author: SMITH, Presiding Judge.

text:
    A10A1611, A10A1612.
    TIMBERRIDGE PRESBYTERIAN CHURCH, INC. v. PRESBYTERY OF GREATER ATLANTA, INC. (two cases).
    (705 SE2d 262)
   SMITH, Presiding Judge.

In these appeals transferred from the Supreme Court of Georgia, we must once again venture into the thorny and contentious arena of church property disputes. The issue presented here is whether a church corporation and its property are controlled by Timberridge Presbyterian Church, Inc. (‘‘Timberridge”), a local church which has voted to disaffiliate from the Presbyterian Church (USA) (“PCUSA”), or controlled by the Presbytery of Greater Atlanta, Inc. (“the Presbytery”), the regional body representing PCUSA. Because the application of “neutral principles of law” to all the relevant documents does not demonstrate that the regional body has the right to control the local church corporation or its property, the trial court erred in granting summary judgment in favor of the Presbytery. We therefore reverse the judgment of the trial court.

The relevant facts are not generally disputed by the parties. Timberridge Presbyterian Church was founded as an unincorporated association in 1829. In 1880, Timberridge became affiliated with the Presbyterian Church in the United States (“PCUS”), sometimes called the “southern church.” In the early 1980s, a union was proposed between PCUS and the United Presbyterian Church in the U.S.A. (“UPCUSA”). The union officially occurred in 1983, forming the PCUSA. Timberridge was incorporated as Timberridge Presbyterian Church, Inc. in 1984. The PCUSA allowed member churches a period of eight years after its formation to opt out of certain provisions in its Book of Order pertaining to local church property, and in 1987 Timberridge attempted to exercise this option, although PCUSA contends that attempt was ineffectual.

In 2007, Timberridge filed a complaint for declaratory judgment and petition for injunction seeking a declaration with regard to the existence of any trust in its property in favor of the Presbytery or the PCUSA. Approximately two weeks later, PCUSA filed an answer and counterclaim seeking injunctive relief and bad faith attorney fees. About two months after that, Timberridge voted to disaffiliate from the PCUSA. The Presbytery then filed a separate action in ejectment seeking a writ of possession, damages, and injunctive relief forbidding Timberridge from using the name “Timberridge Presbyterian Church” or controlling the church corporation.

The parties filed cross-motions for summary judgment, and the trial court entered substantially identical orders in both actions, declaring that an express trust was created by the property trust provision of the PCUSA Book of Order and that Timberridge and its members and pastor no longer had the authority to control the church corporation. Both cases were appealed to the Georgia Supreme Court, and then transferred together to the Court of Appeals. Because we agree with the trial court that the same principles of law apply to both cases, we have consolidated them for purposes of appeal.

1. In Timberridge’s first enumeration of error, it complains that the trial court erred in its application of the “neutral principles of law” analysis of the property dispute.

It is well settled that civil courts cannot intervene in doctrinal disputes within a church. However, where a church property dispute can be resolved without regard to the doctrinal disputes, a court is authorized to render a decision that enforces the legal rights of the parties. Georgia law recognizes two basic types of church government: congregational and hierarchical. A congregational church is strictly independent of other ecclesiastic associations and owes no fealty or obligation to any higher church government authority. If the church government is congregational, then a majority of its members control its decision[s] and local church property. A hierarchical church, on the other hand, is “organized as a body with other churches having similar faith and doctrine with a common ruling convocation or ecclesiastical head.” If a church is hierarchical, then we must use “neutral principles of law” to determine whether the local church or parent church has the right to control local property. Neutral principles of law include state statutes, corporate charters, relevant deeds, and the organizational constitutions and bylaws of the denomination.

(Citations and footnotes omitted.) The Rector &c. of Christ Church v. Bishop of the Episcopal Diocese of Ga., 305 Ga. App. 87, 88 (699 SE2d 45) (2010). In applying this “neutral-principles approach,” we look to the intention of the parties as provided in the deeds, corporate charter, or constitution, and “give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.” Jones v. Wolf, 443 U. S. 595, 606 (III) (99 SC 3020, 61 LE2d 775) (1979).

Here, the parties do not dispute that the PCUSA is hierarchical, as distinguished from congregational, in government. We therefore apply neutral principles of law in examining the relevant statutes, applicable deeds, and the corporate and organizational documents of the local church as well as those of the national denomination to determine the intention of the parties. St. Mary of Egypt Orthodox Church v. Townsend, 243 Ga. App. 188, 190 (532 SE2d 731) (2000).

(a) Relevant Statutes. The parties agree that OCGA § 14-5-46 is relevant here, but disagree as to its precise application and whether it controls the issue before us. That Code section provides:

All deeds of conveyance executed before April 1, 1969, or thereafter for any lots of land within this state to any person or persons, to any church or religious society, or to trustees for the use of any church or religious society for the purpose of erecting churches or meeting houses shall be deemed to be valid and available in law for the intents, uses, and purposes contained in the deeds of conveyance. All lots of land so conveyed shall be fully and absolutely vested in such church or religious society or in their respective trustees for the uses and purposes expressed in the deed to be held by them or their trustees for their use by succession, according to the mode of church government or rules of discipline exercised by such churches or religious societies.

The Presbytery asserts that the final sentence of this Code section mandates that the national rules of the PCUSA exclusively control the disposition of local church property. But we cannot read that sentence in isolation from the remainder of the section, which is limited on its face to “deeds of conveyance.” And nothing in the language of the Code section limits its application to the rules of the national church.

We may not consider such rules as the exclusive or dispositive factor in determining the control of the property at issue. In applying neutral principles of law as required by the United States Supreme Court and the Supreme Court of Georgia, we cannot ignore relevant statutes, documents of the local body, or the actual language of the relevant deeds, in favor of the rules of the national body. The narrow approach urged by the Presbytery would result in a de facto “rule of compulsory deference to religious authority in resolving church property disputes, even where no issue of doctrinal controversy is involved,” as disapproved by the United States Supreme Court in Jones v. Wolf, supra, 443 U. S. at 605 (III).

We conclude that OCGA § 14-5-46 is to be read in harmony with the principles established for the resolution of church property disputes: We apply neutral principles of law to “the intents, uses, and purposes contained in the deeds of conveyance,” as well as “the mode of church government or rules of discipline exercised by such churches or religious societies,” on the local, regional, and national level as those pertain to the property at issue.

We must also consider the application of the Georgia Trust Act, OCGA § 53-12-1 et seq., as that chapter governs the creation and interpretation of trusts. The Presbytery asserts, and the trial court held, that the provisions of Georgia trust law relied on by Timber-ridge are inapplicable and that OCGA § 14-5-46 exclusively controls church property disputes. But

[a] 11 statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts.

(Citations and punctuation omitted.) Ga. Public Defender Standards Council v. State of Ga., 284 Ga. App. 660, 663 (2) (644 SE2d 510) (2007).

Nothing in OCGA § 14-5-46 abrogates any other provision of Georgia law; rather, by its terms it refers to the validity of deeds of conveyance “for the uses and purposes expressed in the deed,” not to the imposition of a trust in favor of any use or purpose as expressed in other documents. The only reference to a trust in the statute is to a deed “to trustees for the use of any church or religious society,” but the deeds at issue here do not convey the property to trustees, nor to the Presbytery or PCUSA, but simply to “Timberridge Presbyterian Church” or “Timberridge Presbyterian Church, Inc.” OCGA § 14-5-46 therefore cannot be applied here without reference to other statutory and case law, particularly where the imposition of a trust is alleged in the absence of any reference in the deeds.

In addition, while the trial court concluded that Crumbley v. Solomon, 243 Ga. 343 (254 SE2d 330) (1979), and Carnes v. Smith, 236 Ga. 30, 32 (1) (222 SE2d 322) (1976), supported an exclusive consideration of OCGA § 14-5-46 because neither case cites OCGA § 53-12-20, that conclusion is erroneous. Those decisions do not cite the express trust provisions now codified in OCGA § 53-12-20 because those cases involved implied trusts. See Crumbley, 243 Ga. at 345 (trust implied for benefit of general church); Carnes, 236 Ga. at 39 (1) (implied trust intended by founders of local church in favor of national denomination). And in Carnes, upon which Crumbley relied, 243 Ga. at 345, the Georgia Supreme Court explicitly declared that it considered the Georgia statutes governing implied trusts, former Ga. Code Ann. §§ 108-106 and 108-107. Carnes, supra, 236 Ga. at 37 (1). For these reasons, we do not limit our consideration of statutory law to the provisions of OCGA § 14-5-46.

The applicable version of OCGA § 53-12-20 provided in pertinent part:

(a) An express trust shall be created or declared in writing.
(b) An express trust shall have each of the following elements, ascertainable with reasonable certainty:
(1) An intention by a settlor to create a trust....

These requirements are entirely consistent with determining the intention of the parties by applying neutral principles of law to all the relevant deeds, statutes, constitutions, and charters of the local and national churches.

(b) Deeds. Having determined the applicable statutes, we now turn to the relevant deeds of conveyance. As noted in Division 1 (a), above, the deeds at issue here do not convey the property to trustees, nor to the Presbytery or PCUSA, but simply to “Timberridge Presbyterian Church” or “Timberridge Presbyterian Church, Inc.” The language contained in deeds can be significant, and even controlling in certain circumstances. In First Evangelical Methodist Church v. Clinton, 257 Ga. 459-460 (1), (2) (360 SE2d 584) (1987), the Georgia Supreme Court considered the language of two deeds as dispositive in determining the ownership of church property, reaching different results as to each deed. The first deed conveyed property to trustees “in connection with the affiliations aforesaid” with a connectional church. The court held that the deed vested title in the connectional church, and when the local church severed its relationship with that church it “forfeited its right of use and possession.” Id. at 460 (1). But as to a second deed which contained no trust language and no restriction regarding its use, “the application of neutral property principles must yield a contrary result,” and the court held the conveyance was to the local church and the parcel remained its property. Id. at 460 (2).

Timberridge asserts as controlling here the general rule that “the intent of the parties must be determined from the deed’s text alone.” Second Refuge Church &c. v. Lollar, 282 Ga. 721, 725 (2) (653 SE2d 462) (2007). As we observed above with respect to the Presbytery’s contentions that the “mode of church government or rules of discipline” language of OCGA § 14-5-46 is dispositive, such an approach is too narrow and does not comport with the neutral application of legal principles to the facts of this case. We must consider all relevant documents. But the absence of any trust language in the deeds, whether to local trustees or in favor of the Presbytery or the national church, weighs against the creation of a trust.

(c) Local Church Documents. We next consider the effect of the corporate documents of Timberridge. The trial court held that the references in the Timberridge Articles of Incorporation to the PCUSA and to its Book of Order “evidence a clear intention that the church corporation was formed in accordance with the PCUSA Book of Order to be the civil arm of a PCUSA Church . . . and that it subjected itself to the rules of governance of the PCUSA by referencing the PCUSA Book of Order.” Based on this analysis, it also held that the corporation was a PCUSA entity and that the members, pastor and elders of Timberridge were no longer authorized to control the corporation. In so doing, the trial court relied upon our decision in St. Mary, supra, 243 Ga. App. 188. We disagree with both of these findings.

In St. Mary, the local parish adopted uniform parish bylaws that were issued by the diocese and were “standard and obligatory for all parishes” in the diocese. Id. at 192. Those bylaws provided that no parish decision “with regard to the property shall be contrary to or in conflict with” the national church statutes, and that “all decisions and resolutions made by the parish in annual or special meetings shall be sent to the bishop for confirmation and that they do not become effective until receipt of such confirmation.” Id. And, “[m]ost significantly, the articles of incorporation for St. Mary’s explicitly affirm the submission of the parish corporation to the hierarchical authority of the OCA, stating: ‘The corporation shall be subordinate and subject to The Diocese of the South of the Orthodox Church in America.’ ” Id.

Here, in contrast, the corporate documents do not express such clear intent to render the local church corporation subject in all matters both ecclesiastical and temporal to the authority of the Presbytery or PCUSA. The trial court correctly observed that Timberridge’s articles of incorporation “reference the PCUSA, the presbytery[,] and the PCUSA Book of Order and provide that the bylaws of the corporation shall not be inconsistent with the PCUSA Book of Order.” (Emphasis supplied.) But the only references in the articles of incorporation are (1) that Timberridge is “a church institution which is a member of the Presbytery of Atlanta of the Presbyterian Church (USA) or any successor Presbytery thereof,” (2) that “active members” will be defined as in the Book of Order of PCUSA, (3) that any bylaws enacted in the future shall not conflict with the Book of Order, and (4) that upon dissolution of the corporation its assets may be disposed of as directed by “the Presbytery of which the Church is then a member.” These provisions do not express any intent to create a subsidiary corporation under the complete control and authority of the parent church as in St. Mary.

(d) National Documents. Finally, we consider the effect of the organizational constitutions and bylaws of the denomination. Section G-8.0701 of the Book of Order of the PCUSA provides:

The provisions of this chapter shall apply to all particular churches of the Presbyterian Church (U.S.A.) except that any church which was not subject to a similar provision of the Constitution of the church of which it was a part, prior to the reunion of the Presbyterian Church in the United States and The United Presbyterian Church in the United States of America to form the Presbyterian Church (U.S.A.), shall be excused from that provision of this chapter if the congregation shall, within a period of eight years following the establishment of the Presbyterian Church (U.S.A.), vote to be exempt from such provision in a regularly called meeting and shall thereafter notify the presbytery of which it is a constituent church of such vote. The particular church voting to be so exempt shall hold title to its property and exercise its privileges of incorporation and property ownership under the provisions of the Constitution to which it was subject immediately prior to the establishment of the Presbyterian Church (U.S.A.). This paragraph may not be amended.

In 1987, four years after the formation of PCUSA, Timberridge voted at its annual meeting to “take the exemption as provided in the Book of Order.” The CEO of Timberridge testified that the minutes were approved by the Moderator of the Session and recorded and the Presbytery “was duly notified of Timberridge’s vote to opt out of the trust provision contained in Chapter 8.” This was done by letter dated November 18, 1987, stating: “the Congregation of Timberridge Presbyterian Church voted to take the ‘property exemption’ as provided in the Book of Order (G-8.0700).”

The former PCUS did not have a trust provision in its Book of Church Order until immediately before the merger that formed PCUSA in 1983. A provision was added to the former PCUS Book of Church Order of 1982/1983 that is identical to § G-8.0201 in the PCUSA Book of Order,, but for the omission of language referring to the PCUSA, its subdivisions and its governing body:

§ 6-3. All property held by or for a particular church, whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of the particular church or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church in the United States.

The Presbytery urges that this amendment prevented Timber-ridge from opting out of the property trust provision, since Timber-ridge was “subject to a similar provision of the Constitution of the church of which it was a part prior to the reunion” of PCUS and UPCUSA to form PCUSA, and that Timberridge is therefore bound by the property trust provision. While acknowledging that it received Timberridge’s letter, the Presbytery through its administrative head states that it does not “interpret the November 18, 1987 letter as an exemption from the property trust clause.” Instead, it contends that Timberridge opted out of a different provision of the PCUSA Book of Order which was not included in the PCUS Book of Church Order:

Nothing in this chapter shall be construed to require a particular church to seek or obtain the consent or approval of any church court above the level of the particular church in order to buy, sell or mortgage the property of that particular church in the conduct of its affairs as a church of the PCUS.

The PCUSA Book of Order, in contrast, requires the permission of the Presbytery to “sell, mortgage, or otherwise encumber any of its real property” or acquire property subject to an encumbrance.

Once again, however, this approach of focusing narrowly on a single document does not comport with the application of neutral principles of law to all the relevant documents. The Presbytery asserts that its interpretation of the property trust provision must control, and that Timberridge failed in its effort to opt out and instead opted out of a different provision. But we are not considering the import of the opt-out provision in isolation. Rather, we look at all the relevant documents to determine whether the parties evidenced an intent to create a trust and gave it “some legally cognizable form.” Jones v. Wolf, supra, 443 U. S. at 606 (III).

The Presbytery attempts to supply evidence of Timberridge’s assent to an express trust in the form of an affidavit from its Associate Stated Clerk, identifying the minutes of the meeting of the Presbytery of Atlanta at which the amendments to the PCUS Book of Church Order were voted on, and stating that the minutes reflect that Timberridge delegates were present at the meeting, that a vote was called on amendments to the Book of Church Order, “including amendments to the ‘Church Property’ provisions of the Book of Church Order,” and that the amendments passed. But the minutes merely reflect that several amendments headed “Chapter 6, Form of Government on ‘Church Property’ ” were voted on, without identifying the contents of any provision or the section of Chapter 6 to be amended. This affidavit does not establish that any representative of Timberridge voted for any particular amendment, was aware of the details of the property trust provision, intended to assent to it, or actually gave assent on behalf of the church. Similarly, while an affidavit from a former pastor of Timberridge states that Chapter 6 of the PCUS Book of Church Order was amended during his tenure to add the property trust clause, he does not state when he became aware of this amendment or that his knowledge was communicated to the members or elders of Timberridge.

Most importantly, none of this material provides evidence that Timberridge was aware of or assented to the adoption of the PCUSA opt-out clause or the exception it contained with respect to a local church’s previous Constitution. But even if it could be inferred from this evidence that Timberridge was aware of changes in the PCUS Book of Church Order and the resulting effect on the opt-out clause of the PCUSA Book of Order, an arguable inference is not sufficient to establish an express trust. The documents must show with “reasonable certainty” an intention on the part of Timberridge to create an express trust, OCGA § 53-12-20 (b), and they do not. Rather, all the evidence “declared in writing” points towards an intention on the part of Timberridge to opt out of the property provisions of the PCUSA Book of Order, even if that attempt was only partially successful.

Read as a whole in light of the relevant law, the evidence is inadequate to show the existence of a trust in favor of the Presbytery. The evidence must reveal that “factors other than mere connectional relationship between a local and general church were present.” Carnes, supra, 236 Ga. at 35 (1). In the absence of some showing of intention and assent on the part of Timberridge, neutral principles of law cannot support the unilateral imposition of a trust provision drafted by the purported beneficiary of the trust and the resulting deprivation of the opposing party’s property rights.

In addition, the absence of a property trust clause in the PCUS Book of Church Order until immediately before the reunion of PCUS and UPCUSA and the fact Timberridge’s operation without a property trust provision for nearly 200 years are facts that distinguish this case from our earlier decisions and those of the Georgia Supreme Court in which local churches explicitly adopted express trust provisions and took no action to challenge them for extended periods of time. For example, in Christ Church, supra, 305 Ga. App. 87, an express trust was established by the national church in 1979, and the local church re-recorded its charter in 1981, reaffirming its “accession to the doctrine, discipline, worship, constitution and canons” of the national church after adoption of the express trust provision. Id. at 96 (3) (b). Moreover, the local church “failed to take any steps to disavow the canon or attempt[ ] to remove itself from the reach of. . .” the express trust provision during a 30-year period after its adoption. The local church “repeatedly sought the canonically-required consent of the Diocese of Georgia before alienating real property or incurring indebtedness, including two times after adoption of the Dennis Canon in 1979.” Id. This was in addition to our holding that the local church had been subject to an implied trust from 1823. Id. at 93 (3) (a). See also Crumbley, supra, 243 Ga. at 345 (“We note that Franklin Tabernacle participated in making this disciplinary rule and did not contest its validity for 30 years.”)

Here, in contrast to Crumbley and Christ Church, Timberridge promptly attempted to opt out of the newly created property trust provisions. While the national church adopted rules “codifying the trust relationship,” Christ Church, supra, 305 Ga. App. at 94 (3) (a), the local church has not undisputedly “adopted or adhered to those rules” with respect to the property at issue, id., but rather has “taken steps to disavow” the provision and attempted “to remove itself from the reach of” the trust provision, id. at 96 (3) (b), regardless of whether that attempt was successful under the precise wording of the interlocking church documents. No intent has been demonstrated on the part of the purported grantor of the trust to place its property in trust. In fact, the evidence shows that Timber-ridge took every possible step to express its intention not to create a trust.

Decided November 30, 2010

Talley, French & Kendall, Michael C. Kendall, Maureen E. Murphy, for appellant.

Wilson, Morton & Downs, Robert E. Wilson, Debra A. Golym-bieski, for appellee.

Baker, Donelson, Bearman, Coldwell & Berkowitz, David H. Gambrell, Linda A. Klein, John Hinton TV, amici curiae.

(e) Conclusion. It is undisputed that the deeds are silent regarding any trust in favor of the Presbytery or the national church, that the local church’s documents are silent regarding any creation of a trust or naming of a trustee, and that the local church attempted to opt out of the property trust provisions of the PCUSA Book of Order within the time frame provided for that process. Applying neutral principles of law, and bearing in mind OCGA § 53-12-20 and its requirement of both a writing and intention on the part of the settlor to create a trust, we must conclude that the Presbytery has not presented evidence demonstrating with reasonable certainty an intention on the part of Timberridge to create a trust in its favor. The trial court therefore erred in granting summary judgment to the Presbytery.

2. The trial court also erred in holding that the Presbytery controls the local corporate entity itself. As discussed in Division 1, neutral application of legal principles to the local church documents, the PCUSA Book of Order, and the relevant statutes does not demonstrate such control by the Presbytery over the church corporation.

3. In light of our rulings in Divisions 1 and 2, above, the Presbytery’s action in ejectment in Case No. A10A1612 is also without merit. Timberridge’s final enumeration of error therefore is moot.

Judgments reversed.

Mikell and Adams, JJ., concur.

       Some decisions refer to the “hierarchical” form of church government as “connec-tional,” but the same test applies. Carnes v. Smith, 236 Ga. 30, 32 (1) (222 SE2d 322) (1976).

       The statutes pertaining to trusts were extensively revised and renumbered in 1991 as the Georgia Trust Act. The provisions of OCGA § 53-12-20 were found in relevant part in former Ga. Code Ann. §§ 108-104 and 108-105.

       The language of former Ga. Code Ann. § 108-106 has been adopted in part in OCGA §§ 53-12-90 through 53-12-93, and that of former Ga. Code Ann. § 108-107 in part in OCGA § 52-12-93.

       OCGA § 53-12-20 was amended in 2010 to add a requirement that the writing be signed by the party to be charged.

       This last provision, as well as applying only when the corporation is dissolved, would seem to contemplate a possibility that the corporation might in the future change its membership, as it does not use the “successor” language of the first article.

       The session is the governing body of a local Presbyterian church. PCUSA Book of Order G-7.0103.


source: Caselaw Access Project

author: Barnes, Presiding Judge.

license: Public Domain

text:
    A10A1428.
    FRAZIER v. THE STATE.
    (704 SE2d 431)
   Barnes, Presiding Judge.

A jury convicted Brian Keith Frazier of burglary, and he appeals, contending that the trial court erred in not dismissing a juror for cause due to language problems and in denying his mid-trial request for a transcript of the victim’s testimony. He also asserts that the trial court erred in denying his motion for new trial based on the State’s improper closing argument and on his trial counsel’s ineffectiveness for failing to object to the improper argument. For the reasons that follow, we affirm.

1. The decision to strike a potential juror for cause lies within the sound discretion of the trial court and will not be set aside absent some manifest abuse of that discretion. Abdullah v. State, 284 Ga. 399, 400 (2) (667 SE2d 584) (2008). Although the juror in question here said he “barely” spoke English and did not understand some of the general questions asked of the panel, upon further questioning he said he only had “a little bit” of difficulty understanding some of the legal terms that the trial court used. He had lived in the United States for twenty-one years and had been a citizen for ten, and explained that it was harder for him to speak English than to understand it. In denying Frazier’s motion to strike the juror for cause, the trial court noted that the juror did not seem to have any problem communicating. We find no abuse of discretion in the trial court’s denial of Frazier’s request to strike this juror for cause. See Dockery v. State, 287 Ga. 275, 276 (2) (695 SE2d 599) (2010).

2. Frazier contends the trial court erred by “refusing” to provide him with a transcript of the victim’s testimony to assist him in preparing for closing argument. During cross-examination of the victim, Frazier’s trial counsel asked the court for a copy of the transcript of the victim’s testimony because in questioning her and writing notes, he was afraid he was “missing some things” and wanted to have the transcript for his closing argument. The trial court responded it would think about it but was not inclined to do so, and Frazier never raised the issue again. Having failed to obtain a ruling, this issue is waived on appeal. Butts v. State, 273 Ga. 760, 771 (31) (546 SE2d 472) (2001). Thus, this enumeration is without merit.

3. Frazier contends that the trial court erred in denying his motion for new trial based on the State’s improper closing arguments, and contends his trial counsel was ineffective for failing to object to these improper arguments. In considering these enumerations, we consider first whether the arguments were improper, and if so, then whether the improper arguments were so prejudicial as to require a new trial. The prejudice evaluation is the same “whether the improper arguments are considered directly or in the context of an ineffectiveness claim.” Ford v. State, 255 Ga. 81, 93-95 (8) (i) (335 SE2d 567) (1985), vacated on other grounds, Ford v. Georgia, 479 U. S. 1075 (107 SC 1268, 94 LE2d 129) (1987).

Frazier argues that the prosecutor improperly conveyed his personal assessment of the evidence during his closing argument by repeatedly saying, “I think” and “I believe.” The prosecutor also stated that he believed, as Frazier’s witnesses testified, that Frazier had been at his alibi location and had been drinking. He also stated that he believed a State’s witness had been “very honest” in his testimony that he did not see Frazier in the apartment, and that if any additional information had been available he would have brought it to trial.

Our appellate courts “have often stated that a prosecutor may not express his or her personal opinion in closing argument.” Carruthers v. State, 272 Ga. 306, 311 (3) (a) (528 SE2d 217) (2000). The State argues that the prosecutor was simply arguing that the jury could believe all the witnesses and still conclude that Frazier committed burglary, because the defense witnesses could not testify that they had been with Frazier every moment of that evening and his alibi location was very close to the burglary site. To the extent the prosecutor argued that he believed the witnesses, “[t]his kind of argument is easily avoided by insisting that lawyers restrict themselves to statements such as ‘the evidence shows . . .’ or something similar.” (Punctuation omitted.) Ford v. State, supra, 255 Ga. at 91, n. 6.

Even if we assume that Frazier’s trial counsel was ineffective for failing to object to the prosecutor’s argument, Frazier still has failed to show actual prejudice as required by Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), because the evidence against him was overwhelming. The victim testified that when she returned home to her townhouse, all of the lights were on and when she opened the front door she saw Frazier running toward her down the stairs, “face to face and eye to eye.” He kicked the door shut in her face and when she opened the door again he was running out the back door. She recognized him because he had lived next door for three months and had socialized with her regularly. The victim’s roommate testified that she saw Frazier running out the back door, and recognized him because he had been living next door and was wearing the same clothes he had been wearing earlier in the day. The roommate’s son, who had been in the parking lot, ran to the back yard but did not see anyone so he got into his car and drove through the neighborhood. He drove past Frazier, who was running down the street, and when he turned his car around he saw Frazier lying in the middle of the road. The witness testified that Frazier got up and said, “It wasn’t me. Someone broke into my house too.” Frazier presented three alibi witnesses who testified that he had been at a cookout nearby from morning until after the robbery, although none of them testified Frazier had been with them the entire time.

Decided October 22, 2010

Reconsideration denied December 1, 2010.

Edwin J. Wilson, for appellant.

Daniel J. Porter, District Attorney, Robby A. King, Assistant District Attorney, for appellee.

In light of this evidence, Frazier has not shown that, had trial counsel objected to the State’s closing argument, there was a reasonable probability that the outcome of his trial would have been different. See Bridges v. State, 286 Ga. 535, 540 (6) (690 SE2d 136) (2010). Therefore, these final enumerations of error are without merit.

Judgment affirmed.

Senior Appellate Judge G. Alan Blackburn and Senior Appellate Judge William LeRoy McMurray, Jr., concur.


author: JOHNSON, Judge.

text:
    A10A2146.
    BOWEN v. THE STATE.
    (704 SE2d 436)
   JOHNSON, Judge.

A jury found Craig Bowen guilty of four counts of child molestation, and the trial court imposed four concurrent twenty-year sentences, ordering Bowen to serve fifteen years in prison and five years on probation. The convictions were affirmed by this court in an unpublished opinion. Upon the issuance of the remittitur, Bowen timely filed a pro se motion to modify the sentence. The trial court denied the motion, and Bowen filed this pro se appeal. Finding no error, we affirm.

1. Bowen contends that the trial court erred in failing to merge the convictions for sentencing. “The rule prohibiting more than one conviction if one crime is included in the other does not apply unless the same conduct of the accused establishes the commission of multiple crimes.” Here, the same conduct did not establish multiple crimes. Rather, the indictment alleged, and the evidence established, four separate and distinct acts of child molestation. Accordingly, no merger occurred and the trial court correctly sentenced Bowen for each crime.

Decided November 16, 2010

Reconsideration denied December 1, 2010

Craig S. Bowen, pro se.

2. Bowen misunderstands the meaning of OCGA § 17-10-6.2 (b), which did not require the trial court to sentence him only to the minimum period of incarceration, followed by probation. Rather, that Code section mandates a split sentence for sexual offenders that includes at least the minimum term of imprisonment. A trial court may exercise its discretion and deviate from this mandatory minimum sentence only if certain conditions are satisfied. Here, the trial court did not abuse its discretion in refusing to deviate, and the sentences imposed were within the lawful range of punishments for child molestation.

3. Bowen argues that the trial court improperly imposed a sentence greater than that offered by the state during pre-trial plea bargaining. However, contrary to the argument,

[t]he Supreme Court of the United States has not held that the Federal Constitution forbids the imposition of a less lenient sentence when a criminal defendant rejects a plea bargain and insists upon his right to trial. A criminal defendant should not be allowed to reject a sentence concession that is offered in return for a guilty plea and then bind the State to that rejected original lenient sentence even though he is later convicted after a trial. To hold otherwise would allow a criminal defendant to go to trial and seek an acquittal knowing that, even if unsuccessful, he would receive a sentence which is no less lenient than that he was originally offered.

Accordingly, Bowen’s claim of error provides no basis for reversal.

Judgment affirmed.

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

Peter J. Skandalakis, District Attorney, Raymond C. Mayer, Assistant District Attorney, for appellee.

       300 Ga. App. XXiy Case No. A09A1517, decided October 6, 2009.

       See OCGA § 17-10-1 (f); Davis v. State, 291 Ga. App. 252 (661 SE2d 872) (2008) (trial court authorized to modify sentence within 120 days of receipt of remittitur).

       (Citations and punctuation omitted.) Hill v. State, 295 Ga. App. 360, 364 (3) (671 SE2d 853) (2008).

       See Metts v. State, 297 Ga. App. 330, 336 (5) (677 SE2d 377) (2009).

       OCGA § 17-10-6.2 (c) (1).

       OCGA § 16-6-4 (b).

       (Citations and punctuation omitted.) Rana v. State, 304 Ga. App. 750, 754 (4) (697 SE2d 867) (2010).


author: PHIPPS, Presiding Judge.

text:
    A10A1152.
    SAVANNAH CEMETERY GROUP INC. et al. v. DePUE-WILBERT VAULT COMPANY et al.
    (704 SE2d 858)
   PHIPPS, Presiding Judge.

This is an appeal from an order permanently enjoining the enforcement of a rule established by a private cemetery owner to prohibit the use of concrete vaults in its cemeteries. For the reasons that follow, we affirm.

In 2008, the Savannah Cemetery Group, Inc., which owned five private cemeteries in the Savannah, Chatham County area (the “cemetery group”) established a rule prohibiting the use of concrete burial vaults in its cemeteries, requiring instead steel or polymer vaults. The cemetery group notified local funeral homes of the rule.

Several businesses in the Savannah, Chatham County area, namely a concrete burial vault manufacturer, a concrete burial vault distributor and six funeral homes (collectively, the “vault/funeral group”) filed an action to enjoin the cemetery group from implementing the rule, alleging that the rule violated the Georgia Cemetery and Funeral Services Act of 2000 (the “Cemetery Act”), and asserting that implementing the rule would interfere with the vault/funeral group’s contractual and/or business relations with third parties. Following a nonjury trial, the trial court found that the vault rule was unreasonable and prohibited by the Cemetery Act, and entered an order permanently enjoining the cemetery group from banning the use of concrete vaults in its cemeteries. The cemetery group appeals.

1. The cemetery group contends that the trial court erred in finding that its rule banning concrete vaults in its cemeteries was unreasonable and prohibited by the Cemetery Act. We disagree.

We apply a de novo standard of review to any questions of law decided by the trial court; factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. The clearly erroneous test is in effect the same standard as the any evidence rule, and we will not disturb fact findings by the trial court if there is any evidence to sustain them.

OCGA § 10-14-16 (b) provides, in relevant part, that “[t]he owner of every cemetery shall have the . . . right to establish reasonable rules and regulations regarding the type, material, design, composition, finish, and specifications of any and all merchandise to be used or installed in the cemetery.” OCGA § 10-14-16 (a) provides that no such cemetery shall have the power to adopt any rule or regulation in conflict with any of the provisions of the Cemetery Act or in the derogation of the contract rights of lot owners or owners of burial rights. OCGA § 10-14-2 (b) provides that “every competent adult has the right to control the decisions relating to his or her own funeral arrangements.”

Pursuant to the Cemetery Act, a cemetery owner has the right to establish reasonable rules regarding the type of material and composition of merchandise to be used or installed in the cemetery. At issue, therefore, is what “reasonable” means within the context of OCGA § 10-14-16 (b).

“[I]n construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry.” Moreover, statutory construction must square with common sense and reasoning. Also, the meaning of a statutory clause depends upon the intention with which it is used as manifested by its context and considered with reference to the subject matter to which it relates. And, statutes are to be construed in accordance with their real intent and meaning and not so strictly as to defeat the legislative purpose.

The Cemetery Act is intended to protect consumers and the public interest. For instance, the Cemetery Act provides that it is necessary, in the interest of the public welfare, to regulate preneed dealers and cemetery companies, “to the extent necessary to protect the public from significant or discernible harm or damage and not in a manner which will unreasonably affect the competitive market.” It also requires the establishment of perpetual care cemetery trust funds to assure the reasonable care and maintenance of cemeteries to prevent significant emotional distress caused by poorly maintained cemetery grounds, and the establishment of preneed escrow accounts to protect preneed consumers from serious economic harm. As stated above, it recognizes the right of competent adults to control the decisions relating to their own funeral arrangements, and prohibits cemeteries to which its provisions apply from adopting rules in conflict with any of its provisions or in derogation of the contract rights of lot owners or owners of burial rights. Moreover, the Cemetery Act provides, in relevant part, that whenever it appears to the Secretary of State that any person has engaged in, is engaging in, or is about to engage in any act, practice or transaction which is prohibited by OCGA § 10-14-1 et seq., the Secretary of State may issue an order if he or she deems it to be appropriate in the public interest or for the protection of consumers, prohibiting the continuation of such act, practice or transaction.

The evidence presented during the bench trial included the following. The cemetery group owned and operated five cemeteries in Chatham County; Lawrence Nikola, Jr., who owned the cemetery group cemeteries, “guess[ed]” that the cemetery group properties comprised all the private cemeteries in Chatham County, though there was also evidence suggesting that there were other cemeteries in the area; approximately 50 percent of the burials conducted by the three local funeral home operators who testified occurred in the cemetery group’s cemeteries; concrete vault sales accounted for approximately 95-99 percent of the vault sales in the area — families were “accustomed to [concrete] and they have faith in it and they believe in it,” and even when other types of vaults were offered, concrete vaults were the most popular; the cost of installed concrete vaults was less than the cost of installed polymer or steel vaults; concrete vaults were more suitable than polymer or steel vaults given the soil composition in the area; concrete vault sales were predominantly made by the DePue-Wilbert Vault Company and Harry Reita; the funeral home appellees were parties to hundreds of outstanding preneed contracts in which individuals with burial rights in the cemetery group cemeteries had selected and purchased concrete vaults for interment therein; and enforcement of the rule would disrupt or destroy business relationships between the funeral home appellees and the vault distributor appellees, disrupt or damage goodwill, trust and the relationships between the funeral home appellees and their clients by forcing clients to buy vaults the funeral home appellees had previously represented as inferior, and place the funeral home appellees in breach of preneed contracts wherein their clients had already selected and paid for concrete vaults. There was also evidence that Nikola, the cemetery group’s owner, was the exclusive retailer in Chatham County of steel and polymer burial vaults; that Nikola had stated that he intended to put Charles DePue (of DePue-Wilbert Vault Company) out of business; that damage Nikola claimed was being caused to the cemetery grounds by the transport of heavy concrete vaults could be prevented through the placement of plywood planks; and that Nikola had acted in bad faith.

The trial court’s findings of fact, which included some though not all of this evidence, were supported by the record and were not clearly erroneous. In light of the legislative intent underlying OCGA § 10-14-16 (b), the trial court did not err in finding the rule banning concrete vaults in the cemetery group cemeteries unreasonable.

Citing Cobb County-Kennestone Hosp. Auth. v. Prince and Albany Surgical v. Dept. of Community Health, the cemetery group argues that the court was required to uphold the rule if the cemetery group presented any evidence to show that the rule was reasonable, and there was such evidence (e.g., transporting the heavier concrete vaults caused more damage to cemetery grounds than transporting polymer and steel vaults, and the cemetery group would raise more revenue selling polymer and steel vaults). The cemetery group’s reliance on those cases is misplaced because those cases involve rules or regulations promulgated by administrative agencies or entities performing nonprofit governmental functions; in contrast, the cemetery group is composed of private for-profit businesses. The cemetery group cites no authority, and we have found none, providing that rules established by private entities such as the cemetery group carry a presumption of validity and that we must uphold those rules if there is any evidence of reasonableness. Under the circumstances presented here, and in light of the legislative intent of the Cemetery Act, we hold that the cemetery group’s rule was not entitled to the deference afforded a rule promulgated by administrative agencies or governmental entities.

2. The cemetery group contends that the court erred in granting the permanent injunction because there was no evidence to support the judgment. We disagree.

Entry of a permanent injunction is appropriate only in clear and urgent cases where there is a vital necessity to prevent a party from being damaged and left without an adequate remedy at law. Equitable relief is a matter within the sound discretion of the trial court. The grant of a.permanent injunction is to be sustained on review unless the trial court has manifestly abused its discretion. A trial court manifestly abuses its discretion when it grants an injunction adverse to a party without any evidence to support such judgment and contrary to the law and equity.

The trial court did not manifestly abuse its discretion by entering a permanent injunction against the cemetery group. Here, there was evidence supporting the trial court’s judgment. For example, there was evidence that if implementation of the rule were not enjoined, the funeral home appellees would be forced to breach hundreds of existing preneed contracts, to the detriment of their business relationships and goodwill; that the vault company appel-lees could be forced out of business; that many area residents would have no choice but to purchase steel or polymer vaults; that the majority of the customers of the vault/funeral group witnesses preferred concrete vaults; and that concrete vaults were better suited for use in the Chatham County area. While there was evidence to the contrary, the resolution of factual disputes was for the judge as factfinder in a bench trial.

3. The cemetery group contends that the court abused its discretion in allowing a witness for the vault/funeral group to testify as an expert on steel and polymer vaults or soil conditions because he was unqualified to do so, and his testimony was not the product of reliable principles and methods. There was no abuse of discretion.

The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court and, consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion. Disputes as to an expert’s credentials are properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility.

David Brugger testified that he had a degree in electrical engineering, that in college he had studied the composition, strength and durability of various materials, including metals and plastics, and that he was subsequently employed as a design engineer where he designed boiler systems and materials used for underground steel pipe systems and evaluated the life span of steel pipe in corrosive soil environments. He later owned and operated a vault company which manufactured concrete vaults. Brugger was also a funeral director and a cemetery owner; he had participated in disinterments of approximately 600 vaults, including vaults made of both steel and concrete. Brugger served as a plant certification officer for a burial vault association, which involved scientific testing to analyze the strength and quality of concrete burial vaults. The court permitted Brugger to testify as an expert.

Brugger opined that steel burial vaults were not suitable for interment in Chatham County due to the presence of corrosive elements in the soil, and that steel burial vaults would corrode and collapse under loads imposed by the earth and cemetery backhoes. Brugger also testified that steel and plastic vaults were not suitable for use in Chatham County due to the area’s low elevation and high water table, and that he had concerns about the buoyancy of those vaults. Brugger added that concrete becomes stronger over time and can withstand the loads imposed by the earth and cemetery equipment.

OCGA § 24-9-67.1 (b) provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case.

The cemetery group contends that Brugger’s opinion testimony was not the product of reliable principles and methods as required by the second part of the statute, but was “mere subjective belief or unsupported speculation.” The cemetery group asserts that Brug-ger’s opinion was based upon facts about soil conditions and the water table in Chatham County generally rather than the specific conditions present in the cemetery group cemeteries; and that, based on his experience and the data upon which he relied, he was not qualified to compare the properties of steel vaults with metal pipes or testify regarding polymer vaults.

In addition to his training and experience set forth above, Brugger’s opinion testimony was based upon an affidavit obtained from an engineer who served as head of the geotechnical division of the Georgia Department of Transportation regarding that Department’s policy of requiring concrete rather than steel pipes in Chatham County due to the corrosive elements in the soil; a table of soil qualities in Chatham County; research articles relating to the performance of steel in marine and underground environments; reports on the life of steel vaults; and reports on steel pipes and the effects of corrosion on steel. Brugger also relied on his experience in conducting tests on concrete vaults and in analyzing test results on polymer vaults, and his experience in the funeral and cemetery industry. Brugger’s background in engineering and material composition also qualified him to testify about various loads imposed on cemetery grounds and weight and buoyancy characteristics of vaults of different materials. Brugger was cross-examined extensively at trial regarding his qualifications and the bases for his opinions and conclusions.

Contrary to the cemetery group’s argument, Brugger’s testimony regarding soil conditions, the water table in the cemeteries, and the qualities of steel and polymer vaults was not based upon “mere subjective belief or unsupported speculation.” The appropriate standard for assessing the admissibility of the opinion of the expert is not whether it is speculative or conjectural to some degree, but whether it is wholly so; clearly, Brugger’s testimony was not wholly speculative or conjectural. Moreover, even if his opinion was based on inadequate knowledge, that went to the credibility of the witness rather than the admissibility of the evidence. The cemetery group has not shown that Brugger’s testimony was not the product of reliable principles and methods. We discern no abuse of the trial court’s discretion in qualifying him as an expert or allowing his testimony.

4. The cemetery group contends that it was entitled to a new trial because it was “misled by the trial court’s statement . . . that the issue was not whether concrete is better than either steel or polymer,” and the court later based its ruling in part on a finding that concrete was a “much better choice.” The cemetery group asserts that it relied on the trial court’s statement that the issue of the relative merits of the materials was not relevant, and that had it been given “fair warning” that the court had changed its mind, it would have offered evidence on the issue. Specifically, it asserts that it was prepared to offer the testimony of two witnesses as to the qualities of steel and polymer burial vaults.

We are not convinced that the trial court misled the cemetery group as to whether such evidence would be considered. The court had stated early in the trial that the qualities of the various vault materials “may have to do with reasonableness,” that the court was not yet sure what evidence would be relevant, and that it was trying to “take in all the evidence” and then “sift through it.” And, the court indicated that evidence of the suitability of the various vault materials would be admitted when it permitted Brugger, Nikola and other witnesses to give such testimony. The cemetery group has not shown from the record that the court indicated that witnesses would not be permitted to testify regarding the qualities of the various vault materials and then changed its position without so informing the cemetery group.

Moreover, the cemetery group did not attempt to introduce the purported expert testimony and neither sought nor obtained a ruling on its admissibility. This court has the authority to review rulings of the trial court, and given the cemetery group’s failure to secure a ruling on the admissibility of the testimony, we find no grounds for reversal.

5. The cemetery group contends that the court contradicted itself in granting a permanent injunction in the original order and then stating in the order denying the motion for new trial that the vault/funeral group had standing to bring actions for tortious interference with contract. The cemetery group asserts that if the vault/funeral group had an adequate remedy at law, then no injunction should have been granted. We disagree.

In this case, the tortious interference with business and contractual relations claims formed only part of the basis for the petition for injunctive relief. In fact, the trial court granted the injunction based upon a different ground — that the rule was unreasonable and prohibited by the Cemetery Act. There was evidence that there was no adequate remedy at law in that, among other things, the ban on concrete vaults would effectively deny consumers the freedom to make decisions about burial vault materials, particularly when many consumers had already made those decisions by contract or had traditionally made them in a manner inconsistent with the new cemetery rule banning concrete vaults. That the court has stated, in dicta, that the plaintiffs may also have had standing to assert one or more other claims does not mean that the court was not authorized to prevent irreparable injury based on another ground. The remedy at law must be plain and adequate, or, in other words, as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity. Based on the evidence presented, the court did not abuse the broad discretion afforded it in fashioning an equitable remedy.

Decided December 1, 2010.

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, Zip-perer, Lorberbaum & Beauvais, Eric R. Gotwalt, for appellants.

Inglesby, Falligant, Horne, Courington & Chisholm, Owen C. Murphy, Carrie H. Bacon, for appellees.

6. The cemetery group contends that the injunction is overly broad in that it purports to enjoin any possible future bans on concrete vaults by the cemetery group. In its order, the court stated: “Defendants are permanently enjoined from implementing a concrete vault ban, in any form, in any [of] their five private cemeteries in Savannah, Chatham County, Georgia.” The injunction is limited to the permanent banning of concrete vaults in the cemetery group’s cemeteries. The cemetery group has offered no suggested terminology which would cure the alleged broadness. The authority upon which the cemetery group relies does not support its claim that the injunction is overly broad in this case or that it should have been more narrowly drawn.

Judgment affirmed.

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

       OCGA § 10-14-1 et seq.

        Memar v. Jebraeilli, 303 Ga. App. 557 (694 SE2d 172) (2010).

       Id.

       OCGA § 10-14-16 (b).

        In the Interest of T. H., 258 Ga. App. 416, 420 (2) (574 SE2d 461) (2002) (citations and punctuation omitted).

       Id.

       Id.

       Id.

       Under the Cemetery Act, “preneed dealer” means every person, other than a salesperson registered under Title 10, Chapter 14 of the Georgia Code, who engages, either for all or part of his or her time, directly or indirectly, as agent, broker, or principal in the retail business of offering, selling, or otherwise dealing in funeral services or burial services or funeral or burial merchandise which is not attached to realty or delivered to the purchaser at the time of sale. OCGA § 10-14-3 (31).

       OCGA § 10-14-2 (a).

       OCGA §§ 10-14-2 (a); 10-14-4 (b) (1) (O); 10-14-6; 10-14-7.

       OCGA § 10-14-2 (b).

       OCGA § 10-14-16 (a). See also Ga. Cemetery Assn. v. Cox, 403 FSupp.2d 1206, 1210-1211 (II) (A) (N.D. Ga. 2003), aff'd in 353 F3d 1319 (11th Cir. 2003) (purpose of Georgia’s Cemetery Act is to protect consumers and the public welfare, health and safety).

       OCGA § 10-14-19 (a) (1) (cited in relevant part).

       242 Ga. 139 (249 SE2d 581) (1978).

       257 Ga. App. 636 (572 SE2d 638) (2002).

       See Cobb County-Kennestone Hosp. Auth., supra at 146 (1) (court’s review of an administrative policy adopted by a hospital authority organized under the Hospital Authorities Law, Code Ann. § 88-1801 (OCGA § 31-7-70), was limited to a determination of whether hospital authority’s action in adopting rule was arbitrary and unreasonable); see also OCGA § 31-7-75 (every hospital authority is deemed to exercise public and essential governmental functions); OCGA § 31-7-77 (no hospital authority shall operate any project for profit); Albany Surgical, supra at 637-640 (1) (a), (b) (all duly enacted regulations carry a presumption of validity, and courts should defer to the agency in matters involving the interpretation of the statutes which it is empowered to enforce; judicial review is limited to whether agency acted beyond its discretion, or acted arbitrarily or capriciously with regard to an individual’s constitutional rights; further, regulation must be upheld if agency presents any evidence to support the regulation).

       OCGA § 9-5-8; Lewis v. City of Atlanta, 274 Ga. 296, 297 (553 SE2d 611) (2001); Conner v. Conner, 269 Ga. 112, 114 (2) (499 SE2d 54) (1998).

        Essex Group v. Southwire Co., 269 Ga. 553, 557 (2) (501 SE2d 501) (1998).

        City of Atlanta v. Southern States Police &c., 276 Ga. App. 446, 458 (4) (623 SE2d 557) (2005); see Goode v. Mountain Lake Investments, 271 Ga. 722, 724 (2) (524 SE2d 229) (1999).

        Harris v. Gilmore, 265 Ga. App. 841, 843 (3) (595 SE2d 651) (2004).

       See Southern States Police, supra.

       See Memar, supra.

        Agri-Cycle LLC v. Couch, 284 Ga. 90, 93 (5) (663 SE2d 175) (2008); see Vaughn v. State, 282 Ga. 99, 101 (2) (646 SE2d 212) (2007) (dispute over interpretation of test results was subject to cross-examination, and dispute over conflicting opinions went to weight and not admissibility of expert opinion); Abramson v. Williams, 281 Ga. App. 617, 619 (636 SE2d 765) (2006) (under Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993), disputes as to an expert’s credentials were properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility).

        Agri-Cycle LLC, supra.

       The cemetery group does not contend that the first or third parts of OCGA § 24-9-67.1 (b) were not satisfied, so we do not address those issues.

       Although not raised by the cemetery group, facts and data relied upon by an expert, in some cases, need not be admissible at trial. See OCGA § 24-9-67.1 (a); Mason v. Home Depot U.S.A., 283 Ga. 271, 275 (2) (658 SE2d 603) (2008); Bd. of Regents &c. v. Casey, 300 Ga. App. 850, 851 (1) (686 SE2d 807) (2009) (because that the part of OCGA § 24-9-67.1 (b) (1) requiring that experts rely on potentially admissible facts and data contradicts subsection (a) of the same statute, which plainly states that facts and data relied upon need not be admissible, the trial court had not erred in striking the limiting language of (b) (1) from the statute in determining whether OCGA § 24-9-67.1 was satisfied).

        Layfield v. Dept. of Transp., 280 Ga. 848, 850 (1) (632 SE2d 135) (2006); Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677, 691 (12) (689 SE2d 62) (2009).

       See Layfield, supra at 851 (1).

        See Dept. of Transp. v. Miller, 300 Ga. App. 857, 861-862 (2) (a) (686 SE2d 455) (2009).

       Compare Perryman v. Pope, 102 Ga. 502, 504 (31 SE 37) (1897) (Supreme Court disapproved action of tried court in sustaining objection to testimony of defendant’s witness, then later recalling the ruling so as to allow the jury to consider the testimony, without notifying defense attorney who was making closing argument; trial court should have formally announced change in ruling in presence and within hearing of jury, though the irregularity was not sufficient cause for a new trial).

       See generally Dept. of Transp. v. Crowe, 299 Ga. App. 756, 758 (683 SE2d 695) (2009).

        Owens v. Ink Wizard Tattoos, 272 Ga. 728, 729 (533 SE2d 722) (2000).

       See generally Goode, supra; Essex Group, supra at 555.

       See Gen. Refractories Co. v. Rogers, 240 Ga. 228, 235-236 (5) (239 SE2d 795) (1977).

       See Expedia, Inc. v. City of Columbus, 285 Ga. 684, 691 (6) (681 SE2d 122) (2009) (injunction was overreaching insofar as it required defendant to, among other things, collect and remit taxes in the future; but the defendant had elected by virtue of its contracts to collect taxes and could change its business practices in that regard; the trial court was therefore directed to modify the injunction to reflect that fact); Columbia County v. Doolittle, 270 Ga. 490, 493 (3) (512 SE2d 236) (1999) (case remanded for a more narrowly-drawn injunction where county was ordered to return water flow to plaintiffs property to pre-development level — “an impossible . . . mandate” — and to limit sediment to a particular tonnage, when the trial court’s findings supported enjoining the county from maintaining a defective drainage system, allowing excessive erosion and sedimentation onto the plaintiffs land, and using plaintiffs land as a retention pond).

       See Bd. of Commrs. &c. v. Stewart, 284 Ga. 573, 575 (3) (668 SE2d 644) (2008). Compare Rhodes v. Bd. of Health &c., 270 Ga. 565, 566 (512 SE2d 890) (1999) (case remanded where injunction was overly broad because it permanently enjoined homeowner from interfering in any manner with the operation, use and maintenance of association’s sewage system; trial court had not considered whether homeowner was also entitled to injunction preventing association from discharging sewage onto his property and had the right to remove the system and sewage from his property in a lawful manner).


author: BARNES, Presiding Judge.

text:
    A10A1249.
    DANIELS v. THE STATE.
    (704 SE2d 466)
   BARNES, Presiding Judge.

Following a stipulated bench trial, the trial court found Kenan Daniels guilty of possession of a firearm by a convicted felon. Daniels appeals, contending the trial court erred by denying his motion to suppress. As we find that the trial court erred by denying Daniels’ motion to suppress, we must reverse his conviction and remand the case to the trial court with direction to grant Daniels’ motion to suppress.

In this State,

[w]hen an appellate court reviews a trial court’s decision on a motion to suppress, our responsibility is to ensure that there was a substantial basis for the decision. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). We are guided by three principles when interpreting the trial court’s determination of the facts. When considering such a motion the trial court is the trier of facts. The court hears the evidence, and when its findings are based upon conflicting evidence, they are analogous to a jury verdict and must not be disturbed by an appellate court if any evidence supports them. Also, the trial court’s decisions regarding questions of fact and credibility of witnesses must be accepted unless they are clearly erroneous, and the evidence must be construed most favorably toward upholding the trial court’s findings and judgment. Tate u. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). Additionally, when the evidence is uncontroverted and no question about a witness’s credibility exists, “the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

Hobbs v. State, 272 Ga. App. 148 (1) (611 SE2d 775) (2005). As the evidence is not controverted and no question of credibility exists, we will review the trial court’s ruling de novo.

The evidence at the suppression hearing showed that at approximately 1:00 a.m. on November 15, 2009, a woman flagged down a patrol officer to report that her boyfriend had struck her, leaving a knot the size of a golf ball on her forehead, took her car keys, and left on foot from their hotel. The victim described the man as a light-skinned black male wearing a black leather coat, black pants, and black “Jordan” shoes. The officers began looking for the perpetrator in the area, and five to ten minutes later, they saw Daniels walking about two blocks from the scene. They detained him as soon as they saw him.

The officers testified that Daniels was the only person walking on the street at that time. Without asking him to identify himself, the officers immediately handcuffed Daniels and then patted him down and found a gun in the waistband of his pants. The officers then took Daniels to the victim’s location, and she said he was not the man who struck her. That man returned to the scene while the officers were holding Daniels.

Based on the gun found in Daniels’ waistband, the State charged him with possession of a firearm by a convicted felon. Before trial, Daniels moved to suppress evidence of the gun supporting the charge, but after an evidentiary hearing, the trial court denied the motion, finding that the facts justified a brief investigative detention and pat-down for weapons for the officers’ safety. The court further found that the fact that Daniels “was handcuffed prior to the authorized pat-down is irrelevant since all that was done was a pat-down and not a search.” Then, after a bench trial in which Daniels stipulated to the evidence necessary to prove his guilt, the trial court found him guilty. This appeal followed.

1. Daniels first argues that police lacked authority to stop and frisk him as he walked down the street in the early morning hours of November 15, 2009. “Theoretically, there are at least three kinds of police-citizen encounters: verbal encounters involving no coercion or detention; brief ‘stops’ or ‘seizures’ which must be accompanied by a reasonable suspicion; and ‘arrests’ which must be supported by probable cause. [Cits.]” Verhoeff v. State, 184 Ga. App. 501, 503 (2) (362 SE2d 85) (1987). Because Daniels was stopped and detained, the parties agree that this encounter was a second-tier detention requiring reasonable, articulable suspicion of criminal activity.

Although “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law,” the United States Supreme Court has also recognized the need for effective law enforcement and for the protection of law enforcement personnel. (Punctuation omitted.) Terry v. Ohio, 392 U. S. 1, 9 (88 SC 1868, 20 LE2d 889) (1968).

[T]he U. S. Supreme Court has determined that a law enforcement officer may conduct a constitutional investigatory stop of an individual when the officer is able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant that intrusion. Over a decade later, the Court restated the standard when it held that an investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. The [Court] went on to elaborate: based upon the totality of the circumstances, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. Thus, the inferences and deductions of a trained officer, drawn from objective observation, must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court’s Fourth Amendment jurisprudence.

(Citation and punctuation omitted.) Postell v. State of Ga., 264 Ga. 249 (443 SE2d 628) (1994). “Whether a given set of facts rises to the level of reasonable, articulable suspicion of criminal activity is a legal question.” Jones v. State, 253 Ga. App. 870, 873 (560 SE2d 749) (2000). Obviously, a mere hunch is not enough. State v. Kwiatkowski, 238 Ga. App. 390 (519 SE2d 43) (1999).

If an officer lacks probable cause to arrest a suspect, however, he need not “shrug his shoulders and allow a crime to occur or a criminal to escape.” Stiggers v. State, 151 Ga. App. 546, 547 (260 SE2d 413) (1979). A “brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Cit.]” Id.

The evidence presented at the hearing on Daniels’ motion to suppress shows that the officers had a sufficient basis for a brief initial Terry stop. Daniels partially fit the description given by the victim of the person who had attacked her. He had the correct skin tone, was wearing a black leather jacket, and had on dark jeans that, given the lighting, appeared black. Thus, we find that the trial court did not err by finding that the initial stop was authorized, given the description, the time of night, and the lack of foot traffic in the area. The discrepancies between Daniels’ dress and the description were not apparent until after he was stopped.

2. Pretermitting whether the officers were authorized to handcuff Daniels, we find that the officers had no authority to conduct the pat-down that discovered the weapon on Daniels’ person. In Sibron v. New York, 392 U. S. 40 (88 SC 1889, 20 LE2d 917) (1968), the Court held that a

police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.

Id. at 64. The fact that the officers suspected that Daniels might have been the one that assaulted the victim with his fists does not reasonably give rise to a belief that Daniels was armed and a threat to the officers. An officer may frisk a suspect during a second-tier stop only if the officer believes that the individual is armed or a threat to officer safety. See Montgomery v. State, 279 Ga. App. 419, 420 (631 SE2d 717) (2006).

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

(Citations and footnote omitted.) Terry v. Ohio, supra, 392 U. S. at 27.

The State has the burden of proving the propriety of a search without a warrant. See State v. Slaughter, 252 Ga. 435, 436 (315 SE2d 865) (1984). We are mindful, of course, that

a law enforcement officer who detains a person for purposes of investigation should not be denied the opportunity to protect himself from attack by a hostile suspect and may lawfully detain the person in a manner reasonably necessary to protect his personal safety and to maintain the status quo.

(Citations and punctuation omitted.) Holsey v. State, 271 Ga. 856, 861 (6) (524 SE2d 473) (1999). Nevertheless, we have said time and again that, in the context of an investigative detention, a frisk for weapons is permissible only when the officer has some reason to believe that the person detained has a weapon on or about his person. See, e.g., Molina v. State, 304 Ga. App. 93, 95 (695 SE2d 656) (2010); State v. Merit, 262 Ga. App. 687, 690, n. 11 (586 SE2d 393) (2003); Bayshore v. State, 258 Ga. App. 65, 67 (573 SE2d 97) (2002); Hodges v. State, 217 Ga. App. 806, 808 (2) (460 SE2d 89) (1995).

Decided December 1, 2010.

Lauren B. Shubow, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Walter B. Yarbrough, Assistant District Attorneys, for appellee.

The mere fact that the officers believed Daniels might be the person that struck a woman with his hands, without more, does not establish that the officers had a reason to believe that Daniels was carrying a weapon when they undertook to frisk him. Because the record reveals no proof of other circumstances known to the officers when they commenced the frisk that would lead a reasonable officer to conclude that Daniels had a weapon or instrument capable of being used as a weapon on his person, the State has not carried its burden of proving the propriety of the search.

Accordingly, the trial court erred by finding that the officers were authorized to patdown Daniels and, thus, erred in denying Daniels’ motion to suppress. Therefore, Daniels’ conviction must be reversed and the case remanded to the trial court with direction to grant Daniels’ motion to suppress.

Judgment reversed and case remanded with direction.

Blackwell and Dillard, JJ., concur.

       For instance, there is nothing in the record to suggest that Daniels was hostile, belligerent or uncooperative when the officers stopped him, that the officers witnessed Daniels act in a suspicious or furtive manner, that Daniels appeared to be affiliated with a street gang, that the officers knew Daniels to have carried a weapon in the past, that someone had reported to the officers that the perpetrator for whom they were looking was armed, or that the officers were aware of facts about the assault they were investigating that would cause them to believe that a weapon was used in the assault.