author: Ellington, Judge. Doyle, Judge, Andrews, Presiding Judge,

text:
    A10A1230.
    BRUSCATO v. O’BRIEN.
    (705 SE2d 275)
   Ellington, Judge.

Vito J. Bruscato, in his capacity as the guardian of Victor Bruscato, appeals from the order of the Superior Court of DeKalb County, which granted summary judgment to Victor Bruscato’s psychiatrist, Derek Johnson O’Brien, M.D., in this medical malpractice case. The superior court concluded that Bruscato’s malpractice claims were barred either by the application of the “impact rule” or on public policy grounds. For the following reasons, we reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal of a grant of summary judgment, this Court reviews the evidence de novo to determine whether a genuine issue of material fact exists or whether the movant is entitled to judgment as a matter of law.

(Citations omitted.) Boggs v. Bosley Med. Institute, 228 Ga. App. 598, 599 (492 SE2d 264) (1997).

So viewed, the record reveals the following. O’Brien began treating Victor Bruscato, a then 38-year-old, mentally ill patient with a history of violence, in January 2001. O’Brien reviewed Bruscato’s treatment records, which revealed that Bruscato’s mental illness manifested in childhood and that he had been diagnosed over the course of his life with mental retardation, organic mood disorder, pervasive developmental disorder, schizophrenia, a nonspecified psychotic disorder, pedophilia, and intermittent explosive disorder. Bruscato had expressed homicidal thoughts toward his parents, and he had physically assaulted them and others, including a hospital employee and a young girl. He had also experienced auditory hallucinations that commanded him to kill people or to molest girls.

When O’Brien began treating Bruscato, Bruscato had been living with his parents for almost two years. Before that, he had been living in a group home operated by the Gwinnett-Rockdale-Newton Community Service Board (“CSB”), but he had been removed from the home because of the risk that he might sexually assault a girl. Bruscato’s expert witness opined that his elderly parents were ill-equipped to manage a severely mentally-ill adult and were “strong-armed” into taking him home. While at home, Bruscato continued receiving outpatient treatment from the CSB. Bruscato’s expert witness opined that the medications the CSB staff administered to Bruscato controlled his violent behavior and sexual impulses. O’Brien knew that, because Bruscato was potentially dangerous, the CSB required his parents to monitor him continuously.

In late May 2002, O’Brien ordered that two of Bruscato’s medications, Zyprexa and Luvox, be discontinued for six weeks to rule out the possibility that Bruscato might be developing neuro-leptic malignancy syndrome (“NMS”). O’Brien’s own expert witness opined that, if Bruscato had NMS, which the expert believed he did not, the proper procedure would be to hospitalize him. He also opined that withholding Bruscato’s medications for that period to rule out the possibility of NMS, which is very rare, was not medically justified.

According to a family friend, about two-and-a-half weeks after Bruscato stopped taking Zyprexa and Luvox, he began having nightmares, panic attacks, and bouts of heavy sweating. He also started hearing voices telling him to kill, and he became increasingly hostile toward his parents. On July 22, O’Brien met with Bruscato briefly and noted that he spoke rapidly, seemed excited, and was feeling angry at women. O’Brien, however, did not make any changes to Bruscato’s treatment plan. On August 11, Bruscato scrawled a “prayer note,” stating: “[I] need prayer big time devil tormenting me.” O’Brien opined in his deposition that the letter “could convey psychosis.” On August 14, a friend visiting Bruscato’s home observed him rocking back and forth on his bed, pleading for the voices in his head to leave him alone. A nurse, who also visited on the same day, noted that Bruscato was argumentative, was expressing thoughts about sexual fantasies and dreams, and was generally irritable.

On August 15, Bruscato crushed his mother’s skull with a battery charger and stabbed her 72 times, killing her. When questioned by the arresting officers, Bruscato said that he killed his mother and that he knew it was wrong, but that the devil had told him to do it. After Bruscato was jailed, the assistant director of prison mental health services wrote Bruscato’s criminal defense attorney. She advised him that, when Bruscato was arrested, he had been “non-compliant with his anti-psychotic medications,” and, during his intake assessment, he had reported auditory hallucinations that were “persecutory in nature,” that he had trouble controlling his impulses, and that he had very poor insight into his situation, asking “what member of his family would become his new mother.” Bruscato wondered whether his mother could be “brought back to life.” After reintroducing Zyprexa into Bruscato’s medication regimen, the director noted that he became “compliant” and that his condition “improved steadily.” Although Bruscato was indicted for his mother’s murder in 2002, he was found to be incompetent to stand trial. As of the date of the trial court’s summary judgment order in the instant case, Bruscato has been residing at Central State Hospital, where he had been committed.

Bruscato’s expert witness opined that when O’Brien

abruptly terminated [Bruscato’s] Zyprexa, not only was this a violation of the standard of care required of Dr. O’Brien, it resulted in the imposition of chemical changes in [Brusca-to’s] brain. Those chemical changes in turn produced adverse physical responses in [Bruscato’s] brain and ultimately in his body.

The expert stated that Bruscato’s mental illness was not merely emotional or behavioral, but neurological — “a medical disorder.” The expert further opined that the chemical changes that resulted from withholding medication caused Bruscato to “decompensate” and experience the return of the most severe symptoms of his medical disorder, including auditory command hallucinations, agitation, and hostility. The expert concluded that O’Brien’s treatment “manifested gross negligence and a disregard of the consequences of leaving a historically violent and potentially psychotic patient un-medicated,” which ultimately led to Bruscato’s killing his mother while in a psychotic state.

1. Bruscato contends the trial court erred when it granted O’Brien’s motion for summary judgment based upon a finding that he “failed to establish an injury for which the law provides recovery,” and entered judgment in favor of O’Brien on all counts of the complaint. Specifically, Bruscato argues that the court erred in characterizing his claim for damages arising prior to the attack on his mother as a claim for “[mjental distress and anguish” and concluding that, because Bruscato had suffered no physical injury or pecuniary loss prior to the attack, he was barred from recovering for the “negligent infliction of emotional distress” by the so-called “impact rule.” We agree.

“Three elements are essential to establish a medical malpractice claim: the doctor’s duty to his patient; the doctor’s breach of that duty through the failure to exercise the requisite degree of skill and care; and an injury proximately caused by the doctor’s failure.” (Citations omitted.) Haughton v. Canning, 287 Ga. App. 28 (2) (650 SE2d 718) (2007). OCGA § 51-1-27, which pertains to actions for medical malpractice, provides: “A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.” (Emphasis supplied.) The statute clearly provides that a compensable injury may result from a physician’s failure to properly administer medicine, and we have held that whether drugs were administered properly is a medical question involving professional judgment and skill. See Williams v. Alvista Healthcare Center, 283 Ga. App. 613, 615-616 (1) (a) (642 SE2d 232) (2007); Shirley v. Hosp. Auth. of Valdosta/Lowndes County, 263 Ga. App. 408, 409-410 (1) (587 SE2d 873) (2003).

Bruscato asserts that O’Brien, his psychiatrist, breached his duty of care to him when he misdiagnosed him with possible NMS, negligently altered his medication regimen as a result thereof, and negligently monitored his physical, mental, and emotional status while he withdrew from the medications. Bruscato avers that, as a result of O’Brien’s medical malpractice, he suffered these injuries: he “decompensated” to the point where he experienced auditory command hallucinations telling him to kill, he succumbed “to a state of profound mental confusion ... to the extent that [he] was deprived of any ability to control his violent impulses,” he experienced the “reemergence of his underlying psychosis,” and he suffered a psychotic break with reality, during which he killed his mother. Further, in opposition to O’Brien’s motion for summary judgment, Bruscato’s expert witness opined that, when O’Brien abruptly discontinued Bruscato’s medication, Bruscato experienced chemical changes in his brain and, ultimately, his body that affected him physiologically.

Pretermitting whether the injuries that Bruscato alleges he suffered as a result of O’Brien’s professional negligence were physical, psychological, or both, we conclude that the question is irrelevant to Bruscato’s medical malpractice claim. We conclude that the medical malpractice statute, which provides that “any injury” resulting from the breach of a physician’s duty is a compensable injury, is not limited by the application of the “impact rule.” In reaching this conclusion, we have considered the underlying purposes of applying the “impact rule” to causes of action for the negligent infliction of emotional distress and conclude that there is no rational basis for applying the rule to causes of action sounding in medical malpractice.

It is beyond dispute that “emotional distress” is a normal, even expected, part of life and can be caused by an almost infinite array of factors or a combination of those factors. Further, a person’s perception of his or her “emotional distress” is subjective and difficult to prove or to disprove, as is the causal connection between a defendant’s allegedly negligent act or omission and the emotional distress. Thus, the Supreme Court of Georgia has held that, “[i]n a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” (Citation, punctuation and footnote omitted.) Lee v. State Farm &c. Ins. Co., 272 Ga. 583, 584 (I) (533 SE2d 82) (2000). “[T]he current Georgia impact rule has three elements: (1) a physical impact to the plaintiff; (2) the physical impact causes physical injury to the plaintiff; and (3) the physical injury to the plaintiff causes the plaintiffs mental suffering or emotional distress.” Id. at 586 (I).

There are three policy reasons traditionally given for having the impact rule and denying recovery for emotional distress unrelated to physical injuries. First, there is the fear[ ] that[,] absent impact, there will be a flood of litigation of claims for emotional distress. Second, [there] is the concern for fraudulent claims. Third, there is the perception that, absent impact, there would be difficulty in proving the causal connection between the defendant’s negligent conduct and claimed damages of emotional distress. . . . [T]he benefits of an impact rule are plain in that it provides a brighter line of liability and a clear relationship between the plaintiff’s being a victim of the breach of duty and compens-ability to the plaintiff.

(Citations omitted; emphasis supplied.) Id. at 587 (II). Consequently, the impact rule is an appropriate measure to be applied in cases involving the negligent infliction of emotional distress to bystanders or third parties who are not physically impacted by the defendant’s negligence and whose injuries are not a foreseeable result of such negligence. See id. at 589 (Hunstein, J., concurring specially) (endorsing a foreseeability rule as preferable to the “regressive” impact rule). Without the impact rule (or some related concept, such as foreseeability) to limit potential claimants and to prevent frivolous lawsuits, a defendant’s single act of negligence could result in his or her having to defend against claims by a multitude of bystanders for their alleged emotional distress.

The above-stated policy concerns, however, are not present in medical malpractice cases, because such cases require a physician-patient relationship between the defendant and the plaintiff. See OCGA § 51-1-27; Haughton v. Canning, 287 Ga. App. at 28 (2). Consequently, there is no question to be resolved regarding the emotional impact of the defendant’s alleged negligence on third parties or bystanders, nor is there concern about a “flood of litigation” arising from such negligence. Further, the concern about avoiding fraudulent or frivolous lawsuits is already addressed by the strict pleading requirements of OCGA § 9-11-9.1. See Bowen v. Adams, 203 Ga. App. 123, 124 (416 SE2d 102) (1992) (“The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed[.]”) (citation and punctuation omitted).

Finally, once the plaintiff obtains an expert affidavit to support his or her claim that the defendant violated the applicable professional standards (pursuant to OCGA § 9-11-9.1), and presents evidence of “[a]ny injury resulting from a want of such care and skill” (pursuant to OCGA § 51-1-27), determinations regarding the existence and extent of the plaintiffs injuries and whether the defendant’s negligence caused those injuries are generally questions for the jury to resolve. See Pruette v. Phoebe Putney Mem. Hosp., 295 Ga. App. 335, 338 (1) (671 SE2d 844) (2008) (“questions regarding proximate cause are undeniably a jury question and may only be determined by the courts in plain and undisputed cases. Furthermore, in the summary judgment context, the nonmoving party is not required to produce evidence demanding judgment for that party, but only to present evidence which raises a material issue of fact.”) (citations and punctuation omitted); see also Jones v. Abel, 209 Ga. App. 889, 895-896 (3) (434 SE2d 822) (1993) (evidence that the plaintiff was distracted from his business and suffered from depression as the result of his psychiatrist’s malpractice was sufficient to send the issue of proximate cause and damages to the jury). Therefore, the trial court erred in applying the impact rule in this medical malpractice case.

2. Bruscato contends that the trial court erred in granting summary judgment to O’Brien on Bruscato’s claims for damages occurring at. the time he attacked his mother and thereafter on the basis that “[t]he public policy of Georgia bars any recovery for a cause of action by a person who has committed an illegal act, where the plaintiff depends upon the illegal act to establish his case.” The trial court characterizes Bruscato’s lawsuit as a “claim brought by a psychiatric patient against his .. . psychiatrist for failing to prevent the patient from committing murder.” Finding Bruscato’s conduct “unlawful and wrongful” and assuming that all of Bruscato’s post-attack damages flowed from his illegal act, the court concluded that, as a matter of public policy, Bruscato’s claims were “clearly barred.” This was error for several reasons.

Bruscato’s claims for damages are not limited to those which flow from the act of killing his mother. Bruscato’s complaint seeks damages for medical malpractice, which is based upon O’Brien’s actions and which encompasses damages flowing from O’Brien’s alleged negligent medical treatment, including, for example, the physical and emotional injuries Bruscato experienced as a result of the ongoing deprivation of his medication. Thus, even if Bruscato is characterized as an intentional “wrongdoer,” his status as such would not be a bar to his recovering for those damages that are not attributable to the alleged immoral or illegal act.

Further, under Georgia law, “a person does not become an outlaw and lose all rights by doing an illegal act.” (Citation, punctuation and emphasis omitted.) Adams v. Smith, 129 Ga. App. 850, 852 (3) (201 SE2d 639) (1973). In this case, no court has adjudicated the issue of Bruscato’s mental competence or sanity at the time he committed the crime. He was, however, found incompetent to stand trial, and he has yet to be tried for the crime for which he was indicted. Moreover, should Bruscato later be found competent to stand trial, a jury may yet find him not guilty. Because Bruscato has not been found guilty of the murder of his mother, he is presumed innocent. OCGA § 16-1-5. Thus, because no court has entered a judgment finding Bruscato legally responsible for his mother’s murder and because the issue of his mental competence at the time of the crime has been disputed, a jury issue exists as to whether Bruscato had the requisite mental capacity to commit murder.

Moreover, the statutes the trial court and the dissent rely upon as embodying Georgia’s public policy of prohibiting wrongdoers from profiting from their crimes only prevent those who “feloniously and intentionally” kill, OCGA § 53-1-5 (a), or those who commit “murder or voluntary manslaughter,” OCGA § 33-25-13, from sharing, respectively, in the decedent’s estate or insurance policy proceeds. Further, OCGA § 17-14-31 essentially requires those who are buying the media rights to an accused’s story to place the purchase money into an escrow account for the benefit of the victim or victims. The money is to be disbursed, however, “only if the accused person is eventually convicted or enters a plea of guilty[.]” OCGA § 17-14-31 (a) (3). Moreover, this statute makes special provision for disposition of the funds in those cases where the accused is unable to proceed to trial because of insanity or mental incompetence to stand trial. OCGA § 17-14-31 (e). Thus, if a public policy may be gleaned from these statutes, it is a policy that prohibits those who commit murder or voluntary manslaughter from profiting from the victim’s death. These statutes, however, do not impair the rights of those who kill by accident or negligence, who kill in self-defense or pursuant to any other legal justification, or who kill while legally insane. Simply admitting to having committed a homicide does not make one a wrongdoer under Georgia law.

Further, the foreign cases upon which the trial court and the dissents rely for the proposition that Bruscato is a wrongdoer who is barred from profiting from his crime on public policy grounds are inapposite. Those cases involved plaintiffs who had been convicted of the crimes for which they claimed were the result of the defendants’ negligence or who were found to have knowingly and intentionally participated in the crimes that proximately caused their injuries. In each of these cases, a court found that the plaintiff had the requisite criminal intent to commit the crime. Moreover, none of those cases stand for the proposition that a psychiatric patient who kills while lacking the mental capacity to form the requisite criminal intent for murder or voluntary manslaughter is barred from bringing a medical malpractice action against his psychiatrist.

However, in a series of cases involving negligence suits against psychiatrists for harm caused by their patients, either to themselves or others, this Court has recognized that a patient’s psychiatric disorder may prevent him from having the mental capacity to exercise control over his intentional behavior or, at least, from exercising a reasonable degree of care in order to prevent himself from harming others. See Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 117 (3) (c) (372 SE2d 265) (1988) (“[A] patient may be so mentally ill that, as a matter of law, he is not held to exercise any degree of care for himself, and, therefore, cannot be contributorily negligent.”) (citation omitted); Swofford v. Cooper, 184 Ga. App. 50, 54 (4) (360 SE2d 624) (1987) (Because the plaintiff was psychotic when he stabbed his father, and had been declared incompetent to stand trial, “he could not have been held to the exercise of any degree of diligence.”) (citation and punctuation omitted); Misfeldt v. Hosp. Auth. of Marietta, 101 Ga. App. 579, 581-584 (115 SE2d 244) (1960) (It was error for the trial court to direct a verdict in favor of the hospital because the evidence of the patient’s mental illness and the reasonableness of the steps taken by the hospital to protect her from herself were disputed and for the jury.); Emory Univ. v. Lee, 97 Ga. App. 680, 702 (6) (104 SE2d 234) (1958) (physical precedent only) (“If the evidence in the case sub judice conclusively proved that the plaintiff was on the occasion when he was injured entirely bereft of reason, it is obvious that he could not have been held to the exercise of any degree of diligence.”).

As we explained in Brandvain v. Ridgeview Institute, the fact that a patient’s illegal act was volitional does not necessarily mean that it was a rational act for which the patient alone was responsible or which relieved the physician or the hospital of its duty to the patient. 188 Ga. App. at 118-119 (3) (c). In this case, Bruscato has not been convicted of murder, nor has any court entered a judgment finding him mentally competent at the time of the crime. Further, the evidence below does not establish, as a matter of law, that Bruscato was mentally competent when he killed his mother. Brus-cato is not a “wrongdoer” whose status as such would be a bar to any of his claims. Consequently, summary judgment on this issue or any issue relating to Bruscato’s contributory negligence for causing his mother’s death is not authorized by the evidence, and, therefore, the trial court erred in granting summary judgment in O’Brien’s favor on this basis.

Judgment reversed.

Miller, C. J., Barnes, P. J., and Phipps, P J., concur. Johnson and Doyle, JJ., concur specially in part and dissent in part. Andrews, P J., dissents.

Doyle, Judge,

concurring specially in part and dissenting in part.

I agree fully with Division 1 of the majority opinion. In addition, even though the impact rule does not apply to Bruscato’s medical malpractice claim, I note that the expert, testimony of Roy Neil Johnston, M.D., that Bruscato suffered a physical injury upon the discontinuation of his anti-psychotic medication by Dr. O’Brien, would create a question of fact on this issue.

With respect to Division 2, I dissent in part because in this instance, public policy prohibits Bruscato from recovering for damages arising out of the death of his mother for the reasons set forth in Division 2 of Presiding Judge Andrews’s dissent. There is no dispute that Bruscato killed his mother. On May 1, 2003, Bruscato pleaded that he was mentally incompetent to stand trial, and the trial court entered a consent order finding him mentally incompetent to stand trial. As pointed out in Presiding Judge Andrews’s dissent, Bruscato’s defense of mental incompetence “admits the doing of the act charged.”

Further, Bruscato admitted in his complaint that because “he was psychotic, out of touch with reality, and had severely diminished impulse control on August 15, 2002, “when [his] mother ... attempted to discipline [him] by withholding privileges . . .[, Bruscato] picked up a battery charger and smashed his mother in the head and then stabbed her over 70 times with a knife,” resulting in her death. When questioned by the arresting officers, Bruscato admitted that he initially hid the knife he used to stab his mother, and he also admitted to killing her, stating that he knew it was wrong, but that the devil had told him to do it. Bruscato also asked “if a doctor had taken him off medication, and the act of taking him off the medication had made him violent, would the doctor or the person who committed the violent act[ ] be responsible for that act.” Under these facts, it is not necessary to further establish Bruscato’s responsibility for the death of his mother in order to preclude his recovery for his mother’s death. In this tort action, there is no and will never be any dispute that Bruscato killed his mother.

As set forth in Bruscato’s complaint, however, his damages include “suffering through a psychotic break with reality caused by Dr. O’Brien withdrawing [Bruscato]’s anti-psychotic medication.” These damages are not limited to the time period prior to Bruscato’s attack on his mother and do not necessarily flow from the act of killing his mother. Thus, our determination — that public policy bars Bruscato’s recovery as to any damages that flow from his act of killing his mother — would not bar his recovery for those damages, if any, that are not attributable to that act, regardless of timing. Nevertheless, the trial court’s grant of summary judgment as to his claim seeking to recover for the damages arising from his act of killing his mother was appropriate and should be affirmed.

I am authorized to state that Judge Johnson joins in this opinion.

Andrews, Presiding Judge,

dissenting.

This is the second appearance of this case before us. In Bruscato v. Gwinnett-Rockdale-Newton Community Svc. Bd., 290 Ga. App. 638 (660 SE2d 440) (2008), this Court affirmed a grant of summary judgment in Vito Bruscato’s wrongful death action against Dr. O’Brien for failing to protect Vito’s wife, also Victor’s mother, from Victor’s psychosis, the results of which included the mother’s death at her son’s hand. Today, this majority holds that Dr. O’Brien’s withholding of medication, resulting in the resurgence of Victor’s preexisting psychosis, amounts to a “physical injury” sufficient to ground Victor’s own emotional distress claim. This result eviscerates the longstanding Georgia rule that a plaintiff seeking damages for emotional distress caused by a defendant’s negligence must show that he suffered “physical injury.” The majority also runs afoul of the widely recognized public policy against rewarding wrongdoers when, under the guise of granting relief for his “pain and suffering,” it authorizes Victor Bruscato to profit from the killing of his own mother. For both of these reasons, I dissent.

1. With a single exception marked out by our Supreme Court in Lee v. State Farm &c. Ins. Co., 272 Ga. 583 (533 SE2d 82) (2000), Georgia law has always rejected any claim for negligent infliction of emotional distress arising from a mere physical impact. Instead, and for more than a century, Georgia law has required that a plaintiff claiming emotional distress as a result of a defendant’s negligence, including medical malpractice, must show either physical injury or monetary loss. See, e.g., Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 SE 901) (1892); OB-GYN Assoc. v. Littleton, 259 Ga. 663 (386 SE2d 146) (1989) (Littleton II) and OB-GYN Assoc. v. Littleton, 261 Ga. 664 (410 SE2d 121) (1991) (Littleton IV) (mother of child who died shortly after birth could bring claim for only that portion of her emotional distress caused by her own physical injuries); Owens v. Gateway Mgmt. Co., 227 Ga. App. 815, 816 (490 SE2d 501) (1997) (lost wages were insufficient to ground emotional distress claim).

Littleton IPs discussion of the impact rule featured its overruling of Christy Bros. Circus v. Turnage, 38 Ga. App. 581 (144 SE 680) (1928), which sustained an emotional distress claim by a woman into whose lap a circus horse had defecated. As Littleton noted, Prosser had singled out Christy Bros, as an absurd extension of the impact rule. Littleton II, 259 Ga. at 666 (2), citing Prosser & Keeton, Law of Torts, 5th ed., § 54, p. 364; see also Prosser, 3d ed., § 51, p. 351 (1964). Likewise, although Littleton II was overruled in part by Lee v. State Farm &c. Ins. Co., 272 Ga. 583, the Lee court noted Littleton IPs overruling of Christy Bros, with approval. Lee, 272 Ga. at 585 (I).

The import of this line of cases is perfectly clear: neither a mere impact nor the mere aggravation of some preexisting mental condition, but only a new physical injury, can authorize a claim for mental distress arising from a defendant’s negligent act. It is nonsensical for this majority to assert that O’Brien’s withholding of medication from Bruscato could result in any new “physical injury” to him; rather, O’Brien’s withholding of medication resulted only in the resurgence of Bruscato’s preexisting mental illness, which could never be the legal responsibility of O’Brien or anyone else. When it thus misapplies the ultra-refined techniques of modern biochemistry to the clear and venerable legal rule requiring “physical injury” for emotional distress claims, the majority stages a return to the absurdity of Christy Bros.

The majority also exceeds its authority when it argues against the “physical injury” rule for reasons of policy (the prevention of a flood of litigation, a concern about fraudulent claims, and the difficulty of proving a causal connection between negligent conduct and an emotional distress claim) and for a foreseeability rule. As the Supreme Court held in Lee, however, “the benefits of an impact rule are plain in that it provides a brighter line of liability” as well as “a clear relationship” between a plaintiffs status as a victim of negligence and her right to compensation. (Emphasis supplied.) 272 Ga. at 587 (II). This explicit confirmation of the bright line rule requiring physical injury should foreclose any policy discussion of the question by any judge on this Court. Instead, and until further notice, this majority renders any arguably negligent act causing any observable change in brain chemistry preceding any catastrophic event which any plaintiffs expert later testifies to be the proximate result of the negligent act as authorizing a jury to award any amount its enlightened conscience finds appropriate. I cannot condone this result or the rationale used to reach it.

2. Although the issue has not previously arisen in Georgia, the well-developed rule in other jurisdictions is that public policy bars a wrongdoer’s emotional distress claim arising from his own immoral act. This is so even when, as in this case, the wrongdoer does not possess the mens rea to establish legally sufficient culpability for that act.

In the leading case of Cole v. Taylor, 301 NW2d 766 (Iowa 1981), the Iowa Supreme Court barred a killer’s action against her treating psychiatrist as follows:

[A] person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party, or to maintain a claim for damages based on his own wrong or caused by his own neglect, ... or where he must base his cause of action, in whole or in part, on a violation by himself of the criminal or penal laws.

(Citations and punctuation omitted; emphasis supplied.) Id. at 768 (II). Any of these categories of wrongfulness, in other words, should be sufficient to bar recovery. Shortly after Cole, moreover, a second Iowa decision held that because an arsonist and felony murderer’s proof of diminished capacity provided no basis for avoiding the Cole rule, a trial court should have granted summary judgment to his doctor concerning his tort claim. Veverka v. Cash, 318 NW2d 447, 450-451 (Iowa 1982). Since then, Cole has been recognized as the majority American rule among the few courts to have considered the issue. Feltner v. Casey Family Program, 902 P2d 206, 208 (Wyo. 1995); see also Glazier v. Lee, 429 NW2d 857 (Mich. App. 1988) (applying Cole to bar plaintiffs claim against his psychiatrist in the wake of plaintiffs killing of his girlfriend); Hines v. Bick, 566 S2d 455, 459-462 (La. App. 1990) (same).

It is true that the Cole and other plaintiffs were found guilty of the murder before bringing their tort suits, whereas Bruscato has been found mentally incompetent to stand trial in the killing of his mother. As other courts have held, however, the Cole rationale applies even where a plaintiff may not be held criminally responsible for his conduct. Thus the New York Court of Appeals barred a claim by a fifteen-year-old against a nine-year-old for supplying the former with firecrackers, holding that “[ajlthough the plaintiff may not be held criminally responsible for his conduct, the fact remains that constructing a bomb is prohibited by law.” Barker v. Kallash, 468 NE2d 39, 42 (N.Y. 1984) (citing Cole).

It is also true that “[a]n individual who feloniously and intentionally kills” another person “forfeits the right to take an interest from the decedent’s estate.” (Emphasis supplied.) OCGA § 53-1-5 (a). Although this statute expresses the General Assembly’s disapproval of a wrongdoer profiting from his wrongful act, the majority uses it to justify the validity of a tort claim brought by a person who does not possess the requisite mens rea against a decedent’s estate. The statute has no application to Bruscato’s garden variety tort claim, however, because that claim is not an inheritable “interest” under the Probate Code.

In short, even if Bruscato has been legally excused from the consequences of his actions, his defense of mental incompetence necessarily “admits the doing of the act charged.” Brown v. State, 267 Ga. 350, 351 (478 SE2d 129) (1996). Georgia’s public policy against allowing wrongdoers to profit from their wrongful acts expresses the law’s legitimate repugnance at Bruscato’s recovery of any damages, under any theory, for his emotional distress claim. As the Cole court succinctly put the matter: “We reject plaintiffs theories of recovery, not because they cannot be rationalized, but because they cannot be justified.” 301 NW2d at 768 (II).

As previously stated, I also believe that the “physical injury” component of Georgia’s longstanding impact rule bars recovery for any preexisting mental condition which reappears as a result of a doctor’s withholding of medication. Because either of these reasons would be sufficient to affirm the trial court’s grant of summary judgment, I dissent to both divisions of the majority opinion.

Decided December 1, 2010

Reconsideration denied December 16, 2010

William G. Quinn III, Jerry D. McCumber, for appellant.

Owen, Gleaton, Egan, Jones & Sweeney, Milton B. Satcher III, Laura C. Marshall, for appellee.

       Judge Andrews notes in his dissent that “[t]his is the second appearance of this case before us.” The case the dissent refers to, however, was a suit brought by Vito Bruscato — who is not the real party plaintiff in interest in this case — against O’Brien and the Gwinnett-Rockdale-Newton Community Service Board, in Gwinnett County, for the wrongful death of Vito’s wife. We affirmed the grant of summary judgment in that case for reasons that have no application to the instant suit, which was brought by a different plaintiff arguing an entirely different theory of recovery. See Bruscato v. Gwinnett-Rockdale-Newton Community Svc. Bd., 290 Ga. App. 638 (660 SE2d 440) (2008).

       A long succession of cases has explained, clarified, distinguished, and limited the impact rule to prevent a plaintiff from recovering for emotional distress from the negligence of a defendant when the plaintiff did not suffer either physical injury or monetary loss as a result of the negligence. See, e.g., Lee v. State Farm &c. Ins. Co., 272 Ga. 583, 586-588 (II) (533 SE2d 82) (2000).

       We do not address that aspect of the impact rule which allows recovery in cases involving the negligent infliction of emotional distress when the plaintiff has suffered a pecuniary loss. For a full discussion of that aspect of the rule, see Nationwide &c. Ins. Co. v. Lam, 248 Ga. App. 134, 136 (1) (546 SE2d 283) (2001).

       In Lee, the Supreme Court ultimately concluded that
      the policy concerns behind our traditional impact rule are not extant in this case, and there is no meritorious reason in an appropriate and compelling situation to refuse to extend recovery for emotional distress to an incident in which the distress is the result of physical injury negligently inflicted on another. The circumstance of this case is such an appropriate and compelling situation. When, as here, a parent and child sustain a direct physical impact and physical injuries through the negligence of another, and the child dies as the result of such negligence, the parent may attempt to recover for serious emotional distress from witnessing the child’s suffering and death without regard to whether the emotional trauma arises out of the physical injury to the parent.
      (Citations and footnote omitted; emphasis supplied.) Id. at 588 (III).

       It follows that it would constitute reversible error to grant summary judgment to the defendant under such circumstances. See OCGA § 9-11-56 (c) (standard for granting summary judgment).

       In a competency proceeding, the defendant has the burden of proving incompetency by a preponderance of the evidence. Adams v. State, 275 Ga. 867, 867-868 (3) (572 SE2d 545) (2002). A criminal defendant is incompetent to stand trial if he is incapable of understanding the nature and object of the criminal proceedings and of assisting his attorney with his defense. Id. A finding of incompetency to stand trial does not address the defendant’s culpability for the crime charged. Indeed, “a person may be sane enough to be responsible for [a] crime, and yet incapable of making his defense, and on the other hand he may have mental capacity to be placed on trial, and yet be insane within the contemplation of the law as to responsibility for a criminal act.” Brown v. State, 215 Ga. 784, 786 (1) (113 SE2d 618) (1960).

       Under Georgia law, a person is insane, and shall not be guilty of a crime, if at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to the criminal act or acted because of a delusional compulsion which overmastered his will to resist committing the crime. OCGA §§ 16-3-2, 16-3-3; Foster v. State, 283 Ga. 47, 48 (656 SE2d 838) (2008).

       OCGA § 53-1-5 (d) further provides that a “final judgment of conviction or a guilty plea for murder, felony murder, or voluntary manslaughter is conclusive in civil proceedings under this Code section. In the absence of such a conviction or plea, the felonious and intentional killing must be established by clear and convincing evidence.”

       This Code section also provides that “[a] plea of guilty or a judicial finding of guilt not reversed or otherwise set aside as to any of such crimes shall be prima- facie evidence of guilt in determining rights under this Code section.” Absent such proof, in order to obtain summary judgment under this statute, the undisputed evidence must show as a matter of law that the alleged wrongdoer committed either murder or voluntary manslaughter. Cantera v. American Heritage Life Ins. Co., 274 Ga. App. 307, 310-312 (7) (617 SE2d 259) (2005).

       In fact, we can imagine a number of scenarios where, under the dissents’ analysis, a deserving plaintiff would be denied any recovery. Imagine, for example, a bipolar teenager with no history of violence who, upon receiving the wrong medication from a medical professional, suffers a hallucinatory, delusional mania — a rare but known side effect of the medication received. While in that delusional state, the child kills her brother, believing that he is a home invader bent on raping and killing her. While delusional, she perceives her act as one of self-defense. When she recovers from the effects of the medication, she realizes her mistake and, profoundly traumatized and remorseful, admits killing her brother. A jury would likely acquit her of murder, if she is even indicted. Yet, under the dissents’ analysis, she is a wrongdoer for whom the civil law offers no remedy for the loss of her brother. The dissent has not only created a class of people who have limited recourse against negligent medical professionals, they have stigmatized as immoral those mentally ill people who, for reasons which may be entirely beyond their control, commit violent acts.

       See Cole v. Taylor, 301 NW2d 766 (Iowa 1981) (convicted of murder); Veverka v. Cash, 318 NW2d 447 (Iowa 1982) (convicted of murder); Glazier v. Lee, 429 NW2d 857 (Mich. Ct. App. 1988) (convicted of voluntary manslaughter); Moss v. Mid-South Hosp., 1989 WL 134666 (Tenn. Ct. App. 1989) (convicted of murder); Feltner v. Casey Family Program, 902 P2d 206 (Wyo. 1995) (convicted of sexual assault); Burcina v. City of Ketchikan, 902 P2d 817 (Alaska 1995) (convicted of arson); Hines v. Bick, 566 S2d 455 (La. Ct. App. 1990) (convicted of manslaughter).

        Barker v. Kallash, 468 NE2d 39 (N.Y. 1984) (juvenile’s injuries occurred during his intentional violation of the law prohibiting possessing fireworks); Orzel v. Scott Drug Co., 537 NW2d 208 (Mich. 1995) (defendant’s injury was caused, in part, by his intentional violation of the law prohibiting possession and use of controlled substances).

       Cf. OCGA § 53-1-5 (a) (“An individual who feloniously and intentionally kills or conspires to kill or procures the killing of another individual forfeits the right to take an interest from the decedent’s estate and to serve as a personal representative or trustee of the decedent’s estate or any trust created by the decedent.”); OCGA § 17-14-31 (addressing distribution of profits received as a result of the commission of a crime).

       (Punctuation omitted.) Brown v. State, 267 Ga. 350, 351 (2) (478 SE2d 129) (1996) (“An affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse or mitigate it.”). See also Kelley v. State, 235 Ga. App. 177, 179 (1) (509 SE2d 110) (1998) (“A plea of not guilty by reason of insanity is a plea of confession and avoidance — it admits the facts pleaded in the indictment, but avoids conviction because of the condition of insanity of the defendant at the time of the offense.”) (punctuation omitted). As Bruscato admitted in his brief in opposition to summary judgment, he ‘‘was charged with murder in his mother’s death but has been repeatedly adjudicated incompetent to stand trial.” (Emphasis supplied.)

       (Emphasis supplied.)


source: Caselaw Access Project

author: Phipps, Presiding Judge.

license: Public Domain

text:
    A10A1257.
    A10A1258.
    A10A1259.
    RAINLY v. THE STATE. EVERETTE v. THE STATE. ROBINSON v. THE STATE.
    (705 SE2d 246)
   Phipps, Presiding Judge.

Joseph Rainly, Phylicia Everette and Michael Robinson were tried together in connection with the December 18, 2007 armed robbery of a video store. Rainly and Robinson were each convicted of two counts of armed robbery, two counts of aggravated assault, two counts of kidnapping and one count of possession of a firearm during the commission of a felony. Everette was convicted of one count of armed robbery, two counts of aggravated assault, two counts of kidnapping, one count of possession of a firearm during the commission of a felony, one count of theft by receiving stolen property (a Glock handgun) and one count of possession of marijuana with intent to distribute. Each defendant filed a motion for new trial, which the trial court granted as to the kidnapping convictions and denied as to the remaining convictions. We have consolidated their appeals. While the arguments raised in the appeals vary to some extent, the appellants’ arguments include challenges to the sufficiency of the evidence to support the aggravated assault and theft by receiving stolen property convictions, the court’s allowing evidence and statements concerning a prior robbery of the same store, the effectiveness of trial counsel, the introduction of victim-impact testimony or comments during the guilt-innocence phase of the trial, the court’s refusal to give certain requested jury charges, and the prosecutor’s closing argument. Everette’s conviction for theft by receiving stolen property was not supported by sufficient evidence, so it is reversed. The remaining convictions of all three appellants are affirmed.

Viewed in the light most favorable to the verdict, the evidence showed the following. A video store clerk testified that on December 18, 2007, he was assisting with store closing duties by stocking products near the center of the store when he heard screams and saw the store manager running toward him. A man pointed a gun at the clerk and told him to stop what he was doing. The gunman and two men who were with him grabbed the clerk and took him to the front of the store. The clerk was told to get on the ground, and his wallet and cell phone were taken; inside his wallet was a business card he had received from a police officer in connection with a robbery of the store one week before. The clerk saw one of the three men take money from the cash register. The gunman took the manager to the back of the store while the other two men held the clerk on the ground. The two men then picked the clerk up and “handed [him] off” to the gunman. The gunman told the clerk to open the back door, which he did. The clerk saw outside a white car with a black bumper; the car’s engine was running and it appeared that someone was inside the car.

The store manager also testified regarding what she had witnessed on December 18, 2007. She stated that a man with his face covered came into the store. She ran to the back of the store, screaming. The man pointed a gun at her and moved her to the front of the store, where she saw the store clerk and two other people. “[T]hey” ordered the manager to open the cash register and took the money. The gunman also took video game systems. One of the men ordered the manager to open the safe, but when it did not open immediately, the men fled. The manager called the police.

One of three officers who responded to the call testified that he had investigated a December 12, 2007 robbery of the same video store. Two employees were present at the December 12, 2007 robbery — Everette and the store clerk whose testimony is described above. The officer had given each employee a business card upon which he had written his name and badge number, along with the case number and a phone number to call if they had questions or information regarding the December 12, 2007 robbery. In responding to the December 18, 2007 robbery, the officer directed another officer to look for the white car with a black bumper at the Sugarloaf Parkway Apartments because he “had a feeling that it might have been one of the former employees that might have been in on it.” On cross-examination, the officer stated that Everette was a victim in the prior robbery, and that she was not investigated or listed as a suspect in that earlier incident.

The second officer testified that he remained at the video store assisting the first officer for about 15 to 20 minutes, then went to the apartment complex and saw such a vehicle parked outside one of the buildings. The hood was warm and, through the car’s window, he saw several video game systems. The officer then moved a distance away from the car and observed three men walk through the breezeway beside the building toward the car, then walk back toward the building; one of them was carrying a white box. Someone then drove the white car away.

A third police officer testified that he responded to the emergency call. He testified that the same store had been robbed the week before and that a store employee lived in an apartment complex about two-and-a-half miles away. He and other officers went to the Sugarloaf Parkway Apartments and approached Everette’s door. A man started to exit the apartment but ran back inside; he was apprehended and later identified as EddieLee Peterson. Another man began exiting through a bedroom window, but the officers had surrounded the building, and he went back inside.

Upon entering the apartment, officers found a Glock handgun on the living room floor, Everette hiding in a closet, and clothing consistent with that worn by the robbers. Officers found inside a locked bedroom a video game system in a white box, consistent with those reported stolen in the robbery earlier that night. Inside the pocket of a jacket found inside the apartment, officers found identification and insurance cards belonging to the store clerk and the officer’s business card taken from the store clerk present during both the December 12, 2007 and December 18, 2007 incidents. Everette told officers that a blue Honda in the parking lot was hers and that she had marijuana in the car. Officers recovered from Everette’s car several video game systems “that appeared to be the same as what was stolen from the [store],” as well as a sandwich bag containing a green leafy substance that tested positive for marijuana, two digital scales and small plastic baggies. A small baggie of marijuana was also found in Everette’s apartment. Officers arrested Rainly, Everette, Robinson and Peterson.

A police officer testified that he interviewed Rainly, Everette, and Robinson at police headquarters. Rainly told the officer that the plan was formulated at Everette’s house, and there had been “a conversation about who would hold the gun during the robbery.” Everette told the officer that she had described to the other individuals the circumstances of the earlier robbery and told them “how to do it.” Everette also told the officer that she made more money selling marijuana than she did working at the video store. Robinson told the officer that he went to the video store with Peterson, that Peterson “carried a gun” and did most of the talking, and that “they” took video games from the store, placed them in the white car, went back to the apartment in that car and unloaded the items into the blue car.

Prior to trial, Peterson pleaded guilty to two counts of armed robbery, two counts of kidnapping, two counts of aggravated assault, and one count of possession of a firearm during the commission of a felony (all in connection with the December 18, 2007 incident). At trial, Peterson testified that on December 18, 2007, he went with Rainly and Robinson to Everette’s apartment. While there, Everette told him, Rainly and Robinson that the video store where she worked had been robbed and described how it had happened. Peterson retrieved a gun out of Everette’s car, and he, Rainly and Robinson went to the video store in a white car; at this point in his testimony, Peterson did not mention Everette as being present in the car, though he testified to that fact later. Peterson entered the store first, and Rainly and Robinson entered behind him. Peterson chased an employee and pulled the gun from his pocket. Peterson caught up with the employee at the back of the store and brought her to the front of the store, where Rainly and Robinson were with the other store employee. Peterson told one of the employees to open the safe, but it did not open immediately. The employee loaded video game systems onto a cart, then pushed the cart out the back door. Peterson left through the back door, where he got into a white car in which Rainly, Everette and Robinson were sitting; video games were also in the car. Everette drove the car back to her apartment, and they all went inside. Rainly, Robinson and Peterson went outside to move the items from the white car into Everette’s blue Honda. Peterson then carried a video game system to Everette’s apartment. As Rainly, Robinson and Peterson were preparing to leave, the police arrived.

Case No. A10A1257

1. Rainly contends that the evidence was insufficient to support his aggravated assault convictions because there was no evidence that he pointed a gun at the store clerk or that either the clerk or the manager was placed in reasonable apprehension of immediately receiving a violent injury.

In Count 3 of the indictment, the state accused Rainly (and the other defendants) of committing aggravated assault by making an assault upon the store manager, with intent to rob, by pointing a handgun at her, thereby placing her in reasonable apprehension of immediately receiving a violent injury. In Count 4, the state accused Rainly (and the other defendants) of committing aggravated assault upon the store clerk by assaulting him with a handgun, a deadly weapon, by pointing a handgun at him, thereby placing him in reasonable apprehension of immediately receiving a violent injury.

Even though Rainly did not actually use a weapon, there was evidence that Peterson brandished a handgun and pointed it at both the manager and the clerk. Peterson’s use of a weapon can be attributed to Rainly because one who intentionally aids or abets the commission of a crime by another is a party to the crime and equally guilty with the principal. And “reasonable apprehension of injury can be proved by circumstantial or indirect evidence as well as by direct or positive evidence. Indeed, the presence of a gun would normally place a victim in reasonable apprehension of being injured violently.” The evidence was sufficient to authorize a rational trier of fact to find Rainly guilty beyond a reasonable doubt as a party to two counts of aggravated assault as charged in Counts 3 and 4 of the indictment. Although he makes no specific argument regarding the sufficiency of the evidence to support the remaining convictions, the evidence was also sufficient for a rational trier of fact to find Rainly guilty beyond a reasonable doubt of having committed those crimes.

2. Rainly contends that the trial court abused its discretion by permitting witnesses to mention in their testimony, and the prosecutor to mention during his opening statement and closing argument, the December 12, 2007 robbery of the video store. He asserts that evidence of the prior robbery was inflammatory and irrelevant and that, because it amounted to similar transaction evidence, the court erred in allowing it without following the procedures required for the admission of similar transaction evidence. Specifically, he cites the prosecutor’s comment in the opening statement (that the store was robbed previously and that Everette and the clerk present during the December 18 incident were working when the previous incident occurred, and that was what prompted officers to go to Everette’s apartment to investigate the December 18 incident); an officer’s testimony that one officer left the crime scene to check the area where one of the employees present at the previous robbery lived; and the clerk’s testimony that he and Everette were present during the December 12 robbery. Although Rainly does not point to any specific comments made during closing argument, our review of the transcript reveals that the prosecutor commented that (1) Everette had said that she gave items to robbers in the earlier incident because she understood why people would hold up a video store that time of year, and (2) when Peterson told an officer that Everette had nothing to do with the December 18, 2007 robbery, the officer asked him if he thought it suspicious that Everette was “held up” six days earlier.

The admission of evidence lies within the sound discretion of the trial court, and we will not reverse such determinations absent abuse of that discretion. Rainly has shown no abuse of discretion. The evidence of which Rainly complains and statements related thereto did not constitute evidence of or statements concerning similar transactions which the state sought to use against him. The state did not suggest, nor could it be reasonably inferred from the evidence, that Rainly was implicated in any way in the prior robbery. Adherence to USCR 31.1 and 31.3 was not required because that evidence and those statements did not place his character in issue.

3. Rainly contends that he received ineffective assistance of counsel in that his attorney failed to make a motion in limine to exclude evidence of the prior robbery.

To prevail on his claim of ineffective assistance of counsel, Rainly must show both deficient performance and actual prejudice stemming from that deficiency. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

As discussed in Division 2, Rainly was not implicated in the prior robbery. Accordingly, he did not establish a reasonable probability that, but for counsel’s alleged error, the outcome of his trial would have been different.

Case No. A10A1258

4. Everette contends that the state failed to prove its case beyond a reasonable doubt. Specifically, she argues that the evidence was insufficient to support her aggravated assault convictions and her theft by receiving stolen property conviction.

(a) Everette argues that her aggravated assault convictions cannot stand because there was no evidence that she, personally or as a party to a crime, pointed a gun at the store clerk or that either the store clerk or the store manager was in reasonable apprehension of immediately receiving a violent injury.

Even though there was no evidence that Everette was inside the store or actually used a weapon during the incident, there was evidence that she owned the handgun used in the robbery, participated in the planning of the robbery, drove the car (with the other defendants and stolen merchandise inside) from the scene immediately after the robbery, and was in her apartment with the other defendants, hiding, when police arrived shortly after the robbery. There was also evidence that property taken during the robbery was found in Everette’s car and in her apartment. Peterson’s use of a weapon during the robbery thus can be attributed to Everette because one who intentionally aids or abets the commission of a crime by another is a party to the crime and equally guilty with the principal. Reasonable apprehension of injury can be proved by circumstantial or indirect evidence as well as by direct or positive evidence; indeed, the presence of a gun would normally place a victim in reasonable apprehension of being injured violently. There was testimony that one of the robbers, while making certain demands, pointed a gun at the store manager and at the clerk during the incident. The evidence was sufficient to authorize a rational trier of fact to find Everette guilty beyond a reasonable doubt as a party to the crimes of aggravated assault as to both store employees.

(b) Everette asserts that the evidence was insufficient as to the theft by receiving stolen property (a Glock handgun) because the state failed to prove that she knew or should have known the handgun was stolen. We agree.

A person commits the offense of theft by receiving stolen property when she receives, disposes of, or retains stolen property which she knows or should know was stolen.

Knowledge that goods are stolen is an essential element of the crime of receiving stolen goods, and this knowledge on the part of the accused must be proved; but it may be inferred from circumstances, where the circumstances would excite suspicion in the minds of ordinarily prudent persons.

The state presented evidence that the Glock handgun found in Everette’s apartment had been reported stolen in November 2007. The state asserts that it proved beyond a reasonable doubt that Everette should have known that the handgun had been stolen because, according to Peterson, she had bought it for $150 or $175 from “[s]ome guy on the street.” A police officer testified that he had purchased two new Glock handguns for $400 and $550 several years before trial, and that the value of such handguns decreases once they are fired. No evidence was presented as to the age of the handgun purchased by Everette or whether it had been fired. There was no evidence that, at the time she bought it, the handgun was worth the amounts the officer testified he had paid for new Glock handguns, or that there was such a gross disparity between the value of the handgun and the price Everette paid for it as to excite suspicion. That Everette purchased the handgun “on the street” does not prove knowledge that it was stolen. The evidence presented was insufficient to sustain a conviction for theft by receiving stolen property, and the conviction must be reversed.

(c) Although she has made no arguments regarding the other convictions, a rational trier of fact was authorized to find Everette guilty beyond a reasonable doubt of committing the offenses of armed robbery upon the store manager, possession of a firearm during the commission of a felony and possession of marijuana with intent to distribute, as charged in the indictment.

5. Everette’s contention that the court erred in permitting testimony and argument about the prior robbery presents no basis for reversal.

When one is on trial charged with the commission of a crime, proof of a distinct, independent and separate offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other. This is the general rule, but there are some exceptions to it, as when the extraneous crime forms part of the res gestae ... or may bear upon the question of the identity of the accused, or articles connected with the offense[.]

As a general rule, circumstances connected with a defendant’s arrest are admissible in evidence. However, the evidence must be shown to be relevant; circumstances surrounding the arrest should not be admitted if they are wholly unrelated to the charged crime, are remote in time from the charged crime, or are not otherwise shown to be relevant. The circumstances surrounding an arrest are admissible, if relevant, even if such circumstances incidentally place the defendant’s character in issue. Proper res gestae evidence may be admitted without having to follow the rules regarding prior similar transactions.

The officers entered Everette’s apartment shortly after the December 18, 2007 robbery occurred, and arrested the defendants. While they were in the process of making the arrests, the officers found, among other items, an officer’s business card containing information relating to the earlier robbery of the video store. The store clerk testified that the business card, which officers had discovered inside the pocket of a jacket found in Everette’s apartment — along with other items that had been in the clerk’s wallet when the wallet was stolen during the December 18, 2007 incident — looked like the business card he received during the investigation of the earlier robbery and then confirmed that it was one of the items stolen from him on December 18, 2007. Thus, the business card was an article taken during the December 18, 2007 robbery and recovered during the search of Everette’s apartment. It was admissible because it was relevant to the identity of the accused and was an article connected with the charged offense. Evidence relating to the first crime was not wholly unrelated to the charged crimes, nor was it so remote in time as to make it inadmissible.

Therefore, the trial court did not err in allowing testimony and statements regarding the December 18, 2007 taking and recovery of the business card. Specifically, there was no error in the store clerk testifying that the police officer gave him a business card concerning a robbery of the store the week before, that the card was taken from him during the December 18, 2007 robbery, and that the card recovered by police and introduced into evidence at trial appeared to be or was the card the officer had given him. Likewise, there was no error in admitting testimony from the officer that he gave the store clerk a business card during the investigation of the prior robbery and that such a card was recovered during a search of Everette’s apartment shortly after the charged robbery occurred. Such testimony did not implicate any of the defendants in the prior robbery; instead, it identified them as being connected to the charged crimes. To the extent the testimony and argument went beyond identifying the business card as an article taken in the December 18, 2007 robbery, it was not relevant and was improperly permitted.

But the error does not require reversal in this case. Here, there was overwhelming evidence of Everette’s guilt, including the trial testimony of Peterson and the statements of Everette and her co-defendants before trial, as well as physical evidence recovered from her apartment and car shortly after the crimes occurred; and there was police testimony that Everette was considered a victim rather than a suspect in the prior robbery. Given the strength of the state’s case against Everette, any error in the admission of the testimony and statements was harmless.

6. Everette has not shown that trial counsel was ineffective based on counsel’s failure to timely object to the prosecutor’s argument regarding the prior robbery. Everette has not indicated in her brief what comment was made or on which page(s) in the record the comment can be found. It is not the function of this court to cull the record in search of error. As a general rule, closing argument is appropriate as long as it is based on evidence that is properly before the jury. As discussed in Division 5, evidence concerning the business card and some limited reference to the prior robbery was admissible insofar as it was relevant to the charged offenses. While some of the evidence exceeded those limits, the evidence of Everette’s guilt was overwhelming. Thus, she has failed to show that, even if counsel were deficient for not objecting to such argument, she was prejudiced.

7. Everette contends that the trial court erred in denying her motion for new trial on the ground that the prosecutor presented evidence and argument in the presence of the jury regarding the impact of the armed robbery on the store manager’s life. The prosecutor asked the store manager whether she had altered her lifestyle in any way after the robbery, to which she responded, “Yes.” The prosecutor then asked the manager how her life was different after the robbery. Before the witness replied, Robinson’s counsel objected. In response to the objection the prosecutor remarked, with the jury present, “[fit’s a traumatic event, and I think she’s eligible to explain to the jury that it’s altered her life.” The objection was sustained. Considering the strength of the evidence against Everette, the fact that the objection was sustained, and the fact that the testimony on the issue was not developed, it is not likely that the testimony and remark engendered strong sympathy for the store manager or prejudiced Everette. Therefore, any error in this regard was harmless beyond a reasonable doubt.

8. Everette contends that the trial court erred by denying her motion for new trial on the ground that the prosecutor improperly disparaged trial counsel during closing argument. She points to this remark by the prosecutor: “When I was a kid I used to love magic. One of the neat things about magic was it was always about misdirection. Earlier you heard a lot of misdirection. What you need to focus on is the evidence and on the truth.”

Counsel enjoys very wide latitude in closing arguments, and may make use of . . . illustrations, so long as he does not make extrinsic or prejudicial statements that have no basis in the evidence. Counsel’s illustrations during closing argument may be as various as are the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wing to his imagination.

“Closing arguments are judged in the context in which they are made.”

Before the prosecutor made the statement at issue, Rainly’s trial counsel had described Peterson as “the star” of the “show,” told of how Rainly met Peterson “years earlier” while in the custody of the Department of Family & Children Services (“DFCS”), and spoke about why children end up in DFCS’s custody, the parenting skills of Peterson’s parents, and how the world in which the defendants lived differed from the world in which counsel and the jurors lived. Then, counsel for Everette had said the prosecutor wanted the jury “to just reach for straws and pull something out of the air,” and urged the jury to watch as the prosecutor tried to “massage . . . things” and try to “make something out of nothing.”

When viewed in the context in which it was made, the prosecutor’s argument referencing magic and misdirection and request that the jury focus on the evidence did not exceed the wide latitude permitted in closing argument. The trial court did not abuse its discretion in permitting the argument. Everette’s related contention that counsel’s performance was deficient because he failed to object to the argument is also without merit.

Case No. A10A1259

9. Robinson complains that the trial court erred in allowing the state to present evidence of a similar transaction, namely the prior robbery, without requiring notice and a hearing as mandated by USCR 31.1 and 31.3 (B). He adds that the evidence placed his character at issue by suggesting that he had the propensity to rob video stores and to associate with people of bad character. No such notice and hearing were required because evidence regarding the prior robbery did not place Robinson’s character in issue. The testimony in question did not suggest his involvement in the commission of another, independent offense. Further, even if we were to find error in this regard, such error would be harmless because the evidence of Robinson’s guilt was overwhelming and thus it is highly probable that allowing testimony about the earlier robbery did not contribute to the verdict.

10. Robinson’s contention that the trial court erred by allowing evidence pertaining to the impact the crimes had on the store manager during the guilt-innocence phase of the trial presents no basis for reversal. Given the strength of the evidence against Robinson, the fact that the court sustained the objection, and the fact that the impact testimony was not developed, it is not likely that the evidence engendered strong sympathy for the store manager or prejudiced Robinson. Thus, any error in this regard was harmless beyond a reasonable doubt.

11. Robinson contends that the trial court erred in failing to give his requested charges on robbery or conspiracy to commit robbery as lesser offenses of armed robbery. He avers that the charges were authorized because there was some evidence that he did not know a weapon would be used in the robbery. To support his argument, Robinson cites Peterson’s statement to officers at the time of his arrest that Robinson knew nothing about any gun that was found on the premises and Peterson’s testimony that the gun was concealed in his pocket when he entered the store and he was the only person who touched the gun during the robbery.

[W]here the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. Where a case contains some evidence, no matter slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.

The trial court did not err in failing to give a jury charge on the lesser offense of robbery. The evidence was uncontradicted that the video store was robbed at gunpoint. A gun was used to effectuate the robbery, the gun was brandished throughout the incident and Robinson participated in the robbery while the gun was being used to accomplish the robbery. And when officers asked Robinson upon his arrest what had happened, he admitted that he went with Peterson to the video store and that Peterson had carried a gun. Peterson’s testimony that the gun was concealed when he entered the store and that Robinson had not touched the gun during the robbery, and the officer’s testimony that Peterson said that Robinson knew nothing about the gun found in the apartment after the robbery was not evidence that a weapon was not used in the robbery. In fact, there was no evidence to support a jury finding that a weapon was not used to accomplish the robbery, even if the jury believed Robinson’s version of the facts — that he intended only robbery and that the use of the weapon was not naturally or necessarily done in furtherance of the conspiracy to commit robbery. The court was not required to give a charge on the lesser offense of robbery where uncontroverted evidence showed completion of the offense of armed robbery. Robinson’s request to charge was not authorized by the evidence and the trial court did not err in denying it. Moreover, in light of the overwhelming evidence against Robinson, it is highly probable that the failure to give the lesser charge did not contribute to the verdicts.

The trial court also properly denied giving a charge on conspiracy to commit robbery as a lesser offense of armed robbery. Where the evidence showed that the crime charged was completed, the failure to charge on conspiracy was not error; this is because if the crime charged has been committed, the co-conspirators are guilty as parties to the commission of a crime.

Judgments affirmed in Case Nos. A10A1257 and A10A1259. Judgment affirmed in part and reversed in part in Case No. A10A1258.

Decided November 30, 2010

Reconsideration denied December 16, 2010.

Clark & Towne, Jessica R. Towne, for appellant (case no. A10A1257).

Edwin J. Wilson, for appellant (case no. A10A1258).

Deborah R. Fluker, for appellant (case no. A10A1259).

Daniel J. Porter, District Attorney, Jimmie E. Baggett, Jr., Assistant District Attorney, for appellee.

Miller, C. J., and Johnson, J., concur.

       The court found the asportation element of kidnapping was not proved in light of Garza v. State, 284 Ga. 696, 702 (1) (670 SE2d 73) (2008) (overruling cases finding asportation element proved by “slight movement”); but see Leverette v. State, 303 Ga. App. 849, 850 (1), n. 4 (696 SE2d 62) (2010) (subsequent to Garza, the legislature amended the kidnapping statute regarding the asportation element, said amendment applicable to crimes committed on or after July 1, 2009).

        Morris v. State, 284 Ga. 1, 2 (1) (662 SE2d 110) (2008); Adkins v. State, 279 Ga. 424, 425 (614 SE2d 67) (2005).

       OCGA § 16-5-21 (a) provides, in relevant part, that a person commits the offense of aggravated assault when he assaults (1) with intent to roh; or (2) with a deadly weapon. OCGA § 16-5-20 (a) (2) provides, in relevant part, that a person commits the offense of assault when he commits an act which places another in reasonable apprehension of immediately receiving a violent injury.

        Robinson v. State, 246 Ga. App. 576, 577-578 (1) (541 SE2d 660) (2000); see Mason v. State, 262 Ga. App. 383 (1) (585 SE2d 673) (2003).

        Willingham v. State, 281 Ga. 577, 578-579 (642 SE2d 43) (2007) (citations and punctuation omitted).

       See id. at 578-579; Serchion v. State, 293 Ga. App. 629, 631 (b) (667 SE2d 624) (2008).

       In Count 1, Rainly was accused of committing armed robbery by, with intent to commit theft, taking video games and currency from the immediate presence of the store manager by use of an offensive weapon. In Count 2, he was accused of the same offense, except with the clerk as the victim. See OCGA § 16-8-41. In Count 7, Rainly was charged with possession of a firearm during the commission of a felony by unlawfully having on his person a firearm during the commission of a felony (aggravated assault). See OCGA § 16-11-106.

        Wright v. State, 302 Ga. App. 101, 104 (3) (690 SE2d 220) (2010).

       See Ealy v. State, 203 Ga. App. 219, 220-221 (1) (416 SE2d 559) (1992).

       See Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

        Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010).

       See id. at 538 (2); Phillips v. State, 285 Ga. 213, 223 (5) (k) (675 SE2d 1) (2009).

       See OCGA § 16-5-21.

        Robinson, supra; Mason, supra.

        Willingham, supra.

       See Lucky v. State, 286 Ga. 478, 480 (1) (689 SE2d 825) (2010); Willingham, supra at 578-579; Serchion, supra.

       OCGA § 16-8-7 (a).

        Martin v. State, 300 Ga. App. 39, 40 (1) (684 SE2d 111) (2009) (citations and punctuation omitted).

        In the Interest of J. L., 306 Ga. App. 89 (701 SE2d 564) (2010) (absent evidence of real value of motorcycle at time of purchase, evidence was insufficient to support finding beyond reasonable doubt that price paid was grossly disproportionate to its value and that defendant had guilty knowledge).

       See Brown v. State, 265 Ga. App. 613, 614 (1) (594 SE2d 770) (2004) (buying at a price grossly less than the real value is a sufficient circumstance to excite suspicion).

        White v. State, 283 Ga. 566, 568 (2) (662 SE2d 131) (2008) (evidence that defendant purchased handgun “off the street” and that the words “Memphis Police Department” were engraved on the handle, was not sufficient to support theft by receiving conviction).

        Thomas v. State, 270 Ga. App. 181, 182 (1) (b) (606 SE2d 275) (2004) (evidence that defendant bought gun for $120 from a stranger was insufficient to support theft by receiving conviction).

       Everette was charged in Count 1 with the armed robbery of the store manager. See OCGA § 16-8-41. In Count 7, Everette was charged with possession of a firearm during the commission of a felony (aggravated assault). See OCGA § 16-11-106. In Count 8, she was charged with possession of marijuana with intent to distribute. See OCGA § 16-13-30 (j).

        State v. Luke, 232 Ga. 815, 816 (209 SE2d 165) (1974).

        Nichols v. State, 282 Ga. 401, 403 (2) (651 SE2d 15) (2007).

       Id.

       Id.

        White v. State, 282 Ga. App. 286, 288 (2) (638 SE2d 426) (2006).

       See Luke, supra.

       Compare Nichols, supra at 404 (2); Saxton v. State, 300 Ga. App. 535, 536-537 (2) (a) (685 SE2d 780) (2009).

        See Inman v. State, 281 Ga. 67, 71 (3) (c) (635 SE2d 125) (2006); Cartledge v. State, 285 Ga. App. 145, 149 (3) (645 SE2d 633) (2007); compare Saxton, supra at 537 (2) (b).

        Lewis v. State, 245 Ga. App. 234, 235 (2) (537 SE2d 111) (2000).

        Smith v. State, 284 Ga. 599, 602 (2) (a) (669 SE2d 98) (2008).

       See Bridges, supra at 540 (6); Harris v. State, 279 Ga. 522, 527 (3) (615 SE2d 532) (2005).

       See generally OCGA § 17-10-1.2 (a) (3), which provides, in relevant part, that the court shall allow evidence of the impact of the crime upon the victim. This evidence is only admissible during the sentencing phase of the trial. Taylor v. State, 264 Ga. App. 665, 669 (5) (592 SE2d 148) (2003).

       See Keita v. State, 285 Ga. 767, 771 (3) (684 SE2d 233); Walker v. State, 282 Ga. 774, 777 (5) (653 SE2d 439) (2007).

        Duffy v. State, 271 Ga. App. 668, 670 (2) (610 SE2d 620) (2005) (citation omitted).

        Adams v. State, 283 Ga. 298, 302 (3) (e) (658 SE2d 627) (2008) (citation omitted).

       See generally Smith v. State, 284 Ga. 599, 602 (2) (a) (669 SE2d 98) (2008).

       Id.

       See generally Wesley v. State, 286 Ga. 355, 356 (3) (b) (689 SE2d 280) (2010); Adams v. State, 283 Ga. 298, 302 (3) (e) (658 SE2d 627) (2008).

       See Ealy, supra.

       See Moore v. State, 301 Ga. App. 220, 225 (3) (687 SE2d 259) (2010).

       See Keita, supra; Walker, supra.

        Maiorano v. State, 294 Ga. App. 726, 728 (2) (669 SE2d 678) (2008) (citation and emphasis omitted).

       OCGA § 16-8-40 (a) provides that a person commits the offense of robbery when, with intent to commit theft, he takes the property of another from the person or the immediate presence of another by use of force, by intimidation (by use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another) or by sudden snatching. OCGA § 16-8-41 (a) provides, in pertinent part, that a person commits the offense of armed robbery when, with intent to commit theft, he takes the property of another from the person or the immediate presence of another by use of an offensive weapon.

       Compare Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994).

       See Martin v. State, 213 Ga. App. 146, 147 (444 SE2d 103) (1994).

       Id.; see generally Clark v. State, 279 Ga. 243, 247 (7) (611 SE2d 38) (2005); Carter v. State, 257 Ga. App. 620, 622 (1) (571 SE2d 831) (2002).

       See Martin, supra.

       See Edwards, supra.

        Gunter v. State, 243 Ga. 651, 660 (6) (256 SE2d 341) (1979); Granados v. State, 244 Ga. App. 153, 154 (3) (534 SE2d 886) (2000).


author: Miller, Chief Judge.

text:
    A10A1647.
    GRIMES v. CATOOSA COUNTY SHERIFF’S OFFICE et al.
    (705 SE2d 670)
   Miller, Chief Judge.

The Catoosa County Sheriffs Office, acting on the direction of the district attorney, refused James Michael Grimes’s request to expunge his criminal record. Grimes appealed the Sheriffs Office’s decision to the Superior Court of Catoosa County. The trial court dismissed Grimes’s appeal on the ground that Grimes had been indicted and was therefore not entitled to have his records expunged. We granted Grimes’s application for leave to appeal the trial court’s order. Grimes claims that the trial court erred (i) in dismissing his appeal on the ground that he had been indicted and (ii) in denying him a de novo hearing thereon. We agree with Grimes that he had the right to seek expungement of his records notwithstanding the fact that he was indicted before the charge against him was nolle prossed. Accordingly, we reverse and remand with direction.

1. Grimes’s appeal to the superior court was pursuant to OCGA § 35-3-37 (d) (6). Appeals thereunder are as provided in OCGA § 50-13-19, which addresses judicial review of administrative decisions. “When this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.” (Citation and punctuation omitted.) The Lamar Co., LLC v. Whiteway Neon-Ad, 303 Ga. App. 495, 498 (693 SE2d 848) (2010). Our review as to conclusions of law, which are at issue here, is de novo. Id.

The record shows that Grimes submitted a request to the Sheriffs Office seeking expungement of his record in Criminal Action No. 2005 CR 289. The charges in that action had been ordered nolle prossed. The Sheriffs Office declined to expunge Grimes’s records and informed him that his request had been denied by the district attorney. Pursuant to OCGA § 35-3-37 (d) (6), Grimes appealed the Sheriffs Office’s decision to the Superior Court of Catoosa County. The matter came before the trial court for a hearing, at which time the district attorney’s office moved for dismissal of Grimes’s appeal on the ground that an indictment had been issued and Grimes was therefore barred from having his records expunged. The trial court adjourned the hearing to take the motion under advisement and, upon determining that Grimes “was indicted and as such is not entitled to have his records expunged,” subsequently dismissed the appeal.

Grimes contends that the trial court’s order must be reversed because the charges against him were nolle prossed and the fact of his indictment did not preclude the expungement of his records. The State responds that Grimes was not entitled to have his records expunged as of right under OCGA § 35-3-37 (d), and therefore the trial court did not err in dismissing the appeal.

The resolution of this issue requires that we construe OCGA § 35-3-37 (d). In doing so, “we look to the literal language of the statute, the rules of statutory construction and rules of reason and logic, the most important of which is to construe the statute so as to give effect to the legislature’s intent.” (Citation omitted.) State v. Nix, 220 Ga. App. 651, 652 (1) (469 SE2d 497) (1996). “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a).

OCGA § 35-3-37 (d) addresses requests for expungement of criminal records by individuals (i) who were arrested and released without referral of the charge to the prosecuting attorney, or, if referred, the charge was dismissed without indictment or accusation, or (ii) who were indicted or accused, but the charge was thereafter nolle prossed, dead docketed, or otherwise dismissed. OCGA § 35-3-37 (d) (1), (9). In such cases, a copy of the individual’s request for expungement must be provided by the agency to the proper prosecuting attorney for review. OCGA § 35-3-37 (d) (2), (9). Pursuant to OCGA § 35-3-37 (d) (3), an individual has a right to have his records expunged if “the prosecuting attorney determines” that certain requirements are met, notably that the charge was dismissed without the prosecutor having sought an indictment or filing an accusation. See OCGA § 35-3-37 (d) (1) (A), (B); (3) (A). “After the filing of an indictment or an accusation, a record shall not be expunged if the prosecuting attorney shows that the charges were nolle prossed, dead docketed, or otherwise dismissed” for any of the reasons set forth in OCGA § 35-3-37 (d) (7) (A) through (G). (Emphasis supplied.) OCGA § 35-3-37 (d) (7).

Pertinent to Grimes’s case, OCGA § 35-3-37 (d) (9) provides:

An individual who has been indicted or charged by accusation that was subsequently dismissed, dead docketed, or nolle prossed may request an expungement as provided by paragraphs (1) through (3) of this subsection; provided, however, that if the prosecuting attorney objects to the expungement request within 60 days after receiving a copy of said request from the agency, the agency shall decline to expunge and the individual shall have the right to appeal as provided by paragraph (6) of this subsection.

In view of the foregoing, we can only agree with the State’s statutory construction supporting dismissal of Grimes’s appeal if we ignore substantial portions of OCGA § 35-3-37 (d). This we decline to do. “All parts of a statute should be harmonized and given sensible and intelligent effect, because it is not presumed that the legislature intended to enact meaningless language.” (Citations and punctuation omitted.) Colonial Life &c. Ins. Co. v. Heveder, 274 Ga. App. 377, 379 (618 SE2d 39) (2005). We agree with the State that an individual is only entitled to expungement of his or her criminal records as of right if, among other requirements, he has not been indicted. See OCGA § 35-3-37 (d) (1), (3). On the other hand, OCGA § 35-3-37 (d) (9) provides that an individual may request expungement of his records if an indictment or accusation has been issued, but was subsequently dismissed, dead docketed, or nolle prossed. This necessarily contemplates that Grimes’s request for expungement could have been properly granted by the Sheriffs Office had the district attorney not objected to the request. With respect to charges nolle prossed, dead docketed or otherwise dismissed after the filing of an indictment and accusation, the proper grounds of such an objection are set forth in OCGA § 35-3-37 (d) (7).

In addition, the State’s position is inconsistent with OCGA § 35-3-37 (d) (6), which is the right of appeal referenced in OCGA § 35-3-37 (d) (9). OCGA § 35-3-37 (d) (6) expressly provides that in an appeal thereunder, “[a] decision of the agency [declining to expunge] shall be upheld only if it is determined by clear and convincing evidence that the individual did not meet the criteria set forth in paragraph (3) of this subsection or subparagraphs (A) through (G) of paragraph (7) of this subsection.” (Emphasis supplied.) Although this provision is somewhat convoluted, we conclude that unless the trial court determines that clear and convincing evidence of record shows that the individual was not entitled to expungement as of right under OCGA § 35-3-37 (d) (3), or, following an indictment or accusation, the charges were nolle prossed, dead docketed, or dismissed for a reason set forth in OCGA § 35-3-37 (d) (7) (A) through (G), the agency’s refusal to expunge cannot be affirmed.

In light of the foregoing provisions, we find that the trial court erred in dismissing Grimes’s appeal. The record shows that Grimes was indicted but that the charges were nolle prossed. By the terms of OCGA § 35-3-37 (d) (9) Grimes was therefore permitted to request that his records be expunged. Under that same provision, however, the Sheriffs Office was required to deny Grimes’s expungement request because the district attorney objected thereto. Grimes’s recourse was to appeal under OCGA § 35-3-37 (d) (6), but the trial court dismissed Grimes’s appeal without making the determination required thereby. We therefore reverse and remand the case to the trial court for that purpose.

2. We disagree with Grimes that the trial court was required to conduct a de novo hearing to consider his appeal. Although OCGA § 35-3-37 (c) contemplates such a procedure, Grimes’s appeal was taken under OCGA § 35-3-37 (d) (6). By its express provisions, an appeal under OCGA § 35-3-37 (d) (6) is as provided in OCGA § 50-13-19. In such case, “[t]he review shall be conducted by the court without a jury and shall be confined to the record. . . . The court, upon request, shall hear oral argument and receive written briefs.” OCGA § 50-13-19 (g).

Judgment reversed and case remanded with direction.

Phipps, P J., and Johnson, J., concur.

Decided December 17, 2010.

Townley & Lindsay, Thomas F. Lindsay, for appellant.

Herbert E. Franklin, Jr., District Attorney, Melissa A. Pittman, Assistant District Attorney, Christopher C. Young, for appellees.

       We cannot determine the nature of the underlying charge from the appellate record.

       [A] record shall not be expunged if the prosecuting attorney shows that the charges were nolle prossed, dead docketed, or otherwise dismissed because: (A) Of a plea agreement resulting in a conviction for an offense arising out of the same underlying transaction or occurrence as the conviction; (B) The government was barred from introducing material evidence against the individual on legal grounds including but not limited to the grant of a motion to suppress or motion in limine; (C) A material witness refused to testify or was unavailable to testify against the individual unless such witness refused to testify based on his or her statutory right to do so; (D) The individual was incarcerated on other criminal charges and the prosecuting attorney elected not to prosecute for reasons of judicial economy; (E) The individual successfully completed a pretrial diversion program, the terms of which did not specifically provide for expungement of the arrest record; (F) The conduct which resulted in the arrest of the individual was part of a pattern of criminal activity which was prosecuted in another court of this state, the United States, another state, or foreign nation; or (G) The individual had diplomatic, consular, or similar immunity or inviolability from arrest or prosecution.
      OCGA § 35-3-37 (d) (7).


text:
    A10A1695.
    HAM v. THE STATE.
    (705 SE2d 301)
   Miller, Chief Judge.

A Gwinnett County jury found Daryl Ham, Sr., guilty of speeding. OCGA § 40-6-181. He was sentenced to 12 months confinement to be served on probation, a fine, and community service. On appeal, Ham contends that the trial court erred (i) in failing to warn him of the danger of proceeding without an attorney, and (ii) in overruling his objection to the admission into evidence of an expired laser permit. After a thorough review of the record, we reverse and remand for a new trial because the State failed to satisfy its burden of showing that Ham knowingly and intelligently waived his right to counsel.

Ham did not submit a transcript of the trial as part of the appellate record, and the State does not dispute his assertion that the proceedings were not transcribed. The general rule is that the appellant must show error by the record. See Rose u. State, 287 Ga. 238, 240, n. 2 (695 SE2d 261) (2010).

An exception to that general rule has developed, however, based upon the Supreme Court’s decision in Jones v. Wharton, 253 Ga. 82 (316 SE2d 749) (1984). In Jones, the Supreme Court held that under Argersinger v. Hamlin, 407 U. S. 25 (92 SC 2006, 32 LE2d 530) (1972), regardless of whether the charges are felony or misdemeanor charges, when an accused is put on trial and faces a term of imprisonment, he is constitutionally guaranteed the right to counsel. Id. The accused may make a knowing and intelligent waiver of this right, but we may not presume such a waiver from a silent record.

(Citation omitted.) Jones v. State, 260 Ga. App. 251, 252 (2) (581 SE2d 315) (2003) (reversing appellant’s misdemeanor traffic offense convictions). In other words, “[w]hen the record is silent, waiver is never presumed and the burden is on the [SJtate to present evidence of a valid waiver.” (Citation omitted.) Jones, supra, 253 Ga. at 83. “[T]he record must reflect that the defendant was made aware of the dangers of self-representation, and nevertheless made a knowing and intelligent waiver.” (Citations and punctuation omitted.) God-lewski v. State, 256 Ga. App. 35, 36 (567 SE2d 704) (2002) (reversing defendant’s conviction for speeding where record was silent as to the waiver of his right to counsel). The State bears the burden of demonstrating through a trial transcript or extrinsic evidence

Decided December 17, 2010.

Daryl Ham, pro se.

that the accused understood (1) the nature of the charges against him, (2) any statutory lesser included offenses, (3) the range of possible punishments for the charges, (4) possible defenses, (5) mitigating circumstances, and (6) any other facts necessary for a broad understanding of the matter. Otherwise, there is no valid waiver.

(Footnote omitted.) McAdams v. State, 258 Ga. App. 250, 251 (1) (573 SE2d 501) (2002).

The record before us shows that Ham represented himself pro se below. The State does not show, nor does it attempt to show by “transcript or other extrinsic evidence,” that Ham made a knowing and voluntary waiver of his right to counsel. McAdams, supra, 258 Ga. App. at 251 (1). Rather, the State argues that Ham waived the issue for purposes of appeal by failing to raise it before the trial court. See, e.g., Wilkerson v. State, 286 Ga. 201, 206 (2) (686 SE2d 648) (2009) (appellant had a duty to object to trial court’s erroneous statement regarding his ability to request re-appointment of counsel). We do not know, however, what happened at the trial, and any analysis of the State’s argument would be grounded on speculation. In light of the limited record, we can say only that the State has not carried its burden of showing a valid waiver of Ham’s constitutional rights. See Jones, supra, 260 Ga. App. at 252 (2). Accordingly, we reverse Ham’s conviction and remand the case for a new trial. See Godlewski, supra, 256 Ga. App. at 36.

Judgment reversed and case remanded.

Phipps, P. J., and Johnson, J., concur.

Rosanna M. Szabo, Solicitor-General, for appellee.

       We decline the State’s invitation to find Ham’s right to appellate review has been waived by a deficient appellate brief.

       In light of our disposition, Ham’s other claim of error is moot.