:00 a.m., and upon being confronted by a security guard, Brown immediately fled the sorority house parking lot. The jury was authorized to consider Brown’s flight as circumstantial evidence of his guilt. Tauch v. State, 305 Ga. App. 643, 645-646 (1) (700 SE2d 645) (2010) (“The fact that a suspect flees the scene of a crime points to the question of guilt in a circumstantial manner. . . .”) (citation and punctuation omitted). The evidence was sufficient to enable a rational trier of fact to find Brown guilty beyond a reasonable doubt of attempt to commit the crime of entering an automobile. See Evans, supra, 216 Ga. App. at 22 (1).

2. Brown next challenges the trial court’s denial of his motion for a directed verdict of acquittal as to the offense of loitering or prowling. “On appeal, the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction.” (Citation omitted.) Van Auken v. State, 304 Ga. App. 802, 802 (697 SE2d 895) (2010).

“A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” OCGA § 16-11-36 (a). Here, based upon the evidence set forth above, “a rational trier of fact could have found beyond a reasonable doubt that [Brown] was present at an odd place, at a suspicious time of day, exhibited an unusual appearance, and was behaving in a bizarre manner atypical of law-abiding individuals.” (Citations and punctuation omitted.) O’Hara v. State, 241 Ga. App. 855, 857 (1) (528 SE2d 296) (2000).

In support of his enumeration of error, however, Brown nevertheless contends that the failure of the investigating law enforcement officers to afford Brown an opportunity to explain his presence at the sorority house parking lot rendered Brown’s conviction for loitering or prowling illegal under OCGA § 16-11-36 (b). OCGA § 16-11-36 (b) provides in relevant part:

. . . Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.

(Emphasis supplied.)

Brown claims that given his “level of cooperation with [the investigating officers], there were no circumstances that excused the officers’ failure to comply with the procedures outlined in the statute.” Brown’s “level of cooperation” with a law enforcement officer, however, is not dispositive under OCGA § 16-11-36 (b). Rather, in determining whether an officer should have afforded the suspect an opportunity to dispel alarm, the statute expressly relieves an officer from doing so where there has been “flight by the person.” OCGA § 16-11-36 (b). Such was the situation here, where there was evidence that Brown immediately fled from the sorority house parking lot upon being detected and confronted by a security guard. Accordingly, OCGA § 16-11-36 (b) did not require the investigating law enforcement officers to seek an explanation from Brown concerning his earlier presence and conduct at the sorority house parking lot. Cf. O’Hara, supra, 241 Ga. App. at 857 (1) (“Given [defendant’s] flight combined with his peculiar behavior and appearance, the investigating officer might well have considered the circumstances impracticable for seeking an explanation from [defendant] concerning his presence and conduct.”) (punctuation and footnote omitted). Therefore, Brown’s claim is without merit and the trial court properly denied his motion for a directed verdict of acquittal.

3. Brown argues that, for purposes of sentencing, his conviction for loitering or prowling should have merged into his conviction for attempt to commit the crime of entering an automobile. “We review merger issues under OCGA § 16-1-7 (a) de novo.” (Citation and footnote omitted.) Howard v. State, 301 Ga. App. 230, 230 (687 SE2d 257) (2009).

To determine whether the offenses merged, we apply the required evidence” test set forth in Drinkard v. Walker, 281 Ga. 211, 214-215 (636 SE2d 530) (2006). “Under that test, we examine whether each offense requires proof of a fact which the other does not.” (Citation and punctuation omitted.) Long v. State, 287 Ga. 886, 888 (2) (700 SE2d 399) (2010). Attempt to commit the crime of entering an automobile requires proof that Brown had intent to commit the crime of entering automobile and that he performed an act which constituted a substantial step toward the commission of entering an automobile. See OCGA §§ 16-4-1, 16-8-18. As set forth in Division 2 above, “[a] person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” OCGA § 16-11-36 (a).

Decided November 10, 2011.

Benjamin A. Pearlman, for appellant.

Kenneth W Mauldin, District Attorney, Antonio E. Veal, Assistant District Attorney, for appellee.

Contrary to Brown’s argument, merging of the sentences is not warranted here, where mutually exclusive elements of the crimes remain. See Drinkard, supra, 281 Ga. at 216. Notably, loitering or prowling requires proof of a fact that attempt to commit entering an automobile does not — that is, presence in a place at a time or in a manner not usual for law-abiding individuals. See OCGA § 16-11-36 (a). Likewise, attempt to commit entering an automobile requires proof of a fact that loitering or prowling does not — performance of an act which constituted a substantial step toward the commission of entering an automobile. See OCGA §§ 16-4-1, 16-8-18.

Thus, the loitering or prowling conviction does not merge into the attempt to commit entering an automobile conviction, and the trial court did not err by entering consecutive sentences for each offense.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       Brown was also charged with entering an automobile (OCGA § 16-8-18), but the jury found him not guilty on that count.


text:
    A11A1250.
    BROCK v. HARRIS.
    (718 SE2d 851)
   Doyle, Judge.

Ted Brock, d/b/a Hogarth’s Lawn Mower Service Center and Brock’s Outdoor, appeals from the trial court’s order denying his motion for summary judgment as to Fred L. Harris’s claims filed pursuant to OCGA § 51-3-1, arising from an incident in which Harris contends he was injured attempting to escape from Brock’s dog while visiting Brock’s place of business. For the reasons that follow, we reverse.

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. Moreover,

a defendant demonstrates entitlement to summary judgment by showing that the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiffs case. The defendant does not need to affirmatively disprove the plaintiffs case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.

Viewed in the light most favorable to the nonmovant, the evidence shows that Brock owned and operated a lawn mower repair shop and was the only worker in the store on December 14, 2007. Brock had brought his dog, which he had owned since the dog was a puppy, to the store on that day, and the dog routinely was in the store during business hours. Harris, a customer of the store, entered the shop and approached the counter when “a large dog appeared from the backroom and moved aggressively” toward him. Harris broke his ankle when he jumped into a trailer parked outside the store attempting to escape the animal. Brock was upstairs during the encounter and deposed that just before Harris was injured, Brock heard the dog’s paws click across the floor. Brock stated that he did not hear the dog bark or growl, and Brock knew of no previous instance in which the dog had attacked, injured, bitten, or acted aggressively toward anyone. Harris presented no evidence of prior aggressive acts by the dog.

Harris sued Brock alleging that Brock “knew or should have known of the danger associated with allowing an aggressive dog to roam his premises before” the incident involving Harris. Brock moved for summary judgment on the basis that there was no issue of material fact as to the question of whether Brock had knowledge that his dog would behave aggressively toward Harris. After a hearing, the trial court denied Brock’s motion, finding that there were issues of material fact regarding whether Brock had superior knowledge of the dog’s propensity toward aggressive behavior. The trial court issued a certificate for immediate review, and Brock filed an application for interlocutory appeal with this Court, which this Court granted. We now reverse the trial court’s denial of summary judgment.

Decided November 10, 2011.

A. Martin Kent, for appellant.

Steven L. Morgan, for appellee.

Pursuant to OCGA § 51-3-1, an owner or occupier of land “is liable in damages to [invitees] for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” Harris contends that by keeping the dog on the premises, Brock created an unsafe condition for invitees. Nevertheless,

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

Moreover, ‘ ‘under Georgia law, there is a presumption that dogs are harmless,” and a plaintiff bears the burden of showing superior knowledge on the part of the owner that the dog is not harmless. Here, Harris failed to produce any evidence of Brock’s superior knowledge that his dog had a propensity to behave aggressively toward people, and thus, the trial court erred by denying Brock’s motion for summary judgment.

Judgment reversed.

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

       See OCGA § 9-11-56 (c).

       (Punctuation omitted.) Food Lion v. Walker, 290 Ga. App. 574 (660 SE2d 426) (2008).

       See Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Punctuation omitted.) Custer v. Coward, 293 Ga. App. 316, 319 (2) (667 SE2d 135) (2008). See Gibson v. Rezvanpour, 268 Ga. App. 377, 379 (2) (601 SE2d 848) (2004).

       See Gibson, 268 Ga. App. at 379 (3).


text:
    A11A1334.
    STEPHO v. THE STATE.
    (718 SE2d 852)
   Miller, Presiding Judge.

Following a jury trial, Nashwan Stepho was convicted of two counts of child molestation (OCGA § 16-6-4 (a)) and two counts of aggravated child molestation (OCGA § 16-6-4 (c)). Stepho filed a motion for a new trial, which the trial court denied. Stepho appeals, contending that the evidence was insufficient to sustain his conviction. He further contends that the trial court erred in admitting his prior conviction for sexual battery as similar transaction evidence at trial and in denying his motion to sever offenses. For the reasons that follow, we discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Mullís v. State, 292 Ga. App. 218 (664 SE2d 271) (2008).

So viewed, the trial evidence shows that on an occasion during the summer of 2006, the 12-year-old female victim, A. E, accompanied by her friend, B. C., visited the 13-year-old male victim, R. S., at his grandmother’s residence. Following the visit, Stepho, who was R. S.’s paternal uncle, agreed to drive the girls home. A. E sat next to Stepho in the front passenger seat of the vehicle, while B. C. sat in the back seat. As he was driving, Stepho reached out to A. E, put his hand down her shirt, and touched A. E’s breast. B. C. observed Stepho’s molestation act. A. E pushed Stepho’s hand away and said, “Flease stop.”

Following the incident, A. E and B. C. convinced Stepho to stop at a nearby store. Upon entering the store, A. E went into the restroom, used a cell phone to call R. S., and informed R. S. of the molestation incident. A. E then left the restroom, took the cell phone to Stepho, and allowed R. S. to speak to Stepho regarding the incident. After being reprimanded by R. S., Stepho apologized to A. E Upon reentering Stepho’s vehicle, A. E sat with B. C. in the back seat. R. S. stayed on the phone with A. E until she arrived at her residence and the girls exited Stepho’s vehicle.

Later that evening, A. E told her best friend about the molestation incident. Eventually, A. E also disclosed the molestation to her cousin. In turn, A. E’s aunt was informed of A. E’s disclosure, and the matter was reported to law enforcement authorities.

While investigating the incident involving A. E, the detective spoke to R. S. After R. S. spoke with the detective regarding A. E’s molestation incident, R. S. disclosed to his school counselor that he also had been sexually molested by Stepho. R. S. reported that Stepho had been molesting him since he was nine years old. R. S. described that on one occasion, Stepho laid on top of R. S. and placed his penis on R. S.’s anus. R. S. also described an incident in which Stepho forced R. S. to rub his penis. R. S. stated that on other occasions, Stepho placed his penis inside R. S.’s mouth.

Both A. E and R. S. were interviewed by an expert child forensic interviewer. During their respective forensic interviews, A. E and R. S. disclosed details regarding the molestation incidents perpetrated upon them by Stepho. The forensic interviews were recorded on videos, which were admitted into evidence and played for the jury at trial.

The State also presented evidence of a similar incident that occurred in May 2006, in which Stepho committed a sexual battery of a female victim by touching her breast. Stepho was charged and entered a guilty plea to the sexual battery offense.

Following the presentation of the evidence, the jury found Stepho guilty of each child molestation and aggravated child molestation offense, as charged.

1. The evidence set forth above was sufficient to sustain Stepho’s conviction. See OCGA § 16-6-4 (a), (c) (defining child molestation and aggravated child molestation). Although Stepho argues that there was no evidence corroborating R. S.’s molestation claim, his argument is unavailing. The uncorroborated testimony of a child victim is sufficient to support a conviction for child molestation and aggravated child molestation. See Daniel v. State, 296 Ga. App. 513, 515-516 (1) (675 SE2d 472) (2009); Sewell v. State, 244 Ga. App. 449, 451 (1) (c) (536 SE2d 173) (2000). Although R. S. recanted his prior statements concerning Stepho’s acts of sodomy, his recantation did not preclude a conviction on the aggravated child molestation offenses. See Lewis v. State, 278 Ga. App. 160, 161-162 (1)-(2) (628 SE2d 239) (2006) (ruling that the victim’s recantation did not render the evidence against the defendant insufficient since the victim’s prior inconsistent statements describing the sexual activity were substantive evidence establishing the defendant’s guilt). R. S.’s prior inconsistent statements concerning Stepho’s acts of sodomy were allowed to serve as substantive evidence of Stepho’s guilt. Id.

Stepho’s challenges to the credibility of the victims’ molestation reports likewise afford no basis for reversal. “[Rlesolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.” (Punctuation and footnote omitted.) Hernandez v. State, 304 Ga. App. 435, 436 (1) (696 SE2d 155) (2010). We will not disturb the jury’s credibility findings on appeal. Id.

In addition, Stepho’s contention that the verdict was against the weight of the evidence affords no basis for reversal.

[Ajlthough the trial court was empowered with the authority to grant a new trial after weighing the evidence in accordance with OCGA § 5-5-21,[] the trial court’s refusal to grant the requested relief affords no basis for reversal. The motion is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.

(Citations, punctuation and footnote omitted.) Souder v. State, 301 Ga. App. 348, 352 (3) (687 SE2d 594) (2009). As stated above, the evidence established Stepho’s commission of the crimes and supports the verdict. The trial court’s decision denying Stepho’s claim therefore will not be disturbed. Id.

2. Stepho further contends that the trial court erred in admitting the similar transaction evidence of his prior sexual battery conviction. We disagree.

Generally, evidence of prior crimes committed by a defendant is inadmissible, but exceptions to this rule have developed allowing the admission of such evidence for limited purposes, such as to show identity, plan, scheme, bent of mind, or course of conduct. The exception to the general rule has been most liberally extended in the area of sexual offenses: In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.
In order to establish the admissibility of similar transaction evidence, the state is required to make the three affirmative showings outlined in Williams v. State, [261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991)]. First, the state must identify a proper purpose for admitting the transaction; second, the state must show that the accused committed the separate offense; and third, the state must show a sufficient similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter.

(Punctuation and footnotes omitted.) Copeland v. State, 276 Ga. App. 834, 836-837 (1) (625 SE2d 100) (2005).

Here, the trial court conducted a hearing pursuant to Williams, supra, and determined that Stepho’s 2007 sexual battery conviction was admissible as similar transaction evidence. At the hearing, the State indicated that its purpose for introducing the 2007 sexual battery conviction was to show Stepho’s course of conduct, bent of mind, and lustful disposition. These limited purposes are appropriate for the introduction of the evidence. See Copeland, supra, 276 Ga. App. at 837 (1). The State’s evidence showed that Stepho had pled guilty to the sexual battery, establishing that Stepho had committed the separate offense. The evidence also showed that both the prior sexual battery and the molestation of A. E involved Stepho’s acts of touching the female victims’ breasts, and that both incidents occurred within a three-month time frame during the summer of 2006. Based upon this evidence, the trial court was authorized to find that the prior sexual battery and the molestation of A. E were similar. The fact that Stepho’s sexual battery was against an adult woman, and the instant molestation was against a child, did not make the similar transaction inadmissible. See Kingsley v. State, 268 Ga. App. 729, 730 (1) (603 SE2d 78) (2004) (“[T]he difference in the victims’ ages does not make the similar transaction inadmissible.”) (citations and punctuation omitted).

Stepho nevertheless argues that the similar transaction evidence was inadmissible since two years had elapsed between his sexual battery conviction and his indictment in the instant case. His argument is without merit. “Where, as here, the similar transaction evidence is otherwise admissible, a time lapse such as this goes to the weight and credibility of the evidence and does not demand its exclusion.” (Citation omitted.) Collins v. State, 310 Ga. App. 613, 617 (2) (714 SE2d 249) (2011); Copeland, supra, 276 Ga. App. at 837 (1). The trial court did not abuse its discretion in admitting the similar transaction evidence in this case.

3. Stepho also argues that the trial court erred in denying his motion to sever the offenses involving A. E from the offenses involving R. S. Again, we conclude that no error has been shown.

When two or more crimes of the same general nature are committed against different persons, at different times and places, and are charged in separate counts of an indictment, severance is mandatory upon the defendant’s motion if the crimes are joined solely because they are of the same or similar character. Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975). If the offenses are not joined solely because they are of the same or similar character, and evidence of one charged offense would be admissible as a similar transaction during trial on another charged offense, the trial court is vested with discretion in deciding whether to grant a motion to sever. Stewart v. State, 277 Ga. 138, 140 (587 SE2d 602) (2003). In making this decision, the court must consider the number of offenses charged, the complexity of the charges, and the complexity of the evidence and determine whether the jury will be able to fairly and intelligently parse the evidence and apply the law with regard to each charge.

(Punctuation omitted.) Machiavello v. State, 308 Ga. App. 772, 773 (2) (709 SE2d 28) (2011).

In this case, although the charged offenses involved different victims and occurred on different dates, they showed Stepho’s common motive, lustful disposition, and bent of mind to satisfy his sexual desires. Notably, Stepho gained access to his second victim, A. E, through his familial relationship with his first victim, R. S. Furthermore, the molestation of R. S. came to light during the investigation of the molestation of A. E The trial court was authorized to find that the circumstances related to Stepho’s molestation of either child victim would have been admissible as similar transaction evidence in his trial involving the molestation of the other. See Collins, supra, 310 Ga. App. at 617 (2) (“The mere difference in the victims’ ages, sex, and specific acts of molestation did not render the similar transaction inadmissible.”). “Where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying appellant’s motion for severance.” (Citation and punctuation omitted.) Boatright v. State, 308 Ga. App. 266, 274 (2) (707 SE2d 158) (2011).

Decided November 10, 2011.

Louis M. Turchiarelli, for appellant.

Garry T. Moss, District Attorney, Wallace W. Rogers, Jr., Cliff Head, Assistant District Attorneys, for appellee.

Moreover, this case was not so complex as to impair the jury’s ability to distinguish the evidence and apply the law intelligently as to each offense. Consequently, we conclude that the trial court did not abuse its discretion in denying [Stepho’s] motion to sever and motion for new trial on this basis.

(Citations and punctuation omitted.) Boatright, supra, 308 Ga. App. at 274 (2).

Judgment affirmed.

Ellington, C. J., and Doyle, concur.

       Prior to admitting the similar transaction evidence, the trial court gave a jury instruction explaining that the evidence was to be considered for the limited purpose of showing, if it did, Stepho’s bent of mind or intent in the instant charges.

       OCGA § 5-5-21 authorizes a trial judge to “exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.” Similarly, OCGA § 5-5-20 authorizes a trial judge to grant a new trial “[i]n any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity!.]” It is well established that “!n]o court except the trial court is vested by OCGA §§ 5-5-20 and 5-5-21 with the authority to grant a new trial in a matter relating to the weight of the evidence.” (Punctuation and footnote omitted.) Clark v. State, 249 Ga. App. 97 (547 SE2d 734) (2001).


text:
    A11A1343.
    SUPERIOR HOME DESIGN, LLC et al. v. STATE BANK & TRUST COMPANY.
    (718 SE2d 857)
   Doyle, Judge.

This case arises from an application for confirmation of a foreclosure sale filed by State Bank and Trust Company, as assignee of the Federal Deposit Insurance Corporation (“the Bank”), against Superior Home Design, LLC, and Shawn Shakib (collectively “Superior Home”). Superior Home appeals the trial court’s order confirming the sale of the subject property for $270,000, arguing that (1) no competent evidence existed in the record that the Bank paid property taxes on the property or of the amount of those taxes; and (2) the trial court erred by deducting those taxes when it determined that the Bank presented evidence that it paid true market value for the property. For the reasons that follow, we affirm.

The record shows that in exchange for a security deed on property located in Gwinnett County, the Bank loaned Superior Home $429,199.65. Superior Home defaulted on the loan, and the Bank executed foreclosure proceedings. On May 4, 2010, the property was sold at public auction to the Bank, the only bidder, for $270,000.

Thereafter, the Bank filed a report of sale and application for confirmation of the sale, asking the trial court to find that the foreclosure proceeding was regular and that the property sold for true market value. The parties stipulated to the legality of notice, advertisement, and regularity of the sale, but Superior Home contested that the Bank had paid true market value for the property with its bid of $270,000.

Superior Home’s appraiser testified that the property was worth $285,000, with a five percent margin of error, and the Bank’s appraiser testified that the property, assuming it was unencumbered by any outstanding liens, was worth $280,000, again with a five percent margin of error. An individual identified as Mr. Chatham, but not recognized as one of the appraisers or attorneys, explained that the Bank had paid $10,740 for the 2008 and 2009 taxes on the property. Superior Home’s appraiser testified that he used the lower-end comparables in his sales report to determine the true market value of the property because the market was still declining.

After the hearing, the trial court confirmed the sale, finding that based on the testimony of the appraisers, the “fair” market value of the property as an unencumbered, fee simple property at the time of the sale was $280,000 with a five percent margin of error, but after deducting the amount of property taxes paid by the Bank, $10,740.92, the actual true market value of the property was $269,259.08, which was lower than the $270,000 paid for the property at the sale. This appeal followed.

Value on the date of sale is a factual question to be resolved by the trier of fact. In a proceeding for confirmation of a foreclosure sale of real property, the judge sits as a trier of fact, and his findings and conclusions have the effect of a jury verdict. Where the trial judge, sitting as the trier of the facts, hears the evidence, his finding based upon conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.

1. Superior Home argues that the trial court erred by finding that the true market value of the subject property was $269,259.08. We disagree.

A trial court cannot confirm a foreclosure sale unless it is satisfied that the property so sold brought its true market value — the price that the property will bring when it is offered for sale by one who is not obligated, but has the desire to sell it, and is bought by one who wishes to buy it, but is not under a necessity to do so.

Moreover, a trial court’s order that is right for any reason must be affirmed.

As an initial matter, Superior Home contends that no competent evidence in the record supports the Bank’s contention that it paid a tax lien of $10,740.92 to clear title on the property, and thus, the trial court erred by deducting that amount from the appraised value of the property in order to calculate its true market value. Nevertheless, we affirm the trial court’s confirmation of the sale because there is some evidence in the record to support the court’s ultimate conclusion that the property sold for its true market value.

At the hearing, both the appraiser for the Bank and the appraiser for Superior Home testified that their estimates included a five percent margin of error. The trial court determined the true market value of the property was $269,259.08; a deduction of five percent from $280,000 would yield a minimum sale price of $266,000. Thus, there was evidence that the Bank’s sale of the property for $270,000 brought at least the true market value.

Superior Home claims it would be error to affirm the court’s order using an analysis different from that of the trial court’s, but this contention is without merit. “[W]e will not overturn a trial court’s decision regarding confirmation of a foreclosure sale if there is any evidence to support the decision.” Based on the trial court’s statements during the hearing and its findings in the order confirming the sale, the court clearly believed that the property was sold for its true market value. The Bank’s appraiser’s margin of error alone provides evidence in the record to support the trial court’s finding that the property sold for true market value.

Decided November 10, 2011.

Michael A. Penn, for appellants.

Siegel & Golder, Mark L. Golder, for appellee.

2. Based on our conclusion in the previous division we decline to address Superior Home’s remaining enumeration of error.

Judgment affirmed.

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

       Shakib also executed a personal guaranty on the loan upon which he later defaulted.

       (Punctuation omitted.) Trefren v. Freedom Bank of Ga., 300 Ga. App. 112, 113 (684 SE2d 144) (2009).

       (Punctuation omitted.) Id.

       See Foster v. Tycor, Inc., 267 Ga. App. 767, 770 (601 SE2d 172) (2004).

       We note that the transcript of the proceedings reveals that the hearing did not occur in the typical fashion wherein each party swears in its witnesses and presents its arguments; rather, the proceeding was much more conversational with the trial court conducting voir dire of the appraisers without much assistance from the attorneys. At one point, Mr. Chatham provided the amount of taxes paid on the property by the Bank, but it does not appear that he was sworn in by the court.

       According to Superior Home’s appraiser, the property was worth $285,000 at the time of the sale, which would yield a minimum sale value of $270,750 based on his testimony that the valuation was within plus or minus 5 percent. This results in a difference of $750 between the price the property sold for and the minimum sale price according to Superior Home’s appraiser.

        Wilson v. Prudential Indus. Properties, 276 Ga. App. 180, 180-181 (622 SE2d 890) (2005).

       Compare Belans v. Bank of America, 303 Ga. App. 654, 656 (2) (694 SE2d 725) (2010) (reversing confirmation because appraiser did not testify and court relied solely on hearsay statements by counsel); Wheeler v. Coastal Bank, 182 Ga. App. 112, 114 (354 SE2d 694) (1987) (reversing confirmation of sale because every construction of the evidence established that the property’s true market value was “at least” greater than sale price).


author: McFadden, Judge.

text:
    A11A1552.
    SCHNEIDER v. THE STATE.
    (718 SE2d 833)
   McFadden, Judge.

After a jury trial, John Schneider was convicted of terroristic threats, false imprisonment and felony theft by taking. He appeals, challenging the sufficiency of the evidence and a jury charge regarding the offense of terroristic threats. Because the jury charge did not amount to reversible error and there is enough evidence to support the guilty verdicts as to false imprisonment and terroristic threats, we affirm those convictions. We also find sufficient evidence to support the guilty verdict as to theft by taking; however, since there was insufficient evidence showing that the value of the stolen property exceeded $500, we vacate Schneider’s felony theft sentence and remand for resentencing as a misdemeanor.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence.” (Citations and punctuation omitted.) Hyde v. State, 291 Ga. App. 662 (662 SE2d 764) (2008). So viewed, the evidence shows that approximately a year after having been released from prison for drug and other offenses, the 41-year-old Schneider met the victim, a 65-year-old widow, in Sunbury, Georgia. The two began a romantic relationship, and several weeks later, Schneider, who had been living on a salvaged sailboat that he had bought for $300, moved into the victim’s house.

Shortly after moving in with the victim, Schneider began physically and verbally abusing her. On several occasions, he burned her furniture — including tables, chairs and fans that he had ripped out of the ceiling — in the yard. During one of these furniture-burning episodes, Schneider forced the victim to sit in a chair for hours, cursed at her, refused to let her use the bathroom, and poured soda and beer on top of her head when she asked for water. When she later got up from the chair and approached him on the deck of the house, he held his hand so tightly across her face that it caused bruising around her nose.

On another occasion, Schneider damaged the victim’s car. He wrote a curse word, as well as the words “whore” and “bitch,” on the hood of the vehicle, broke the mirror and broke the driver’s door so that it would not open. When the victim’s son later came to the house, Schneider refused to let him in, threatening to slice his throat if he entered the house.

The abuse culminated on February 22, 2007, when Schneider cursed and yelled at the victim and repeatedly spit in her face, as she lay naked on her bed. He refused the victim’s repeated requests to get off the bed, forced her to sign a bill of sale purportedly showing that she had sold a boat to him for $5,000, and made her write him a check for $12,000.

Schneider ordered the victim to go into the bathroom, fill the bathtub with water and get in it. The victim complied, fearing that Schneider would kill her if she resisted. Once she was in the bathtub, Schneider turned on a hair dryer and threatened that he was going to cause the victim to have a heart attack by putting the dryer in the tub with her. She begged him not to do so, but Schneider plunged the hair dryer into the water. The victim feared that she would die, but realized that Schneider had unplugged the hair dryer before he put it in the water. With the victim still in the bathtub, Schneider defecated in the toilet and then, using a spoon that he had gotten from the kitchen, forced the victim to eat his feces. He rubbed feces in her hair and on her shoulders and back, and then told her to take a shower.

Eventually, Schneider fell asleep, and the victim escaped from the house. She went to the home of neighbors, who took her to the sheriffs department to report the incident. After Schneider awoke, he left the house and met his nephew, who told him that the police were looking for him. Schneider returned to the victim’s house, took some of her jewelry and then pawned it at a pawn shop for $275. Schneider fled the area on a boat that the victim had purchased, and several days later he was caught by the Coast Guard in Florida.

1. Schneider claims that his terroristic threats conviction, for having threatened to cause the victim to have a heart attack by throwing the hair dryer into the bathtub with her, must be reversed because there is no evidence corroborating the victim’s testimony about the threat. The claim is without merit.

A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence with the purpose of terrorizing another. The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.

(Citations and punctuation omitted.) Clement v. State, 309 Ga. App. 376, 379 (1) (710 SE2d 590) (2011). But no person shall be convicted of the offense of terroristic threats based on the uncorroborated testimony of the person to whom the threat was communicated. OCGA § 16-11-37 (a). Nevertheless,

[i]t is well established that the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.

(Citations and punctuation omitted.) Wilson v. State, 291 Ga. App. 263, 264 (1) (661 SE2d 634) (2008).

In this case, the victim was the only witness to testify about Schneider’s threat to throw the hair dryer into the bathtub with her. But corroborating circumstances may include a defendant’s aggressive and hostile conduct leading up to a threat, Hobby v. State, 298 Ga. App. 52, 54 (1) (679 SE2d 72) (2009), and in this case there was ample evidence of Schneider’s hostile and abusive treatment of the victim leading up to the incident in the bathroom. Moreover, Schneider himself admitted during his trial testimony that he was in the bathroom while the victim was in the bathtub. And after the incident, police investigators found the hair dryer in the bathroom, as well as a towel smeared with feces.

Given these circumstances, the victim’s testimony regarding the incident “was sufficiently corroborated by the evidence concerning the events which transpired immediately before and after [Schneider] made the asserted threat! ].” (Citation and punctuation omitted.) Scott v. State, 225 Ga. App. 729, 732 (3) (484 SE2d 780) (1997). See also Wilson, supra (discovery of gun used to make threat constituted corroborating evidence); Sampson v. State, 209 Ga. App. 213, 215 (1) (433 SE2d 136) (1993) (evidence of defendant’s presence at the scene of threat and aggressive reaction to victim on another occasion were corroborating circumstances). Accordingly, there was sufficient evidence from which the jury was authorized to find Schneider guilty beyond a reasonable doubt of the offense of terror-istic threats.

2. Schneider argues that the trial court erred in instructing the jury on the statutory definition of terroristic threats — that a person commits the offense when he “threatens to commit any crime of violence with the purpose of terrorizing another or in reckless disregard of the risk of causing such terror” — when the indictment specifically charged him with “threaten[ing] to commit a crime of violence, to wit: to give [the victim] a heart attack by throwing a hair dryer into the water-filled bathtub which she occupied.” As an initial matter, we note that Schneider did not raise any objections to the jury charge at trial. Since the trial in this case took place in 2008, after the effective date of OCGA § 17-8-58, Schneider was required to inform the trial court of any specific objections to the charge before the jury retired to deliberate, and the failure to make any such specific objections precludes appellate review unless the jury instruction constitutes plain error affecting substantial rights of the parties. OCGA § 17-8-58 (a), (b); Loadholt v. State, 286 Ga. 402, 405 (3), n. 3 (687 SE2d 824) (2010). Because Schneider’s challenge raises a possible due process violation, we are authorized to review the jury charge for plain error. See Martin v. State, 303 Ga. App. 117, 120 (3), n. 1 (692 SE2d 741) (2010).

A criminal defendant’s right to due process may be endangered when ... an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment. The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.

(Citations omitted.) Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999).

In this case, pretermitting whether the statutory definition of terroristic threats provides different methods of committing the crime or whether there is evidence that Schneider made such a threat in an unalleged manner, we find no due process violation. See Machado v. State, 300 Ga. App. 459, 462 (5) (685 SE2d 428) (2009). A “reversal is not mandated where, as here, the charge as a whole limits the jury’s consideration to the specific manner of committing the crime alleged in the indictment.” (Citation and punctuation omitted.) Martin, supra at 121 (3). The trial court instructed the jurors that the indictment, which had been read to them, formed the issue that they had been sworn to try, and that the state had the burden of proving beyond a reasonable doubt “every material allegation of the indictment and every essential element of the crime charged.” The trial court also sent the indictment out with the jury during deliberations, instructing them that “[t]he body of the indictment that you will need to read sets forth in each count specifically what the State contends is the crime in this case.”

These limiting instructions cured any complained of problem with the terroristic threats charge. See Machado, supra at 462-463 (5). Compare Milner v. State, 297 Ga. App. 859, 860-861 (1) (678 SE2d 563) (2009) (court failed to give a limiting instruction ensuring that the jury would find defendant guilty of terroristic threats in specific manner charged in indictment). Thus, considering the jury charge as a whole, we conclude that “there is no reasonable probability that the jury convicted [Schneider] of [terroristic threats] in a manner not alleged in the indictment. [Cit.]” Johnson v. State, 309 Ga. App. 655, 657 (3) (710 SE2d 857) (2011) (physical precedent only). See also Martin, supra.

3. Schneider contends that his false imprisonment conviction must be overturned because there is insufficient evidence that the victim was held against her will. We disagree.

False imprisonment occurs when a person, “in violation of the personal liberty of another, . . . arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41 (a). Detention for a brief amount of time is sufficient, and “[i]t is for the jury to decide if the detention amounted to false imprisonment. [Cit.]” Pierce v. State, 301 Ga. App. 167, 169 (1) (c) (687 SE2d 185) (2009). Here, the evidence, as recounted above, shows that Schneider forced the nude victim to stay on her bed while he spit on and cursed at her. He then ordered her to get off the bed and into the bathtub, where he threatened her and smeared feces on her. According to the victim, she was afraid that Schneider would kill her if she did not comply with his orders. Contrary to Schneider’s claims, the victim’s testimony “is enough evidence for the jury to determine the victim was detained against her will.” Id.

4. Schneider argues that his felony conviction for theft by taking the victim’s jewelry must be overturned because he had an ownership interest in the jewelry and because the state failed to prove that the value of the jewelry exceeded $500. With regard to Schneider’s purported ownership interest in the jewelry, there is evidence contradicting his claim, including the undisputed fact that the victim purchased the jewelry in question and her testimony that she did not give Schneider permission to take the jewelry to the pawn shop. Of course, any conflicts in the testimony of witnesses are matters of credibility for the jury to resolve. Bearfield v. State, 305 Ga. App. 37, 38 (699 SE2d 363) (2010). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.” (Citation and punctuation omitted.) Id. Because there is testimony to support the jury’s finding that the victim owned the jewelry and did not give permission for it to be taken from her home and pawned, the jury’s verdict that Schneider is guilty of theft by taking shall be upheld. See OCGA § 16-8-2 (person commits the offense of theft by taking when he unlawfully takes property of another with the intention of depriving her of the property).

As for the value of the stolen jewelry, “[vjalue is not an element of theft by taking as proscribed by OCGA § 16-8-2. The value of stolen property is relevant only for purposes of distinguishing between a misdemeanor and a felony. OCGA § 16-8-12 (a).” (Citation and punctuation omitted.) DuCom v. State, 288 Ga. App. 555, 561 (3) (654 SE2d 670) (2007). “Felony theft by taking occurs when value of the stolen property exceeds $500. [Cits.]” Gorham v. State, 287 Ga. App. 404, 405 (1) (651 SE2d 520) (2007), disapproved in part on other grounds, McCart v. State, 289 Ga. App. 830 (658 SE2d 465) (2008).

In this case, we agree with Schneider that the state failed to establish that the value of the stolen jewelry exceeded $500. The only evidence of value cited by the state is testimony that the items in question are rings that were part of an entire lot of jewelry — including necklaces, bracelets, rings and pendants — that the victim had previously purchased from the pawn shop for $10,000. But the state never introduced any testimony that the value of the specific items taken by Schneider exceeded $500. Rather, the only evidence related to those items shows that Schneider pawned nine rings for $275. Because there is not sufficient evidence to establish that the value of the stolen property exceeded $500, we must vacate Schneider’s felony sentence as to that count of the indictment, and remand the case with direction that a conviction and sentence be entered for a misdemeanor offense. See DuCom, supra at 562 (3); English v. State, 288 Ga. App. 436, 439 (1) (654 SE2d 150) (2007); Gorham, supra at 406 (1).

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

Phipps, P. J., and Andrews, J., concur.

Decided October 26, 2011

Reconsideration denied November 14, 2011.

Jimmonique R. S. Rodgers, for appellant.

Tom Durden, District Attorney, Melissa L. Poole, Russell B. Mabrey, Jr., Assistant District Attorneys, for appellee.


author: Barnes, Presiding Judge.

text:
    A11A1886.
    MAYBERRY v. THE STATE.
    (718 SE2d 822)
   Barnes, Presiding Judge.

Terry Elizabeth Mayberry filed a motion in limine and motion to suppress in which she alleged that the police lacked probable cause to arrest her for driving under the influence of alcohol. She sought the exclusion of any testimony or other evidence regarding the State-administered breath test administered after her arrest. Following an evidentiary hearing, the trial court denied the motions, and May-berry thereafter was convicted of driving with an alcohol concentration of 0.08 grams or more within three hours of driving. On appeal, she contends that the trial court should have granted her motion in limine and motion to suppress. We disagree and affirm.

“Where, as here, the salient facts relating to the traffic stop are undisputed and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to the undisputed facts is subject to de novo appellate review.” Frederick v. State, 270 Ga. App. 397, 397-398 (606 SE2d 615) (2004).

The undisputed facts are as follows. On October 3, 2009, at approximately 11:00 p.m., a police sergeant was driving eastbound in his patrol car on Atlanta Highway in Oconee County. As the sergeant negotiated a curved section of the highway, a vehicle driving westbound approached the curve and veered toward his lane of travel. The driver and sole occupant of the vehicle was Mayberry. After the sergeant passed Mayberry’s vehicle, he looked in his rearview mirror and observed the left-side tires of the vehicle cross over the double yellow lines in the center of the highway by at least one foot. The sergeant then turned his patrol car around and initiated a traffic stop of Mayberry’s vehicle.

After initiating the traffic stop, the sergeant approached the vehicle and spoke with Mayberry, who had a strong odor of alcoholic beverage on her breath. Mayberry admitted to the sergeant that she had consumed a “couple” of alcoholic beverages, and she submitted to an alco-sensor test, which was positive for the presence of alcohol. The sergeant did not perform any field sobriety tests because of safety concerns “due to location and conditions.”

The sergeant then placed Mayberry under arrest for driving under the influence of alcohol. He read the implied consent notice to Mayberry, and she agreed to take a State-administered breath test. The test results showed that Mayberry had a blood-alcohol concentration over the legal limit.

The trial court did not err in finding that the sergeant had probable cause to arrest Mayberry and thus in denying her motion in limine and motion to suppress.

The test of probable cause requires merely a probability — less than a certainty but more than a mere suspicion or possibility. To arrest a suspect for driving under the influence, an officer need only have knowledge or reasonably trustworthy information sufficient to authorize a prudent person to believe that the suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely.

(Citations and punctuation omitted.) Slayton v. State, 281 Ga. App. 650, 652-653 (1) (637 SE2d 67) (2006).

Mayberry argues that the only determination made by the police sergeant was that she had consumed some amount of alcohol, and she maintains that the sergeant had no knowledge or no reasonably trustworthy information available to him that her level of consumption rendered her less safe to drive. Mayberry emphasizes that after the sergeant stopped her vehicle, he failed to conduct any field sobriety tests or observe any manifestations of impairment such as slurred speech, bloodshot eyes, or unsteadiness on her feet.

We are unpersuaded by Mayberry’s argument in light of the sergeant’s observations of her manner of driving. “When there is evidence that the defendant has been drinking, the manner of his driving may be considered on the question of whether he has been affected by alcohol to the extent that he is less safe to drive.” Pecina v. State, 274 Ga. 416, 419 (2) (554 SE2d 167) (2001). See State v. Sledge, 264 Ga. App. 612, 615 (591 SE2d 479) (2003) (defendant’s “conduct while driving” relevant for assessing probable cause to arrest for driving under the influence). As we have pointed out, “traffic violations may suggest the negative influence of intoxication on the operation of the vehicle” by the defendant driver. (Citation, punctuation and footnote omitted.) Jones v. State, 273 Ga. App. 192, 193 (1) (a) (614 SE2d 820) (2005).

Here, the undisputed evidence that Mayberry veered toward the opposing lane of traffic and failed to maintain her lane, when combined with the other undisputed evidence that she had consumed alcohol, was sufficient to create probable cause for her arrest. See Slayton, 281 Ga. App. at 652-653 (1) (affirming denial of motion to suppress, where there was testimony that defendant who had been drinking made an abrupt lane change causing her car to become “unstable”); Sledge, 264 Ga. App. at 613-615 (affirming denial of motion to suppress, where there was testimony reflecting “obvious reckless driving” by the defendant).

Decided October 19, 2011

Reconsideration denied November 14,2011

Thomas A. Camp, for appellant.

Kenneth W. Mauldin, District Attorney, Kristopher M. Bolden, Assistant District Attorney, for appellee.

In reaching this conclusion, we note that Mayberry’s reliance upon State v. Encinas, 302 Ga. App. 334 (691 SE2d 257) (2010), and State v. Gray, 267 Ga. App. 753 (600 SE2d 626) (2004), is misguided. In Encinas, 302 Ga. App. at 335, the arresting officer testified that he had observed the defendant’s vehicle “riding against the fog line” but conceded that the defendant had not crossed over or onto the line. Thus, there was no evidence that the defendant had committed a traffic offense, such as failure to maintain his lane. Id. at 337, n. 1. Furthermore, the trial court found as a factual matter that there was evidence that the defendant was not impaired, namely, “his speech, steadiness on his feet, and the fact that he appeared ‘normal’ on the videotape” of the traffic stop. Id. at 335. On appeal, we affirmed the trial court’s grant of the motion to suppress. Id. at 336-337.

In Gray, 267 Ga. App. at 754-755 (1), the trial court found that the arresting officer lacked credibility and that the defendant’s confused actions were the result of an automobile accident, rather than impairment caused by intoxication. Based upon these findings, the trial court granted the defendant’s motion to suppress, id. at 755 (1), and we affirmed on appeal. Id. at 755-756 (2).

Encinas and Gray are clearly distinguishable from the present case because in those two cases the State was appealing the grant of a motion to suppress, and the standard of review required us to defer to the trial court’s findings of fact, credibility determinations, and inferences drawn from the evidence. See Slayton, 281 Ga. App. at 653 (1). Here, in contrast, the material facts were undisputed, there was testimony relating to Mayberry’s manner of driving that created an inference that she was impaired, and the trial court denied the motion to suppress. Accordingly, Encinas and Gray are simply inapposite.

Judgment affirmed.

Adams and Blackwell, JJ., concur.