author: Dillard, Judge.

text:
    A11A0014.
    CULAJAY v. THE STATE.
    (710 SE2d 846)
   Dillard, Judge.

Following a jury trial, Jose Culajay was convicted of two counts of trafficking in methamphetamine and one count of sale of methamphetamine. Culajay appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence and arguing that the triad court erred in denying his motion to strike a prospective juror for cause and in allowing testimony that improperly placed his character into evidence. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that in May 2006, an undercover officer with the Gwinnett County Drug Task Force received information from a confidential informant that Culajay was engaged in the trafficking and sale of methamphetamine. With his confidential informant’s assistance, the undercover officer, posing as a drug buyer, made contact with Culajay, and on May 19, 2006, he went to Culajay’s house and purchased over 50 grams of methamphetamine from Culajay. During that same meeting, Culajay provided the officer with his cell phone number, and the two discussed potential future methamphetamine transactions. On May 31, 2006, the undercover officer, accompanied this time by another undercover officer, went to Culajay’s house to buy more methamphetamine. On this occasion, the officer purchased approximately 12 grams of methamphetamine from Culajay, and continued to discuss the possibility of pursuing additional drug deals with him.

Over the course of the next two months, the undercover officer remained in contact with Culajay in an attempt to set up a large purchase of methamphetamine that would also possibly lead the officer to Culajay’s supplier. As a result of those discussions, on August 2, 2006, the undercover officer went to Culajay’s house to finalize a purchase of two pounds of methamphetamine. Upon arriving there, Culajay entered the officer’s vehicle and directed him to drive to a gas station just off of a nearby interstate. Unbeknownst to Culajay, the undercover officer was wearing a wire, which communicated everything that was being said to the drug task force surveillance teams following closely behind them.

A few minutes after the officer and Culajay arrived at the gas station, a red pickup truck containing two males pulled into the parking lot, and the two men motioned for the officer and Culajay to follow them. Shortly thereafter, the officer and Culajay arrived at a house just outside of Duluth and went inside to the kitchen where they met with five or six other people to negotiate the deal. Eventually, the officer agreed to buy two pounds of methamphetamine for $15,500. Following this discussion, one of the men went upstairs and returned to the kitchen carrying a plastic container filled with a large quantity of methamphetamine separated into several plastic bags. After examining the container, the undercover officer told Culajay and the others that he would leave to obtain the money and return soon to complete the purchase.

Upon leaving the house, the undercover officer went to obtain a search warrant, while the surveillance teams stayed at the scene to keep the house under close observation. However, a few minutes after the undercover officer left the premises, the surveillance team observed Culajay exit the house and make a call on his cell phone. And fearing that Culajay and the other suspects were becoming suspicious, the surveillance team immediately moved in and arrested Culajay and the others as they attempted to flee. Once the search warrant was obtained, the officers searched the house and recovered over 244 grams of methamphetamine.

Thereafter, Culajay was indicted on one count of trafficking in methamphetamine, related to the May 19, 2006 sale; one count of sale of methamphetamine, related to the May 31, 2006 sale; one count of trafficking in methamphetamine, related to the August 2, 2006 sale; and one count of criminal attempt to sell methamphetamine, also relating to the August 2006 sale. During his and a co-defendant’s trial, the undercover officer and members of the Drug Task Force surveillance team testified regarding their respective roles in the investigation of the case and Culajay’s arrest. Additionally, a forensic chemist with the GBI confirmed (1) that the substances recovered by the officers on each of the dates in question were methamphetamine and (2) the weight of the drugs recovered on those respective dates. At the trial’s conclusion, the jury found Culajay guilty on both counts of trafficking in methamphetamine and on the count of sale of methamphetamine, but not guilty on the count of attempt to sell methamphetamine. Subsequently, Culajay filed a motion for new trial, which the trial court denied after conducting a hearing on the matter. This appeal follows.

1. Culajay contends, generally, that the evidence is insufficient to support his convictions of trafficking in and the sale of methamphetamine. We disagree.

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. We do not weigh the evidence or determine witness credibility “but only determine whether a rational trier of fact could have found the defendant [ ] guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case[.]”

A person commits the offense of trafficking in methamphetamine when that person “knowingly sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine. . . .” It is likewise unlawful for any person to “manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance” in any amount, including methamphetamine.

And here, the evidence shows that Culajay sold more than 28 grams of methamphetamine to the undercover officer on May 19, 2006, and that he also sold a smaller quantity to the officer on May 31, 2006. Accordingly, the evidence is sufficient to support Culajay’s convictions for trafficking in and the sale of methamphetamine related to those two dates. Furthermore, the evidence also authorized the jury to find that Culajay participated in the August 2, 2006 drug deal, and thus that he “was, at a minimum, a party to trafficking in methamphetamine” on that date.

2. Culajay further contends that the trial court erred in denying his challenge to strike a prospective juror for cause and, therefore, he was improperly required to exercise a peremptory strike. We disagree.

Georgia law presumes that “potential jurors are impartial, and the burden of proving partiality lies with the party seeking to have the juror disqualified.” Additionally,

[wjhether to strike a juror for cause lies within the sound discretion of the trial court, and a trial court is not obligated to strike a juror for cause in every instance where the potential juror expresses doubts about his or her impartiality or reservations about his or her ability to set aside personal experiences.

Moreover, “[t]he trial judge is uniquely positioned to observe a potential juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict.” Nevertheless, “[t]he court must excuse a potential juror for cause based on the juror’s partiality .. . if an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.”

But here, we see no basis for second guessing the trial court’s refusal to strike the prospective juror in question for cause. During voir dire, this prospective juror indicated that he had bad experiences with a particular attorney. And when questioned about those past experiences by the State’s prosecutor, the prospective juror responded, “I don’t like the idea that justice can be bought, in my opinion. A lot of times — the O.J. Simpson case, to me, points it out better than any. . . . I just, you know, I don’t trust all lawyers.” When pressed further on this issue, the prospective juror stated, “But something probably brought everybody here that has been accused, so they have to have some support. It’s part of the system. But, again, I have a problem with the trust and the whole thing. It is just an ethical issue to me.” In response to questions from the co-defendant’s counsel, the prospective juror again stated that he thought the State had to have some evidence for someone to be accused but that such evidence could be planted by the police. Later, in response to questions from Culajay’s counsel, the prospective juror claimed that he would not be able to “[ejthically” do defense counsel’s job. Nevertheless, the prospective juror also stated that he would do his best to be impartial and would wait to hear the evidence before making any decision about guilt or innocence. Furthermore, when asked by the trial court whether he could set aside his personal feelings, listen to the evidence, and render an impartial verdict, the prospective juror replied that he thought he could do so.

Given the foregoing, we find that the trial court did not err in concluding that the prospective juror in question had not formed a fixed or definite opinion regarding Culajay’s guilt or innocence. Indeed, as we have previously explained, it is “not an abuse of discretion to seat a juror who questions [his] ability to set aside biases so long as the juror indicates [he] has no unalterable fixed prejudices.” Accordingly, the trial court did not abuse its discretion in denying Culajay’s challenge for cause as to this prospective juror.

3. Culajay also contends that the tried court erred in allowing testimony that improperly placed his character into evidence. Once again, we disagree.

At the outset, we note that “admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” And here, during the redirect examination of the undercover officer who purchased the methamphetamine from Cula-jay, the State’s prosecutor asked if Culajay looked “substantially the same” as he did on the date of the last drug sale. The undercover officer replied, “No. He’s lost a little bit of weight since he’s been in jail.” Almost immediately thereafter, the co-defendant’s counsel requested a bench conference, and later, once the jury recessed for lunch, Culajay’s counsel lodged an objection to the officer’s comments, which the trial court overruled on the ground that the comment was not prejudicial.

On appeal, Culajay argues that the trial court erred in overruling his objection because the officer’s testimony, stating that Culajay had been in jail, improperly placed his character into evidence and was therefore prejudicial. Culajay is mistaken. As we have previously explained, “evidence that an accused has been confined in jail in connection with the case at issue does not place his character into evidence.” Accordingly, the trial court did not abuse its discretion in overruling Culajay’s objection to the undercover officer’s testimony.

Decided May 19, 2011.

Jonathan D. Aurelia, for appellant.

Daniel J. Porter, District Attorney, Karen M. Harris, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       Several of the parties to this sale, including co-defendant Jimenez-Ramirez, were also charged with trafficking in this same count of the indictment.

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Lott v. State, 303 Ga. App. 775, 775-76 (1) (694 SE2d 698) (2010) (citing Jackson, 443 U. S. at 319 (III) (B)).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citation and punctuation omitted).

       OCGA § 16-13-31 (e).

       OCGA § 16-13-30 (b).

       OCGA § 16-13-26 (3) (B).

        See OCGA § 16-13-31 (e); see, e.g., Martinez v. State, 303 Ga. App. 166, 169-70 (1) (692 SE2d 766) (2010) (holding that defendant’s sale of more than 28 grams of methamphetamine to undercover officer was sufficient to support defendant’s trafficking conviction)

        See OCGA §§ 16-13-30 (b), 16-13-26 (3) (B); see, e.g., Williamson v. State, 300 Ga. App. 538, 541 (1) (685 SE2d 784) (2009) (holding that three separate sales of methamphetamine to undercover officer was sufficient evidence to support defendant’s convictions on sale charges).

        Casanova v. State, 285 Ga. App. 554, 555 (1) (646 SE2d 754) (2007).

        See OCGA § 16-2-20; Navarro v. State, 293 Ga. App. 329, 331 (667 SE2d 125) (2008) (holding that evidence was sufficient to support trafficking conviction when defendant participated in drug-deal discussions); Casanova, 285 Ga. App. at 555 (1) (same).

        Chatman v. State, 283 Ga. App. 673, 674 (1) (642 SE2d 361) (2007) (footnote omitted).

        Blankenship v. State, 301 Ga. App. 602, 605 (3) (688 SE2d 395) (2009) (citation and footnote omitted); see also Garrett v. State, 280 Ga. 30, 31 (2) (622 SE2d 323) (2005) (same).

        Blankenship, 301 Ga. App. at 605 (3) (citation and footnote omitted).

        Chatman, 283 Ga. App. at 674 (1) (footnote omitted).

        See Blankenship, 301 Ga. App. at 605-06 (3) (holding that trial court did not abuse its discretion in denying for-cause challenges to jurors who stated their belief that an innocent defendant should testify in his own behalf when jurors indicated that they would be able to put aside what they felt and follow the law); Daniel v. State, 296 Ga. App. 513, 520-22 (6) (675 SE2d 472) (2009) (holding that trial judge did not err in failing to dismiss juror who expressed bias toward children when she further stated that she would listen to the evidence and follow the law); Chatman, 283 Ga. App. at 674-75 (1) (holding that jurors who expressed personal biases but stated they could be fair did not require their dismissal).

        Daniel, 296 Ga. App. at 522 (6).

        Smith v. State, 302 Ga. App. 128, 130 (1) (690 SE2d 449) (2010) (citation, punctuation and footnote omitted).

       The State argues that Culajay waived review of this issue on appeal by failing to object at the time the officer made the allegedly improper comment. This argument, however, is belied by the record. During an earlier discussion concerning how objections should be handled by the parties, the trial court stated that “with respect to anything said at the bench, any rulings made, there is no waiver. We’re not going on the record at that point. You can come back to it at the next opportunity when the jury is out, and I will give you an opportunity to perfect the record as you wish.” Our review of the record indicates that Culajay’s counsel complied exactly as the trial court directed.

        Jackson v. State, 284 Ga. 484, 486 (2) (668 SE2d 700) (2008) (citation and punctuation omitted); see also Smith, 302 Ga. App. at 133 (1) (c) (same); Fields v. State, 176 Ga. App. 122, 123 (335 SE2d 466) (1985) (holding that “evidence that an accused is presently confined in jail does not place his character in evidence”).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A11A0453.
    FARZANEH v. MERIT CONSTRUCTION COMPANY, INC.
    (710 SE2d 839)
   BARNES, Presiding Judge.

While commuting to work in a vehicle that he personally owned, David Redic struck and severely injured a pedestrian crossing the street. Following the collision, the injured pedestrian, Peyman Far-zaneh, brought this civil tort action against Redic’s employer, Merit Construction Company, Inc., seeking to recover damages for his injuries. The trial court granted Merit’s motion for summary judgment, concluding that the uncontroverted evidence showed that Redic was not acting in the course and scope of his employment when he injured Farzaneh, and, therefore, that Merit could not be held liable under the doctrine of respondeat superior. For the reasons discussed below, we affirm.

On appeal from a trial court’s grant of summary judgment, our review of the record is de novo, and we construe the facts and all inferences drawn from them in the light most favorable to the nonmoving party. Ins. Co. &c. of Pa. v. APAC-Southeast, 297 Ga. App. 553 (677 SE2d 734) (2009). Summary judgment is appropriate if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). A defendant who will not bear the burden of proof at trial does not need affirmatively to disprove the plaintiffs case, but may point to an absence of evidence in the record to support some essential element of the plaintiffs cause of action. Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). If the defendant points to an absence of evidence in the record, the plaintiff cannot rest on his pleadings, but must identify specific evidence giving rise to a triable issue of fact. Id. If the plaintiff cannot identify specific evidence, summary judgment is properly granted to the defendant. Id. Guided by these principles, we turn to the record here.

The record shows that Merit Construction performs “build outs” of commercial and retail office space and has between 15 to 20 jobs in progress at any given time. Merit has approximately 30 to 35 “field employees,” i.e., laborers who work at assigned job sites. It does not have a central office where all of its field employees report at the beginning of the work day; rather, its foremen, carpenters, and other laborers are assigned to particular job sites and commute to those locations directly from their homes in the morning.

One of Merit’s field employees was David Redic. Beginning on September 30, 2008, Merit assigned Redic to work at a specific job site in Atlanta. On October 3, 2008, Redic was due at the job site at 6:00 a.m. Shortly before that time, while driving directly from his home to the assigned job site, Redic struck and severely injured Farzaneh as he was crossing a street on foot. No one else was in the vehicle with Redic when the collision occurred.

When he struck Farzaneh, Redic was driving his personally owned pickup truck, which he had purchased from Merit in July 2007. Merit had sold the truck to Redic at a price below fair market value and on favorable payment terms. By the time of the collision, Redic had paid in full for the truck, and title had been transferred to him. Redic, not Merit, paid for insurance on the truck. Although Merit would from time to time provide maintenance and repairs for private vehicles its employees used for company-related business, Merit did not arrange for any maintenance or repairs to be performed on Redic’s truck after the sale. The parties dispute whether part of Redic’s compensation included a predetermined “vehicle allowance” or stipend for using his personal truck rather than a company vehicle to perform work-related tasks. According to Merit’s office manager, the stipend was not intended to reimburse employees for travel to and from work in their personal vehicles, but rather for company-related business such as picking up supplies and transporting them to a job site.

In his pickup truck, Redic had a Merit-issued “direct connect” cellular telephone and a Merit-issued power screw gun. He did not make or receive any calls on the phone prior to or at the time of the collision. Redic was not bringing any equipment or supplies to the job site for other Merit employees.

Farzaneh commenced this personal injury suit against Merit, contending that it was liable for his injuries under the doctrine of respondeat superior. Merit answered and denied liability. Following discovery, both parties moved for summary judgment. After briefing and a hearing, Farzaneh withdrew his motion for summary judgment, and the trial court granted Merit’s motion for summary judgment. In its order, the trial court concluded that the uncontro-verted evidence showed that when the collision occurred, Redic was simply commuting to work in a vehicle that he personally owned. As such, the trial court concluded that there was no rebuttable presumption that Redic was acting in the scope and course of his employment under the burden-shifting framework set out in Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777-778 (257 SE2d 186) (1979), and no competent evidence that would permit a jury to find Merit vicariously liable in this case. Farzaneh now appeals from the trial court’s summary judgment order.

Farzaneh contends that the trial court erred in granting summary judgment to Merit because genuine issues of material fact exist as to whether Redic was acting in the course and scope of his employment when the collision occurred. We disagree.

Under Georgia law,

[t]o hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment. The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master.

(Citation omitted; emphasis in original.) Clo White Co. v. Lattimore, 263 Ga. App. 839, 840 (590 SE2d 381) (2003). While a jury frequently must resolve whether an employee acted in furtherance of his master’s business and within the scope of his employment at the time an injury was inflicted, the evidence in some cases is so plain and undisputable that the court may resolve a respondeat superior claim as a matter of law. See, e.g., Braddy v. Collins Plumbing &c., 204 Ga. App. 862 (420 SE2d 806) (1992).

“[I]t is well established that an employee on the way to work is not in the course of his employment but rather is engaged in a personal activity.” Riel v. Paulding County Bd. of Ed., 206 Ga. App. 230, 231 (1) (425 SE2d 305) (1992). See Chattanooga Publishing Co. v. Fulton, 215 Ga. 880, 883 (3) (114 SE2d 138) (1960). But if the employer owned the vehicle driven by the employee, a presumption arises that the employee was acting in the course and scope of his employment at the time of the accident. Allen Kane’s Major Dodge, 243 Ga. at 777. See Hicks v. Heard, 286 Ga. 864, 865 (692 SE2d 360) (2010). Once the presumption arises, the burden shifts to the employer to rebut it through uncontradicted evidence showing that the employee was not in the course and scope of his employment. Allen Kane’s Major Dodge, 243 Ga. at 778. If the employer comes forward with uncontradicted evidence, the presumption is overcome as a matter of law, unless the plaintiff has additional evidence (other than the fact that the vehicle was owned by the employer) from which a jury could reasonably infer that the employee was acting within the course and scope of his employment when the accident occurred. Id.

The presumption discussed in Allen Kane’s Major Dodge does not apply under the particular facts of this case, and so the burden never shifts to Merit. The uncontroverted evidence shows that when the collision occurred, the pickup truck driven by Redic was personally owned by him. Redic had paid for the truck in full and held its title free and clear of an interest once held by Merit. And although Farzaneh emphasizes that Merit originally owned the truck and previously sold it to Redic at a price below fair market value and on favorable payment terms, the pertinent issue is the status of the truck at the time of the collision. See Clo White Co., 263 Ga. App. at 840 (relevant time period for determining respondeat superior liability is “time of the injury”). Because the undisputed evidence demonstrates that Redic was driving his personally owned truck at that time, no presumption arises that he was acting in the course and scope of his employment with Merit when he collided with Farzaneh. See Williams v. Baker County, 300 Ga. App. 149, 152-153 (1) (684 SE2d 321) (2009) (presumption did not arise where employee “was driving his own personal vehicle”); Gassaway v. Precon Corp., 280 Ga. App. 351, 355 (634 SE2d 153) (2006) (same); Johnstown Financial Corp. v. Roper, 170 Ga. App. 575, 576 (317 SE2d 634) (1984) (same). Compare Barfield v. Royal Ins. Co. of America, 228 Ga. App. 841, 844-845 (2) (492 SE2d 688) (1997) (employee was driving vehicle owned by employer); Bell v. Stroh Brewery Co., 209 Ga. App. 850, 851 (434 SE2d 812) (1993) (employee was driving company-leased car); Allen v. Milton Martin Enterprises, 197 Ga. App. 119 (397 SE2d 586) (1990) (employee was driving vehicle owned by employer).

Given that the presumption of Allen Kane’s Major Dodge does not apply, there is an absence of competent evidence to support a finding that the present case falls outside the longstanding rule that commuting to work is a purely personal matter. Nevertheless, Farzaneh contends that this case involves “special circumstances” warranting the imposition of respondeat superior liability upon Merit. See Hunter v. Modern Continental Constr. Co., 287 Ga. App. 689, 691 (652 SE2d 583) (2007) (applying special circumstances exception); Clo White Co., 263 Ga. App. at 840 (same). Contrary to his contention, however, the fact that Redic had a Merit-issued “direct connect” cell phone with him, kept at least one Merit-issued tool in his truck, and may have received a “vehicle allowance” as part of his compensation does not create a special circumstance here. Georgia courts have previously held that similar facts were insufficient to create respondeat superior liability for an employer. See Hicks, 286 Ga. at 867-868 (employee “on call” at time of accident); Hankerson v. Hammett, 285 Ga. App. 610, 612-613 (1) (647 SE2d 319) (2007) (employee was “on call” and was driving truck “loaded with parts and materials”); Tyner v. Comfort Rest Sleep Products, 236 Ga. App. 423, 425 (512 SE2d 321) (1999) (employee was driving vehicle containing “employer’s materials”); Schofield v. Cox Enterprises, 212 Ga. App. 354 (441 SE2d 693) (1994) (employee received vehicle stipend); Braddy, 204 Ga. App. at 864 (employee was driving truck with a two-way radio installed for communicating to employer; truck contained parts and tools for use of other employees); Fred A. York, Inc. v. Moss, 176 Ga. App. 350, 351-352 (335 SE2d 618) (1985) (employee had beeper in car); Johnstown Financial Corp., 170 Ga. App. at 576-577 (stipend issued to employee for vehicle expenses).

Farzaneh also emphasizes that when hired by Merit, Redic was required to execute a form insurance document entitled “Commercial Auto Fleet Safety Policy,” which provided in part: “Operation of motor vehicles is a necessary part of our business operations. Operation of motor vehicles exposes our company to losses, financially through damaged property, and injury to employees or injuries to members of the general public and to our company’s reputation.” The document went on to list criteria that would disqualify a Merit employee from being one of its “authorized drivers,” with that term defined to include “drivers of company owned vehicles, employees operating personal vehicles on company business and any authorized family members.” Farzaneh contends that this policy document shows that employees’ use of their personal vehicles was essential to Merit’s business, and thus indicates that Redic’s driving of his personal vehicle to work fell within the course and scope of his employment. We are unpersuaded. The policy document is simply intended to set out what will disqualify an employee from being an “authorized driver” for Merit and should be read no broader than that. Furthermore, the policy document refers specifically to personal vehicles operated “on company business,” and there is nothing in the document to suggest that merely commuting to work at the beginning of the day was intended to constitute “company business.” Therefore, Redic’s execution of the policy document does not create a special circumstance justifying the imposition of liability upon Merit.

Additionally, Farzaneh contends that this case involves a special circumstance because Redic did not commute to a fixed work location at the beginning of every workday. According to Farzaneh, there should be an exception to the rule that an employee commuting to work is engaged in a purely personal activity, where the employee is traveling from home directly to an assigned work site, as opposed to traveling first to a central office before dispersing to a work site. But Farzaneh’s position is inconsistent with Braddy, where we upheld the grant of summary-judgment to the employer, a plumbing and construction company, even though the employee was “driving from his home directly to the work site” at the time of the morning accident. 204 Ga. App. at 863.

Farzaneh relies upon Intl. Business Machines v. Bozardt, 156 Ga. App. 794 (275 SE2d 376) (1980), for his contention that a special circumstance exists where an employer directs an employee to commute to an assigned job site rather than a central office, but that case is clearly distinguishable. In Bozardt, the employee was stationed in New York but had traveled to Atlanta to attend a series of conventions at the specific direction of his employer. Id. at 796. The employer paid for his airplane fare, meals, and lodging while in Atlanta. Id. At the time of the accident in question, the employee was driving from his hotel to a restaurant in a rental vehicle paid for by his employer. Id. In contrast, the present case involves an employee simply commuting to his job site in his personally owned vehicle, not an employee who had traveled out of town to attend a special event at the direction of an employer who had agreed to pay for the transportation. Compare also Lewis v. Miller Peanut Co., 77 Ga. App. 380, 384 (1) (49 SE2d 221) (1948) (employer required employee to travel by daylight between two separate cities, for which the employee received compensation and reimbursement of all of his travel expenses).

Even if the facts in this case fail to disclose any special circumstances, Farzaneh maintains that this case involves a “special mission” from which a jury could find that Redic was acting within the course and scope of his employment. It is true that an employer can be held liable under respondeat superior principles where the employee has undertaken a special mission at the direction of his employer. See Hunter, 287 Ga. App. at 691; Clo White Co., 263 Ga. App. at 840. But the special mission exception requires “that the errand or mission itself be a special or uncustomary one, made at the employer’s request or direction.” (Citation and punctuation omitted.) Patterson v. Southeastern Newspapers, 243 Ga. App. 241, 242 (1) (533 SE2d 119) (2000). See Hargett’s Telephone Contractors v. McKeehan, 228 Ga. App. 168, 171 (491 SE2d 391) (1997). And in commuting to an assigned job site as he did every day of the work week, Redic was not on an errand or mission that could be characterized as special or uncustomary. Compare Chappell v. Junior Achievement of Greater Atlanta, 157 Ga. App. 41, 42 (276 SE2d 98) (1981) (employer provided company vehicle to employee to attend a special function required by his employment). Hence, the evidence plainly demonstrates that the special mission exception is not applicable in this case.

Lastly, we note that throughout his appellate brief, Farzaneh relies upon workers’ compensation cases in arguing that Merit should be held vicariously liable for the injuries caused by Redic. See, e.g., Mark the Mover v. Lancaster, 234 Ga. App. 319 (506 SE2d 673) (1998); Indem. Ins. Co. of North America v. Bolen, 106 Ga. App. 684 (127 SE2d 832) (1962); American Mut. Liability Ins. Co. v. Casey, 91 Ga. App. 694 (86 SE2d 697) (1955). But “[t]he laws of workers’ compensation and negligence are different, and ... an employee can be said to be within the scope of employment for workers’ compensation purposes, and not within the scope of employment for negligence purposes.” Gassaway, 280 Ga. App. at 354-355. And while Bozardt, 156 Ga. App. at 799, cited to workers’ compensation cases to buttress the decision reached in that case, Bozardt is clearly distinguishable from the present action for the reasons discussed supra.

For these combined reasons, the trial court did not err in granting Merit’s motion for summary judgment. Although the underlying facts of this case are indeed tragic, the uncontroverted evidence shows that at the time of the collision, Redic was engaged in the purely personal matter of commuting to work and, therefore, was not acting in the course and scope of his employment when he injured Farzaneh. It follows that, as a matter of law, Merit cannot be held vicariously liable for Farzaneh’s injuries under the doctrine of respondeat superior.

Decided May 19, 2011.

Bell & Mulholland, Lloyd N. Bell, James D. Summerville, for appellant.

John D. Rogers, Jr., for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       The parties dispute whether Merit assigned Redic to work as a foreman or a carpenter at the job site in question.

       The “direct connect” feature allowed Redic to use his cellular phone in a manner similar to a walkie-talkie when speaking with other Merit employees.

       Special circumstances do exist where at the time of the collision, an employee is talking on his cell phone discussing matters of company business or is distracted by an incoming business-related call. See Hunter, 287 Ga. App. at 691; Clo White Co., 263 Ga. App. at 840. However, as previously noted, Redic was not using his Merit-issued cell phone when the collision occurred.

       We note that this is not a case where the employee was traveling between job sites once the workday has already begun.

       To the extent that Bailey v. Murray, 88 Ga. App. 491, 496 (77 SE2d 103) (1953), and Davies v. Hearn, 45 Ga. App. 276, 278-281 (2) (164 SE 273) (1932), can be construed as involving special circumstances, those cases are distinguishable because the employee was driving a company vehicle when the accident occurred.


text:
    A11A0230.
    BUIS v. THE STATE.
    (710 SE2d 850)
   Dillard, Judge.

Following a jury trial, Anthony R. Buis was convicted on one count of theft by taking, one count of entering an automobile with the intent to commit theft, and one count of felony fleeing or attempt to elude a police officer. Buis appeals his convictions and the denial of his motion for new trial, arguing that his trial counsel provided ineffective assistance by failing to obtain evidence that allegedly supported his alibi defense. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that around 8:00 p.m. on January 1, 2008, Kristy Blumberg Lane and her daughter went to a movie and afterward drove to pick up the mail for a landscaping business in Conyers that she and her husband owned. Upon arriving at the business, Mrs. Lane noticed that one of the company’s maintenance trucks was not in its usual parking spot, but was instead parked in the middle of the parking lot. At nearly the same time, Lane saw an unfamiliar truck with its lights on coming toward her. As the truck passed her and headed toward the parking-lot exit, Lane noticed that it was pulling away one of her company’s trailers. Realizing that the trailer was being stolen, Lane instructed her daughter to call 911 and turned her own vehicle around to follow the thief. A few blocks down the road, Lane was able to catch up to the thief s truck because the driver had stopped to unhitch the stolen trailer. After quickly doing so, the thief got back into the truck and resumed his flight. By this time, Lane saw that a Conyers police officer had joined the pursuit, and therefore, she decided to withdraw from the chase and return to her business to see whether the thief had taken anything else from the premises.

The fleeing thief first gained the attention of the Conyers police officer when he sped by the gas station where the officer was parked, jumped a curb, and stopped his vehicle in a grassy area. The officer then observed the driver, an African-American male, get out of the truck and unhook a trailer that he had been pulling. After doing so, the driver (and lone occupant) returned to his truck and sped away. Immediately, the officer turned on his vehicle’s emergency lights and began pursuit of the thief. As the officer was starting to catch up to the thief s truck, it swerved across the centerline, forcing an oncoming car off the road, and then turned sharply before jumping over some nearby railroad tracks and crashing into a dirt embankment. Unable to follow the truck over the railroad tracks, the officer drove to the next railroad crossing; but by the time the officer arrived at the embankment where the truck had crashed, the thief had already escaped on foot. In searching the truck, the officer found bolt cutters, miscellaneous tools, a map of the greater Atlanta area, a list of landscaping businesses and their equipment (including Lane’s), and numerous business cards for a lawn-care company owned by Anthony Buis. Additionally, following a records search, the officer determined that the truck was registered to Buis.

At around the same time that the Conyers officer was searching the now-abandoned truck, a couple driving a few blocks away were startled when an African-American male suddenly darted out from a nearby parking lot into the street and in front of their car. As the driver of the car slammed on the brakes, the male paused, turned his head toward the couple’s car, and then continued running. A moment later, the couple noticed a police vehicle with its emergency lights flashing a short distance away.

Approximately 12 hours after the foregoing crimes occurred in Conyers, a Fulton County police officer responded to a call from Buis, who alleged that he had been robbed and kidnapped the previous evening. After Buis was transported to the police station, a detective interviewed him about the alleged kidnapping. Buis stated that around 6:00 p.m. on January 1, 2008, he went to the Fulton Industrial Boulevard area to seek the services of a prostitute. Buis claimed that, after picking up a prostitute, he parked his truck and shared an alcoholic beverage and some marijuana with his newfound companion. A few minutes later, two men allegedly forced Buis out of his truck at gunpoint, robbed him, bound him with duct tape, and placed him inside the trunk of a large, dark-colored car. According to Buis, the car drove only a short distance before parking, and he was left inside the trunk of the parked car overnight. The next morning, the two men supposedly returned, let Buis out of the trunk, and fled the scene in that same vehicle. It was only at this point that Buis claimed he was able to free his hands from the duct tape and call the police after receiving assistance in a nearby office park. The detective — who was not yet aware of the crimes that had transpired in Conyers the night before — told Buis at the conclusion of the interview that while he found his story implausible, he would nevertheless investigate the alleged incident.

Thereafter, and despite his claim that he had been kidnapped during the time period the crimes occurred in Conyers, Buis was arrested on suspicion that he had committed those crimes. Consequently, he was indicted on one count of theft by taking of the landscaping company’s trailer, one count of entering the landscaping company’s maintenance truck with the intent to commit theft, and felony fleeing or attempt to elude a police officer.

During Buis’s trial, Mrs. Lane testified about the theft of her company’s trailer and her pursuit of Buis’s truck, as well as the fact that her company’s maintenance truck had been broken into and moved. The officer involved in the chase also testified as to his pursuit of Buis’s truck and his search of the vehicle after it crashed. Additionally, the driver of the car that nearly hit the fleeing pedestrian identified Buis as the person he saw that night in the road. The State also proffered the testimony of the Fulton County detective who interviewed Buis about his alleged kidnapping, and the State played a digital video recording of that interview for the jury. Finally, the State proffered the testimony of another detective, who testified that the Conyers officer involved in the chase identified Buis from a photographic lineup as the driver of the truck he had pursued on the night of the crimes. This detective further testified that she obtained records from Buis’s cell phone provider indicating that someone using Buis’s cell phone placed numerous calls to Buis’s home phone and to his wife’s cell phone, beginning shortly after Buis’s truck was abandoned. Importantly, those same records indicated that in making those calls, Buis’s cell phone utilized a cell phone tower located in Conyers, which meant the cedis originated from within that vicinity.

At the trial’s conclusion, the jury found Buis guilty on all counts of the indictment. Subsequently, Buis obtained new counsel and filed a motion for new trial, alleging, in part, that his trial counsel provided ineffective assistance. After a hearing, in which Buis’s trial counsel testified, the tried court denied Buis’s motion for new trial on all grounds. This appeal follows.

In his sole enumeration of error, Buis contends that his trial counsel performed deficiently by not obtaining the duct tape that was used to bind him when he was allegedly kidnapped, and that this failure undermined his alibi defense. We disagree.

To prevail on his claim of ineffective assistance of counsel, Buis “must show that counsel’s performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” There is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. And unless clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel. A trial court’s legal conclusions in this regard, however, are reviewed de novo. With these principles in mind, we will now address Buis’s claim.

During the motion for new trial hearing, Buis’s appellate counsel asked his tried counsel why he did not request production of the duct tape that the Fulton County police recovered while investigating Buis’s report that he had been kidnapped on the night the crimes occurred in Conyers. Trial counsel responded that he did not believe that having this physical evidence would have made “much difference to the jury,” given that (1) the jury had already viewed Buis’s recorded interview with the Fulton County detective, in which Buis stated that he had been bound with duct tape, and (2) the detective acknowledged during cross-examination that the duct tape was recovered by the officer who responded to Buis’s call reporting the incident.

In considering the foregoing explanation by trial counsel, we begin by noting that “decisions regarding whether and how to conduct cross-examinations and what evidence to introduce are matters of trial strategy and tactics and are within the exclusive province of counsel after consultation with the client.” Indeed, “[s]uch tactical decisions provide no grounds for reversal unless they are so patently unreasonable that no competent attorney would have chosen them.” And here, because the duct tape itself was cumulative of evidence that was introduced through Buis’s recorded police interview and his trial counsel’s cross-examination of the Fulton County detective, we cannot say that Buis’s trial counsel’s decision not to request the production of the duct tape was patently unreasonable.

Decided May 23, 2011.

John J. Martin, Jr., for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Paul J. Stalcup, Assistant District Attorneys, for appellee.

Moreover, even if we were to assume arguendo that Buis’s trial counsel performed deficiently, Buis proffered no evidence at the hearing on his motion for new trial that an analysis of the duct tape would have bolstered his alibi defense. Indeed, during the hearing, the trial court asked Buis’s current counsel why he had not yet proffered an analysis of the duct tape, and in response, counsel merely stated that he had not yet had an opportunity to do so. In light of this failure to proffer, Buis has likewise “failed to prove the prejudice prong of his ineffectiveness claim.”

Accordingly, for all of the reasons noted supra, the trial court did not abuse its discretion in denying Buis’s motion for new trial.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       Once there, a closer inspection of the maintenance truck showed that the lock on its passenger door had been popped open.

       OCGA § 16-8-2.

       OCGA § 16-8-18.

       OCGA § 40-6-395 (b) (5) (A) (iii).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

        E.g., Chapman, 273 Ga. at 350 (2).

        Id., Henderson v. State, 303 Ga. App. 898, 898 (1) (695 SE2d 334) (2010).

        E.g., Henderson, 303 Ga. App. at 898 (1).

        Serrate v. State, 268 Ga. App. 276, 278 (2) (c) (601 SE2d 766) (2004) (citation and punctuation omitted); see also Rose v. State, 258 Ga. App. 232, 236 (2) (c) (573 SE2d 465) (2002) (same).

        Serrate, 268 Ga. App. at 278 (2) (c) (citation and punctuation omitted).

        See Grier v. State, 276 Ga. App. 655, 662-63 (4) (b) (624 SE2d 149) (2005) (holding that because the evidence on the videotape was cumulative of evidence trial counsel introduced through the cross-examination of investigator, trial counsel’s decision not to introduce videotape was a matter of strategy and could not amount to ineffective assistance of counsel).

        See McDougal v. State, 284 Ga. 427, 428 (2) (667 SE2d 592) (2008) (noting that if a defendant “fails to prove one prong of the Strickland test, the reviewing court does not have to examine the other prong”).

        Hunter v. State, 294 Ga. App. 583, 585 (1) (669 SE2d 533) (2008) (citation and punctuation omitted); see also Denny v. State, 280 Ga. 81, 84 (4) (623 SE2d 483) (2005) (holding that defendant failed to prove prejudice prong of his ineffectiveness claim when he failed to show that his DNA expert would have rebutted the State’s evidence).


text:
    A11A0496.
    BRYANT v. THE STATE.
    (710 SE2d 854)
   BARNES, Presiding Judge.

A jury convicted Allen Drew Bryant of aggravated assault, criminal damage to property in the second degree, and battery. On appeal from the denial of his motion for a new trial, Bryant attacks the sufficiency of the evidence and contends that the trial court erred in denying his challenge to the State’s use of its peremptory strikes against prospective African-American jurors. For the reasons set forth below, we affirm.

1. Bryant maintains that there was insufficient evidence to convict him of the charged offenses. We disagree.

When reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent. Braham v. State, 260 Ga. App. 533 (580 SE2d 256) (2003). We do not weigh the evidence or assess witness credibility, but only determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Walker v. State, 282 Ga. 406 (651 SE2d 12) (2007).

Viewed in the light most favorable to the verdict, the evidence showed that at the time of the incident, the victim and Bryant’s ex-wife had been dating for several months. On the night in question, the victim and Bryant got into a heated verbal argument at the front door of the ex-wife’s home. The victim stopped arguing and walked back to his car to go home, but Bryant followed him. After the victim got inside his car, Bryant punched him in the face through the open window. Bryant then drew a handgun from the back of his pants and fired at the victim. The bullet missed the victim, but hit the door frame of his car, causing $573 in damage. The victim sped away and called the police.

The responding officers observed that the victim had injuries to his face where he said he had been punched, and they recovered a spent shell casing from the roadway outside of the ex-wife’s home where the victim said the shooting had occurred. While Bryant initially denied any involvement or knowledge of a shooting, he later claimed that he shot the victim in self-defense and directed the officers to the handgun he had fired. Ballistics testing matched the shell casing from the roadway to Bryant’s handgun.

Bryant was arrested, indicted, and tried before a jury on charges of aggravated assault, criminal damage to property in the second degree, and battery. At trial, the victim, the responding officers, and the State’s ballistics expert testified to the events discussed above. After hearing all of the evidence, the jury convicted Bryant.

The testimony of the victim and other State witnesses was sufficient to authorize a rational jury to find Bryant guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). It was the role of the jury, not this court, to resolve conflicts in the evidence, assess witness credibility, and decide whether to believe the victim’s or Bryant’s version of events. See Hampton v. State, 272 Ga. 284, 285 (1) (527 SE2d 872) (2000); Odim v. State, 228 Ga. App. 158, 159 (1) (491 SE2d 218) (1997).

2. Bryant argues that the trial court erred in rejecting his claim that the State exercised its peremptory strikes in a racially discriminatory manner under the test established in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) and its progeny. Again, we disagree.

The evaluation' of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent. The findings of the trial court are entitled to great deference, and should not be disturbed unless clearly erroneous.

(Footnotes omitted.) White v. State, 301 Ga. App. 837 (689 SE2d 120) (2010).

Following voir dire, Bryant asserted that the State had exercised its peremptory strikes in a racially discriminatory manner by striking five of the six prospective African-American jurors while not striking similarly situated prospective white jurors. The prosecutor responded that one of the prospective black jurors was struck because she was evasive when questioned on voir dire and “did not seem to want to talk to either of us”; that three prospective black jurors were struck because they had prior bad experiences with law enforcement; and that the final prospective black juror was struck out of concern that her work as a dietician for a drug rehabilitation program and for other treatment centers might make her more sympathetic to criminal defendants than the average juror. The trial court found the State’s proffered explanations to be race-neutral and concluded that Bryant had failed to show that the State had acted with discriminatory intent in exercising its strikes.

Because the trial court did not rule concerning whether Bryant had established a prima facie case of racial discrimination, but proceeded directly to an evaluation of the State’s explanations for its peremptory strikes, the threshold question of prima facie showing has been rendered moot. See Younger v. State, 288 Ga. 195, 198 (2) (702 SE2d 183) (2010). And the trial court’s finding that the State’s explanations for its strikes were race-neutral and satisfied the second step of the Batson analysis was not clearly erroneous. See, e.g., Flanders v. State, 279 Ga. 35, 37-38 (2) (609 SE2d 346) (2005) (prospective juror’s employment as social worker was race-neutral basis for strike); Trice v. State, 266 Ga. 102, 103 (2) (464 SE2d 205) (1995) (prospective juror’s lack of responsiveness during voir dire was race-neutral basis for strike); Lingo v. State, 263 Ga. 664, 666 (1) (b) (5) (437 SE2d 463) (1993) (use of strike was race-neutral where “prosecutor had difficulty in getting the juror to respond or pay attention to his questions”); Alford v. State, 224 Ga. App. 451, 458 (6) (480 SE2d 893) (1997) (prospective juror’s prior negative involvement with law enforcement was race-neutral basis for strike).

In the third step of the Batson analysis, the trial court was charged with determining whether Bryant, under the totality of the circumstances, had shown that the State was motivated by discriminatory intent. See McKenzie v. State, 294 Ga. App. 376, 381 (4) (670 SE2d 158) (2008). Contending that the State’s explanations for its strikes were pretextual and were calculated to mask an underlying racially discriminatory intent, Bryant claims that there were similarly situated prospective white jurors who were not struck by the State. The record belies Bryant’s claims. While there were two prospective white jurors whose family members previously had been arrested, there is nothing in the record to suggest that those two jurors viewed law enforcement in a negative light, in contrast to the prospective black jurors struck on that ground. Indeed, the record shows that another prospective white juror who did have a prior negative experience with the police was struck by the State. Accordingly, Bryant

Decided May 23, 2011.

Frederick M. Scherma, for appellant.

Patrick H. Head, District Attorney, Anna G. Cross, Assistant District Attorney, for appellee.

has not pointed to anything in the record that would show that the proffered reasons were not valid, and the record supports the [SJtate’s explanations for the strikes; thus, the [trial] court did not clearly err in finding that, under the totality of the circumstances, the [SJtate lacked a discriminatory intent in exercising the peremptory strikes.

(Footnote omitted.) White, 301 Ga. App. at 838. See also McKenzie, 294 Ga. App. at 381 (4).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       Bryant also was indicted for possession of a firearm by a convicted felon, but that count was nolle prossed.

       Voir dire was not recorded, but Bryant’s Batson challenge was argued by the parties and ruled upon by the trial court on the record. Furthermore, pursuant to OCGA § 5-6-41 (f), the record was supplemented with additional information on the dismissed jurors before this appeal.

       Bryant also contends that the prospective black juror struck by the State for being evasive was simply nervous because she was the first juror questioned. But the trial court, unlike an appellate court, was in a position to observe the demeanor of the prospective juror and her interaction with the prosecutor during voir dire. Consequently, we must defer to the trial court’s factual findings in favor of the State predicated on that court’s direct observations of the juror. See White, 301 Ga. App. at 837 (trial court’s factual findings in the context of a Batson challenge must be given “great deference” and should be disregarded only if clearly erroneous); McKenzie v. State, 227 Ga. App. 778, 780 (1) (490 SE2d 522) (1997) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”) (citation and punctuation omitted).


author: MlKELL, Judge.

text:
    A11A0694.
    TAVAKOLIAN et al. v. AGIO CORPORATION et al.
    (711 SE2d 33)
   MlKELL, Judge.

Previously in this declaratory judgment action, the trial court entered default judgment against Gholamreza Tavakolian and summary judgment against his brother, Hamid Tavakolian. The court assessed attorney fees against both appellants. We affirmed the judgment as to Gholamreza. However, we reversed the judgment as to Hamid because the trial court erroneously found that he had failed to respond to appellees’ requests for admissions.

Following our decision, the trial court scheduled a hearing on appellees’ petition for declaratory judgment and served Hamid with a rule nisi. Hamid failed to appear at the hearing. The court struck Hamid’s answer and permitted appellees to introduce evidence, including expert testimony, which established their right to redeem certain properties from the Tavakolians. The trial court found that appellees had tendered the proper redemption amount, $18,530.92, into the registry of the court as of September 30, 2002, and that a subsequent conveyance of the properties by Gholamreza to Hamid was void. The court ordered the Tavakolians to execute redemption quitclaim deeds in favor of appellee Agio Corporation and directed the clerk of court to execute such deeds in the event the Tavakolians failed to do so. The Tavakolians appeal. We are constrained to reverse.

1. In their second enumeration of error, the Tavakolians argue that the trial court lacked jurisdiction to enter final judgment on appellees’ petition because the remittitur had not been issued. We agree.

A trial court lacks jurisdiction to enter final judgment in a case prior to receiving the remittitur from the appellate court. In the case at bar, Tavakolian I was decided on June 2, 2010. Gholamreza filed a motion for reconsideration, which was denied on June 29, 2010. Gholamreza then filed a notice of intention to apply to the Supreme Court of Georgia for writ of certiorari, so we did not issue a remittitur. Nonetheless, the trial court held a hearing on August 16, 2010, and issued its judgment on September 15, 2010. The Supreme Court denied Gholamreza’s petition for certiorari on November 22, 2010, and issued the remittitur to this court on December 7, 2010. We transmitted the remittitur to the trial court on December 9, 2010, in accordance with OCGA § 5-6-10.

Appellees argue that the trial court had jurisdiction to hold a hearing and enter a judgment as to Hamid because only Gholamreza filed a petition for a writ of certiorari. Appellees cite no authority for this proposition, however, and our research reveals none. Moreover, the judgment is a final order that affects Gholamreza as well as Hamid, and absent a remittitur filed in the office of its clerk, the trial court was without power to enter the judgment. Accordingly, the judgment entered on September 15 is a nullity and must be reversed.

Decided April 28, 2011

Reconsideration denied May 24, 2011.

Gholamreza Tavakolian, pro se.

Hamid Tavakolian, pro se.

C. Terry Blanton, for appellees.

Where a [notice of appeal] has been . . . filed in the clerk’s office of the court below, as required by law, in legal contemplation this court acquires jurisdiction of the case; and any further action by the court below therein, until the remittitur from this court is filed in the court below, is coram non judice and void.

2. On the merits, we point out that the Tavakolians are bound by Tavakolian I:

Under OCGA § 9-11-60 (h), “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” The law of the case rule, though formally abolished, still applies to rulings by one of our appellate courts in a particular case; such rulings are binding in all subsequent proceedings in the same matter.

Thus, Gholamreza is precluded from challenging any ruling of the trial court that was affirmed in Tavakolian I, as he has attempted to do in this appeal.

Judgment reversed.

Smith, P. J., and Dillard, J., concur.

        Tavakolian v. Agio Corp., 304 Ga. App. 660, 662 (697 SE2d 233) (2010) (“Tavakolian I”).

       Id. at 665-666 (5).

        Chambers v. State, 262 Ga. 200, 201 (1) (415 SE2d 643) (1992); cf. Marsh v. Way, 255 Ga. 284 (1) (336 SE2d 795) (1985) (trial court reacquired jurisdiction when remittitur was filed with clerk of trial court); Hagan v. Robert & Co. Assoc., 222 Ga. 469, 470-471 (1) (150 SE2d 663) (1966) (same); Knox v. State, 113 Ga. 929, 930 (39 SE 330) (1901) (same); Talley v. City Tank Corp., 158 Ga. App. 130, 133 (1) (279 SE2d 264) (1981) (trial court lacked jurisdiction to enter summary judgment prior to receipt of remittitur, but reentry of order after remittitur was issued cured error).

       See Court of Appeals Rule 39 (a):
      Remittiturs shall be transmitted to the clerk of the trial court as soon as practicable after the expiration of 10 days from the date of the judgment unless otherwise ordered or unless a motion for reconsideration or notice of intention to apply to the Supreme Court of Georgia for writ of certiorari has been filed.

       OCGA § 5-6-10 provides:
      The decision of the appellate court and any direction awarded in the case shall be certified by the clerk to the court below, under the seal of the court. . . . The remittitur shall contain nothing more, except the costs paid in the appellate court.

        Chambers, supra at 201 (1); cf. Hagan, supra at 471.

       (Citations omitted.) Kiser v. Kiser, 214 Ga. 849, 852 (108 SE2d 265) (1959); accord Chambers, supra.

       (Punctuation and footnote omitted.) IH Riverdale v. McChesney Capital Partners, 292 Ga. App. 841, 843 (666 SE2d 8) (2008).


author: Andrews, Judge.

text:
    A11A0205.
    JOHNSON v. THE STATE.
    (710 SE2d 857)
   Andrews, Judge.

Lamar Johnson, who represented himself at trial, appeals after a jury found him guilty of armed robbery, hijacking a motor vehicle, kidnapping, false imprisonment, and possession of a firearm during the commission of a crime. After reviewing the record, we conclude that the evidence was insufficient to support the conviction on the charge of possession of a firearm during the commission of a crime. We affirm the remaining convictions.

The evidence at tried, taken in the light most favorable to the verdict, was that the victim Whitney Jones, who delivered pizzas for a restaurant, got a call to deliver a pizza to an apartment building at 1831 Wynnton Road. When she arrived at the address, she met a man and a woman who pointed guns at her and took the pizzas.

After taking the pizzas, they forced Jones to go down to the basement and locked her in one of the storage compartments. Before leaving Jones in the storage compartment, the couple took her car keys and her money bag. Jones testified that the couple then moved several items from one of the storage units into her car.

After the couple left in her car, Jones was able to slide out under the wire of the compartment and call police. Jones identified Johnson from a videotape taken at a nearby Shell station as the man who robbed her. Jones also picked Johnson out of a photographic lineup and positively identified Johnson at trial as the man responsible for the crimes.

Amber Josey, Johnson’s co-defendant, testified that she and Johnson were living together at Johnson’s mother’s house when his mother asked them to leave. She said that before they left the house, they took a Shell credit card and two BB guns, among other things. The mother’s boyfriend took Johnson and Josey to some apartments on 1831 Wynnton Road, because he knew there were empty storage units there where they could store their belongings.

Johnson and Josey did not have any money so they charged whatever they needed on the Shell credit card. Josey said that she and Johnson devised a plan to call a pizza place and then rob the delivery person. Josey admitted that she and Johnson took Jones’s cash and car keys and put her in a storage room in the basement of the apartments.

Johnson and Josey drove Jones’s car to numerous states, never staying very long in any one place. At some point, an officer tried to stop them for a traffic violation but Johnson sped away. The couple then hid the car and were forced to walk. When officers subsequently discovered the pair, they split up and ran. Josey was caught after a few hours and Johnson was caught the next day. When officers retrieved Jones’s car and tested it for fingerprints, they found 19 instances of Johnson’s prints in the car.

1. In his first enumeration of error, Johnson argues that the evidence was insufficient to support the conviction for possession of a firearm during the commission of a crime. The State has conceded that BB guns cannot support a charge for possession of a firearm during the commission of a crime. See Fields v. State, 216 Ga. App. 184, 187 (453 SE2d 794) (1995) (evidence that defendant possessed a BB pistol was insufficient to support conviction under OCGA § 16-11-106 (b) of possession of a firearm during the commission of a crime). Accordingly, Johnson’s conviction on this charge is reversed.

2. Johnson contends that the trial court erred in limiting closing argument to one hour. He points out that armed robbery is a capital felony in Georgia and OCGA § 17-8-73 allows a two-hour closing argument in cases where the defendant is charged with a capital crime.

The right to make a closing argument to the jury is an important one, and abridgement of this right is not to be tolerated. Harm, requiring that a defendant be given a new trial, is presumed when the right is erroneously denied, and the presumption of harm, although not absolute, is not readily overcome. The presumption of harm may fall when the denial of the right is not complete and only in those extreme cases in which the evidence of a defendant’s guilt is so overwhelming that it renders any other version of events virtually without belief.

(Citations omitted.) Agee v. State, 279 Ga. 774, 775 (621 SE2d 434) (2005).

At the hearing on his motion for new trial, Johnson testified that he wanted to argue additional points but did not have enough time. Johnson was unable to remember what he would have said to the jury had he been granted more time.

Here, the right to make a closing argument was not completely abridged. Johnson was given an hour to make his closing argument and “presumably tailored his argument for presentation in one hour.” Hardeman v. State, 281 Ga. 220, 223 (635 SE2d 698) (2006). Further, Johnson could not articulate any argument that he would have made were he given more time. Therefore, “[t]he decisive issue is whether, but for the erroneous denial of the extra hour, there is a reasonable probability that [Johnson] could have convinced the jury that [he] was innocent of the crimes charged.” Id. Johnson has failed to make any such showing, and the trial court correctly denied his motion for new trial on these grounds.

Decided May 24, 2011.

William J. Mason, for appellant.

Julia Fessenden Slater, District Attorney, Crawford L. Seals, Assistant District Attorney, for appellee.

3. Johnson argues that the trial court erred in its jury charge on hijacking a motor vehicle. He points out that the indictment charged him with obtaining the motor vehicle from Whitney Jones by intimidation, and the court’s charge to the jury was that “[a] person commits the offense of hijacking a motor vehicle when such person, while in possession of a firearm or weapon, obtains a motor vehicle from the person or presence of another by force and violence, or intimidation, or attempts or conspires to do so.” Johnson claims that this jury instruction could have allowed the jury to find him guilty of the crime in a manner not charged in the indictment.

[I]f a trial court gives a jury charge on an entire Code section that specifies that a crime may be committed by more than one method, and if the indictment alleges that the defendant committed the crime by only one method, the deviation violates due process, unless: (a) a limiting instruction is given; or (b) under the evidence, there is no reasonable possibility that the jury convicted the defendant of the commission of the crime in a manner not charged in the indictment.

Goss v. State, 289 Ga. App. 734, 737 (658 SE2d 168) (2008).

In this case, the trial court read the indictment to the jury, the indictment went out with the jury during deliberations and the trial court instructed the jury that “[n]o person shall be convicted of any crime, unless and until each element of the crime as charged is proved beyond a reasonable doubt,” and “[t]he burden of proof rests upon the [s]tate to prove every material allegation of the indictment . . . beyond a reasonable doubt.” Given the above, and given the clear, undisputed evidence in this case, we conclude that there is no reasonable probability that the jury convicted Johnson of hijacking a motor vehicle in a manner not alleged in the indictment. See Goss, supra at 737.

Judgment affirmed in part and reversed in part.

McFadden, J., concurs. Phipps, P J., concurs in the judgment only as to Division 3.

       Jones could not identify Johnson in the first photographic lineup, but said that the photograph of Johnson did not look like him.


author: McFadden, Judge.

text:
    A11A0364.
    VEOLIA ENVIRONMENTAL SERVICES et al. v. VICK.
    (711 SE2d 40)
   McFadden, Judge.

This appeal is from a superior court order reversing a portion of a decision by the appellate division of the State Board of Workers’ Compensation. Because the superior court improperly shifted the burden of proof to the employer, its reversal was erroneous.

“When reviewing a workers’ compensation award, the evidence must be construed in the light most favorable to the party prevailing before the appellate division. [Cit.]” Ga.-Pacific Corp. v. Wilson, 240 Ga. App. 123, 124 (1) (522 SE2d 700) (1999). So construed, the evidence shows that in January 2007, Veolia Environmental Services hired Jeffrey Vick as an equipment operator. Vick signed a statement indicating that he had received, and participated in a safety class on, Veolia’s drug and alcohol policy. That policy provides, among other things, that an employee in a safety sensitive position must report to his immediate supervisor the use of prescription medications that may prevent the safe performance of the job, that an employee may be removed from duty until he provides management a clearance letter from the prescribing physician, and that the failure to report such information is misconduct that may result in discipline, including suspension without pay and termination.

On April 27, 2007, Vick broke his left ankle when he fell off a piece of heavy equipment at work. Veolia and its insurer paid Vick temporary total disability benefits from May 8, 2007, until he returned to light duty work on June 28, 2007. In early March 2008, Vick obtained a prescription for morphine from his personal doctor. On March 10, 2008, a co-worker informed Veolia that Vick was under the influence of morphine. Pursuant to its drug policy, Veolia asked Vick to leave work and to provide a clearance letter from his doctor explaining any restrictions and stating that it would be safe for him to work while on the medication. Vick did not return to work after that date, and on May 2, 2008, after Vick had repeatedly failed to provide the requested documentation, Veolia terminated his employment.

Vick subsequently requested a resumption of workers’ compensation benefits, seeking, among other things, temporary partial disability benefits for the time period that he had returned to restricted duty work, from June 28, 2007, to March 10, 2008. He also sought an award of temporary total disability benefits from that last day of work, March 10, 2008. After a hearing, an administrative law judge (“ALJ”) denied Vick’s request for temporary total disability benefits since his last day of work because he had not made a sincere and diligent effort to find other employment. The ALJ did, however, award Vick temporary partial disability benefits during the time he had returned to restricted duty work, from June 28, 2007, to March 10, 2008. The ALJ further concluded that Vick’s entitlement to such benefits should continue after that last day of work because Veolia had not met its burden of proving a change in conditions.

The parties filed cross-appeals to the Board’s appellate division. In pertinent part, the appellate division vacated the award of ongoing temporary partial disability benefits subsequent to March 10, 2008. Vick then appealed to the superior court, which remanded the case to the appellate division, with the instruction that it place the burden of proof on Veolia and its insurer to show that Vick was not entitled to temporary partial disability benefits after March 10, 2008. Veolia and its insurer, Sedgwick CMS, applied for discretionary appeal, and this court granted the application.

1. Veolia and Sedgwick contend that the superior court erred in ruling that they have the burden of proving that Vick is not entitled to temporary partial disability benefits after he was terminated. We agree.

If an employer seeks a change in the condition of the employee from temporary total disability to temporary partial disability, then the employer must prove the ability to do light-duty work. However, if the employee seeks to return to the original status of temporary total disability, then the employee has the burden of proof. But if the employee accepts the reduced benefit determination of temporary partial disability and does not seek to return to a higher benefit level of temporary total disability, then such lower benefit determination of temporary partial disability would continue after a termination of the light-duty work. [Cit.]

Ga. Pacific Corp. v. Wilson, 225 Ga. App. 663, 665 (2) (484 SE2d 699) (1997). In this case, employer Veolia has not claimed any change in condition of employee Vick since his last day of employment. Rather, it was Vick who requested, and was awarded, temporary partial disability benefits during the time he had returned to light duty work, and then further sought a higher benefit level of temporary total disability after termination of his light duty work. Under such circumstances, Veolia did not have the burden of showing that the lower benefit level should not continue after termination; rather, Vick had the burden of proving his entitlement to the higher level of benefits requested after termination.

Decided May 2, 2011

Reconsideration denied May 25, 2011

Swift, Currie, McGhee & Hiers, Robert B. Peery, John C. Hillis, for appellants.

Melissa M. Peavy, Robert M. Clyatt, for appellee.

Moreover, as we explained in a similar case involving the issue of whether temporary partial disability benefits should continue after an injured employee was terminated for a reason unrelated to his injury:

When an employee who has received a disabling injury returns to work and is discharged for a cause unrelated to the injury, he is not entitled to compensation as a matter of law; nor is he denied compensation as a matter of law. In seeking a resumption of benefits, the burden is on the employee to show that, after his termination for cause, his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury.

(Citations and punctuation omitted.) Gilbert/Robinson, Inc. v. Meyers, 214 Ga. App. 510, 511 (448 SE2d 246) (1994). Thus, in order for the award of temporary partial disability benefits to continue after Vick’s termination for violating the company drug policy, he had the burden of proving that his inability to find suitable employment elsewhere was proximately caused by his injured ankle. Vick has not made that showing because, as the ALJ found, he has failed to make a sincere and diligent effort to secure other employment. Vick has therefore failed to meet his burden of proof, and the superior court’s holding to the contrary, placing the burden of proof on the employer and the insurer, was erroneous and must be reversed. See id.

2. Although the appellants’ enumerated errors challenge only the award of temporary partial benefits discussed above, they further argue the impropriety of an award of attorney fees. However, we are precluded from reviewing the propriety of such an award because appellants may not use their brief to expand their enumeration of errors by challenging rulings not mentioned in the enumeration of errors. See Scott v. State, 302 Ga. App. 111, 112-113 (1) (b) (690 SE2d 242) (2010).

Judgment reversed.

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

C. Jason Perkins, amicus curiae.


author: MILLER, Presiding Judge.

text:
    A11A0559.
    WELLS v. THE STATE.
    (710 SE2d 860)
   MILLER, Presiding Judge.

Following a jury trial, Saudi Wells was convicted of cruelty to children in the first degree (OCGA § 16-5-70 (b)); cruelty to children in the second degree (OCGA § 16-5-70 (c)); and aggravated battery (OCGA § 16-5-24 (a)). Wells filed a motion for new trial, which the trial court denied. On appeal, Wells challenges the sufficiency of the evidence to sustain his convictions. We conclude that the evidence was sufficient to establish Wells’s guilt of the crimes, and therefore, we affirm.

On appeal, “[w]e view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility but only determine if the evidence is sufficient to sustain the convictions.” (Citation and punctuation omitted.) Hill v. State, 243 Ga. App. 614 (533 SE2d 779) (2000). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the trial evidence shows that Wells and the mother of the male child victim, J. R., were dating. Wells served as J. R.’s caretaker and gave him baths on occasions when the mother was absent. Wells attempted to potty-train J. R., and would discipline J. R. when he soiled his diaper.

On the morning of July 16, 2006, the mother left J. R. alone with Wells at the residence while she ran an errand. Before departing, the mother asked Wells to give J. R. a bath while she was gone. Wells agreed.

When the mother returned to the residence, Wells was standing in the living room, “looking like something was happening,” and J. R. was whining. The mother asked Wells what happened, and Wells stated that J. R. had fallen in the bathtub and had gotten hurt. The mother removed J. R.’s shirt and observed that his skin was burned and was “hanging” on the left side of his stomach and ear.

The mother testified that she wanted to take J. R. to the hospital, but Wells dissuaded her from doing so because he was afraid that he would go to jail. J. R. continued to whine throughout the night and would not eat or drink. The next day, the mother again expressed that she wanted to take J. R. to the hospital, but Wells told her that she could not do so because “he didn’t want to get in trouble.” The mother further testified that Wells took her cell phone to prevent her from calling for help. Although the mother attempted to treat J. R. with over-the-counter medication, including a topical ointment, there was no improvement in J. R.’s condition during the course of the days that followed.

Two days after the incident, the mother took J. R. to her sister’s residence, where they spent the night. J. R. experienced difficulty breathing and sleeping. On the next morning, the mother showed J. R.’s burns to her sister, who advised that J. R. be taken to the hospital for treatment. The mother transported J. R. to the hospital later that afternoon.

Upon arriving at the hospital’s emergency room, J. R. received urgent care. The treating physician diagnosed J. R. as having second and third degree burns on the left side of his trunk and part of his back. The treating physician stated that J. R. also was dehydrated and had cellulitis, an infection that likely developed during the period of time that he did not receive appropriate medical treatment. As part of his treatment, J. R. received intravenous fluids, antibiotics, and skin grafts. J. R. remained in the hospital for approximately two weeks and continued to receive follow-up treatments thereafter. The treating physician further testified that J. R. had large hyper-trophic scars across his left trunk, which itched and caused discomfort. J. R. had undergone several surgeries and corrective procedures for his severe burns, and the treating physician opined that he would likely receive more operations in the future.

Wells was arrested and indicted for two counts of cruelty to children and two counts of aggravated battery. Wells testified in his defense at trial, initially contending that J. R. had gotten into a tub of running water, but then stating that he did not know how J. R. had received the burns. He described that the mother had left J. R. alone inside the residence and when he returned inside the residence, he saw J. R. scrambling to get out of the bathtub.

The State presented the testimony of a medical expert, who opined that the location and distribution of J. R.’s burns were inconsistent with Wells’s claim. The expert opined that instead, the burns were consistent with the left side of J. R.’s body being held into flowing hot water and the burns likely were not self-inflicted by the child.

Following the presentation of the evidence at trial, Wells was convicted of two counts of cruelty to children and one count of aggravated battery.

1. Wells contends that his convictions were against the weight of the evidence. On appeal, however, this Court does not weigh the evidence and does not judge the credibility of the witnesses. Bay v. State, 266 Ga. App. 91 (1) (596 SE2d 229) (2004). “Conflicts in the testimony of the witnesses, including the state’s witnesses, are a matter of credibility for the jury to resolve.” (Citations and punctuation omitted.) Id. We solely determine whether the evidence was sufficient to sustain the verdict. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [S]tate’s case, the jury’s verdict will be upheld.” (Punctuation and footnote omitted.) Mahone v. State, 293 Ga. App. 790, 791 (668 SE2d 303) (2008). Accordingly, Wells’s arguments premised upon the weight and conflicts in the evidence are unavailing.

2. To the extent that Wells challenges the sufficiency of the evidence supporting his convictions, we address his contentions below under the proper standard set forth in Jackson v. Virginia, supra.

(a) Cruelty to children in the first degree. “Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-5-70 (b).

The malice element of this statute imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

(Punctuation and footnotes omitted.) Gore v. State, 277 Ga. App. 635, 636 (1) (627 SE2d 198) (2006). “Malice .. . can be shown by intentionally and unjustifiably delaying necessary medical attention for a child, as that delay may cause the child to suffer from cruel and excessive physical pain.” (Punctuation and footnote omitted.) Glenn v. State, 278 Ga. 291, 293 (1) (a) (602 SE2d 577) (2004).

Here, Wells’s conviction was based upon his acts of maliciously causing J. R. cruel and excessive physical pain when he failed to seek appropriate medical treatment for his burns. The trial evidence established that after J. R. sustained the second and third degree burns, Wells failed to seek immediate treatment for J. R. Wells also prevented J. R.’s mother from taking J. R. to the hospital for treatment. Wells took J. R.’s mother’s cell phone to prevent her from calling for help because he was afraid that he would go to jail and he did not want to get in trouble. The evidence also established that during the delay in which appropriate medical treatment was withheld, J. R. had difficulty eating and sleeping, became dehydrated, and developed an infection in the area of the burns. Based upon this evidence, Wells’s conviction for cruelty to children in the first degree was authorized. See OCGA § 16-5-70 (b); Williams v. State, 285 Ga. App. 628, 629-630 (1) (647 SE2d 324) (2007); Gore, supra, 277 Ga. App. at 637 (1).

(b) Cruelty to children in the second degree. The indictment charged Wells with cruelty to children in the first degree for “causing [J. R.] to be burned.” Wells ultimately was convicted of cruelty to children in the second degree, as a lesser included offense. “Any person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-5-70 (c). Criminal negligence, an element of this offense, is “an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.” OCGA § 16-2-1 (b).

The evidence, as set forth above, authorized a finding that Wells had acted with the requisite criminal negligence in causing J. R. to sustain severe, painful burns to his body. Notwithstanding Wells’s claim that the incident leading to J. R.’s injuries was merely accidental, the State’s expert testified that J. R.’s burns were inconsistent with Wells’s claim. The expert opined that the burns were consistent with an act of someone holding the left side of J. R.’s body into flowing hot water. The jury was authorized to reject Wells’s claim and credit the expert’s testimony in resolving the evidentiary conflicts and determining the question of fact. The jury’s verdict finding Wells guilty of the second degree cruelty to children offense was supported by the trial evidence. OCGA § 16-5-70 (c). See, e.g., Lee v. State, 275 Ga. App. 93, 93-95 (619 SE2d 767) (2005).

(c) Aggravated battery. “A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” OCGA § 16-5-24 (a). The evidence was sufficient for the jury to determine that Wells had caused J. R. to sustain visible, severe burns and large hyper-trophic scars on his skin, which required ongoing surgeries and corrective procedures. Since the evidence established that Wells had caused J. R.’s skin to be seriously disfigured, burned, and scarred, the aggravated battery conviction was authorized. See Lee, supra, 275 Ga. App. at 95.

Decided May 25, 2011.

Edward V. C. Silverbach, for appellant.

R. Javoyne Hicks White, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The jury found Wells guilty of a lesser included offense of cruelty to children in the second degree (Count 1), cruelty to children in the first degree (Count 2), and two counts of aggravated battery (Counts 3 and 4). For purposes of sentencing, the trial court merged the aggravated battery charge of Count 3 into the aggravated battery charge of Count 4.


text:
    A11A0561.
    WEBER v. LIVINGSTON.
    (710 SE2d 864)
   McFadden, Judge.

The Superior Court of Troup County entered an order terminating Kenneth Weber’s parental rights to his daughter and granting an adoption in favor of the child’s stepfather. Weber appeals, challenging the sufficiency of the evidence supporting the court’s order. Because there is not clear and convincing evidence that Weber’s failure to communicate with and care for his daughter was without justifiable cause, we reverse.

On appeal from an order terminating parental rights based on an adoption petition, we construe the evidence favorably to the trial court’s ruling and determine whether any rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights to custody have been lost. We do not weigh the evidence or assess witness credibility, but defer to the trial court’s factual findings and affirm unless this standard is not met.

(Citations and punctuation omitted.) Johnson v. Taylor, 292 Ga. App. 354 (665 SE2d 49) (2008).

So construed, the evidence shows that Weber and Amy Livingston are the natural parents of S. C. W, who was born on September 12, 2001. The parents divorced in December 2004, and the mother was awarded primary custody of the child. Weber was granted visitation and ordered to pay child support of $65 per week. In July 2005, the mother married Matthew Livingston.

In October 2005, Weber was incarcerated on drug charges, and he was released six months later, in April 2006. Weber fell behind on his child support payments, which were brought current in June 2007 by a lump sum payment of $2,020 made by his mother. Thereafter, the child support payments were made consistently until February 7, 2008. Weber did not make any more payments in that month or in March 2008. In April and May 2008, three payments totaling $697 were made. Weber made no other payments in 2008 or in the first four months of 2009.

Weber last visited with S. C. W in the summer of 2007. He did not attempt to visit her again until December 2007. The mother refused his request for visitation at that time, explaining that he had not seen S. C. W. for five months, “[a]nd there comes a point that a mother steps in and says enough is enough; you’re not going to continue to flip flop.” She further testified that thereafter, she probably would not have allowed him to see the child and that there was nothing, short of a court order, that would have caused her to allow the child to go with him.

On March 30, 2009, Matthew Livingston filed his petition to adopt S. C. W, alleging that Weber had not paid child support or communicated with his child for over a year. On May 22, 2009, Weber’s mother paid $3,896 to bring the unpaid child support current. After a hearing at which the only witnesses were Weber, his mother and Amy Livingston, the superior court entered its decree of adoption and terminated Weber’s parental rights, finding that, for over a year, he failed to have meaningful contact with the child and failed to support her as required by law.

Generally, a stepparent may adopt his or her spouse’s child only if the biological parent whose rights will end with the adoption voluntarily and in writing surrenders all of his or her rights to the child to the stepparent for the purpose of enabling the stepparent to adopt the child. If the biological parent refuses to surrender his or her parental rights, OCGA § 19-8-10 [(b)] provides that the court may still grant the stepparent’s petition to adopt the child if it finds, inter alia, that there is clear and convincing evidence . . . that the parent, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed: (1) To communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or (2) To provide for the care and support of that child as required by law or judicial decree.

(Citations and punctuation omitted; emphasis in original.) In re Marks, 300 Ga. App. 239, 242 (684 SE2d 364) (2009).

In this case, since the petition to adopt was filed on March 30, 2009, “the relevant period of time is the year or more immediately prior thereto. OCGA § 19-8-10 (b) (1).” McCollum v. Jones, 274 Ga. App. 815, 819 (3) (a) (1) (619 SE2d 313) (2005) (physical precedent only). It is undisputed that during that year, Weber had no contact with S. C. W., and in fact has not had any contact with her since the middle of 2007. It is further undisputed that during the year prior to the filing of the petition, Weber paid only $697 in child support, which constitutes approximately 20 percent of the amount that was due. Accordingly, there is sufficient evidence to support the trial court’s findings that Weber significantly failed to communicate with and support S. C. W for over a year.

However, those findings do not end the inquiry, because it must also be shown that such failures by Weber were without justifiable cause. See Smallwood v. Davis, 292 Ga. App. 173, 174-175 (1) (664 SE2d 254) (2008). The burden of proof as to that showing rested upon Matthew Livingston, who, as the petitioner, was required to prove by clear and convincing evidence that Weber’s failures to communicate with and support the child were unjustified. See In re Marks, supra at 243-245 (2) (a), (b).

It is the petitioners’ burden to prove that termination of the [father’s] parental rights is warranted, including the lack of justifiable cause. As explained by the Supreme Court of Georgia, the words “without justifiable cause” as used in [OCGA] § 19-8-10 (b) are constitutionally significant. The Due Process Clause gives a parent substantial protection of his or her parental rights requiring that clear and convincing evidence of unfitness be shown before a natural parent’s rights in his child may be terminated.

(Citation and punctuation omitted.) Smallwood, supra at 175 (1).

With regard to lack of visitation, Weber testified that he called Amy Livingston in December 2007 and asked to see the child, but she refused to allow visitation and said that if he wanted to see S. C. W. again he had to hire an attorney and go to court. He claimed that he made numerous attempts thereafter to contact S. C. W, but Amy Livingston did not answer his calls, and the various phone numbers that he had for her, her parents and Matthew Livingston were all disconnected. He further testified that he sent gifts and cards to S. C. W, but they were returned to him. Weber also introduced testimony from his mother, who claimed that her many telephone calls to the Livingstons had gone unanswered, that their numbers had been disconnected, and that presents and cards sent by her and her son to S. C. W were returned in damaged condition.

As noted above, Amy Livingston confirmed that in December 2007 she refused to let Weber visit his daughter and that, short of a court order, there was nothing that would have caused her to allow subsequent visitations. She conceded that she had unilaterally made that decision because Weber had gone five months without seeing the child. Although she briefly claimed that neither Weber nor his parents subsequently contacted her about seeing S. C. W, she gave no testimony concerning the claims that the telephone numbers at which she could be reached had been disconnected and that gifts sent to the child had been damaged and returned. Matthew Livingston presented no other evidence contradicting those claims.

We are troubled by the fact that on [these] critical issue[s], [Matthew Livingston], as the petitioner bearing the burden of proof by clear and convincing evidence, chose to rely solely on [one witness’s minimal] testimony. Notably absent is any testimony from [the petitioner himself] and any telephone records for the time period in question.

Smallwood, supra at 175 (1). Under these circumstances, including Amy Livingston’s unilateral decision to thwart Weber’s contact with the child, “the petitioner has failed to demonstrate [by clear and convincing evidence] that the [father’s] failure to communicate with the child for the requisite statutory period was without justifiable cause. [Cits.]” In re Marks, supra at 244 (2) (a).

With regard to Weber’s significant failure to pay the required child support during the year preceding the filing of the petition, he testified that he was unable to work much because he twice injured his back, went to two different hospitals and thus earned between only $5,000 and $6,000. Weber’s mother also testified that he is a roofer and that he did not make much money during the year in question because he got hurt and was not working. “Justifiable cause for the failure to pay child support may be found in situations where the parent has been unable to earn income due to . . . hospitalization, or other circumstances beyond his or her control. Each case must be decided on its own circumstances.” (Citation and punctuation omitted.) In re Marks, supra at 245 (2) (b). Here, the petitioner failed to present any evidence contradicting Weber’s evidence that he was unable to earn sufficient income because of his back injuries. “In fact, the petitioner failed to present any evidence of the [father’s] financial condition during [the year prior to the filing of the petition]. Thus, the petitioner did not meet [his] burden of showing that the [father’s] failure to support [S. C. W] was without justifiable cause.” Id. Compare Ray v. Denton, 278 Ga. App. 69, 71 (1) (628 SE2d 180) (2006) (claim that failure to pay support was result of medical illness was unavailing where the first illness allegedly occurred in the same month petition for adoption was filed).

Decided May 25, 2011.

Doris C. Orleck, for appellant.

Key, McCain & Gordy, R. Michael Key, for appellee.

Judgment reversed.

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